Gergory A. Deline v. Flare Heating & Air Conditioning, Inc.

Gergory A. Deline v. Flare Heating & Air Conditioning, Inc., et at. No. WC21-6400 (W.C.C.A. November 19, 2021.

The Employee petitioned the WCCA to vacate a January 2009 Award on Stipulation based upon an argument that the Employee sustained a substantial change in medical condition that was clearly not anticipated and could not reasonably have been anticipated at the time of settlement.

The Employee sustained the injury in 2003 when he fell down a staircase, striking his head. The Employee subsequently developed weakness and other symptoms in his left leg and foot, as well as foot drop. The Employee treated with various neurologists, and was eventually diagnosed with multiple sclerosis, although other doctors subsequently disagreed and believed the Employee sustained a spine injury, and did not exhibit symptoms of multiple sclerosis. Another doctor opined that the Employee’s history is consistent with a traumatic brain injury and associated focal intracranial bleed, leading to the symptoms. The cause of his symptoms was litigated and the compensation judge found the Employee’s left-sided weakness and altered gait resulted from a focal area brain injury caused by the 2003 fall. That decision was appealed to the W.C.C.A. and was affirmed. In 2009, the parties settled the Employee’s claims that he was permanently and totally disabled and the claimed 53% PPD rating, for $150,000, with most medical expenses left open. The Employee was working part time, but receiving SSDI benefits, at that time.

Subsequently, the Employee’s condition progressed. Dr. Bushara performed an IME, opining the Employee’s condition was related to multiple sclerosis, not the 2003 injury. The Employee continued to treat, and different doctors had different opinions on whether or not his symptoms were related to multiple sclerosis or a spinal cord injury. His condition progressed to the point where he had difficulty rising from a chair, and used a cane and walker for ambulating. Another settlement was entered into in 2015, settling the Employee’s claim for a vehicle lift. He began to experience increased back pain and worsening use of his left upper extremity, as well as his left leg.  By 2017, he reported he could not move his left leg, stand, or walk.  His treating doctor provided the Employee with a 75% PPD rating. Dr. Bushara examined the Employee again in 2021, again finding the Employee’s condition and resulting symptoms are related to the multiple sclerosis.

The Employee argued he now has a 75% PPD rating, and is now permanently and totally disabled. The Employer and Insurer argued that the Employee’s condition is not related to the 2003 work injury, noting that the Employee has been diagnosed with multiple sclerosis, by both the Dr. Bushara, and treating providers. Given the differing opinions, the WCCA referred the matter to OAH for a finding on whether the Employee’s medical condition at the time of the petition to vacate is causally related to the Employee’s 2003 work injury. After that finding, the WCCA will consider the petition to vacate.

Takeaway: the WCCA has discretion to refer the case to OAH for fact-finding prior to addressing a petition to vacate.