Mark Gerdes v. Mammoth/Nortek, et. al.

Mark Gerdes v. Mammoth/Nortek, et. al, No. WC19-6289 (W.C.C.A. December 2019).

The Employee petitioned the court to vacate an Award on Stipulation, alleging a substantial change in medical condition that was not anticipated by the parties at the time of the Award. The Petition to Vacate was denied.

In 1993 the Employee suffered an admitted work-related injury to his neck, leading to a three-level cervical discectomy and fusion at C4-7. The Employee was 36 years old at the time of injury. In a February 1995 narrative report, Dr. Garvey opined the surgery was reasonable and necessary, but discussed that the surgery “was not a desirable thing for a young man.”  Further, Dr. Garvey opined the PPD rating would be 21.5 percent. Dr. Van Dyne, for the Employer and Insurer, opined that the fusion surgery should not have been done. He also estimated a PPD rating of 21.5 percent.

The parties entered into a full, final, and complete settlement on February 23, 1998, with certain future medical benefits left open, for a lump sum of $72,500.  In the settlement, the Employee contended that he was entitled to to-date and future wage loss and/or permanent total disability benefits. Employee claimed he was or might be precluded from returning to suitable gainful employment. At the time of settlement, the Employee had been released to work with restrictions and was actively retraining for a career working with computers.  The Employee claims neither he nor his physicians contemplated any potential need for additional surgeries and anticipated he would be able to work indefinitely.

The Employee continued to treat, including injections, through July 2005, when the Employee underwent an anterior cervical discectomy and fusion at C2-4. On September 21, 2005, the Employee was found disabled under social security law. In June 2006, the Employee underwent a posterior spinal fusion at C7-T1 and in November 2007, the Employee underwent a revision arthrodesis at C7-T1. It was opined by the Employee’s treating physicians that the Employee was unable to engage in competitive or gainful employment.

The Employee filed a Petition to Vacate, arguing a substantial change in medical condition. When evaluating a Petition to Vacate based upon an alleged substantial change in medical condition, the court looks to the Fodness factors. These include:

  1. A change in diagnosis;
  2. A change in the Employee’s ability to work;
  3. Additional permanent partial disability;
  4. The necessity of more costly and extensive medical care than initially anticipated;
  5. A causal relationship between the injury covered by the settlement and the Employee’s current worsened condition; and
  6. The contemplation of the parties at the time of the settlement.

In evaluating the factors, the court discussed that additional levels of fusion surgery constitutes a change in diagnosis. Further, the court found that there was a change in the Employee’s ability to work.  However, the court found no additional PPD and also gave less weight to the more costly and extensive medical care as those benefits were left open under the Stipulation, and were paid for by the Employer and Insurer.

As for the contemplation of the parties, the court discussed that the to-date claim at the time of settlement was approximately $28,000, but the parties settled in excess of $70,000. Although the parties disputed the severity of the Employee’s condition, the parties anticipated a potential value of future wage loss and/or PPD benefits.  Further, the court found that it was reasonable to expect that once the Employee had a fusion, another fusion at the levels adjacent to the original fusion could have reasonably been anticipated.

Therefore, although the Employee had met some of the Fodness factors, the Employee failed to demonstrate that the worsening of his cervical spine condition was not, and could not have been, reasonably anticipated by the parties. The Petition to Vacate was denied.

Takeaway: The analysis of deciding on a Petition to Vacate is fact specific. When using the Fodness factors, the court will give greater weight to the factor of whether or not the change in medical condition was contemplated by the parties at the time of settlement.