This matter concerns the employee’s petition to vacate an Award on Stipulation dated September 11, 1992. Specifically, the WCCA was asked whether there had been a substantial and unanticipated change in the employee’s condition following the Award.
The employee suffered a left knee injury on September 11, 1990. The employee also claimed to have suffered, as a result of the injury, conditions including RSD, a psychological / psychiatric injury, and low back injury. The parties entered into a stipulation for settlement for $45,000.00, leaving medical expenses open.
In August of 1999, the employee brought the matter before a compensation judge claiming medical treatment for his injuries. The unappealed findings and order concluded that the Employee’s RSD was causally related to his injury, and that his injury included a permanent low back condition. The employee returned for a hearing in May of 2008, claiming a new Gillette injury to his low back and left lower extremity as a result of work with a new employer. The compensation judge concluded that there was no new injury, but that the employee’s 1990 injury was a substantial contributing factor to his low back pain. Subsequently, the Employee petitioned to vacate the 1992 Award alleging a substantial and unanticipated change in his medical condition.
To evaluate whether substantial and unanticipated change in a medical condition has taken place, the WCCA reviewed the five factors detailed in Fodness v. Standard Café. Those factors ask whether there has been (1) a change in diagnosis, (2) a change in the ability to work, (3) additional permanent partial disability, (4) substantial, unanticipated medical treatment; and (5) a continued causal relationship. The WCCA found the employee had satisfied the factors and vacated the 1992 Award.
To arrive at this conclusion, the Court largely relied upon a narrative report by Dr. Robert Wengler. Dr. Wengler opined that the employee’s low back condition had worsened, resulting in chronic low back pain, contributing to permanently and totally disabling the employee, resulting in 23% permanent partial disability, requiring an April 2012 surgical decompression. These opinions satisfied elements one through four, respectively. With respect to element five, the 2008 findings and order established that the employee’s low back condition was related to his 1990 injury.
Finally, Dr. Wengler had opined that the consequences of the 1990 injury were not anticipated at the time of the 1992 Settlement. The WCCA notes that there was no evidence, from the time of settlement that anticipated the employee’s low back could worsen and require surgery.