RONALD J. POMIJE, Employee, v. MINNESOTA VALLEY AG COOP and FARMLAND MUT. INS. CO., Employer-Insurer/Petitioners, and SENECA FOODS CORP. and LIBERTY MUT. INS. CO., Employer-Insurer, and HARVEST STATES CO-OP and HOME INS. COS./HELMSMAN MGMT. SERVS., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 24, 2005

 

No. WC05-104

 

HEADNOTES

 

VACATION - MISTAKE OF FACT.  There is no evidence of a mutual mistake of fact sufficient to require vacation of the award on stipulation on the facts presented in this case.

 

VACATION - SUBSTANTIAL CHANGE IN CONDITION.  The petitioner has failed to establish a substantial change in the employee=s medical condition since the time of the award on stipulation sufficient to support vacation of the Stipulation on Petition for Contribution and/or Reimbursement apportioning  payment of rehabilitation costs paid on behalf of the employee between the employers and insurers.

 

Petition to vacate award on stipulation denied.

 

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

 

Attorneys:  Jeffrey Jacobs, Wilkerson & Hegna, Bloomington, MN, for the Employee.  Laura L. Myslis, Gislason & Hunter, Minnetonka, MN, for the Petitioners.  Dianne E. Walsh, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for Respondents Seneca/Liberty.   Ross K. Menk, Law Offices of Susan Conley, St. Paul, MN, for Respondents Harvest States/Home-Helmsman.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The petitioners seek to vacate and set aside an Award on Stipulation on Petition for Contribution and/or Reimbursement, served and filed November 12, 2002, on the grounds of a substantial change in medical condition not anticipated at the time of the settlement and/or mistake of fact.  We conclude the petitioners have failed to establish good cause, and deny the petition to vacate the award on stipulation.

 

BACKGROUND

 

The employee, Ronald J. Pomije, sustained three admitted, work-related injuries.^[1]  On May 13, 1989, while employed by Harvest States Coop, then insured by Home Insurance Companies,^[2] the employee suffered a severe injury when his left hand, wrist and forearm were caught in an auger while checking fertilizer mix.  The employee underwent surgery to repair a completely transected flexor carpi ulnaris tendon, a compound fracture of the ulnar styloid, lacerations of the left forearm, hand and wrist, and damage to the ulnar nerve and ulnar collateral ligament.  A second surgery was performed on July 14, 1989, to further repair the carpi ulnaris tendon with decompression and neurolysis of the ulnar nerve.  The surgery was complicated by an infection, and a third surgery was performed to drain an abcess of the left wrist.

 

The employee returned to work at Harvest States on about September 10, 1989, with restrictions of no use of the left hand.  The employee, who is left hand dominant, recovered some active intrinsic muscle strength, but was left with permanent loss of mobility, including difficulty turning the palm up, diminished strength in the left hand, wrist and forearm, and decreased sensation in the hand.  Dr. Chris Tountas opined the employee had reached maximum medical improvement by February 8, 1990, with a 13.6 percent permanent partial disability.  The doctor believed the employee was capable of working full time, observing, however, the employee Acan probably use the left hand on a limited basis as an assist,@ and should avoid any repetitive firm grasping or significant lifting with the left upper extremity.  (Dr. Tountas, May 2, 1990 report.)

 

On February 11, 1991, the employee returned to Dr. Tountas complaining of increasing loss of motion in the left wrist.  A fourth surgery was performed on March 15, 1991, consisting of a Z-plasty of the flexor carpi radialis tendon and a transfer of the extensor carpi radialis longus to the extensor carpi ulnaris. When seen in follow-up on July 18, 1991, Dr. Tountas had no further recommendations for treatment, but noted the employee A[h]as permanent restrictions.@

 

On May 1, 1992, the employee returned to Dr. Tountas with increasing numbness and pain in the left hand and wrist radiating up the forearm to the shoulder, tingling along the hypothenar eminence in the dorsal ulnar aspect of the hand, including the 4th and 5th fingers, and limitation of motion with flexion/extension and supination.  X-rays showed possible early degenerative changes in the left wrist.  It was felt the employee=s symptoms were mostly related to overuse.  The employee was again seen in early October 1992 for frequent spasm of the left forearm, and a fifth surgery was performed consisting of a Z-plasty of the flexor carpi radialis tendon and the skin to relieve contracture.  The employee was last seen by Dr. Tountas on May 27, 1993.  The doctor observed the employee had plateaued, with some continuing discomfort when stressing the volar radial aspect of the wrist, and was using a wrist brace at work.

