The Employee, David Holtslander, was a roofer for Granite City Roofing and was injured numerous times. On August 11, 1997, he suffered an admitted injury to his right shoulder and right knee in a fall. On January 7, 1998, he suffered an admitted injury to his cervical and lumbar spine, left shoulder, as well as burns. The Employee underwent a right shoulder surgery in February 1998 and underwent a cervical fusion in May 1998.
On October 9, October 12, and November 17, 2000, the Employee suffered admitted injuries to his right shoulder and low back. In March 2001, the Employee underwent a two-level fusion at L4-S1.
The Employee had been paid wage loss, medical, rehabilitation benefits, as well as permanent partial disability for his cervical and lumbar spine and right shoulder. The parties entered into a full, final, and complete settlement with medical expenses left open related to the cervical and lumbar spine, right elbow, and right shoulder in exchange for $135,000. $10,000 of that was intended to close out future rehabilitation and chiropractic care. The Award on Stipulation was filed December 23, 2002.
At the time of the settlement, the Employee was not working but was released to light duty. The parties agreed he was incapable of returning to pre-injury roofer position.
On August 21, 2003, the Employee underwent a lumbar fusion at L3-4, adjacent to the L4-S1 fusion. He had hardware removed in 2004 and underwent a fourth level fusion at L2-3 on June 25, 2007. In 2012, a spinal cord stimulator was implanted and a replacement had been since recommended. On March 8, 2016, he underwent a surgery to remove a bone spur from his cervical spine.
The Employee has not worked since the 2002 settlement and began receiving social security disability in 2006.
On October 31, 2016, the Employee filed a Petition to Vacate the December 23, 2002 Award on Stipulation, citing mutual mistake of fact and a substantial change in medical condition.
- Mutual Mistake of Fact
This must be a shared mistaken belief as to a fact material to the settlement. The inquiry must focus on what the situation was and what was known about it at the time of settlement. The Employee argued that the settlement agreement does not contemplate a claim for permanent total disability; rather the parties expected the Employee would return to light duty work. However, on the evidence presented, it could not be said that any mistake as to the severity of the Employee’s injuries, or the extent to which he would vocationally be limited, was mutual. A unilateral mistake is not sufficient.
- Substantial Change in Medical Condition
The Fodness factors were taken in turn. Only the Employee’s low back condition was considered, because the evidence related to the low back was sufficient to find a change in medical condition. They declined to address the other conditions (neck, right knee, and headaches) or the arguments by the Employer and Insurers regarding Ryan v. Potlach.
- Change in Diagnosis
The Employee alleged his low back condition had deteriorated since the settlement by undergoing four surgeries, including two fusions of expanded levels. The Employer and Insurer’s arguments that his underlying diagnosis of transitional syndrome had not change, failed. The Court noted it has repeatedly held that additional surgeries at expanded levels constitutes a change in diagnosis.
- Change in Ability to Work
The Employee argued that it was expected he would return to work, but after the additional surgeries, he is unable to work and receives social security disability. The Stipulation reflects the understanding of the parties that the Employee would not return to his pre-injury roofing job, but there is no mention of permanent total disability. The Stipulation contemplates some sort of return to work. This factor focuses on the change in the Employee’s ability to work, and not a change in whether the Employee was or is currently working.
- Additional Permanent Partial Disability
Although the Employee lacked direct evidence of an additional permanent partial disability rating, the Court concluded that it was reasonable upon reviewing the medical evidence that an increase in permanency is likely appropriate given the deterioration and the additional surgeries.
- More Costly and Extensive Medical Care
For this factor, the extent of treatment is useful evidence bearing on whether there has been a substantial change in the Employee’s medical condition. The additional treatment has been significant and the fact that future medical treatment was left open has little affect.
- Causal Relationship
This factor was not disputed.
- Contemplation of the Parties
The Court noted that permanent total disability benefits were not being claimed by the Employee nor was the issue in the parties’ claims and contentions. There was no evidence that the parties anticipated or reasonably anticipated that the Employee’s low back would deteriorate, need four additional surgeries, or receive social security disability. The $135,000 lump sum was not insignificant, but it could not be said that the amount necessarily accounts for the value of permanent total disability for an Employee who was 42 years old at the time of the settlement.
The Petition to Vacate the Award on Stipulation was granted due to a substantial change in medical condition.