AMY J. SEBASKY, Employee,
v.
MIDWEST PLASTICS, INC., and ATLANTIC MUT. COS., Employer-Insurer/Appellants-Petitioners,
and
FINGERHUT and TRAVELERS INS. CO., Employer-Insurer.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
March 3, 1999
HEADNOTES
CAUSATION
- GILLETTE INJURY. Substantial evidence,
including several expert opinions, supported the compensation
judge's conclusion that the employee did not sustain a
Gillette injury while working for a subsequent
employer.
VACATION
OF AWARD - MISTAKE; VACATION OF AWARD - NEWLY DISCOVERED
EVIDENCE; VACATION OF AWARD - SUBSTANTIAL CHANGE IN
CONDITION. Under the facts of this case, the employer
did not establish grounds to vacate the compensation
judge's decision on the basis of either mutual mistake,
newly discovered evidence, or a substantial change in the
employee's medical condition.
Affirmed.
Petition
to vacate award on stipulation denied.
Determined by: Wilson, J., Wheeler, C.J., and Pederson, J.
Compensation Judge: Harold W. Schultz II.
OPINION
DEBRA
A. WILSON, Judge
Midwest
Plastics, Inc., and its workers' compensation insurer,
Atlantic Mutual Insurance Company, appeal from the
compensation judge's finding that the employee did not
suffer a Gillette injury1 while employed by
Fingerhut, and miscellaneous other findings. Midwest
also petitions this court to vacate the compensation
judge's August 3, 1998, findings and order based on newly
discovered evidence, mutual mistake of fact, and substantial
change in medical condition. We affirm the findings and
order and deny the petition to vacate.
BACKGROUND
The
employee sustained a work-related injury to her low back on
May 29, 1981, while working for Midwest Plastics, Inc.
[Midwest]. The employee received extensive treatment
after that injury, and surgery was first performed on
September 24, 1981, when she underwent a discectomy at the
L5-S1 level. A second surgery, in the form of a
facectomy and partial discectomy, was performed on May 10,
1982. In February of 1985, the employee had a
chymopapain injection. The employer and insurer admitted
liability for the injury and paid benefits.
The
employee began treatment with Dr. Thomas Rieser in August of
1986. Seven months later, on March 18, 1987, Dr. Rieser
performed a two-level fusion, involving the L4-5 and L5-S1
levels. The employee was off work for approximately a
year after this procedure and then returned to work at Sears
Department Store in a light-duty, part-time clerical
job. In 1989 the employee underwent surgery for removal
of her fusion hardware, following which she was off work for
several months. In March of 1990, Dr. Rieser recommended
permanent restrictions of fifteen pounds lifting, no
repetitive bending or lifting, taking regular breaks, and no
sitting or standing for more than one hour without a change
in position. The employee returned to work at Sears but
continued to have pain along the graft site, and she returned
to Dr. Rieser for flare-ups, including low back pain and leg
pain and/or numbness, in June of 1990, September of 1990,
March of 1991, December of 1991, September of 1992, and
September of 1993. In September of 1993, Dr. Rieser
first indicated that the "level above the fusion
site" might be involved. However, an MRI scan at
that time showed no disc pathology. Throughout this
period, Midwest and its insurer admitted ongoing liability
for the employee's need for time off and medical
treatment, and they paid the employee benefits for more than
35% permanent partial disability of the back, with a
close-out to 40%.
In
September of 1994, the employee took a job with Fingerhut,
because Sears was going to shut down. Her job at
Fingerhut involved working on the phone from her
telemarketing work station. She worked at a standard...
