The employee petitioned to vacate an Award on Stipulation served and filed on May 11, 1992, on grounds that there has been a mutual mistake, or, on the alternative, that he has experienced a substantial charge in his medical condition constituting good cause to grant the employee’s petition to vacate.
Employee was injured while working for Employer on a construction job by lifting a 150-pound box of siding. Employee experienced the onset of low back pain. The date of injury was “variously” described as August 16, 1988 and September 8, 1988. On October 6, 1988, Employee underwent a left L5-S1 hemilaminectomy, leaving him at a 9% PPD. A partial settlement was entered regarding the 9% PPD, TTD, and TPD benefits. On July 3, 1991, Employee underwent a second laminectomy, which imposed a permanent work restriction of 20 pounds lifting, and no repetitive bending, stooping, or twisting. Employee was rated at a 13% from the first operation and 5% PPD from the second operation.
In May of 1992, Employee entered into a stipulation with the employer and insurer agreeing that TTD, TPD, and PPD benefits based on the 18% PPD rating would be paid in a lump sum of $40,000. The settlement was full, final, and complete, except for future medical treatment expenses. Employee did not treat for his back from 1992 until May 2009. In late 2008, Employee began to have left leg symptoms in his thigh and buttocks, which eventually developed in his back after a few “twisting” incidents at work. MRI imaging showed a disc herniation at L5-S1. Employee then underwent additional surgeries, causing lost time and a consistent reduction of hours. Four IMEs were conducted, two of which opined that Employee’s current injuries were 100% related to the August 16, 1988 work injury.
Minn. Stat. § 176.461 permits the W.C.C.A. to set aside and grant a new hearing “for cause, at any time after an award.” Minnesota case law defined “for cause” as fraud, mistake, newly discovered evidence, or a substantial change in the employee’s condition. Employee argued (1) that he mistakenly believed he had been cured of his low back problem at the time of settlement, which constitutes a mutual mistake; and (2) the petition to vacate should be granted based on a change in condition, established by the factors in Fodness v. Standard Café.
The first factor is a change in diagnosis. The court found the expanded levels and different conditions affecting Employee’s back met this factor. The second factor is a change in the employee’s ability to work. The court concluded that employee’s affects to his low back condition have caused a reduction in hours worked and resulted in income reduction. The third factor is additional permanent disability. The court found that employer acknowledged Employee has been given a higher disability rating and did not contest this factor was met. The fourth factor is that Employee experienced more costly medical care. The court stated that the number and scope of Employees post-award surgeries indicate that the employee has experienced a change in medical conditions. The fifth factor is that there must be a causal relationship between the injury covered by settlement and the employee’s current condition. The court found that employee demonstrated a prima facie case of causation in this proceeding. The sixth factor is the contemplation of the parties at time of settlement. Here, the court concluded “there is sufficient ongoing impairment of the employee’s ability to work and engage in other activities to demonstrate that the employee’s current condition was not in the contemplation of the parties at the time of settlement.”
The W.C.C.A. found that Employee has met all the Fodness factors to support vacating the May 11, 1992 Award on Stipulation.