 

The employee began working for Seneca Foods (Seneca) in about mid-June 1991.  On April 23, 1995, while dumping 50 pound bags of peas into a pea drill, the employee experienced sharp low back pain radiating into the right leg.  Seneca was then insured for workers= compensation purposes by Liberty Mutual Insurance Group (Liberty).  The employee was diagnosed with a low back strain/sprain with sciatica and received conservative treatment.  He continued to work for Seneca in a light-duty capacity with restrictions including no lifting over 30 pounds.

 

The employee=s right leg symptoms worsened over the next several months.  CT and MRI scans showed degenerative disease at the L5-S1 level of the spine, but no sign of a herniated disc or significant stenosis.  In June and July 1995, the employee received a series of epidural steroid injections that gave temporary relief.  He was then referred to Dr. John Sherman, an orthopedic surgeon, who performed an anterior laproscopic fusion at L5-S1 with BAK segmental fixation and a right iliac crest bone graft on December 12, 1995.  In January 1997, Dr. Sherman stated the employee had reached maximum medical improvement, rating a 12 percent permanent partial disability of the body as a whole.  Following the surgery, the employee reported intermittent, recurrent episodes of back pain for which he received short courses of cortisone injection treatment.

 

Sometime thereafter, the employee began working for Minnesota Valley Ag Coop (Minnesota Valley).  On March 8, 1999, while plowing a parking lot for the employer, the employee slipped off a curb while getting down from the truck, hyperextending his right knee.  He experienced immediate pain and swelling in the knee and sought treatment the following day.  Minnesota Valley was then insured for workers= compensation purposes by Farmland Mutual Insurance Company (Farmland). The employee was referred to Dr. John T. Anderson, an orthopedic surgeon, who performed an arthroscopy with debridement of the knee on April 12, 1999.  The employee had a history of previous knee injuries with multiple surgeries, and on arthroscopic examination, Dr. Anderson noted the medial meniscus had been largely removed with a very thin peripheral rim remaining.  There was some tearing of the rim that was trimmed.  The doctor further noted complete eburnation^[3] of bone on the medial tibial platueau, Grade I laxity of the intra-cruciate ligament, and Grade 3 chondromalacia of the patella.  The employee reported he did not get much relief from the surgery, and his knee continued to give way.

 

On January 10, 2000, the employee reported ongoing pain to Dr. Anderson who diagnosed an anterior cruciate ligament (ACL) deficient knee with degenerative change.  The doctor performed a second surgery on January 14, 2000, consisting of an arthroscopic ACL reconstruction using patellar tendon allograft, with removal of chondral fragments and light debridement of the medial meniscus.  The employee=s post-surgery course was complicated by ongoing leg pain and development of a deep venous thrombosis.  The employee was initially released to return to light-duty work on April 3, 2000, with restrictions of occasional lifting up to 20 pounds, no pushing or pulling over 50 pounds occasionally, avoid bending, no twisting, turning, kneeling or squatting, no ladder or stair climbing, and limited standing and walking.  On September 18, 2000, Dr. Anderson imposed permanent restrictions to avoid frequent or repetitive climbing of stairs or ladders, and to avoid kneeling, crouching or crawling.  The doctor further stated obtaining a light-duty job would be a good idea.  On October 23, 2000, Dr. Anderson rated a five percent permanent partial disability for the knee.

 

On December 8, 2001, the employee filed a Rehabilitation Request stating he had been laid off from his employment and seeking a rehabilitation consultation and services.  The employer and insurer, Minnesota Valley and Farmland, denied liability, asserting the March 8, 1999, injury was a temporary aggravation of a preexisting knee condition.  While the case was pending, on April 30, 2002, Minnesota Valley and Farmland filed a Petition for Contribution and/or Reimbursement/Motion for Joinder.  Alleging the employee=s employment opportunities would be limited, in part, due to the injuries sustained while employed by Harvest States and Seneca, Minnesota Valley and Farmland sought contribution and/or reimbursement for rehabilitation costs if it was determined the employee was entitled to rehabilitation benefits.

