EDDIE HUDSON, Employee/Petitioner, v. TRILLIUM STAFFING SOLUTIONS and XL INS./CORVEL CORP., Employer-Insurer/Respondents, and MEDICA HEALTH PLANS/OPTUM, CTR. FOR DIAGNOSTIC IMAGING, HENNEPIN CNTY. MED. CTR. & PHYSICIANS, PARK NICOLLET HEALTH SERVS., and PARK NICOLLET METHODIST HOSP., Intervenors.

Where an employee was released to return to work with a zero percent permanent partial disability rating at the time of the award on stipulation, but later became medically unable to work and obtained a 75 percent permanent partial disability rating, good cause exists to vacate the award on stipulation pursuant to Minn. Stat. § 176.461.

Eddie Hudson, the employee, age 45, has no high school diploma or a GED. He nevertheless obtained his Class A drivers’ license in 2010 and held endorsements for double/triples, air brakes, and tankers. He began working for the employer, Trillium Staffing Solutions, as a truck driver six months before his work injury. During a snowstorm on April 16, 2014, the employee was driving an 18-wheeler for the employer heading east on Interstate 94. He hit ice, then slid across the interstate into the westbound lane. The rig jack-knifed into a ditch. The employee struck his head on the top of the cabin with reported loss of consciousness.^[1]

He was awakened by a state trooper who transported him to a nearby store to seek help and assistance. Because the semi-truck was totaled, the employer arranged for another truck which was delivered to the employee a few hours later. The employee had a headache and was sore, but felt he could return the replacement truck to the company. He reported to the employer for a urine analysis and to complete an accident report. He sought medical attention the next day, on April 17, 2014, at the emergency room at North Memorial Hospital where he was told not to return to work and to follow up with his primary care doctor. On April 18, 2014, he went to urgent care with a headache, vomiting, and neck and back pain. A CT scan of the head and lumbar spine showed no acute abnormalities. He was prescribed ibuprofen and Vicodin as needed.

The employer and its insurer, XL Insurance, picked up payment of temporary total disability (TTD) benefits, admitted a low back and neck injury, but denied that the employee suffered a traumatic brain injury (TBI) or a psychological injury as a result of the accident. The record reflects that before the accident, the employee had no history of neck pain, low back pain, TBI, or psychological care, with the exception of a hospitalization 15 years prior for psychological treatment. The record provides no medical basis for the denial of a TBI or a psychological injury.

Following the accident, the employee treated with a number of medical specialists. He saw an ophthalmologist, and was given a prescription for eye glasses for convergence insufficiency. He developed photosensitivity as a consequence of the head injury he sustained. He saw Dr. Marian Rubenfeld at Eye Care Associates with complaints of migraines, light sensitivity, eyes jumping, inability to read, mood swings, and nausea. The employee underwent occupational therapy for vision rehabilitation and his symptoms appear to have resolved.

The employee underwent a neuropsychological evaluation by Dr. Jackie L. Micklewright on November 7, 2014. While much of Dr. Micklewright’s report was redacted, the test results show that the employee’s visuoperceptual reasoning abilities were all average to upper average, but his performance in general word knowledge and reading skills were low average to borderline impaired. Dr. Micklewright assigned an overall Verbal Comprehension Index score of 87. She reported that the employee had progressed well in his recovery from his TBI. She noted that clerical or office work would be quite challenging for an individual with language-based learning difficulties. Nevertheless, she felt that he would be capable of returning to his previous level of employment. Given his high level of distress, she recommended a psychiatric consultation.

The employee saw Dr. Jane Roskowski, a psychologist at Hennepin County Medical Center (HCMC), who diagnosed an adjustment disorder with mixed anxiety and depressed mood, and coping with a TBI. Dr. Roskowski noted in January 2015 that the employee presented aggressively and was fearful of driving a truck. She noted that the employee wanted retraining, then decided against it, and that he wanted separation from the company, then denied it right after he said it. She noted that the employee had difficulty comprehending and had aggressive behavior which he was able to decompress at the end of the session. In her March 9, 2015, chart note, which was amended on June 3, 2015,^[2] Dr. Roskowski noted that secondary gain may be a barrier to moving forward. The employee eventually stopped seeing Dr. Roskowski.

Radiographic diagnostics were performed. A CT scan showed that the employee had mild degenerative disc disease of the low back and foraminal stenosis of the neck. A CT scan of the head showed no acute intracranial hemorrhage, and a probable congenital arachnoid cyst. An MRI of the low back showed a disc herniation and an MRI of the cervical spine showed spondylosis and stenosis.

The employee retained an attorney and filed a claim petition on September 26, 2014, alleging a low back and neck injury, and a concussion; an underpayment of TTD; reserved temporary partial disability (TPD) and permanent partial disability (PPD); and sought payment of multiple medical bills, rehabilitation, retraining, penalties, and out of pocket expenses. An amended claim petition filed February 5, 2016, added a psychological injury to the claim. The employee also filed a medical request seeking approval of trigger point injections.

