JOHN F. BROVITCH, Employee/Petitioner, v. PARK LANDSCAPING and FLORIST MUT. INS. CO./CRAWFORD & CO., Employer, and SPECIAL COMPENSATION FUND.

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 20, 2004

File No. 477-60-1311

HEADNOTES

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  When the employee established a substantial change in condition, under the factors specified in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), vacation of the award was appropriate.

Petition to vacate granted

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

Attorneys:  William J. Krueger, St. Paul, MN, for the Petitioner.  Richard L. Plagens, Lommen, Nelson, Cole & Stageberg, Minneapolis, MN, for the Respondents.

OPINION

DEBRA A. WILSON, Judge

The employee petitions this court to vacate a 1991 award on stipulation based on a substantial change in medical condition.  Finding adequate grounds to do so, we vacate the award.

BACKGROUND

This case originally came before this court on a July 11, 2003, petition to vacate an award on stipulation filed on January 24, 1991, based on a substantial change in medical condition.  This court issued a decision on November 13, 2003, referring the case to the Office of Administrative Hearings for a hearing on the issues of whether there had been a change in the employee=s ability to work since the settlement, whether the employee had additional permanent partial disability, and whether the employee=s current condition was causally related to his work injury.  Our decision of November 13, 2003, is incorporated by reference.

A hearing was conducted at the Office of Administrative Hearings on June 8, 2004. In findings and order filed on August 16, 2004, the compensation judge found that the employee=s ability to work had significantly changed since the 1991 stipulation for settlement, that the employee had additional permanent partial disability to his L4-5 disc, and that the employee=s current condition was causally related to his September 6, 1988, work injury.  No appeal was taken from the judge=s findings, and the matter was referred back to this court for final determination on the petition to vacate.

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)        the necessity for more costly and extensive medical care/nursing services than initially anticipated; and

(e)        the 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).

In this court=s decision of November 13, 2003, we determined that there had been a change in the employee=s diagnosis and the need for more costly and extensive medical care.  In the findings and order on referral, the compensation judge determined that there had been a change in the employee=s ability to work, additional permanent partial disability, and a causal relationship between the injury and the employee=s worsened condition.  As no appeal was taken from those findings, we need not address them further.

Because the employee has established a substantial change in condition, we grant his petition to vacate the January 24, 1991, award on stipulation.