GORDON C. RATH, Employee/Petitioner, v. KIFFMEYER, INC., and AUTO OWNERS INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 24, 2004

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where the employee submitted evidence of a subsequent psychological condition, previously determined by a compensation judge to be causally related to the employee=s November 1992 low back injury, along with evidence of a substantial change in his ability to work, the employee=s petition to vacate the 1995 Award on Stipulation is granted.

 

Petition to vacate award granted.

 

Determined by: Johnson, C.J., Pederson, J. and Rykken, J.

 

Attorneys: David H. Bailly, Attorney at Law, Minneapolis, MN, for the Petitioner.  Cousineau, McGuire & Anderson, John T. Thul, Minneapolis, MN, for the Respondents.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The petitioner seeks to vacate and set aside an Award on Stipulation, served and filed June 13, 1995, based on a substantial change in medical condition.  We conclude the petitioner has established good cause and grant the petition to vacate the award.

 

BACKGROUND

 

Gordon C. Rath, the petitioner, sustained an admitted personal injury to his low back on November 9, 1992, while working as a block and bricklayer for Kiffmeyer, Inc., the employer, then insured for workers= compensation by Auto Owners Insurance Company.  The employee received chiropractic treatment for low back and right leg radicular pain from Steven G. Lingbeck, D.C.  An MRI scan on March 2, 1993, showed juvenile discogenic disease with Schmorl=s nodes, dehydration and disc space narrowing in the lower thoracic and upper lumbar back, and disc herniations at L4-5 and L5-S1 without evidence of nerve root compression.

 

The employee began working with a qualified rehabilitation consultant (QRC) in early 1993, and returned to work for the employer in July 1993.  He experienced aggravation of his symptoms while working, and was referred to Dr. John G. Stark, an orthopedist, in August 1993.  By report dated December 14, 1993, Dr. Stark stated the employee could not return to work as a bricklayer.  A functional capacities evaluation was completed on December 29, 1993, resulting in the imposition of light-duty restrictions.  Thereafter, the employee conducted a job search with the assistance of his QRC.  The employee was not successful in obtaining employment, and on August 23, 1994, the QRC submitted a Retraining Plan, proposing a two-year associate degree program in Robotics/Automated Systems Technology.  The employer and insurer objected, asserting retraining was premature and unnecessary.  Following an administrative conference, a compensation judge at the Department of Labor and Industry approved the retraining plan in a decision filed March 6, 1995.  The employer and insurer appealed.

 

In June 1995, the parties entered into a Stipulation for Settlement in which the employee agreed to accept $82,500.00 in full, final and complete settlement  Aof any and all workers= compensation claims of any kind that the Employee may have, past, present and future, against Employer and Insurer, as a result of the November 9, 1992, injury,@ with the exception of causally related medical expenses.  (Stip. for Settlement, IV.1.(c).)  An Award on Stipulation was served and filed on June 13, 1995.

 

On May 3, 1996, Dr. Stark performed a lumbar laminectomy and decompression in an attempt to relieve the employee=s back and bilateral radicular pain.  The surgery failed to improve the employee=s complaints and symptoms.

 

On July 2, 1996, the employee was hospitalized at Abbott Northwestern Hospital for psychiatric problems, including suicidal ideation, major depression and chronic pain disorder.  Since then, the employee has received periodic psychiatric counseling, has been hospitalized for psychiatric problems on at least three occasions, and has been prescribed various medications for depression and anxiety.  In a report dated August 16, 1996, a vocational rehabilitation specialist at the Minnesota Department of Economic Security concluded the employee=s prognosis, as a combined result of his physical and psychological problems, was Atruly bleak,@ and the employee was not capable of engaging in gainful employment.  (Employee. Ex. W.)  The employee was found eligible for Social Security Disability benefits in September 1997.

