Melius v. Acme Tuckpointing & Restoration, Inc.

Melius v. Acme Tuckpointing & Restoration, Inc.No.WC23-6516 (W.C.C.A December 22, 2023)

The employee sustained two admitted work injuries. On July 21, 2011, the employee suffered an injury to his left shoulder and left elbow when he struck the side of a building while nearly falling from scaffolding.  He underwent tendon surgery in 2011, developed complex regional pain syndrome, and experienced ongoing pain symptoms. On July 28, 2011, while on the jobsite, the employee was struck on the head by a piece of sheetrock that had fallen from several stories above.  He was rendered unconscious and subsequently was diagnosed with a concussion and brain injury.  The employee underwent extensive treatment for his head, neck, and upper back.  Under the care of Dr. James Schwender of Twin Cities Spine Center, the employee underwent a corpectomy at C5, an anterior cervical discectomy at C6-7, and a fusion at C4-7 on January 26, 2015. In the months that followed, the employee indicated improved pain symptoms and Dr. Schwender noted that the employee was doing well. The employee was released to work with restrictions.

In late 2015, the employee reached a settlement agreement with the self-insured employer.  The stipulation for settlement resolved the employee’s claims on a full, final, and complete basis in exchange for $175,000.00, with the exception of future medical expenses.  An award on stipulation was issued on December 10, 2015.

 According to the employee, his pain symptoms worsened following the 2015 settlement. On January 6, 2022, the employee presented at Twin Cities Spine Center with complaints of increasing neck, bilateral shoulder, and upper extremity pain over the last year. An October 14, 2021, cervical MRI revealed adjacent segment degeneration at C3-4 causing severe bilateral foraminal stenosis and central stenosis. Treatment options were discussed and the employee elected to proceed with surgery. On February 16, 2022, Dr. Schwender performed a discectomy, decompression and fusion at C3-4, and plate removal from the 2015 procedure at C4-7.  The employee experienced significant pain and weakness, specifically quadriparesis. The employee was unable to ambulate independently and had begun using a motorized wheelchair.

In his May 16, 2023, report, Dr. Larkins diagnosed the employee with quadriplegia/quadriparesis and found that the objective findings substantiated the employee’s subjective complaints.  He opined that the July 28, 2011, work injury was a substantial contributing factor to the employee’s condition, and that the employee’s need for a wheelchair was permanent.

The employee filed a petition to vacate and set aside the December 10, 2015, Award on Stipulation on June 27, 2023.  The self-insured employer objected to the petition. In determining whether to vacate and set aside an award on stipulation, the court follows Minn. Stat. § 176.461, and in cases alleging a substantial change in medical condition, considers several factors.

The employee contends that there has been a material change in his medical condition that was not anticipated by the parties at the time of settlement.  In essence, the employee claims he did not anticipate a second surgery resulting in quadriplegia/quadriparesis to such a degree of disability that he is now permanently wheelchair bound. The self-insured employer argues that the employee could reasonably have anticipated this material change in his condition at the time of settlement.  The self-insured employer contends that the parties contemplated a potential permanent total disability exposure and incorporated the value of that exposure into the equation for settlement.  The self-insured employer also argues that the fusion surgery was so complex and serious such that the employee would have reasonably known the risk and points out that the employee had given informed consent before undergoing the operation.

The self-insured employer acknowledges that the employee has met three of the six Fodness factors – a change in diagnosis, additional permanent partial disability, and the existence of a causal connection between the work injury and the employee’s current condition.

The parties dispute whether there has been a change in the employee’s ability to work since the time of settlement.  The evidence submitted before the court showed that the employee was employed in a part-time position within his work restrictions prior to the filing of the award on stipulation on December 10, 2015. For reasons beyond his control, that employment ended, and temporary partial disability benefits were paid through December 12, 2015. Because the employee was able to maintain part-time employment at the time of settlement, but is currently unable to perform many activities of daily living, the court concluded that his ability to work has changed.  This factor thus weighed in favor of granting the petition.

The self-insured employer contends that the employee, at the time of settlement, could have reasonably anticipated the subsequent worsening of his condition.  While additional medical care could reasonably have been anticipated at the time of settlement, the court concluded that the worsening of the employee’s condition is so substantial that it would not have been reasonably anticipated. Following the February 2022 surgery, the employee’s condition worsened to such an extent that he had been diagnosed with quadriplegia/quadriparesis and required the use of a hospital bed and wheelchair.  The parties did not and could not reasonably have anticipated that the employee’s condition would substantially worsen to such an extent back in 2015.  The fact that the employee had given informed consent to the surgery, which included his acknowledgement that an outcome such as the one he experienced could occur, does not mean that the outcome was reasonably anticipated. 

Lastly, the settlement amount while significant, does not rise to such a level as to negate the analysis of the Fodness factors by the court.

The court found when they analyze the Fodness factors and consider whether the compensation is proportionate to the degree and duration of the employee’s disabilities that the employee has met his burden to set aside and vacate the award on stipulation. The petition was granted.


Subsequent medical conditions that could not have been reasonably anticipated at the time of settlement that significantly impact an employee’s condition may justify vacating a prior settlement award.