BRETT EDWARD FRANKLIN, Applicant
BEST BUY CO INC, Employer
PACIFIC EMPLOYERS INS CO, Insurer
On September 11, 2002, the applicant hand-delivered a letter to the Worker's Compensation Division of the Department of Workforce Development asking the division to set aside a compromise approved by order dated September 11, 2001. An administrative law judge (ALJ) for the division heard the matter on February 21, 2006. By order dated March 7, 2006, the ALJ set aside the compromise.
The employer and its insurer (collectively, the respondent) filed a timely petition for review. The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
The applicant injured his back while moving a television while working on October 3, 1998, and the respondent stipulated to a compensable injury. The applicant underwent surgery on November 17 and 19, 1999, leaving him with a two-level fusion in the lumbar spine. As part of the procedure, the applicant was informed that one of the surgical risks in a fusion is a nonunion of the fusion mass. See Exhibit 2.
The medical records indicate the applicant had back pain symptoms -- including pain or radiculopathy into his leg -- continuing after his surgery. These symptoms are documented in a note from Dr. Flatley, the applicant's treating surgeon, dated June 1, 2000 (tab 27) and a letter from Dr. Braza, who saw him for post-operative rehabilitation on June 8, 2000 (tab 28). Nonetheless, by April 17, 2001, the fusion appeared to have healed; at least Dr. Flatley so reported in a letter dated April 22, 2005 (Exhibit B), adding that the non-union was not appreciated in 2001. The applicant testified that, in April 2001, the x-rays showed a solid fusion.(1)
However, the applicant did have continuing symptoms. Indeed, Dr. Flatley subsequently estimated permanent partial disability on June 14, 2001, to be 17 percent compared to disability to the body as a whole, taking into account the continuing urological and abdominal symptoms. Flatley report dated June 14, 2001, Exhibit 1, tab 31.
In August 2001, the applicant entered into a compromise with the respondent. The compromise was approved by the department on September 11, 2001. As noted above, on September 11, 2002, the applicant petitioned to have the compromise set aside under Wis. Stat. § 102.16(1). That section provides in relevant part:
...Every compromise of any claim for compensation may be reviewed and set aside, modified or confirmed by the department within one year from the date the compromise is filed with the department, or from the date an award has been entered, based thereon, or the department may take that action upon application made within one year.... The employer, insurer or dependent under s. 102.51(5) shall have equal rights with the employee to have review of a compromise or any other stipulation of settlement. Upon petition filed with the department, the department may set aside the award or otherwise determine the rights of the parties.
When the applicant sought to reopen his compromise in September 2002, the grounds were the newly-discovered evidence of urological nerve damage done during the surgery, of which neither party knew or could have known at the time of the compromise. However, the matter did not proceed to hearing until February 2006.
Meanwhile, on January 12, 2005, the applicant was seen in an emergency room, after falling going down steps three weeks earlier and his leg gave out two weeks earlier. Based on a diagnosis of chronic low back syndrome, an x-ray was done which showed a solid fusion at L6-S1, but what appeared to be a deficit in the graft at L5-6. A CT scan was ordered.
The CT scans were done on January 17 and February 18, 2005. The February 18, 2005 scan showed a non-union anteriorly of the L5-6 graft. Exhibit I, February 2005 CT scan; Flatley note dated February 22, 2005. A mild increased uptake was noted at this level in the bone scan as well. Dr. Flatley concluded the applicant had a definite non-union of the bone graft at L5-L6, for which one might consider a repair, but there was no guaranty.
By letter to the applicant's attorney dated April 22, 2005, Dr. Flatley said the applicant's current diagnosis was pseudoarthrosis in the lumbar spine, definitely related to the work injury, for which a repair of the non-union was indicated. Asked about newly discovered evidence, Dr. Flatley responded:
When seen on 04/17/01, the fusions appeared to have healed. However, recent x-rays of 2/22/2005 revealed a definite non-union of the bone graft of the lumbar spine. As noted, this non-union was not appreciated in 2001.
As a result, when this matter went to hearing, the applicant sought to set aside the compromise based on the non-union discovered in 2005. He withdrew the claim of nerve damage that served as the basis for his request to set aside when filed in 2002.
Regarding the standards applied in considering requests to set aside a compromise, the commission has previously stated:
The commission has consistently held that compromises should not be reopened absent gross inequity, important newly-discovered evidence, fraud, duress, or mutual mistake. Michael Blenke v. American Can Company, claim No. 87037750 (LIRC, September 9, 1992); Julie Stuart-Giese v. Schoeneck Containers, Inc., claim No. 85060165 (LIRC, February 5, 1990); and John A. Danielson v. Land O Lakes, claim No. 92001626 (LIRC, May 25, 1995). Compromises are not lightly set aside because a compromise of a worker's compensation claim under sec. 102.16 (1), Stats., encompasses qualities of comprehensiveness, finality and risk. Indeed, the supreme court has stated that "[b]y using the word 'compromise' we usually mean that we assume the risk of a mistake for which otherwise one would be entitled to a different result." C.F. Trantow v. Industrial Commission, 262 Wis. 586, 589 (1952).
Larry Gray v. City of Milwaukee, WC claim no. 1997-048196 (LIRC, March 28, 2005). See also Yench v. UW Oshkosh, WC claim no. 900029552, 89076825 (LIRC, July 31, 1995).
The commission also noted in Michael Blenk, supra, that
a compromise envisions and incorporates the right ... to bargain away and/or settle and receive payment for all aspects of a claim ... including those ... for which in the future, there may be ... a basis for compensation...
Further, the commission has held that "[t]he possibility that an injured worker's condition may worsen or improve or that the parties may rely on a premature or inaccurate diagnosis is simply a risk of settlement." Yench, supra.
The commission recognizes that the 2005 CT scan shows a definite non-union or failed fusion at C5-6. However, this does not mean that the imaging or x-ray done in April 2001 must have shown a non-union instead of the "healed fusion" reported by Dr. Flatley. Nor does the 2005 CT scan mean that the April 2001 x-ray could not have reasonably been interpreted to have shown an apparent healed fusion. While the later imaging showed a non-union, any mistake on that point would have been of the type of mistake for which a party assumes the risk under the supreme court's decision in C.F. Trantow. As the respondent points out, the applicant was advised that a non-union of the fusion mass was a possibility when he underwent surgery. The applicant still had symptoms when Dr. Flatley declared a healing plateau in June 2001. The evidence of a failed fusion in 2005 does not justify setting aside the compromise in this case, particularly when the pathology it shows was a known surgical risk.
Further, the respondent questions, with some justification, the appropriateness of seeking the rescission of the compromise based on evidence not coming to light until February 2005, well after the one-year period for reopening the September 2001 compromise had run. While reopening a compromise under similar circumstances might be appropriate in some cases, there is a potential for problems if a party -- either an employer or applicant -- is able to request to reopen a compromise before having a basis for doing so.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed. The applicant's request to reopen the compromise executed in August 2001 and approved by order dated September 11, 2001 is denied. The compromise remains in effect.
Dated and mailed October 30, 2006
franklb . wrr : 101 : 4 ND § 10.5
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission did not confer with the presiding ALJ concerning witness credibility and demeanor. It does not question the applicant's credibility and concluded that the applicant was told that an x-ray in April 2001 showed a solid fusion. The commission reverses the ALJ's decision because, for the reasons set out above, it concludes the facts in the record do not meet the standard for setting aside a compromise under Wis. Stat. § 102.16.
cc:
Attorney Daniel R. Schoshinski
Attorney Richard E. Ceman, Jr.
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