BRIAN G WALSH, Applicant
SCA TISSUE NORTH AMERICA LLC, Employer
THE TRAVELERS INDEMNITY CO, Insurer
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.
The findings and order of the administrative law judge are affirmed. The applicant's request to reopen the compromise approved by the department in the order issued on August 5, 2005, is denied. The compromise will not be reopened.
Dated and mailed June 18, 2008
walshbr . wsd : 185 : 8 ND § 10.5
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The applicant argues that his request to reopen the compromise approved on August 5, 2005, is analogous to the request to reopen made in the Gillette case,(1) in which the commission found that the compromise was grossly inequitable. In Gillette, there was no dispute over the fact that one of two work injuries had been causative of substantial medical expense, including substantial future medical expense. The dispute was over which injury was responsible for that expense, and a department decision found that the injury sustained at Milwaukee County was responsible. While on appeal to the commission, the matter was compromised with Milwaukee County, but the compromise provided for only about one-half of the foreseeable, future medical bills, and did not make any allowance for loss of earning capacity. Nevertheless, the department approved the compromise. The commission found the compromise grossly inequitable because the issue raised in the application for hearing had only involved liability between two employers, but the compromise addressed extent of disability and medical expense, and did not take any reasonable measure of the foreseeable, future medical bills.
When the applicant and his attorney compromised with Travelers Insurance for the 2003 work injury, Travelers was asserting that this injury had not caused any permanent change in the applicant's back condition. That is similar to Gillette in that Milwaukee County also disputed its liability in that case. However, in Gillette there was no dispute that the substantial medical expense (present and future) was attributable to one or the other of the injuries. In the applicant's case, he filed his November 2004 application without knowing what his future medical expense might be. At that time there was contemplation of another surgery, but the applicant was leaning towards not having that surgery. He changed his mind after the compromise with Travelers, and underwent the surgery on July 21, 2006. Therefore, the issue of that substantial medical expense arose after the compromise. The applicant took a chance that he would not need the substantial future medical treatment. There were pre-compromise medical opinions from applicant's physicians indicating he might need future surgery. There were also pre-compromise opinions that the 2003 work injury was causative (Dr. Hendricks), and that only the 1991 work injury was causative (Dr. Deckard).(2)
The commission has no legitimate basis to find that the applicant's compromise was grossly inequitable, as opposed to finding that he and his attorney simply made a bad deal. If the existing medical evidence implicating the 1991 injury as well as the 2003 injury as causative had been submitted with the November 2004 application, then the commission might have found the department's approval of a compromise that failed to bring all potentially-liable parties into the proceeding to have been grossly inequitable. However, that is not what occurred. The department asked the applicant for medical support implicating the 1991 work injury in the November 2004 claim, but the applicant declined to submit such medical support, and his attorney replied in a letter to the department stating:
I do agree that we have not submitted medical support, as Mr. Walsh's
treating physician has clearly identified the December 17, 2003 date of
injury as an independent precipitating event.
The applicant thereupon chose to proceed with this claim brought solely against SCA Tissue and Travelers Insurance, and to compromise that claim knowing that uncertainties surrounded it. The applicant's claim against the parties liable for the 1991 work injury remains open, and as a result of the 2005 compromise, that is the only claim the applicant may now pursue.
cc:
Attorney Mark Gustafson
Attorney David Kania
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