AMY L. GARTHUS, Employee,
v.
BENEDICTINE HEALTH CTR., SELF-INSURED, adm'd by BERKLEY ADM'RS, Employer/Petitioner,
and
SPECIAL COMPENSATION FUND.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
May 20, 1999
HEADNOTES
VACATION
OF AWARD - MISTAKE. The petitioner, the self-insured
employer, failed to establish a mutual mistake of fact at the
time of settlement sufficient to vacate the stipulation for
settlement.
VACATION
OF AWARD - FRAUD; VACATION OF AWARD - SUBSTANTIAL CHANGE IN
CONDITION. The petitioner's claims of fraud in the
inducement or, in the alternative, of a substantial change in
condition since the settlement, are referred to a
compensation judge at the Office of Administrative Hearings
for a hearing and factual findings.
Petition to vacate referred for hearing at OAH.
Determined by Johnson, J., Wilson, J., and Wheeler, C.J.
OPINION
FACTUAL
BACKGROUND
Amy L.
Garthus, the employee, sustained an admitted personal injury
to her neck and low back on April 24, 1989, while working for
the employer, Benedictine Health Center. The employer
was self-insured for worker's compensation purposes at
all relevant times. The employee began treating with Dr.
William Fleesen in April 1989. Dr. Fleesen referred the
employee to Dr. Richard Freeman, a neurosurgeon, who
performed a cervical discectomy and fusion at C4-5
and C5-6 on July 18, 1989. The employee
returned to work for the employer in a modified job in
February 1990.
The
employee contended she sustained a second injury to her neck
and low back on October 24, 1990. The employer denied
liability for this injury. The employee filed a claim
petition seeking wage loss and permanent partial disability
benefits resulting from both injuries. In a findings and
order filed March 4, 1992, a compensation judge found the
employee sustained a work-related injury to her neck and low
back on October 24, 1990. The judge further found the
employee sustained a 16.5% permanent partial disability to
the body as a whole as a result of the injuries to her
cervical spine and a 10.5% whole body disability secondary to
the lumbar spine injuries.1 The judge assigned 90% of the
employee's disability to the April 24, 1989 injury and
attributed 10% to the October 24, 1990 injury.[2] (Findings and Order, March 4,
1992.)
The
employee returned to see Dr. Fleesen on July 23, 1992,
reporting no improvement since the fusion surgery. She
complained of headaches, neck pain radiating into her left
arm and low back pain. Dr. Fleesen reviewed MRI and CT
scans and plain x-rays and concluded the studies demonstrated
a solid fusion at C5-6, a fusion breakdown at C4-5 with the
development of a pseudoarthrosis, and a possible C6-7 disc
herniation. The doctor referred the employee to Dr.
Timothy Garvey for evaluation for a possible refusion and/or
intervention at C6-7. (Pet. Ex. 11-14.)
The
employee saw Dr. Garvey on September 10, 1992. Following
a cervical discography, Dr. Garvey recommended a C4-5 fusion
to correct the pseudarthrosis. Dr. Garvey opined there
was a 50/50 chance the surgery would relieve the
employee's pain. On December 9, 1992, Dr. Garvey
performed a posterior cervical fusion from C4 to C6 with
internal fixation and an iliac crest bone
graft. Thereafter, Dr. Garvey recommended the employee
follow up with Dr. Fleesen and hoped the employee could
return to light-duty work. (Pet. Ex. 11-15.)
The
employee was off work from October 24, 1990 until September
1993 when she returned to a modified job with the
employer. The employee worked for about one
week. She then remained off work and was paid temporary
total disability benefits by the employer. On
October 19, 1993, Dr. Fleesen stated he had nothing further
to offer the employee from a treatment standpoint. The
doctor concluded the employee was not a candidate for further
surgery, physical therapy or psychotherapy, although some
short-term counseling might be helpful. Dr. Fleesen
concluded the employee was permanently and totally
disabled. He opined the employee was able to spend only
two to four hours a day devoted to family or employment
activities and had to lie down and rest to treat her pain and
headaches during the rest of the day. Dr. Fleesen noted
the employee told him "she cannot tolerate even a couple
of hours of lightest work, and I take this at face value - -
at this point in this case, with this
patient." Finally, Dr. Fleesen concluded there was
only a small likelihood a pain management program would
increase the employee's tolerance for the activities of
daily living. (Pet. Ex. 11-14.)
The
employee was seen by Dr. Fleeson on January 31, 1994,
essentially without change. On February 1, 1995, Dr.
Fleesen again examined the employee who complained of
increased upper back and neck pain over the past
month. On examination, the doctor noted extreme
limitation of cervical motion with normal reflexes. The
diagnosis was multiple cervical spine fusions with a residual
unoperated C6-7 disc protrusion. The doctor believed the
increased pain was possibly due to problems with the fusion
or increased disc degeneration.
The
employee had filed a claim petition, on September 23, 1993,
seeking permanent total disability benefits from and after
December 9, 1992, additional permanent partial disability and
rehabilitation benefits. In March 1995, the parties
entered into a stipulation for settlement. The employee
contended she was permanently and totally disabled and
alleged entitlement to additional permanent partial
disability benefits, rehabilitation benefits and medical
expenses. The self-insured employer denied the employee
was permanently and totally disabled and relied upon the
independent medical evaluation of Dr. Robert H.N. Fielden,
dated December 3, 1993.3 To settle their claims, the
parties stipulated the employee became permanently and
totally disabled on October 24, 1990. The parties
acknowledged the employee was receiving Social Security
Disability benefits and agreed the employer and insurer would
be entitled to the offset provisions of Minn. Stat. §
176.101, subd. 4. The parties agreed the self-insured
employer would "pay ongoing permanent total disability...
