Gelhar v. Universal Hosp. Servs., WC18-6157 (W.C.C.A. August 7, 2018).
Employee petitions the court to vacate an award on Stipulation, based on a change in medical condition. The employee suffered a low back injury on June 3, 2002. She underwent conservative treatment and was released to work with restrictions by October 30, 2002. The treating physicians did not consider the employee to be a good candidate for surgery. On February 5, 2003, the employee was examined by Dr. Bergman on surgical referral. Dr. Bergman also determined that the employee was not a candidate for surgery as the pain generator in her low back had not been identified.
On August 26, 2003, the employee underwent an IME on behalf of the employer and insurer. It was found the employee had work restrictions and that the employee should have an MRI to aid in assessing the employee’s condition. Shortly thereafter, the parties settled on a full, final, and complete basis, leaving future medical treatment open. Following the settlement, the employee’s condition progressed, resulting in multiple surgeries, including several fusions. The employee petitioned to vacate the award on stipulation.
An award on stipulation may be vacated when it is shown that there has been “a 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.” Hudson v. Trillium Staffing, 896 N.W.2d 536, 539, 77 W.C.D. 437, 441 (Minn. 2017). In determining whether a substantial change in medical condition has occurred, the court looks to the Fodness factors, including: (1) a change in diagnosis; (2) a change in the employee’s ability to work; (3) additional permanent partial disability; (4) a necessity for more costly and extensive treatment than anticipated; (5) causal relationship between the injury addressed in the settlement; and (6) contemplation of the parties at time of settlement.
The court found that when a low back condition, which was not considered appropriate for surgery at the time of settlement, then subsequently results in fusion surgery, is a worsened diagnosis for purposes of vacating a settlement. The court further found that the employee was approved to work with restrictions at the time of settlement, but following the worsening of symptoms, had shown a decrease in ability to work. The employee also easily satisfied the factors of additional PPD, additional extensive medical care, and causation.
As for the remaining factor of contemplation of the parties, the employer and insurer contended that the potential worsening of the employee’s back condition was foreseeable at the time of settlement. It was further argued that IME physician, in recommending the MRI, demonstrated that the employee’s condition worsening was foreseeable. The court disagreed, stating that for the employee to have foreseen the worsening of her condition, she would had to know more about her condition than any of the physicians who examined her, which is an “unreasonable standard.” The court further reasoned that “suggesting that the imaging would have determined that the employee’s condition was operable is mere speculation.” The court vacated the award on stipulation.