STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RAY KOOPMANS, Applicant

DEERE & COMPANY, Employer

DEERE & COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1994-039395


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed December 20, 2007
koopmra . wsd : 101 : 6 ND § 10.5

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner


MEMORANDUM OPINION

On July 1, 1994, the applicant was injured when he crushed the distal phalanx of the right index finger. He was diagnosed with an open fracture in the distal phalanx and a laceration of the extensor tendon following a surgical exploration. Following a hearing, ALJ Larry Steven Schifano awarded six weeks of permanent partial disability. On appeal, the commission increased the award of 12.5 weeks with a final order on physical permanent disability by order dated February 12, 2004.

However, the applicant had previously brought a psychological claim from the same injury which resulted in an interlocutory order. Specifically, ALJ Janel Knutson had found a compensable psychological injury, mild depression, causing temporary disability for about five weeks total in 1997, 1998, and 1999, and medical expenses. She specifically found an end of healing from the psychological condition in 1999, though she made her order interlocutory, because while she concluded the applicant had reached an end of healing, a treating doctor indicated further treatment was necessary. ALJ Knutson added this caveat in her June 26, 2002 order:

...[the applicant] must prove that future medical treatment is reasonable and necessary to cure and relieve him from the effects of the work injury before respondents are liable for the same."

The applicant subsequently pursued a claim for more compensation related to his psychological disability. That claim was eventually set for hearing before ALJ Hamdy Ezalarab on November 23, 2005.

Prior to the hearing before ALJ Ezalarab, the applicant obtained documents to support his claim from Kenneth C. Graupner, M.D. These include letters indicating that the applicant's depression is related to his accident (Graupner, November 15, 2004 letter), and that he requires continuing treatment indefinitely for that condition including medication (Graupner, June 13, 2005 letter).

Dr. Graupner's letters do not indicate any actual disability from the psychological condition--that is, that the applicant's depression prevented him from working. Exhibit A (prepared for the hearing before ALJ Ezalarab) is a medical treatment statement--it documents about $3,200 in treatment expense which includes $540 in 6 days of lost time (apparently for treatment).

The employer and the insurer (collectively, the respondent), for their part, obtained an updated report (dated January 27, 2005) from Ralph Baker, M.D., one of the doctors they had relied upon at the 2003 hearing before ALJ Knutson. Prior to hearing, the parties settled this claim for $8,000. ALJ Ezalarab approved the compromise by order dated December 2, 2005.

Under Wis. Stat. § 102.16(1), a party may move to set a compromise aside within one year of the order approving it. The applicant took that step in this case, filing a compromise review application on November 17, 2006. With his application, the applicant stated that

At the time of my last hearing, I didn't want to believe that I had to take medication for the rest of my life. Depression is an illness that nobody wants to admit to having. ... I have tried to get off the Zoloft many times including my last hearing date. I can't do it. The depression comes back worse every time.

My doctor is correct in his letter dated June 13, 2005. The Zoloft is needed for the illness and the prevention of it.

It is not my intent to waste the Department's time but the $8,000 I received will not last.

In response, the respondent states that in his June 13, 2005 letter upon which the applicant himself relies, Dr. Graupner specifically stated the applicant would need treatment indefinitely. Therefore, the respondent continues, the applicant went into the compromise with full knowledge of what lie ahead.

The compromise review application was dismissed by ALJ Schifano. In his May 14, 2007 order refusing to reopen the compromise, ALJ Schifano noted (1) the applicant could have lost had his psychological claim been heard by ALJ Ezalarab, (2) the applicant's perception that he would eventually not need medication, while perhaps a mistake on his part, was not mutual mistake that would void the compromise, and (3) there is no newly-discovered evidence, fraud or duress to require reopening the compromise.

On appeal, the applicant makes two main points:

1. While compromise agreements are only opened in extreme situations like gross inequity, the $8,000 will not last if in fact his psychological condition is a lifelong disease.

2. ALJ Schifano issued an award of compensation for the permanent disability to the finger, which the commission subsequently modified to increase.

As ALJ Schifano observed, in considering requests to set aside a compromise under Wis. Stat. § 102.16(1):

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.

As the ALJ further found, there is no fraud, duress, mutual mistake, or newly discovered evidence in this case. Nor is gross inequity present in this case. The applicant's current claim arises from a distant injury with relatively minor physical effects. While ALJ Knutson did credit the applicant's claim that his finger injury caused him to be mildly depressed leading to her award in 2002, she specifically awarded compensation for only a brief period of temporary disability from which the applicant had ended healing already by 1999. The caveat ALJ Knutson included with her interlocutory order awarding a limited amount of compensation for the applicant's psychological condition also indicates that future claims by the applicant, even claims for medical expense related to treatment of his depression, would be met with some reservation. Thus, ALJ Schifano reasonably pointed out that there was no guaranty the applicant would have prevailed on his claim for additional psychological treatment expenses before ALJ Ezalarab in 2005. The compromise agreement between the parties simply cannot be viewed as inequitable, let alone grossly inequitable, on this record.

Nor can the commission conclude that ALJ Schifano's view of the applicant's current request to have the compromise reopened was in any way affected by the ALJ's prior involvement in the claim for permanent partial disability for the finger injury in 2003. In any event, the commission has reviewed the facts independently as part of its de novo review, and it concludes the standards for reopening a compromise have not been met here.

cc: Mr. Eric Hobbs

 


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