 

In December 1999, the employee filed a Medical Request alleging a consequential psychological injury and seeking approval for chronic pain management treatment at the Mayo Clinic.  The employer and insurer denied liability.  The case eventually proceeded to hearing before a compensation judge at the Office of Administrative Hearings.  In a Findings and Order filed June 20, 2002, the judge found the employee=s personal injury of November 2, 1992, Awas a substantial contributing factor in the employee=s psychiatric conditions of depressive disorder, recurrent major depression, chronic pain disorder and chronic anxiety disorder.@  (F&O 6/20/02 , finding 14.)

 

On September 19, 2003, the employee filed a petition to vacate the 1995 Award on Stipulation, based on a substantial change in medical condition not reasonably anticipated.  The employer and insurer object to the petition.

 

DECISION

 

This court=s authority to vacate an award on stipulation is governed by Minn. Stat. '' 176.461 and 176.521, subd. 3.  An award may be set aside if the employee makes a showing of good cause, including Aa substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated.@  Minn. Stat. ' 176.461(4). A number of factors may be considered in determining whether an award should be vacated based on a substantial change in condition, including a change in diagnosis, a change in the employee=s ability to work, additional permanent partial disability, the necessity of more costly and extensive medical care than initially anticipated, and whether there is a causal relationship between the employee=s changed condition and the personal injury.  Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).

 

While there has been no substantial change in the employee=s low back condition since June 1995, the employee has been diagnosed with and treated for major depression, chronic anxiety and chronic pain disorder since July 1996.  The parties= settlement, although purporting to settle Aany and all workers= compensation claims of any kind . . . past, present and future . . . as a result of the November 9, 1992, injury,@ refers only to a personal injury to the low back.  The employer and insurer point to no contemporaneous treatment or any claim of a consequential psychological injury at the time of the 1995 settlement.  Following Sweep v. Hanson Silo Co., 391 N.W.2d 817, 821, 39 W.C.D. 41, 45 (Minn. 1986), this court has held that stipulation language purporting to compromise claims for consequential injuries not a subject of dispute between the parties is impermissibly broad, and cannot foreclose future claims based on such an injury.  See, e.g., Buske v. State, Dep=t of Human Servs., 60 W.C.D. 44 (W.C.C.A. 1999); Golen v. J.C. Penney Co., slip op. (W.C.C.A. October. 27, 1993).  Nonetheless, in appropriate circumstances, consequential injuries not covered by a stipulation may be considered in determining whether the employee has sustained a substantial change in medical condition.  See Buske v. State, Dep=t of Human Servs., slip op. (W.C.C.A. August. 5, 2002).  We believe this is such a case.

 

The employer and insurer point to prior mental health treatment in 1986 and 1987 and argue the employee=s subsequent psychological problems could, therefore, have been reasonably anticipated at the time of the award.  As noted in the 2002 Findings and Order, the employee had no treatment for emotional problems from 1987 to 1996 (F&O 6/20/03, (finding 7), including the first three and a half years following the personal injury.  We conclude there is sufficient evidence of a substantial change in diagnosis not reasonably anticipated at the time of the award.

 

The employee also argues there has been a change in his ability to work.  He points out he returned to work with the employer from July through December 1993, was assigned a QRC and conducted a job search, and was pursuing a proposal for formal retraining at the time of the June 1995 settlement.  The employee has since been found eligible for Social Security Disability benefits, and submitted reports from both medical and vocational experts stating that since July 1996, he has not been and is not currently capable of employment as a consequence of his combined physical and psychological disabilities.  While the employer and insurer submitted evidence to the contrary, the employee has met his burden of a prima facie showing of a change in his ability to work.

 

As a compensation judge has found the employee=s low back condition was a substantial contributing factor to the employee=s depression, chronic anxiety disorder and chronic pain disorder, there can be no dispute the employee=s changed condition is causally related to his 1992 personal injury.

 

Based on all the evidence submitted by the parties, we conclude the employee has established sufficient cause to vacate the Award on Stipulation of June 13, 1995.  The petition to vacate is, therefore, granted.