MICHAEL DAHL, Employee/Petitioner, v. MARSDEN BLDG. MAINTENANCE and CNA INS. CO., Employer-Insurer, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 31, 2002

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  While causation was established by stipulation, there was insufficient evidence of a substantial change in condition, under the factors listed in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), to justify vacating the award on stipulation.

 

Petition to vacate award denied.

 

Determined by Wilson, J., Rykken, J., and Pederson, J.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee petitions to vacate an award on stipulation filed on January 20, 1987, based on substantial change in condition.  Finding no basis to vacate, we deny the petition.

 

BACKGROUND

 

The employee sustained a work-related injury to his lumbar spine on February 25, 1981, while working for Marsden Building Maintenance [the employer].  In early January of 1987, the parties entered into a stipulation for settlement.  At that time, the employee was contending that he had been disabled from working since April of 1986 and that he wanted to discontinue job search and enter a retraining program of his own choosing.  Pursuant to the terms of the stipulation, the employee was paid $40,000 in a lump sum as a full, final, and complete settlement of any and all claims, with the exception of medical expenses.  An award on stipulation was filed on January 20, 1987.^[1]

 

On February 16, 2001, the employee filed a petition to vacate the 1987 award on stipulation, alleging a substantial change in condition.  In a decision filed July 2, 2001, the Workers= Compensation Court of Appeals referred the matter to the Office of Administrative Hearings for an evidentiary hearing and findings concerning causation.  The parties submitted stipulated facts to the compensation judge, including medical reports and a copy of the deposition of the employee taken on October 26, 2001.  As part of the stipulated facts, the parties agreed that the February 25, 1981, work injury was a substantial contributing factor in the employee=s current medical condition and that injuries occurring or allegedly occurring in 1997 and 1999 were temporary aggravations of the 1981 injury.  The findings and order were filed on August 19, 2002.  The compensation judge found that the employee had experienced little change in symptoms since 1981, that the employee had had pain in the same parts of his body since 1981, that the employee=s back condition was about the same as it had been in 1987 when the employee had entered into the stipulation for settlement, that the employee=s work restrictions were the same now as in 1987, and that the 1981 work injury was a substantial contributing factor in the employee=s current medical condition.  No appeal was taken from these findings and order.

 

DECISION

 

A number of factors may be considered in determining whether an award should be vacated based on a substantial change in condition, including:

 

(a)        a change in diagnosis;

(b)        a change in the employee=s ability to work;

(c)        additional permanent partial disability;

(d)        necessity of more costly and extensive medical care/nursing services than initially anticipated;

(e)        causal relationship between the injury covered by the settlement and the employee=s current worsened condition.

 

Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).

 

As discussed in our earlier decision on this matter, there appears to have been a change in diagnosis, there is insufficient evidence of a change in the employee=s ability to work, no doctor has assigned an increased rating of permanent partial disability but it is likely that the employee will be rated as having additional permanent partial disability, and the necessity of more costly and extensive medical care is not a major factor since medical expenses were left open under the stipulation for settlement.  As we also stated in our earlier decision, we considered this case a Aclose call.@

 

After reviewing the stipulated facts and the attached exhibits, we find no basis for vacating the award on stipulation.  The employee specifically testified that the restrictions he operates under now are the same restrictions that were placed on him pursuant to a functional capacities evaluation in 1986.  The employee also testified that the pain he experiences in his low back, right leg, and left leg is the same pain he has experienced since 1981 and that his symptoms have no changed since 1981.  He also indicated that the frequency of his symptoms is the same now as it was at the time of the stipulation for settlement.  The employee testified that, while certain activities aggravate his condition, that has been true since 1981.  It was also the employee=s specific testimony that his back and right and left legs are about the same now as they had been around the time of the stipulation for settlement.  So, although we now have a stipulation that the employee=s current symptoms are causally related to the 1981 work injury, there is insufficient evidence of a substantial change in condition to warrant vacating the award on stipulation.  The petition to vacate is therefore denied.