THOMAS AEGERTER, Employee/Petitioner,
v.
FAIRWAY FOODS, INC.
And
BROADSPIRE, Employer-Insurer/Respondents.
No. WC21-6426
Minnesota Workers Compensation
Workers’ Compensation Court of Appeals
February 8, 2022
VACATION
OF AWARD – SUBSTANTIAL CHANGE IN CONDITION. The
employee established cause to vacate the award on stipulation
where his circumstances satisfied all the factors set out in
Fodness v. Standard Café, 41 W.C.D. 1054
(W.C.C.A. 1989), and where the change in his medical
condition was not and could not reasonably have been
anticipated at the time of settlement.
Determined
by:
1.
David A. Stofferahn, Judge
2.
Deborah K. Sundquist, Judge
3. Sean
M. Quinn, Judge
Attorneys:
Jerry W. Sisk, Mottaz & Sisk Injury Law, Coon Rapids,
Minnesota, for the Petitioner. Kent B. Gravelle, McCollum
Crowley, P.A., Bloomington, Minnesota, for the Respondents.
Petition
granted.
OPINION
DAVID
A. STOFFERAHN, Judge
The
employee has petitioned this court to vacate an Award on
Stipulation served and filed July 8, 1999. Finding that the
employee has established cause pursuant to Minn. Stat. §
176.461, we grant the petition and vacate the award.
BACKGROUND
Procedural Background
Thomas
Aegerter was working at Fairway Foods when he sustained an
injury to his low back on March 23, 1992. The employer and
its insurer admitted liability and paid benefits to the
employee, including $10,500 for a 14 percent whole body
impairment. While still employed at Fairway, the employee had
an injury to his neck and upper back on July 7, 1996.
Benefits were paid for that injury as well. In 1999, the
employee, who was not represented by an attorney, settled all
claims arising out of the 1992 and 1996 injuries, with the
exception of medical expenses, on a full, final, and complete
basis for a payment of $58,000. An Award on Stipulation was
served and filed July 8, 1999.
The
employee began working for UPS in August 1999. He continued
to treat for ongoing low back and upper back complaints. The
employee filed a claim against Fairway for those expenses.
Fairway moved to add UPS to the claim, alleging that the
employee had sustained Gillette injuries as the
result of his employment there and that UPS was liable for
the claimed medical expenses. After a hearing in April 2014,
the compensation judge determined there had been no injuries
at UPS and ordered Fairway to pay the medical expenses at
issue. Fairway appealed to this court, and in a decision
served and filed December 12, 2014, the decision of the
compensation judge was affirmed.
The
employee filed a petition to vacate the 1999 settlement on
September 10, 2021, pursuant to Minn. Stat. § 176.461.
The employee has alleged that there has been a substantial
change in medical condition since the time of the award which
was clearly not anticipated and could not reasonably have
been anticipated.
Medical
Background
The
employee’s 1992 low back injury was initially diagnosed
as a herniated disc at L4-5. In August 1993, the employee
underwent...
