BRUCE W. WESTRUM, Employee/Petitioner, v. NORTHERN AUTO/JOHN REYNOLDS, UNINSURED, Employer, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 24, 2003

 

HEADNOTES

 

PETITION TO VACATEBSUBSTANTIAL CHANGE IN MEDICAL CONDITION.  Where there is minimal evidence either way as to whether the employee=s low back condition and need for medical treatment are causally related to his 1990 work injury, and where there is insufficient information in the record for this court to determine whether there are adequate grounds to vacate the mediation award, we refer the matter to the Office of Administrative Hearings for an evidentiary hearing and factual findings as to whether the employee=s low back condition is causally related to his 1990 injury.  After the hearing, the matter will be returned to the Workers= Compensation Court of Appeals for a final determination of the employee=s petition to vacate.

 

Referred to Office of Administrative Hearings.

 

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

 

Attorneys:  John J. Carlson, Carlson & Jones, Minnetonka, MN, for the Petitioner.  Beth Hargarten, MN Department of Labor & Industry, St. Paul, MN, for the Respondents.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee petitions this court to set aside a mediation award served and filed August 27, 1992, on grounds that his medical condition has substantially changed since the award.  We refer the matter to the Office of Administrative Hearings for a hearing on whether the employee=s low back condition is causally related to the employee=s 1990 work injury.

 

BACKGROUND

 

On March 26, 1990, Bruce W. Westrum, the employee, was injured while working as an iron cutter for Northern Auto, the employer.  The employee was injured when a large magnet,  weighing approximately 4000-5000 pounds, and suspended from a crane, broke loose and struck him on his head, neck, and right shoulder.  The employee sustained a large laceration on his head and reported neck pain and headache when treated at an emergency room. CT scans of the cervical spine and head revealed no abnormalities.  The employer was not insured for workers= compensation liability at the time of the injury.  The Special Compensation Fund accepted liability and has paid various workers= compensation benefits to the employee, including temporary total disability benefits for approximately 18 months, temporary partial disability benefits for 3 months, rehabilitation and  medical expenses.  The Fund also paid impairment compensation benefits based on a rating of 5% permanent partial disability of the body as a whole due to post-injury headaches, pursuant to Minn. R. 5223.0060, subd. 8J.  

 

The employee=s post-injury medical treatment initially focused on treatment for his head injury and laceration of his skull.  In August 1990, the employee reported to his treating physician that he continued to experience muscle aches and pain in his neck, back, right shoulder and right upper arm.  In October 1990, he underwent a neurological evaluation and reported daily frontal headaches, pain in his head, neck, right jaw, thoracic area and chest, and right arm and hand.  He was diagnosed with cerebral trauma with post-traumatic headaches and soft-tissue injury to the thoracic area with radicular pain.  Following a neuropsychological examination in November 1990, the employee was diagnosed with a mild closed head injury with complaints of attentional difficulties and personality change, along with post-traumatic headaches. 

 

In 1992, the parties reached a settlement agreement through a mediation session conducted through the Minnesota Department of Labor and Industry.  The employee accepted $18,000.00 for a full, final and complete settlement of all past, present and future claims for temporary total disability benefits, temporary partial disability benefits, permanent total disability, permanent partial disability benefits payable as impairment compensation, economic recovery compensation or monitoring period compensation, rehabilitation benefits, retraining benefits, supplementary benefits, penalties, interest, adjustments, attorney=s fees, costs and disbursements.  The file memorandum to the mediation settlement indicates that the employee allegedly sustained head and back injuries, and that the employee was medically stable with no indication that he was a candidate for surgery.   A mediation award was approved by a compensation judge on August 27, 1992.

 

The employee underwent chiropractic treatment for back symptoms at some point before 1997, although the record contains no records from that treatment.  His treating chiropractor referred him for an orthopedic evaluation, and in January 1997, Dr. Bruce Wilson diagnosed myofascial pain syndrome of the upper back and neck and a large disc herniation at the L4-5 level, as confirmed by an MRI.  Following attempts at conservative treatment, the employee underwent a neurosurgical evaluation and was referred for surgery.

 

In March 1997, the employee underwent a discectomy at the L4 level and on February 12, 1999, the employee underwent a lumbar fusion from L3 through S1.  The employee seeks to vacate the 1992 mediation award on the basis of a substantial change in medical condition.  The Special Compensation Fund objects.

 

 

 

DECISION

The mediation award in this case was served and filed August 27, 1992.  The law in effect on the date of settlement is controlling for purposes of considering a petition to vacate an award.  Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).  For awards issued after July 1, 1992, Minn. Stat. ' 176.461 defines cause for vacation of an award as limited to the following:  (1) mutual mistake of fact, (2) newly discovered evidence, (3) fraud, or (4) a substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated at the time of the award.  Where a change in condition is alleged, the focus is on whether there has been a substantial or significant worsening of the employee=s condition and whether there is adequate evidence of a causal relationship, comparing the employee=s condition at the time of settlement with the employee=s condition at the time of the petition to vacate.  Davis v. Scott Moeller Co., 524 N.W.2d 464, 466-67, 51 W.C.D. 472, 475 (Minn. 1994); Franke, 509 N.W.2d at 376-77, 49 W.C.D. at 525.  A number of factors may be considered in determining whether a substantial change in condition has occurred, including a change in diagnosis; a change in the employee=s ability to work; an increase in permanent partial disability; the necessity of more costly and extensive medical care or nursing services than was initially anticipated; the causal relationship between the injury covered by the settlement and the employee=s current worsened condition; and the contemplation of the parties at the time of settlement.  Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).

 

The employee asserts that he has satisfied all the Fodness factors, and that the mediation award should be vacated based upon a substantial change in his medical condition.  The employee contends that his diagnosis has changed from post-traumatic headaches with neck and back pain to now include disc herniations resulting in a three level anterior/posterior lumbar fusion.  At the time of the mediated settlement, the employee was working part-time as a millwright, which he asserts he can no longer tolerate.  He contends that he has a higher permanent partial disability rating after his surgeries, although he has not been rated for his current lumbar spine condition.[1]  The employee apparently relies upon his medical records and the Fund=s continued payment of his medical and surgical  expenses to support his claim that his low back condition is causally related to his 1990 injury.

 

The Fund argues that the employee=s low back condition is not causally related to his 1990 work injury, and that his low back problems predated his 1990 injury.  The Fund asserts that the employee=s injuries  in 1990 were limited to his head, neck and upper back and that there was no indication of injuries to his lumbar spine in the medical records shortly following the injury.  Medical records from 1990, however, refer to the employee=s reports of low back pain, and it appears from the record that the Fund has paid medical expenses related to the employee=s low back condition, including his surgeries in 1997 and 1999.  In its objection to the petition to vacate, however, the Fund does not argue that these expenses were paid under a mistake of fact.  But the employee has offered no medical opinion that his low back condition is causally related to his 1990 work injury, even though his medical records since 1997 refer to his 1990 injury.

 

The evidence is minimal either way as to whether the employee=s low back condition is causally related to his 1990 work injury, and there is insufficient information in the record for this court to determine whether there are adequate grounds to vacate the mediation award.  We therefore refer the matter to the Office of Administrative Hearings for an evidentiary hearing and factual findings as to whether the employee=s low back condition is causally related to his 1990 injury.  After the hearing, the matter will be returned to the Workers= Compensation Court of Appeals for a final determination of the employee=s petition to vacate.