DAVID L. BECKMAN, Employee/Petitioner, v. NORTHSIDE CONSTR. and AMERICAN STATES INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 16, 2005

 

No. WC04-114

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  The employee did not establish good cause to vacate the award on stipulation under the factors specified in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).

 

Petition to vacate denied.

 

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

 

Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Petitioner.  Karen R. Swanton and David O. Nirenstein, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee petitions to vacate a 1990 award on stipulation based on substantial change in condition.  Finding no basis to vacate, we deny the petition.

 

BACKGROUND

 

The employee sustained an injury to his head on April 22, 1987, while working for Northside Construction [the employer].  The employee=s January 27, 2004, petition to vacate a January 1990 award on stipulation came before this court  in May of 2004.  In a decision filed on June 1, 2004, this court referred the petition to the Office of Administrative Hearings for an evidentiary hearing.^[1]

 

In findings and order filed on February 11, 2005, a compensation judge found that the employee=s diagnosis at the time of the award on stipulation was: chronic headache pain, symptoms of pain out of proportion to condition, depression, sinus problems, and reduced and blurred vision and pain in the left eye.  The judge found that the employee=s current diagnosis is chronic headache pain, chronic pain with depression, sinus problems, post-sinus and tear-duct surgery, reduced and blurred vision, and pain in the left eye and low back pain.

 

The judge also found that the employee was not working full time at the time of the stipulation for settlement but that he did eventually return to full-time work with occasional overtime.  In her memorandum, the judge indicated that the employee=s earnings during that period of employment exceeded his weekly wage at the time of injury.  The judge also found that, at the time of the hearing, the employee was totally restricted from all work activities but that his inability to work was unrelated to the work injury at issue.

 

Further, the judge found that the employee had failed to prove that he had any additional permanent partial disability as a result of his April 22, 1987 work injury, that medical care rendered since the time of the award was not more extensive or costly than could have been anticipated at the time of settlement, and that the employee did not prove a worsening in his psychological condition related to the 1987 work injury.

 

No appeal was taken from the judge=s findings and order; the petition to vacate was referred back to this court for a final determination on the employee=s petition to vacate.

 

DECISION

 

In his petition to vacate, the employee contends that his condition has substantially changed since the issuance of the award on stipulation.  We are not convinced.

 

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 than initially anticipated; and

(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 (W.C.C.A. 1989).

 

There does not appear to be a significant change in the employee=s diagnosis.  But for the addition of post-sinus and tear-duct surgery and low back pain, the employee=s diagnosis at this time is the same as it was at the time of the stipulation for settlement.  The compensation judge noted in her memorandum that back pain was not documented at the time of the 1987 work injury.

 

The employee has also not established a change in ability to work related to the work injury.  The employee was not working full time at the time of settlement but did later return to full-time work with occasional overtime and no wage loss.  The employee is currently disabled from work, but the compensation judge found that the 1987 work injury is not a substantial contributing cause of that disability.

 

The compensation judge found that the employee did not prove additional permanency or more costly and extensive medical care than was originally anticipated.

 

With regard to causation, the judge found that the employee=s ongoing headaches are causally related to the 1987 work injury but that the employee=s current inability to work is not.  In addition, the judge found that the employee had failed to prove a worsening of his psychological condition that was causally related to the work injury at issue.

 

Because the employee has not established a substantial change in condition since the time of the award on stipulation, the petition to vacate is denied.