The Employee was injured in a fall from a truck. The parties mediated a settlement. The parties entered into a partial stipulation for settlement, resolving the Employee’s claims and closing out future medical treatment. The settlement was reviewed by a compensation judge and a partial award on stipulation was served and filed on November 17, 2016.
Soon after, the Employee was evaluated and found to need surgery. By January 2017, the Employee’s posture was bent forward so that he looked at the ground and had to tilt his head up to be able to look forward.
The Employee’s condition continued to deteriorate, and he underwent surgery and was eventually rated as having at least a 26 percent permanent partial disability (PPD) rating.
The Employee petitioned to vacate the award, asserting that he has sustained a substantial change in medical condition that was not anticipated at the time of settlement. The employer and insurer objected.
Pursuant to Minn. Stat. § 176.461, this court may set aside an award on stipulation “for cause,” which can include a substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated at the time of the award.
When evaluating a petition to vacate an award on stipulation on this basis, this court considers factors including a change in diagnosis, a change in the Employee’s ability to work, additional permanent partial disability, necessity of more costly and extensive medical care than initially anticipated, causal relationship between the injury covered by the settlement and the Employee’s current worsened condition, and contemplation of the parties at the time of the settlement. Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).
Before settlement, the Employee was diagnosed with a T11 fracture and thoracic kyphosis. His diagnoses after the post-settlement surgery included paraplegia, bilateral leg weakness, impaired mobility, generalized weakness, impaired activities of daily living, and impaired cognition.
At the time of the settlement, the Employee was not working but thought he would be able to return to work. Following the settlement, the Employee has been completely taken off of work and will be out until early 2019.
The Employee had not been rated for PPD at the time of the settlement. Subsequently he was rated to at least 26% PPD.
At the time of the settlement, there were conflicting opinions on whether the Employee needed surgery. The surgery performed on the Employee after the settlement was more extensive than the surgery contemplated at the time of settlement.
As to causation, a provider opined that the 2015 fall caused the fracture and was the proximate cause of the Employee needing surgery and not working.
The employer and insurer argued that given the surgical recommendations at settlement, the Employee’s condition after the surgery was reasonably anticipated at the time of the settlement.
The Employee proved that he believed that his T11 fracture would heal with use of a TLSO brace and that he would not need surgery. Further, his attorney had told him that he did not need spinal surgery and that surgery was not done to the thoracic spine. In addition, while the Employee was warned of the possible complications of the complex recommended surgery, including nerve injury and spinal cord injury, the Employee’s complications during his post-surgery recovery period have been unusually extensive.
Recently, this court denied a petition to vacate under somewhat similar circumstances in Swanson v. Kath Fuel Oil Service, No. WC18-6154 (W.C.C.A. Jan. 9, 2019). In that case, we found that when a surgery is proposed contemporaneous to a settlement, a poor surgical outcome may be reasonably anticipated.
Here, the Employee was considering conflicting treatment recommendations at the time of the settlement and had not yet decided to undergo the surgery. After the settlement, the Employee’s condition worsened and the surgery performed was more extensive than the surgery suggested before settlement and resulted in severe complications and functional impairment. These significant and extraordinary circumstances were not, and could not reasonably have been, anticipated at the time of settlement.
Given the above, the court concluded the Employee had shown a substantial change in medical condition that was not anticipated, and could not reasonably have been anticipated, at the time of settlement. Petition to vacate granted.
Key Takeaway: The existence of the possibility of surgery and recommendation of surgery at the time of settlement does not make all subsequent surgeries and complications foreseeable.