DAVID JACOBSON, Employee/Petitioner, v. HENNEPIN FACULTY ASSOCS., and SENTRY INS. GROUP, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 24, 2004

 

No. WC04-210

 

HEADNOTES

 

VACATION OF AWARD.  Where the employee=s petition to vacate two stipulations on the basis of a substantial change in medical condition, mutual mistake of fact, and/or newly discovered evidence, involves complex issues of medical and legal causation, the case is referred to the Office of Administrative hearings for factual findings to be reported back to the WCCA for determination of the petition.

 

Referred to OAH for an evidentiary hearing.

 

Determined by Johnson, C.J., Rykken, J, and Stofferahn, J.

 

Attorneys:  Larry J. Peterson, Peterson, Logren & Kilbury, St. Paul, MN, for the Petitioner.  David J. Klaiman, Aafedt, Forde, Gray, Monson, & Hager, Minneapolis, MN, for the Respondents.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee has petitioned to vacate and set aside two Awards on Stipulation, served on June 1, 2000, and February 25, 2002, based upon a substantial change in medical condition, mutual mistake of fact and newly discovered evidence.  We conclude the case should be referred to the Office of Administrative Hearings for an evidentiary hearing.

 

BACKGROUND

 

David Jacobson, the employee, was employed by Hennepin Faculty Associates, the employer, on January 28, 2000, when he sustained an injury to his low back.  The employer and Sentry Insurance Group admitted liability for the employee=s personal injury.

 

The employee contends he also sustained an injury to his right shoulder in 1982 while employed by the City of Minneapolis; an injury in 1993 to his left shoulder and in 1996 to his right shoulder while employed by Imperial Parking; and an injury to his lungs in 1997 while employed by Hennepin Faculty Associates.  In a claim petition currently pending at the Office of Administrative Hearings, the employee seeks wage loss and permanent partial disability benefits together with medical expenses as a result of all of the claimed personal injuries.

 

On February 4, 2000, the employee was seen at the Hennepin County Medical Center (HCMC) complaining of low back pain since January 28, 2000.[1]  The doctor took the employee off work and prescribed muscle relaxants and stretching exercises.  The employee returned to the HCMC on February 14, 2000.  The diagnosis was a back sprain with no improvement, but the employee was allowed to return to work with restrictions.  The employee was referred to NovaCare for physical therapy which provided some improvement.  An MRI scan of the spine in April 2000 showed an annular tear at L5-S1 with some L5 nerve root impingement, multiple areas of disk bulging and foraminal stenosis at L4-5.  On May 1, 2000, the employee continued to report low back pain radiating to his right side.  The doctor prescribed Vioxx and referred the employee for additional physical therapy.

 

In May 2000, the employee entered into a settlement with the employer and its insurer.  The employee then claimed entitlement to temporary total and temporary partial disability benefits together with rehabilitation services.  In exchange for a $42,000 payment, the employee settled, on a full, final and complete basis, all claims for workers= compensation benefits resulting from his January 28, 2000, personal injury except medical expenses relating to the employee=s low back injury.  An Award on Stipulation was filed on June 1, 2000.

 

Following the settlement, the employee was terminated by the employer.  He continued to receive medical treatment at HCMC for his low back problems.  Effective August 1, 2000, the employee began receiving Social Security Disability Insurance benefits.  In August 2000, the employee underwent a left shoulder rotator cuff repair with an acromioplasty and excision of the distal left clavicle.  In November 2001, the employee underwent the same procedure on the right shoulder.  In June 2002, Dr. Hunt diagnosed bilateral failed rotator cuff repairs with chronic pain.  The doctor noted it was possible the employee may have aggravated these preexisting bilateral shoulder conditions on January 28, 2000.

 

In April 2001, the employee signed a Stipulation for Settlement resolving a medical dispute.  The employee contended he incurred more than $4,000.00 in medical and/or chiropractic expenses as a result of the January 28, 2000 personal injury.  The employer and insurer contended these expenses were neither reasonable nor necessary and denied liability.  In the stipulation, the parties agreed to settle the employee=s claims in exchange for a payment of $1,828.51 payable to the medical provider.  The employer further agreed the settlement was a full, final and complete closeout and release of all claims for passive non-chiropractic care, including, but not limited to, ultra sound, traction, cryotherapy and acupuncture.  The attorney for the employer and insurer signed the stipulation on February 8, 2002, and an award was filed on February 25, 2002.

 

By report dated April 23, 2003, Denise Assardo, a licensed psychologist, stated she first saw the employee in March 2000 and treated him on 15 occasions thereafter.  Ms. Assardo stated she worked to increase the employee=s coping skills to manage anxiety and depression which resulted from the injuries he sustained.  Ms. Assardo opined the employee=s low back injury and resulting chronic pain affected his psychological stability and this impact was not anticipated or understood by the employee until he began attending regular therapy sessions in 2002.  (Pet. Ex. F.) By report dated July 15, 2002, Ms. Assardo stated the employee=s depression was related to chronic lower back pain and shoulder pain which resulted from the work injuries.  (Pet. Ex. G.) In April 2004, Dr. Bruce Meyer, a psychiatrist, stated he was treating the employee for major depression and anxiety and stated the employee was on chronic disability secondary to his 2000 back injury.  (Pet. Ex. H.)

