FEBRUARY 3, 2017

No. WC16-5942

VACATION OF AWARD. Where the employee failed to present any evidence of a causal relationship between the work injury which was the subject of the award on stipulation and the employee’s present medical condition, the employee failed to establish cause to vacate the award.

    Determined by:
  1. David A. Stofferahn, Judge
  2. Patricia J. Milun, Chief Judge
  3. Gary M. Hall, Judge

Attorneys: Aaron W. Ferguson, Aaron Ferguson Law, St. Paul, Minnesota, for the Petitioner. Ryan J. Courtney, Fitch, Johnson, Larson & Held, P.A., Minneapolis, Minnesota, for the Respondent.

Petition to vacate award on stipulation denied.



The employee petitions to vacate an award on stipulation dated November 1, 2012. She alleges that there has been a substantial and unanticipated change in medical condition since the time of the award. We find the employee has failed to establish cause as required by the statute and deny the petition.


On September 19, 2011, the employee, Christa Coleman, was employed by Professional Resource Network as a certified nursing assistant and was assigned to work in a nursing home. The employee claimed she was injured on September 19, 2011, when she was attacked and thrown across the room by a patient she was assisting. The employee alleged injuries to her “neck, thoracic spine, lumbar spine, right shoulder, and left shoulder.” (Stipulation, Paragraph I.C.) The employee asserted a claim for workers’ compensation benefits. The employer and insurer denied liability.

The employee treated for her claimed work injury with Dr. Marc Salita, and with Dr. Aimee Klapach, an orthopedic surgeon at Sports and Orthopaedic Specialists. Dr. Klapach diagnosed impingement syndrome with adhesive capsulitis of the right shoulder. The employee claimed she was unable to work as the result of these injuries and was entitled to temporary total disability benefits.

The parties entered into a full, final, and complete settlement in October 2012. The stipulation provided for a lump sum payment to the employee of $15,800.00 after a deduction for attorney fees, and an additional payment to the employee to close out future medical benefits. The employer and insurer also agreed to resolve the claims of medical providers. The stipulation was the subject of an award on stipulation served and filed November 1, 2012.

The employee petitioned to vacate the award on stipulation on April 12, 2016. In her petition, the employee claimed there had been a substantial and unanticipated change in her medical condition which justified vacation of the award on stipulation under Minn. Stat. § 176.461. The petition was accompanied by a memorandum of law, an affidavit from the employee, and a letter dated March 16, 2015, from Dr. Klapach stating that shoulder surgery done in 2013 could not have been anticipated in November 2012. In her affidavit, the employee stated that it was anticipated at the time of the settlement that her neck and shoulder problems would improve with physical therapy. The employee also stated that in January 2013 Dr. Garvey had recommended fusion surgery for her neck.

The employer and insurer have objected to the employee’s petition and argue that the employee has failed to establish cause as required by the statute.


Minn. Stat. § 176.461 authorizes this court to set aside an award for cause, defined in the statute as including the one asserted by the employee, “a substantial change in medical condition since the time of the award that was clearly not anticipated and could not have reasonably been anticipated at the time of the award.” As the petitioner, the employee has the burden of establishing that cause exists to vacate the award. Bartz v. Meadow Lane Health Care, 67 W.C.D. 214 (W.C.C.A. 2007); Hillesheim v. Wooddale Nursing Home Inc., 70 W.C.D. 383 (W.C.C.A. 2009). We conclude, for the reasons set out here, that the employee has failed to meet that burden.

In considering whether there has been a substantial and unanticipated change in medical condition, this court has generally used as a guide in making its analysis the criteria considered in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989); Black v. Honeywell, Inc., 551 N.W.2d 486, 55 W.C.D. 87 (Minn. 1996). The “Fodness factors” are a change in diagnosis, a change in the employee’s ability to work, additional permanent partial disability, the necessity for more costly and extensive medical care than originally anticipated, a causal relationship between the covered work injury and the worsened condition, and the contemplation of the parties at the time of the settlement.

In the stipulation, the employee alleged that in the 2011 work incident, she sustained injuries to her neck, thoracic spine, lumbar spine, right shoulder, and left shoulder. As part of the litigation in 2012, the employee was evaluated by Dr. Nolan Segal on behalf of the employer and insurer. Dr. Segal reviewed records from 12 medical providers going back to 1987. The records show that the employee had extensive treatment for her cervical spine, both shoulders, and low back before the 2011 injury. She had cortisone injections in her shoulders and a multilevel cervical discectomy in 1997. Further, the employee’s deposition, taken on September 9, 2016, indicates that since the 2011 injury, the employee has had at least two work injuries with different employers. The employee has filed a claim petition seeking temporary total disability benefits and medical expenses from these employers as well as the employer in this matter. The employee has also been involved in two motor vehicle accidents which resulted in injury and a need for medical care.

Given this history, for this court to grant the employee’s petition, it is essential that the employee establish a causal relationship between the 2011 work injury and her present condition. The employee has presented no evidence to do so.

We conclude that the employee has failed to establish cause as required by the statute. The employee's petition is denied.[1]

[1] We have previously declined to vacate an award when the employee has claimed benefits from subsequent employers resulting from subsequent injuries which might make the previous settlement irrelevant. Kinnunen v. Brockway Glass, slip op. (W.C.C.A. June 27, 2002), Wright v. Minn. Vikings Football Club, slip op. (W.C.C.A. March 7, 2003). Given our determination as to the merits of the employee’s petition, we need not address this issue.