VACATION OF AWARD – SUBSTANTIAL CHANGE IN CONDITION. Where the employee presented no evidence his diagnosed conditions had worsened or he had new diagnoses, his ability to work had substantially changed due to the effects of the work injury, he incurred additional medical treatment expenses, or had any permanent partial disability rating arising from the work injury, he did not establish good cause to vacate an award of benefits.
VACATION OF AWARD. Where there was no evidence that the employee was incompetent to represent himself at the time of the hearing, the employee’s petition to vacate his award on grounds that he was subject to impaired judgment at the time of hearing is denied.
Attorneys: Adam Strege, pro se, Petitioner. David O. Nirenstein, Fitch Johnson Larson, P.A., Saint Paul, Minnesota, for the Respondents.
Petition denied.
THOMAS J. CHRISTENSON, Judge
The employee, proceeding pro se, petitions this court to vacate the Findings and Order served and filed on October 20, 2006, on the grounds that he was incompetent to represent himself during the hearing held on September 13, 2006, and that he experienced a substantial change in his medical condition. Concluding that the employee has failed to show good cause to vacate the findings and order, we deny the employee’s petition.
On March 18, 2004, the employee, Adam Strege, was working as a carpenter hanging sheet rock. During a dispute over framing done on the job site, a co-worker pushed the employee and he fell backwards against a wall striking his head and left shoulder. As a result of the work incident, the employee claimed injuries to his neck and left arm, as well as a traumatic brain injury causing a consequential emotional injury. The pro se employee sought temporary total disability (TTD) benefits. The claim came before a compensation judge at a hearing held on September 13, 2006.[1] Following the hearing, the compensation judge issued a Findings and Order on October 20, 2006.[2] (Ex. 2.) In the findings and order, the compensation judge determined the employee suffered only a temporary strain to his neck that healed by July 15, 2004. (Finding 24.) The judge found that the employee did not show that his claimed traumatic brain and emotional injuries were caused by the March 18, 2004, work incident. (Finding 28.) The judge also concluded the employee was not a reliable witness regarding his emotional and behavioral difficulties that existed before March 18, 2004. The judge awarded TTD benefits through July 15, 2004, and denied all other claims. The employer and insurer appealed the findings and order to the Workers’ Compensation Court of Appeals, but that appeal was later withdrawn and dismissed on December 15, 2006, without a decision by this court. No appeal or cross-appeal of the findings and order was made by the employee.
On June 12, 2012, the employee, again acting pro se, filed an amended claim petition and request for formal hearing seeking benefits for claimed traumatic brain and neck injuries on March 18, 2004. The amended claim petition and request for formal hearing were dismissed on August 16, 2012, by a compensation judge based upon a lack of jurisdiction to reconsider the October 2006 award.[3] (Ex. 3.) The employee did not appeal the dismissal order.
On June 2, 2022, the pro se employee filed a petition to vacate the 2006 findings and order. In response to the employer and insurer’s position that the employee’s petition lacked a factual basis, the employee was given additional time to supplement his petition. While the employee submitted multiple arguments, the information submitted did not factually corroborate his petition to vacate the 2006 award. On October 27, 2022, this court dismissed without prejudice the employee’s petition to vacate. This dismissal was appealed by the employee to the Minnesota Supreme Court. On January 30, 2023, the Minnesota Supreme Court dismissed the employee’s appeal for failure to timely file the petition for writ of certiorari.
On March 2, 2023, again proceeding pro se, the employee filed the current petition to vacate the 2006 findings and order. The employee contends that he is entitled to vacation of that award due to a substantial change in medical condition that could not be anticipated or, in the alternative, that the employee was incompetent due to a traumatic brain injury to represent himself at the hearing held on September 13, 2006. No medical, psychiatric, or psychological assessments or reports were submitted by the employee in support of his petition.[4]
On July 28, 2023, Dr. Manuel A. Gurule conducted an independent medical examination (IME) of the employee at the request of the employer and insurer. As part of the examination, Dr. Gurule reviewed evaluations of the employee conducted on May 11, June 7, and July 28, 2004, by Gary Johnson, Ph.D., at the Loring Family Clinic. Dr. Johnson concluded that the employee had a host of symptoms best summarized by neurological disorder not otherwise specified (executive dysfunction syndrome, ADHD, manic/mood cycle) comorbid with significant anger control issues. Dr. Johnson diagnosed the employee with bipolar disorder, intermittent explosive disorder, Asperger’s syndrome, and psychotic disorder NOS (not otherwise specified).
Dr. Gurule also assessed the employee’s records from a Mayo Clinic evaluation conducted on April 14-15, 2005. In that evaluation the employee reported being independent in meal preparation, managing his home, managing his money/finances, and that he was currently employed as a framing carpenter. The evaluation record noted the employee’s verbal comprehension and retention were normal, and he displayed no difficulty in following a conversation or answering questions. The employee’s language was described as normal in grammar, syntax, vocabulary, and general organization.