 

Dr. H. William Park, an orthopedic surgeon, examined the employee on March 30, 2004.  The doctor opined the employee had a chronic condition of rotator cuff tendinitis in both shoulders that preexisted the January 2000 injury.  The doctor opined the January 2000 work injury significantly aggravated the employee=s preexisting bilateral rotator cuff tendinitis which then required surgical intervention with poor results.  Dr. Park also diagnosed lumbar degenerative disc disease with spinal stenosis.  The doctor opined the January 2000 work injury aggravated the preexisting degenerative disc disease and rated a ten percent permanent partial disability.  Dr. Park stated the employee also suffers from chronic pain due to the significant aggravation of his preexisting lumbar degenerative disc disease.  (Pet. Ex. J.)

 

Dr. Jack A. Drogt examined the employee on July 31, 2003, at the request of the City of Minneapolis.  The doctor concluded the injury of July 19, 1982, to the employee=s right shoulder resulted in a rotator cuff tear which required surgery.  Dr. Drogt opined the employee sustained Gillette-type injuries to the right shoulder subsequent to leaving his employment with the City of Minneapolis in May 1988.  Dr. Drogt apportioned 50 percent of the liability for the right shoulder disability to the injury of July 19, 1982, 25 percent to a Gillette injury at Imperial Parking, and 25 percent to an injury at Hennepin Faculty Associates.  (Pet. Ex. L.)

 

In his petition to vacate the 2000 and 2002 awards, the employee made numerous assertions.  He contends that at the time of the 2000 settlement, his diagnosis was a lumbar strain which has now progressed to degenerative disc disease.  At the time of 2002 settlement, the employee was not claiming any permanent partial disability secondary to the personal injury.  Dr. Park has now rated the employee as having a ten percent whole body disability secondary to that injury.  At the time of the 2000 settlement, the employee contends he anticipated being able to return to work for the employer subject to the same or similar restrictions he had prior to the injury.  The employer, however, laid the employee off and he contends he was unable to find suitable employment and was ultimately determined to be totally disabled by the Social Security Administration.  The employee asserts that since the 2000 settlement, he has incurred over $70,000.00 in medical expenses for treatment of his back and shoulder conditions and his depression, anxiety and chronic pain.  Accordingly, the employee contends there has been a substantial change in his medical condition which could not have been anticipated at the time of the settlements.

 

The petitioner further argues the January 2000 injury aggravated his preexisting shoulder conditions, and contends he now suffers from anxiety, depression and chronic pain which were, in part, caused or aggravated by his injury with Hennepin Faculty Associates.  Since these facts were unknown at the time of the settlement, the employee argues the awards should be vacated based upon mutual mistake of fact and newly discovered evidence.

 

The employer and insurer assert the employee had a long standing history of chemical dependency and major depressive disorders dating back to April 1988.  An MRI scan on April 17, 2000, showed multiple areas of disk bulging, foraminal stenosis at L4-5 and an annular tear at L5-S1.  Thus, the respondents argue, these conditions preexisted the January 2000 personal injury. The respondents also contend that within three months of the May 2000 settlement, the employee reported to doctors he was planning to seek Social Security disability benefits.  Thus, the respondents contend, the employee=s ability to work has not changed.  The MRI scan, the respondents contend, documents the employee had a ratable permanency at the time of the settlement.  The respondents further contend there is no causal relationship between the January 2000 low back injury and any condition in the employee=s right or left shoulders.  Accordingly, the respondents argue the employee has not established grounds to vacate the stipulations for settlement.

 

DECISION

 

The Workers= Compensation Court of Appeals may vacate an award Afor cause.@  For awards filed on or after July 1, 1992, Minn. Stat. ' 176.461 limits Acause@ to:

 

1)        a 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.

 

This case involves very complex issues of medical and legal causation.  As the Workers= Compensation Court of Appeals is not a fact finding court, we conclude the case  should be referred to the Office of Administrative Hearings for an evidentiary hearing.  The compensation judge should make factual findings sufficient to resolve the following issues:

 

1.        Was the personal injury of January 28, 2000, a substantial contributing cause of the employee=s right shoulder condition?

 

2.        Was the personal injury of January 28, 2000, a substantial contributing cause of the employee=s left shoulder condition?

 

3.        Did the personal injury of January 28, 2000, substantially cause or aggravate a condition of depression, anxiety and/or chronic pain?

 

4.        Has there been a change in the employee=s ability to work since June 1, 2000?

 

5.        Did the personal injury of January 28, 2000, result in any permanent partial disability of the employee=s lumbar spine?

 

The compensation judge shall report the findings back to the Workers= Compensation Court of Appeals.