 

In a Findings and Order, served and filed June 10, 2002, a compensation judge at the Office of Administrative Hearings found the March 8, 1999, work injury was a permanent aggravation of the employee=s preexisting right knee condition and was a substantial contributing cause of the employee=s work restrictions, and ordered Minnesota Valley and Farmland to pay for a rehabilitation consultation.  Following negotiations, Minnesota Valley/Farmland, Harvest States/Home, and Seneca/Liberty entered into a Stipulation for Settlement on Petition for Contribution and/or Reimbursement in late October 2002.  The stipulation provides for apportionment of rehabilitation costs 50 percent to Minnesota Valley/Farmland, and 25 percent each to Harvest States/Home and Seneca/Liberty, with Minnesota Valley/Farmland acting as the paying agent.  The settlement was approved and an Award on Stipulation was issued on November 12, 2002.  Minnesota Valley and Farmland now petition to vacate and set aside the award on stipulation.

 

DECISION

 

This court=s authority to vacate an award on stipulation is governed by Minn. Stat. '' 176.461 and 176.521, subd. 3, requiring Acause@ to set aside an award.  Cause includes a change in the employee=s medical condition that was clearly not anticipated and could not reasonably have been anticipated and a mutual mistake of fact, the grounds alleged by the petitioners in this proceeding.  Minn. Stat. ' 176.461(1) and (4).

 

Mutual Mistake of Fact

 

The petitioners argue that, since the Award on Stipulation, there has been a substantial change in the employee=s medical condition not anticipated by the parties, and thus, a mutual mistake of fact mandating a reconfiguration of apportionment of rehabilitation expenses among the insurers.  We disagree.

 

This court=s authority to vacate an award on stipulation extends not to any mistake, but only to a mutual mistake of fact by the parties to the stipulation.  A mutual mistake of fact occurs when opposing parties to the stipulation both misapprehend some fact material to their intended settlement of a claim.  Shelton v. Schwan's Sales Enters., 53 W.C.D.110 (W.C.C.A. 1995).  That is not the case here.  The mere fact the employee=s medical condition may have changed since the stipulation is not, in and of itself, sufficient to establish a mistake of fact.  If that were the case, there would be no reason for a separate ground for vacation based on such circumstances.  Both Harvest States/Home and Seneca/Liberty deny there was any mistake of fact on their parts and the petitioners provided no evidence to the contrary.   There is simply no basis for concluding that a mutual mistake of fact occurred in this case, and we deny vacation of the award on stipulation on that ground.

 

Substantial Change in Condition

 

The petitioners argue the award on stipulation should be vacated since it incorrectly and unfairly requires Minnesota Valley and Farmland to pay 50 percent of the rehabilitation costs, asserting the employee=s right knee symptoms are now minimal compared to significant low back and left hand, wrist and arm complaints that did not occur or come to light until after the parties entered into the Stipulation for Settlement.  We are not persuaded.

 

This case involves an unusual situation in which an employer and insurer seek to vacate an award based on an alleged proportional change in the employee=s disability and, therefore, an asserted entitlement to re-apportionment of liability for rehabilitation services.^[4]  The petitioners assert that, at the time the stipulation for settlement was entered into, the focus of the employee=s problems and complaints was his right knee.  However, in 2003, the employee began to develop significant problems with his left hand and wrist, and in 2004, began to complain of problems with his low back.  They contend the employee=s right knee problems are currently relatively minor, and suggest the right knee injury is, therefore, a less significant factor in the employee=s overall medical condition and his ability to work.

 

On June 10, 2003, about seven months after the settlement, the employee was seen by Dr. Mark Holm complaining of shooting pain in the dorsum of the left hand to the forearm and up to his left shoulder.  By December 29, 2003, the employee was reporting increasing numbness in the 4th and 5th fingers in his left hand in the ulnar nerve distribution.  The doctor diagnosed radial nerve neuritis in the forearm and aggravation of the employee=s chronic ulnar nerve injury.  Dr. Holm eventually performed surgery in the nature of a radial nerve decompression and release of the flexor carpi radialis tendon sheath on December 7, 2004.  The doctor anticipated the employee would be released to return to work with light-duty restrictions within two weeks, and expected the employee would be able to return to full duty within three to six months after the surgery.