From his physical examination of the employee, Dr. Gurule noted that the employee showed no sign of neurological impairment or disability related to the employee’s work injury. Dr. Gurule diagnosed the employee with a psychotic disorder that was not caused by or related to the March 18, 2004, work injury.
This court has authority to vacate or set aside an award only for cause under Minn. Stat. § 176.461. Cause is limited by statute to mutual mistake of fact, newly discovered evidence, fraud, or substantial and unanticipated change in medical condition. It is difficult to identify the statutory premise of the pro se employee’s petition to vacate but it appears to be based, in part, upon a substantial change in medical condition. When we evaluate a petition to vacate based upon a substantial change in medical condition, the following factors are used:
1. a change in diagnosis;
2. a change in the employee’s ability to work;
3. additional permanent partial disability;
4. necessity of more costly and extensive medical care than initially anticipated;
5. causal relationship between the injury covered by the settlement and the employee’s current worsened condition; and
6. contemplation of the parties at the time of the settlement.
Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989). See, e.g., Pantlin v. Krueger & Assocs., 68 W.C.D. 426 (W.C.C.A. 2008); Bartz v. Meadow Lane Healthcare, 67 W.C.D. 214 (W.C.C.A. 2007); Bresnahan v. Vicorp/Bakers Square, No. WC05-292 (W.C.C.A. Apr. 27, 2006). Applying these factors to this case, the employee’s condition as it was at the time of the award is compared with the employee’s condition at the time vacation of the settlement is sought. See Davis v. Scott Moeller Co., 524 N.W.2d 464, 466-67, 51 W.C.D. 472, 475 (Minn. 1994). As there was no settlement in this case, the sixth factor is not applicable, and the comparison is to the employee’s condition at the time of the 2006 findings and order.
The employer and insurer argue that the employee experienced no change in diagnosis, as he was suffering from a psychological condition diagnosed in 2004 which is unchanged from 2006 to the present. The employee has made claims that he did not suffer from a psychological problem prior to the March 18, 2004, work injury, but this is contradicted by the employee’s medical records and the findings made by the compensation judge in 2006. (Ex. 2.) The change in diagnosis factor supports denying the request to vacate the award.
At the time of the award, the employee had been released to work without restriction. Since that time, the employee has been assessed as totally disabled and entitled to receipt of SSDI benefits. But the employee has not provided information regarding the source of that disability and what connection his condition has to the March 18, 2004, work injury.[5] The absence of evidence addressing this factor supports denying the request to vacate.
The employee neither claimed nor was awarded permanent partial disability (PPD) benefits in the 2006 findings and order. No medical opinion rating the employee with any PPD from the March 18, 2004, work injury has been submitted in support of the petition to vacate. As no evidence of increased PPD is in the record, this factor supports denying the petition.
No evidence has been provided to suggest that the employee has undergone any significant medical care since the 2006 findings and order. The employee has submitted evidence of an award of SSDI benefits, but the information supporting that award was not provided with the petition to vacate. Dr. Gurule summarized the employee’s visits to the Maui Medical Group on February 26, 2013, to establish medical care, and on March 6, 2013, for a neurology consult. The neurologist, Dr. George Powell, diagnosed the employee with paranoid schizophrenia and recommended psychiatric treatment. There is no indication of follow-up by the employee on Dr. Powell’s recommendation. Based upon the record presented for our examination there is no evidence demonstrating more costly medical care related to the employee’s work injury to support a change in medical condition warranting vacation of the award.
The employee has presented no medical evidence connecting his claimed traumatic brain injury and consequential emotional injury to the March 18, 2004, work injury. In the 2006 findings and order, the compensation judge found that the employee had not demonstrated that he had suffered a traumatic brain or emotional injury from the March 18, 2004, work incident. The employer and insurer, based on the IME examination and opinions of Dr. Gurule, deny any connection between the March 18, 2004, work injury and the employee’s claimed traumatic brain and emotional injuries and consequential incompetence or incapacity.
The employee has not shown a substantial change in medical condition and his petition to vacate on that basis is denied.
The other basis asserted by the employee for the petition to vacate is mental incompetence to represent himself at the hearing which occurred on September 13, 2006. The employee has not submitted any expert psychiatric opinion or other medical evidence to support this assertion. The prior decisions of this court have consistently required that an employee seeking to vacate an award on grounds of incompetency provide sufficient corroborating evidence in support of the claim of incompetence. See McGovern v. Sanborn Mfg., slip op. (W.C.C.A. July 13, 1995) (allegations of incompetence were insufficient without corroborating evidence).