The matter went to hearing on March 10, 2015. At the hearing, the employee fired his attorney while he was giving testimony, claiming she was unprepared. The compensation judge ordered the matter be stricken to allow the employee to obtain a new attorney, and to complete discovery.

The employee continued to treat for the residuals of the accident. He saw Dr. Victor Van Hee of Park Nicollet for regular follow-ups and management of his treatment. Dr. Van Hee released the employee to work with no lifting over 20 pounds, but restricted the employee from driving a commercial motor vehicle. He referred the employee for a commercial motor vehicle assessment. The employee underwent an assessment through Courage Kenny which recommended that “once Mr. Hudson has completed his treatment program and is cleared medically to resume driving under his Class A license a gradual return to work is recommended.” As of April 2015, Dr. Van Hee had not released the employee to driving a semi-truck. The employee maintains that he was restricted from ever driving a semi-truck again.^[3] Dr. Van Hee determined that the employee had reached maximum medical improvement (MMI) for the low back and neck injuries on April 28, 2015, and assigned a PPD rating of 10 percent for the neck and 12 percent for the low back.

The employee also treated with Dr. Sarah B. Rockwood of HCMC, who in April 2015 outlined the chronology of treatment. Dr. Rockwood diagnosed the employee with status post mild TBI, and improved functional cognitive deficits secondary to TBI. She opined that from a TBI standpoint, the employee could return to work as a commercial truck driver, but deferred to Dr. Van Hee for a full release.^[4] She assigned a PPD rating of zero percent as a result of the TBI, noting that psychological would need to be added. She emphasized that the employee would require continued mental health services secondary to his injury.

On April 9, 2015, through email, the attorney for the employer and insurer offered to settle the employee’s claim for $100,000.00 for a close out of all claims including medical. In the alternative, he offered $60,000.00 to the employee to close all claims except medical expenses related to the low back and neck. The employee, through a friend, emailed an outline of a settlement demand of $232,000.00.^[5] The employer’s attorney maintained the same position of $100,000.00 or $60,000.00, while the employee’s demand was reduced to $142,000.00 three days later. It appears that a settlement had been reached, but when the stipulation was presented to the employee, he declined to sign it. Instead, the employee filed a motion to reinstate the claim petition on June 8, 2015.

The employer and insurer retained Dr. Paul Wicklund and Dr. Stanley Ferneyhough, Ph.D., L.P., to offer expert medical opinions. Dr. Wicklund, an orthopedic surgeon, opined that the employee suffered a temporary injury to his neck and low back which had resolved. He opined that the employee had reached MMI with no work restrictions. Dr. Ferneyhough, a licensed psychologist, met with the employee on June 9, 2015, but discontinued the examination when he was concerned for his safety after the employee displayed anger and alleged racially motivated poor treatment. Consequently, there was no medical evidence refuting the psychological assessment of the employee’s treating doctors.

On June 15, 2015, again through email communication through his friend, the employee agreed with the attorney for the employer and insurer to mediate the matter at the Department of Labor and Industry on June 22, 2015. The employee submitted a demand for settlement in the amount of $475,000.00. In the settlement demand, the employee outlined that Dr. Van Hee told him that he could never drive truck again. He acknowledged that he had a low IQ. He also acknowledged severe depression. He ultimately settled his case for $125,000.00 with the assistance of the mediator. Of that amount, $10,000.00 was earmarked to satisfy the employee’s former attorney’s lien for fees incurred before the employee terminated the relationship. The remaining amount of $115,000.00 would be released to the employee.

The stipulation for settlement was signed by the employee on June 24, 2015. The stipulation closed out all workers’ compensation benefits, including medical benefits for the denied TBI and psychological injuries. Medical benefits for neck and low back treatment related to the injury remained open subject to defenses.

The stipulation contained a provision stating that the employee was aware and fully appreciated that he was entitled to legal counsel of his choosing; and that he fully understood and appreciated that he had knowingly, willingly, and voluntarily chosen to enter into the stipulation for settlement with the employer and insurer without the benefit of legal counsel. Furthermore, the stipulation language confirmed that the employee acknowledged that he entered into the stipulation for settlement of his own choosing without duress, coercion, pressure, or undue influence.^[6] Within the stipulation, the employee specifically requested that the compensation judge review and approve the stipulation for settlement.

On June 30, 2015, the compensation judge filed an award on stipulation that read, in part:

The employer and insurer paid the employee $115,000.00 pursuant to the award on stipulation on July 7, 2015.

