TRACEY L. ROBERTSON, Employee/Appellant, v. MANPOWER TEMP. SERVS. and TRANSP. INS. CO./CNA INS. COS., Employer-Insurer/Respondents, NORAN NEUROLOGICAL CLINIC and UNITED HEALTH CARE SERVS., Intervenors, and SPECIAL COMP. FUND.

The compensation judge dismissed the employee’s claim petition which sought benefits for a reflex sympathetic dystrophy condition (RSD). While the RSD condition was not expressly mentioned in the 1996 stipulation for settlement, the judge found that RSD was nevertheless contemplated by the parties and therefore any new claim for benefits was closed out by the 1996 stipulation. Where the stipulation left open medical expenses related to the injury, and where the order dismissed the entire claim petition, including claims for medical benefits, we vacate the portion of the order dismissing the employee’s claim petition to the extent that the claim petition seeks payment of medical benefits.

Tracey Robertson injured her right arm working for her employer, Manpower Temporary Services, on May 8, 1990. She received therapy for tendonitis and was soon diagnosed with “probable” reflex sympathetic dystrophy (RSD) to her right arm. In March 1993, she filed a claim petition against the employer and its insurer, CNA, alleging benefits related to both right and left arm RSD conditions.

Three years later, in 1996, the employee, and employer and insurer entered into the stipulation for settlement at issue. Although the original claim petition sought benefits for RSD, and contemporaneous medical records referenced an RSD condition, the language of the stipulation never mentioned RSD. Rather, the stipulation language referenced only a “carpal tunnel syndrome” injury on the right side. The stipulation included language which closed out workers’ compensation benefits “for claims past, present and future, arising out of the injury of May 8, 1990,” but left open “reasonable and necessary medical expenses and future Roraff fees.”

In 2014, the employee slipped and fell outside a movie theater while on a personal outing with her family. The fall purportedly aggravated the RSD condition she alleged in the 1993 claim petition. On August 18, 2014, the employee filed rehabilitation request for vocational rehabilitation benefits. On February 2, 2015, she filed a claim petition for injuries described as an upper extremity right arm RSD and consequential upper extremity left arm RSD. The claim petition claimed both wage loss and medical benefits. The rehabilitation request was denied and the employee filed a request for formal hearing. The claims were joined for resolution.

Upon receipt of the claim petition, the employer and insurer filed a petition to dismiss asserting multiple reasons why a dismissal was in order, including the prior 1996 stipulation for settlement which closed out wage loss and vocational rehabilitation benefits related to the May 8, 1990, injury.

The matter came on for a motion hearing on October 10, 2016. In the findings and order of November, 2, 2016, the judge found that parties agreed in the 1996 stipulation for settlement that the employee suffered an injury to her right wrist in the nature of “carpal tunnel syndrome.” The judge also found that the agreement settled all claims for benefits arising out of the injury of May 8, 1990. He found that the employer and insurer proved by a preponderance of the evidence that the parties intended to settle claims for RSD in both arms and by reason of the same, the employee’s claim petition and request for formal hearing was dismissed. The employee appeals.

On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1(3). Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

On appeal, the employee argues that the compensation judge erred in not allowing her testimony at the motion hearing. She maintains that her testimony was necessary to assist in determining what she contemplated at the time she entered into the 1996 settlement. In reviewing the record, we see no restriction of the employee’s testimony. The judge allowed the employee’s February 27, 2015, and February 11, 2016, deposition transcripts into evidence. Her deposition testimony appears to have offered no explanation for claiming RSD in the claim petition, but settling a carpal tunnel syndrome in the stipulation for settlement. If the employee genuinely believed live testimony was necessary for a full and fair hearing on the issues, at the very least, an objection or statement on the record requesting live testimony would have advanced this argument. But there was no such request. Failing to raise an issue at the hearing results in a waiver of that issue on appeal. Ruether v. State, Mankato State Univ., 455 N.W.2d 475, 479, 42 W.C.D. 118 (Minn. 1990); Ware-Cox v. First Student, Inc., No. WC12-5418 (W.C.C.A. Aug. 9, 2012); Stanford v. Shaw Stewart Lumber Co., No. WC08-206 (W.C.C.A. Jan. 8, 2009); Moreno v. Advertising Unlimited, slip op. (W.C.C.A. Jan. 3, 2001); Dawson v. University of Minn., slip. op. (W.C.C.A. May 6, 1999), see also Gianotti v. ISD 152, 889 N.W.2d 796, 800 (Minn. 2017) (“[T]he Workers’ Compensation Court of Appeals’ review is limited to the issues raised by the parties in the notice of appeal.” Minn. Stat. § 176.421, subd. 6 (2016)); Bradford v. Bureau of Engraving, 459 N.W.2d 697, 698, 43W.C.D. 279 (Minn. 1990); Brandstrom v. Honeywell, slip op. (W.C.C.A. Mar. 7, 1997); Malinoski v. North Am. Cable Sys., slip op. (W.C.C.A. Dec. 14, 1989); Barnett v. Pillsbury Co., 34 W.C.D. 581 (W.C.C.A. 1982) (issue first raised at appellate hearing is not timely); Kern v. Graco, Inc., slip op. (W.C.C.A. Aug. 6, 1992); Garrett v. Ford Motor Co., slip op. (W.C.C.A. May 12, 1992) (issue of overpayment credit raised for the first time on appeal will not be addressed by the WCCA). We, therefore, are unable to address this issue which was not raised at the hearing.