Here the employee has submitted only his own allegations of incompetence, unsupported by any corroborating evidence. Indeed, no evidence has been submitted by the employee with respect to a diagnosis or treatment of his mental health condition by any medical professional, psychiatrist, or psychologist. The employee has submitted no expert medical, psychiatric, or psychological opinion to this court to indicate that in September 2006 the employee was incompetent or “lacked sufficient understanding or capacity to make personal decisions ….” Minn. Stat. § 524.5-102, subd. 6 (defining “incapacity”). Finally, there is no lay evidence, other than the employee’s own allegations, to support his claim of mental incompetence or incapacity.[6] As there is an insufficient evidentiary basis to support the employee’s assertion that he was lacking in mental competence to represent himself at the September 2006 hearing, we deny the employee’s request to vacate the Findings and Order filed on October 20, 2006, on that basis.
[2] At the hearing, the employee relied on claims under the Americans with Disabilities Act (42 U.S.C. § 12101 et seq. (1990)) and alleged violations of the United States and Minnesota Constitutions. These claims were not decided by the compensation judge for lack of jurisdiction. (Findings 4-5). Minn. Stat. § 175A.01, subd. 5, provides, “the Workers’ Compensation Court of Appeals shall be the sole, exclusive, and final authority for the hearing and determination of all questions of law and fact arising out of the workers’ compensation laws of the state in those cases that have been appealed to the Workers’ Compensation Court of Appeals and in any case that has been transferred by the district court to the Workers’ Compensation Court of Appeals. The Workers’ Compensation Court of Appeals shall have no jurisdiction in any case that does not arise under the workers’ compensation laws of the state ….” These principles are fundamental to all disputes heard in workers’ compensation. See David v. Bartel Enters., 856 N.W.2d 271, 273 (Minn. 2014).
[3] Res judicata, or claim preclusion, is a finality doctrine in which a final judgment on the merits bars a second suit for the same claim by the same parties. Kaiser v. Northern States Power Co., 353 N.W.2d 899, 902 (Minn. 1984). A subsequent claim is precluded when “a prior claim involved the same cause of action, there was a judgment on the merits, and the claim involved the same parties or their privies.” Nelson v. Am. Fam. Ins. Grp., 651 N.W.2d 499, 511 (Minn. 2002). A cause of action or claim is “‘a group of operative facts giving rise to one or more bases for suing.’” Hauschildt v. Beckingham, 686 N.W.2d 829, 840 (Minn. 2004) (quoting Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 9 (Minn. 2002)). The supreme court has determined the principles of res judicata may apply in workers’ compensation proceedings, however, it is narrowly applied and bars subsequent proceedings only on issues and claims that were specifically litigated and decided in an earlier decision. Alexander v. Kenneth R. LaLonde Enters., 288 N.W.2d 18, 32 W.C.D. 312 (Minn. 1980); see also Fischer v. Saga Corp., 498 N.W.2d 449, 48 W.C.D. 368 (Minn. 1993); Westendorf v. Campbell Soup Co., 243 N.W.2d 157, 28 W.C.D. 460 (Minn. 1976). Absent vacation of the 2006 findings and order, the issues raised by the employee were precluded by the doctrine of res judicata.
[4] The employee attached a very limited portion of his April 15, 2005, Mayo Clinic medical record to his petition to vacate and reply brief. Otherwise, the employee’s medical records were not provided to the court and our assessment of the employee’s medical condition is based on by the summary of the employee’s records contained in Dr. Gurule’s report. (Ex. 4.)
[5] While the employee argues that his Social Security Disability Insurance (SSDI) determination is evidence that he is unable to work, this does not alter the employee’s burden to demonstrate that the effects of the work injury resulted in that inability. Disability determinations under SSDI do not meet that burden. See Aho v. Duluth Transit Authority, 66 W.C.D. 158, 162 (W.C.C.A. 2006) (“Whether or not the employee applies for SSDI benefits does not alter either the effects of the employee’s injury or the causal relationship between the injury and the employee’s disability.”); see also Olds v. Lutheran Soc. Serv., 67 W.C.D. 252 (W.C.C.A. 2006) (SSDI determination on different injuries has no effect on workers’ compensation benefits).
[6] The employee requested financial assistance from the Minnesota Crime Reparations Board (MCRB) based upon the March 18, 2004, altercation. The MCRB denied the claim because the employee failed to cooperate with law enforcement. In 2005, a contested case hearing was held on the employee’s assistance claim, which was denied. The employee appealed the denial to the Minnesota Court of Appeals which affirmed the denial of the employee’s claim. ITMO the Eligibility of Adam Strege, Claimant for Crime Victims Reparations, No. A06-191 (Minn. App. Oct. 17, 2006) (unpublished). In upholding the MCRB decision the Court of Appeals indicated that the employee “failed to show that he sustained a head injury from the assault or that he was affected by an impairment or disability that prevented him from cooperating with law enforcement.” Id. The Court of Appeals recited a significant number of factors supporting the MCRB determination that the employee was not impaired by a physical or mental disability at that time. No evidence in the record before this court contradicts the MCRB’s determination. While the MCRB determination is not dispositive of the issue before this court, that determination informs this court in the exercise of its discretion regarding the request to vacate the 2006 award.