After the matter was settled, the employee continued to treat for mental health issues, but changed providers. In November 2015, the employee treated with Dr. Savina Ghelfi. Her notes reflect that while the employee’s thought process was linear and logical, he had deficits with cognition. His short and long term memory were with some deficit as a result of his TBI which occurred in April 2014. Her impression at the time was severe depression and PTSD, anxiety, and impulse control. She noted that he had severe trouble concentrating. Dr. Ghelfi completed a Health Care Provider Report on May 13, 2016, approximately one year after the employee settled his workers’ compensation claim. She assigned a PPD rating of 75 percent under Minn. R. 5223.0360. A 75 percent rating would carry a value of $198,750.00. Minn. Stat. § 176.101, subd. 2a.

The employee filed a Petition to Vacate the Award on Stipulation on July 7, 2016, arguing that the employer and insurer took advantage of the employee’s reading and comprehension issues, and the fact that he was not represented by legal counsel. He claims that he had no choice but to settle his case because he needed the money. He relied upon the mediator with respect to the stipulation language. He also claimed to have relied upon assurances, by both the mediator and the employer and insurer’s attorney, that the compensation judge would contact him to discuss the terms before approving the agreement.

The employee further argues that good cause exists to vacate the award on stipulation because there was a mistake of fact, newly discovered evidence, fraud, and a substantial change in medical condition because he can no longer work and his PPD rating of 75 percent was not anticipated at the time of settlement.

In response to the employee’s petition, the employer and insurer argue that the employee had a clear understanding of what he sought as well as the risks. They claim there was no mutual mistake of fact, newly discovered evidence, or fraud. They challenge the employee’s claim that there was a substantial change in condition not anticipated at the time of settlement. They maintain that there was no change in the ability to work as he was not working at the time of settlement. They further challenge the employee’s PPD rating of 75 percent as lacking foundation and a causal connection to his work injury.

Pursuant to Minn. Stat. § 176.461, this court has authority to set aside an award for cause. Circumstances constituting “cause” are limited 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.

The burden to show cause sufficient to set aside an award rests upon the petitioning party. Groshong v. The Light Depot, 65 W.C.D. 349, 355 (W.C.C.A. 2005). The employee asserts that each of the four circumstances that constitute cause apply to this case. However, because the petition fails to allege facts sufficient to support a mistake of fact mutual between the parties, evidence in existence at the time of settlement that was not discoverable, or a misrepresentation of fact by the employer and insurer, our examination of cause is limited to substantial change in medical condition.

Claims of a substantial change in medical condition are analyzed according to the factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989). The Fodness factors are:

1.    A change in diagnosis;
2.    A change in the employee’s ability to work;
3.    Additional permanent partial disability;
4.    The necessity of more costly and extensive medical care than initially anticipated;
5.    The causal relationship between the work injury covered by the settlement and the employee’s current worsened condition; and
6.    The contemplation of the parties at the time of the settlement.

Id. at 1060-61. These factors are to be applied in a manner consistent with the requirements that the change was clearly not anticipated, and the change could not reasonably have been anticipated at the time of the award. Powell v. Abbott Nw. Hosp., slip op. (W.C.C.A. Aug. 17, 1995). Of the Fodness factors, two stand out in this case - - a change in the employee’s ability to work and additional PPD.

The employee had been released to return to work at the time of the stipulation by Dr. Wicklund for the physical injury and by Dr. Rockswold for the TBI. Dr. Van Hee did not release the employee to return to truck driving, but did release him with a lifting restriction to return to other employment. After the award, in November 2015 and again in April 2016, the employee received medical opinions that he would be unable to perform any employment in the foreseeable future. He was also rendered disabled by the Minnesota Department of Human Services in April 2016 with the instruction to apply for Social Security Disability Income. The stipulation contains no language that the employee claimed he would be permanently and totally disabled (PTD). Likewise, there is no claim by the employer and insurer that at some point the employee may become PTD. Based on the claims and contentions of the parties contained in the stipulation, PTD was not clearly anticipated at the time of the award. That the employer and insurer omitted social security offset language^[7] in the stipulation underscores their anticipation that the employee would not be rendered disabled by the Social Security Administration standards.

In addition to the inability to work, the employee’s PPD rating for TBI residuals increased from 0 percent to 75 percent. While Dr. Rockswold’s rating of 0 percent for the TBI in April 2015 made it clear that the rating did not include a psychological rating, an increase of a PPD rating from 0 to 75 percent warrants consideration of vacating the award. Ultimately, the employee received substantially less in settling his claim than the very high value for this PPD rating. The employer and insurer argue that the 75 percent PPD rating lacks foundation and a causal connection and therefore should not be considered. However, Dr. Ghelfi’s medical record dated November 3, 2015, states that the severe depression and anxiety are within the “context of struggling with consequences and symptoms of TBI which occurred in April 2014.” Furthermore, the employer and insurer presented no medical evidence to support their denial of the TBI or associated PPD rating.

Taken as a whole, the record provides ample grounds to support our decision to vacate the award on stipulation pursuant to Minn. Stat. § 176.461.^[8]