The employee petitioned the Workers’ Compensation Court of Appeals to vacate an award on stipulation based on mutual mistake of fact and a substantial change in condition.
The employee was working for Independent School District No. 413 on May 30, 2003, when he was injured pulling bleachers out to set up a school graduation ceremony. A June 2003 MRI showed a disc protrusion at L4-L5. On May 4, 2005, the employee received a 7% PPD rating and was assessed by Dr. Russell Gelfman to be at Maximum Medical Improvement. An IME was performed by Dr. William Bell in March 2005, which found multilevel degenerative disease exacerbated by the May 20, 2003 work injury. Dr. Belle found symptom magnification and considered the injury to be temporary. He found the employee was at MMI and that there was no applicable permanent partial disability (PPD) rating.
The employee underwent a L4-L5 to L5-S1 fusion on June 6, 2005. He returned to work full time as a foster care provider in September 2005. Dr. Belle performed a follow-up IME in December 2005, finding the employee needed no more care or treatment following the fusion. He assigned a 20% PPD rating.
In March 2006, the parties settled potential indemnity claims for a lump sum of $45,000 in addition to closing out soft medicals for $7,500. Non-chiropractic treatment to the low back was kept open.
Later in 2006, the employee experienced an increased in back pain and was told the fusion site had not healed. A CT in 2007 showed a pars defect at L5; he was diagnosed with pseudoarthritis at L4-L5 and received further treatment, including a posterolateral spinal instrumentation from L3-S1. Morphologic changes were found at the L3-L4 level following a discogram in 2009. He underwent a fusion at L3-L4 in April 2009.
A revision surgery was performed in 2011 by Dr. Carlson to remove hardware from L4-L5 due to nonunion with the L3-L4 fusion.
In 2014, Dr. James Brunz issued a narrative report indicating the employee suffered from sacroiliitis which arose from the fusions. He opined additional injections may be needed.
In analyzing whether there was a mutual mistake of fact at the time of settlement to support vacation, the court agreed with the employer and insurer that there was no mistake of fact; the evidence at settlement suggested a healed fusion site with no evidence to the contrary.
The court then considered whether the employee could show a change in medical conditions supporting vacation using the factor-by-factor analysis articulated in Fodness v. Standard Café.
With regards to the ‘change in diagnosis’ factor, the employer and insurer argued the employee’s worsened condition was reasonably anticipated at the time of settlement. The court sided with employer and insurer and found the subsequent need for an additional fusion and the development of pseudo arthritis was a separate diagnosis from the employee’s condition at the time of settlement. The court found that the ‘change in ability to work’ factor favored the employee because the employee recently became unable to work, despite being previously being cleared for work and actually working nearly full time after the 2005 fusion. The court also considered whether the employee had ‘additional permanent disability’ with regards to his back condition; although the employee did not submit evidence of additional PPD ratings, he maintained that additional PPD was a forgone conclusion due to the subsequent surgeries performed and additional levels of the spine affected. The court found that the failure to submit evidence of additional PPD did not defeat the employee’s petition for vacation of award.
With regards to the ‘more costly medical care’ factor, the court noted that Dr. Bell initially reasoned that the employee would not require additional medical care in the foreseeable future; the number and scope of subsequent post-award surgeries supported the employee’s position. In analyzing the ‘causal relationship’ factor, the court reasoned that the change in condition arose from the work injury and supported vacation. Finally, the court found that the parties clearly anticipated the employee’s condition to remain stable; the court cited to Anker v. Hinrick’s Custom Cabinets for the proposition that where a limited amount is paid pursuant to settlement and both parties reasonably believe the employee would continue working, “subsequent total disability supports vacation of the award.” The court granted the employee’s petition and vacated the April 5, 2006 award.