Lykins v. Anderson Contracting Inc. No. WC23-6532 March 8, 2024
The Employee was injured while working as a driver when an explosion went off causing injuries of a TBI, facial fractures, and injuries to the ears, upper body, and back. The Employee’s spouse hired Attorney Ellig.
The Employee was reviewed by Dr. Odland, neuropsychologist, who found the Employee had significant impairments in complex attention, hemispatial inattention, processing speed, and executive functioning, including decreased insight/self-awareness, mental flexibility, disinhibition, and complex problem solving. He also noted the Employee had behavioral issues of frustration, impulsivity, and irritability. He opined the Employee could not work, drive, and needed full time personal care which should not be provided by a family member.
The Employer and Insurer admitted the injury and paid TTD, medical expenses, and nursing services of $5,000.00/month to the Employee’s wife. A home care evaluation was done at the request of the Employer and Insurer. That found the Employee did not need constant supervision but did need 25.45 hours of supervision per week. On November 28, 2016 the Employer and Insurer sent notice of MMI from October 10, 2016 based on the report of Dr. Heuer. Dr. Heuer found the Employee had left sided hemineglect, difficulties with executive functioning, and needed continuous supervision, including the need for a personal care attendant now and in the future. On February 5, 2017 the Employer and Insurer filed a NOID to discontinue TTD benefits based on Dr. Heuer’s report. Just before that the Employee was determined disabled by the SSA and was entitled to benefits of $1,226.90/month as of March 2016. An NOBP was filed on February 28, 2017 indicating the Employee had been paid 40% PPD.
In February 2017, Dr. Odland conducted a neuropsychological re-evaluation. He found the Employee still had issues with cognitive function, impairments in executive functioning, complex attention, motor functioning, visuospatial attention, and verbal fluency and retrieval. Dr. Odland concluded the Employee’s condition was sever and debilitating and will require 24/7 supervision and support on a long term basis. In March 2017 Dr. Odland wrote a letter to the Employee’s attorney indicating the Employee will need 24/7 PCA attendants on a permanent basis.
On April 14, 2017 the parties reached a tentative settlement of $630,000.00, the Employer and Insurer agreed they would stipulate to excess fees for the Employee’s attorney. On April 24, 2017 the parties agreed on a FFC for $438,000.00 with medical left open, but closing out nursing services. The Employee’s attorney was to be paid $26,000.00 contingency, $12,000.00 Roraff, and $55,000.00 in excess fees. The Stipulation was submitted on May 22, 2017, no medical records were attached. The same day the Stipulation was approved.
In July 2022 a conservator was appointed for the Employee for proceedings before the WCCA and any other litigation needing to be undertaken on the Employee’s behalf. The conservator filed a petition to vacate the 2017 and 2018 Awards on Stipulation. The Employer and Insurer objected.
The Petition alleged the Employee appeared to be incapacitated at the time of his workers’ compensation settlements and that the attorneys involved were required to seek appointment of a conservator per Minn. Stat. § 176.092, Subd. 2. Further, the Petitioner contends that when the Stipulation was sent to OAH the attorneys deliberately withheld the reports of Drs. Heuer and Odland along with other medical documents which would have resulted in the compensation judge appointing a conservator per Id. Subd. 3.
Under Minnesota Workers’ Compensation law an agreement to settle a claim is not valid if a conservator is required and the Employee does not have one. For a conservator to be required an Employee must have lack of capacity for personal decision making and an inability to meet personal physical needs. The WCCA found that there appeared to be no dispute regarding the Employee’s inability to meet his physical needs and that there was compelling evidence regarding the Employee’s ability to make personal decisions. There was no referral to district court for a determination of if the Employee was incapacitated. So, the matter was remanded to OAH to make findings of whether the Employee appeared to be incapacitated at the time of the stipulations. If incapacitated the matter was to be referred to the District Court for a determination of fact regarding the Employee’s incapacity and return the matter with those findings to the WCCA. If not, the compensation judge is to return the matter to the WCCA. After the matter is returned to the WCCA they will consider the petition to vacate.