The employee sustained an injury on September 19, 2011 while working for Professional Resource Network as a certified nursing assistant. She alleged injuries to her neck, thoracic spine, lumbar spine, right shoulder, and left shoulder and claimed entitlement to temporary total disability benefits. She sought medical treatment and was diagnosed with impingement syndrome with adhesive capsulitis of the right shoulder by Dr. Klapach. The parties settled the employee’s claim on a full, final, and complete basis, including a close out of medical benefits, in October of 2012 with an Award on Stipulation served and filed on November 1, 2012.
The employee subsequently petitioned to vacate the award on that stipulation in April of 2016 on the basis of a substantial and unanticipated change in her medical condition. Along with her Petition, she filed a letter from Dr. Klapach dated March 16, 2015 stating that the employee underwent shoulder surgery in 2013 and that surgery could not have been anticipated in November of 2012 (the time of the Award). Additionally, the employee filed an Affidavit along with her Petition where she claimed that, at the time of the settlement, she believed her neck and shoulder problems would improve with therapy and that she was also now being recommended for a cervical fusion surgery.
After the 2011 injury, the employee did begin working for other employers at some point and sustained 2 additional allegedly work related injuries with those employers. She filed a Claim Petition against those subsequent employers and against Professional Resource Network. In addition to the subsequent work injuries, she was also involved in two motor vehicle accidents that caused injury and a need for medical care.
The Court considered the Fodness factors of change in diagnosis, a change in the employee’s ability to work, additional permanent partial disability, the necessity for more costly and extensive medical care than originally anticipated, a causal relationship between the covered work injury and the worsened condition, and the contemplation of the parties at the time of the settlement. Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989). In addition, the Court considered the two motor vehicle accidents and the two additional work injuries with new employers and the fact that she was alleging temporary total disability benefits and medical expenses from all employers. They also reviewed the fact that she had extensive treatment for her cervical spine, low back, and shoulders even before the 2011 injury.
The Court ultimately denied the employee’s Petition to Vacate on the grounds that she did not establish a causal relationship between the 2011 work injury and her current condition, which is one of the Fodness factors. Since they denied the employee’s Petition, the court did not address the issue of the subsequent work injuries but did indicate in a foot note that they have previously declined to vacate an award when the employee had claimed benefits from subsequent employers due to subsequent injuries that could make the previous settlement irrelevant. Kinnunen v. Brockway Glass, slip op. (W.C.C.A. June 27, 2002), Wright v. Minn. Vikings Football Club, slip op. (W.C.C.A. March 7, 2003).