The employee also argues that the judge erred in finding that in 1996 the employee intended to settle all claims, including any for RSD in both arms, even though the RSD condition is not mentioned in the stipulation. The judge relied on Sweep v. Hanson Silo, 391 N.W.2d 817, 39 W.C.D. 51 (Minn. 1986), and Ryan v. Potlach, 882 N.W.2d 220 (Minn. 2016), in dismissing the employee’s claim petition. We find as a matter of law that the judge correctly applied the Sweep and Ryan cases to the facts of this case.

In Sweep, the Minnesota Supreme Court affirmed the WCCA’s disapproval of a stipulation because it foreclosed injuries the employee “might have” sustained in the course of employment. The Sweep stipulation language closed out “any and all claims he now has or may have in the future against the employer and its insurer.” Mr. Sweep had made no claim based on such future injuries. They were also not a subject of dispute between parties, and consequently, the stipulation was not approved. This court interpreted Sweep in a number of cases in which the parties closed out benefits in a settlement for one injury, and a consequential injury developed some time later. We generally held that stipulation language is impermissibly broad where it purports to compromise claims for consequential injuries that were not in existence and not a subject of dispute between the parties. Munkelwitz v. Bladholm Bros., slip op. (W.C.C.A. July 28, 1993); Golen v. J.C. Penney Co., slip op. (W.C.C.A. Oct. 27, 1993); Buske v. Minnesota Dept. of Human Services, 60 W.C.D. 44 (W.C.C.A. Nov. 5, 1999); Larson v. St. Louis Cty., (W.C.C.A. Apr. 10, 2002); see also Jefferson v. Griggs Cooper, No. WC14-5782 (W.C.C.A. Oct. 26, 2009).

In the recent case of Ryan v. Potlach, the Minnesota Supreme Court clarified its holding in Sweep. Ms. Ryan had settled her back injury in 2003, and then in 2013 claimed a consequential psychological claim for which she sought new benefits. Following the claim petition claiming medical expenses for psychological and bariatric surgery expenses, the employer filed a motion to dismiss based on the language of the 2003 stipulation and argued that Ms. Ryan must first file a petition to vacate the existing settlement agreement. The compensation judge denied the motion to dismiss. On appeal, this court affirmed the judge and concluded that Ms. Ryan could proceed with her claim for a psychological condition without first seeking to vacate the 2003 stipulation for settlement that addressed only her low back injury. We reasoned that “a prior stipulation for settlement does not close out claims from the same incident but not mentioned in the stipulation, absent evidence that the subsequent claims were contemplated by the parties when they entered into the stipulation.” Ryan v. Potlatch Corp., No. WC14-5782 (W.C.C.A. Jul. 31, 2015).

The supreme court reversed this court’s decision, and held that a workers’ compensation settlement may close out, not only the work related injury that is the subject of the agreement, but also, conditions that arise from it which “are within the reasonable contemplation of the parties at the time of the agreement.” Ryan, 882 N.W.2d at 225. It is not necessary that the condition be specifically mentioned. Because Ms. Ryan presented no evidence that her psychological condition was not reasonably contemplated at the time she settled, and because her depression is a psychological condition that arose out of and was the consequence of her workers’ compensation injury and therefore within the scope of the 2003 settlement, the Minnesota Supreme Court instructed Ms. Ryan to petition to vacate the award of the prior stipulation before proceeding with a psychological claim. Id. at 226.

In the present case, the employee filed a claim petition in 1993 alleging RSD for both the right and left arms. In 1996, the employer and insurer paid significant PPD for an upper extremity condition. While the 1996 stipulation for settlement makes no mention of RSD, there is evidence in the record beyond the employee’s statement in the claim petition that she was suffering from that condition at the time of settlement. Employee’s Exhibits Q, S, and U. The stipulation only refers to carpal tunnel syndrome for the right side. The record does not explain how the parties arrived at describing the May 8, 1990, work injury as resulting in carpal tunnel syndrome, and not RSD. What appears to be undisputed is that the RSD condition was not “unknown.”

We agree with the compensation judge’s analysis that the facts of this case fall squarely within the legal analysis outlined by Ryan and Sweep. The RSD condition could have reasonably been contemplated by the parties, even though it was not mentioned in the stipulation. However, while the judge was correct in his analysis, we agree with the employee in that the judge erred in dismissing the entirety of the employee’s claim petition. The claim petition alleged medical benefits which were not closed out by the 1996 stipulation. Because the claim petition sought medical benefits, the matter should not have been dismissed. We therefore, affirm the order, but modify Finding 4 to add “excluding future medical benefits,” vacate Finding 5, and remand for further proceedings consistent with this decision.