Facts: In this matter, Clarence Johnson claimed injuries to his low back and left leg arising out of and in the course of his employment with University Good Samaritan. The matter was resolved through mediation which incorporated a stipulation for settlement, which was served and filed on October 18, 2004. The parties agreed to a full, final and complete settlement, including permanent partial disability to any extent.
Since the award on stipulation, the Employee has filed four petitions to vacate the award on the stipulation. The third three were denied. The fourth petition is subject of this opinion. The Employee argues that the award should be vacated based on fraud and substantial change in medical condition.
Decision: The Court may set aside an award for cause based Minn. Stat. § 176.461(a). For awards issued on and after July 1, 1992, cause includes mutual mistake of fact, newly discovered evidence, fraud, or “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.”
Fraud: First the Employee argued that there is proof of fraud. To establish fraud, there must be: 1) a false representation of fact; 2) the representation must deal with a past or present fact; 3) the fact must be susceptible of knowledge; 4) the representing party must know that the fact is false; 5) the representing party must intend that another be induced to act based on the false representation; 6) the other person must in fact act on the false representation; and 7) the misrepresentation must be the proximate cause of actual damages.
The Employee stated that the parties relied upon a zero percent PPD rating and a determination of MMI at the time of settlement in 2004; however, he stated that he was rated at 7% PPD by his treating physician in 2007. He also argued that there is correspondence between the attorneys that worked on the settlement that indicated that they agreed he had a zero percent PPD rating contrary to his 2007 rating from his treating physician. He also stated his union refused to help him following his termination from the Employer and the Minnesota Department of Employment and Economic Development (DEED) allowed the employer 30 days to respond to his unemployment claim rather than the ten days to respond to a request for information.
The Court stated that they do not have jurisdiction to address the issues regarding unemployment compensation or union representation. They also stated this same opinion when he brought the issue up in a previous petition to vacate.
As for the 7% PPD rating, the Court opined that there was no evidence that a false representation was made by any party. The Court found that the PPD was clearly considered by the attorneys at the time of settlement. Furthermore, the Court had already opined on this issue in 2008 when the Employee filed his first petition to vacate. In 2008, the Court found that the 2007 7% PPD rating was based on MRI scan completed in June 2003 prior to settlement. The parties were aware of this MRI scan prior to settlement. Therefore, this was not newly discovered evidence as claimed by the employee and the element of fraud had not been met under Minn. Stat. Minn. Stat. § 176.461(b). The Employee’s petition to set aside the 2004 award on stipulation based on fraud is denied.
Substantial Change in Condition: The Employee also alleged that there was a substantial change in his medical condition.
The Court states that when evaluating whether a substantial change in medical condition has been shown, this court compares the employee’s condition at the time of the settlement with the condition at the time the petition was filed. “[T]he basic concern in determining whether sufficient cause exists to set aside an award is to assure a compensation proportionate to the degree and duration of disability.”
A substantial change in an employee’s medical condition may be demonstrated by several factors, including: a change in diagnosis, a change in the employee’s ability to work, additional PPD, the necessity of more costly and extensive medical care than initially anticipated, a causal relationship between the work injury covered by the settlement and the employee’s current worsened condition, and the contemplation of the parties at the time of the settlement.
The Employee argued that there was a substantial change in his condition based on an undated determination of disability for social security benefits. That determination stated that prior to September 27, 2004, the employee could have done “less physically demanding” work, but based on his age, education, and past work history, in combination with his medical condition, he was disabled as of September 27, 2004. The conditions listed in that document included the employee’s back, leg, and shoulder, along with psychiatric problems.
The Court found that the evidence presented by social security disability determination does not show any change in the employee’s condition between the time of the settlement in 2004 and the time of the filing of the petition to vacate. In fact, that document shows that the employee had been determined to be disabled prior to the settlement. There is no evidence of additional restrictions or need for medical treatment.
In his petition, the employee mentions his prescription of Bextra as evidence of a substantial change in medical condition because it was a “bad drug that was recalled,” but there is no evidence or explanation of what condition that drug was prescribed for, what effects it had on the employee, or how that prescription changed his condition.
The Court also reflected on the Employee’s argument for the 7% PPD rating from this treating physician for this fraud claim. The Court looked at this argument because it could be construed as evidence of a substantial change in medical condition. The WCCA also found that this argument would not work because the PPD rating is based on evidence that was known to the party at the time of settlement. The treating provider’s opinion was based on the June 2003 MRI scan. So, it does not constitute as newly discovered evidence. Similarly, evidence of permanency that existed at the time of a settlement does not support a substantial change in medical condition.
The Employee petition to vacate was denied on substantial change in medical grounds as well.