 

In early 2004, the employee reported to his qualified rehabilitation counselor (QRC) that his back was acting up Aseverely@ with increasing leg pain, primarily on the left, and numbness in both feet, and he requested a follow-up visit with Dr. Sherman.  The employee stated his left hand and wrist and low back/leg pain were bothering him more than his right knee at the time.  Seneca and Liberty eventually approved a return visit to Dr. Sherman that was scheduled for November 4, 2004.^[5]

 

While the employee=s left upper extremity and low back problems and complaints unquestionably increased after the award on stipulation was issued, there is little evidence such a change was not or could not have been anticipated at the time of the award, nor is there evidence that the employee=s right knee condition has significantly changed or improved since the time of the stipulation.

 

In their petition for contribution and/or reimbursement, the petitioners acknowledged the employee sustained a Asevere injury@ to his left hand and arm on May 13, 1989, undergoing five surgeries, with a resulting permanency of 14 percent and permanent restrictions.  They further acknowledged the employee sustained an injury to his low back on April 23, 1995, had undergone a fusion surgery with BAK implant, and had a 12 percent permanency rating and permanent restrictions.  The petitioners further noted the claims remained open for both injuries.  Minnesota Valley and Farmland, therefore, asserted the Aemployee=s employment opportunities will be significantly limited due to the serious injuries he sustained while employed by those employers.@  (Petition: IV., VI., VIII., emphasis added.)  These claims and statements were reiterated in the Stipulation for Settlement.  It cannot be said the petitioners were not aware of the ongoing, permanent and serious nature of the employee=s previous injuries at the time of the settlement.

 

The petitioners argue, however, the right knee, in comparison, is now essentially asymptomatic and a relatively minor problem, and is no longer as substantial a contributing factor to the employee=s disability and need for rehabilitation services as it was at the time of the settlement.  We disagree.

 

First, the employee has the same permanent work restrictions as a result of the right knee injury that he had at the time of the stipulation.  Dr. Jack Drogt, on March 31, 2004, performed an independent medical examination of the employee at the request of Minnesota Valley and Farmland.  Although the doctor found the employee=s right knee Aasymptomatic@ on examination,  he noted right quadriceps muscle atrophy and agreed the employee had continuing limitations as a result of the right knee injury, stating only the employee required no further limitations.

 

Secondly, the petitioners rely extensively on the QRC=s reports of the employee=s complaints and symptoms.  Although noting the employee complained most of his left hand and arm and low back problems, the QRC continued to report right knee problems as well.  In his March 2004 report, the QRC indicated the employee was trying work at MJB Machinery.  Although the employee was wearing a knee brace, standing on the cement floor was causing problems with his knee.  The MJB job lasted only three weeks.  The employee also reported he was helping with farm work but was having difficulty walking in the cattle pens due to the uneven ground and mud, and related his right leg gave out on occasion in the cattle pen.  In July 2004, the QRC noted the employee=s right knee occasionally buckled a little but the employee usually caught himself, although the employee had reported a fall on June 12.  In September 2004, the QRC stated the employee=s knee seemed to be tolerable, but was certainly not good.  Finally, in November 2004, the QRC, while stating the right knee continued to be a Asmall problem,@ noted the employee reported  limping when he got sore and wanted to see Dr. Anderson for a steroid shot to keep the knee going.  (Pet. Ex. F.)

 

The QRC=s reports reflect ongoing right knee symptoms and problems that are similar to those the employee was experiencing at the time of the settlement.  While the employee is now experiencing increased symptoms and problems relating to his two previous injuries, it is clear that Minnesota Valley and Farmland were well aware of the nature of these injuries and the potential for future claims with respect to these injuries.  The stipulation for settlement in this case reflects a compromise settlement reached following negotiations between experienced workers= compensation insurers, all represented by attorneys, for payment of rehabilitation expenses on behalf of the employee.  We see no basis, on these facts, to vacate the stipulation to allow reapportionment of the parties= liability for rehabilitation benefits.  The petition to vacate is, accordingly, denied.