STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
KARI B PERKINS, Applicant
MARCUS RESTAURANTS INC, Employer
HOME INSURANCE CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1994015194
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 makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The applicant's date of birth is July 5, 1968. Respondent employed her as a restaurant worker in one of its fried chicken fast food outlets. She slipped and fell at work on February 23, 1994.
The injury was accepted by respondent's insurance carrier, but only to the extent that four to eight weeks of temporary total disability were payable. There was a dispute as to additional temporary total disability and as to whether five percent permanent partial disability were chargeable to the injury. The applicant had continued low back pain symptoms, but she had been told that an MRI done October 28, 1994 did not show a herniated disc. The study did show a bulging disc with an annular tear at L5-S1. Applicant's doctor indicated that applicant would experience exacerbations of her back condition and would need future medical treatment.
Respondents offered applicant and her attorney a settlement prior to the scheduled hearing. In September of 1996 the applicant knowingly entered into a final compromise agreement. The agreement paid the sum of $5,500, plus some medical expenses. The dollar payments to the applicant were approximately equivalent to three or four percent permanent partial disability. The agreement further provided:
"In making this compromise it is within the contemplation of the parties that the applicant has sustained some disability, including temporary total disability and permanent disability, and that her condition may be such that she may not be able to perform all of the demands of her usual occupation or to engage in other gainful employment. It is also within the contemplation of the parties that the applicant may sustain additional temporary total and temporary partial disability and permanent disability. It is also within the contemplation of the parties that medical expenses have been incurred in the past and may be incurred in the future. The employer specifically denies that any such disability and medical expenses are related to the applicant's employment, or compensable under the Worker's Compensation Act. It is the intention of the parities in entering into this compromise agreement to compromise any and all claims that the applicant may have now or in the future against the employer under Chapter 102 Wisconsin Statutes."
On October 29, 1996, the department approved the final compromise agreement. The applicant now seeks to have the October 29, 1996, agreement set aside.
Following the compromise the applicant left her employment at respondent and found other work. She had a recurrence of bad back pain symptoms in November of 1996 and had to return to her treating doctor. She missed several weeks of work due to the treatment over the winter of 1996 and 1997. She had similar pain attacks in 1997 and 1998, which, again, required brief periods of treatment with her doctor. An MRI study done May 23, 1997 showed a herniation at L5-S1. It does not yet impinge on the spinal cord, but may progress. Applicant's doctor has assessed permanent partial disability of eight percent. Applicant testified at the hearing that she continues to have occasional pain attacks and she is concerned that she must restrict her activity at an age when other persons are able to do sports or physical activity of some significance.
The commission has generally held that compromises should not be reopened absent gross inequity, important newly discovered evidence, fraud, duress, or mutual mistake. Singleton v. R W Construction Inc., WC Claim No. 1998065129 (LIRC Sep. 24, 1999); Yench v. UW Oshkosh, WC Claim Nos. 90029552, 89076285 (LIRC, Jul. 31, 1995); Danielson v. Land O Lakes, WC Claim No. 92001626 (LIRC, May 25, 1995); Blenke v. American Can Company, WC Claim No. 87037750 (LIRC, Sep. 9, 1992); Stuart-Giese v. Schoeneck Containers, Inc., WC Claim No. 85060165 (LIRC, Feb. 5, 1990). The commission has also stated the test as requiring a showing of fraud, duress, important newly discovered evidence, overreaching, or a reasonable misinterpretation of the terms of the compromise. Haffner v. Amery Constant Care, Inc., WC Claim No. 8505202, (LIRC Sep. 4, 1990). The alternative formulations are in some respects two ways of saying the same thing, as over-reaching or a reasonable misinterpretation of the terms of the compromise may well add up to "gross inequity." Palmer v. Toro Company, WC Claim No. 86012679 (LIRC, Jun. 10, 1993).
Compromises are not lightly set aside because a compromise of a worker's compensation claim under Wis. Stat. § 102.16 (1) encompasses qualities of comprehensiveness, finality and risk. Indeed, the Wisconsin 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).
The commission finds that applicant has not satisfied her burden of establishing that the compromise agreement should be set aside. When she entered into the compromise agreement she knew that her condition might worsen in the future. While the applicant did not know that her condition would deteriorate to the point that it eventually did, she was aware that she would have future back problems. It was foreseeable that such back problems could eventually reach the level of a herniation. Increased symptoms and exacerbations alone do not justify setting aside the compromise agreement. Applicant was aware that she had a work injury that permanently affected her back and would require, in all probability, ongoing medical treatment. The compromise agreement clearly stated "It is also within the contemplation of the parties that the applicant may sustain additional temporary total and temporary partial disability and permanent disability. It is also within the contemplation of the parties that medical expenses have been incurred in the past and may be incurred in the future." What was contemplated has occurred. The applicant has not demonstrated that the compromise resulted in any gross inequity. There is no newly discovered evidence that would justify reopening the award. That applicant's condition worsened is not new evidence, but a logical extension of her permanent condition. There has been no demonstrated fraud, duress or mutual mistake that would justify reopening the compromise in this case.
Finally, as previously noted by the commission, "the primary argument against reopening any compromise: the possibility that an injured worker's condition may worsen or improve or that the parties rely on a premature or inaccurate diagnosis is simply a risk of settlement." Yench v. UW-Oshkosh, WC claim Nos. 90029552, 89076285 (LIRC, Jul. 31, 1995).
ORDER
The applicant's request to reopen the October 29, 1996 compromise is denied. The compromise remains in effect.
Dated and mailed May 31, 2000
perkins.wrr : 132 : 5 : ND § 10.5
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission did not consult with the ALJ regarding his impressions of witness credibility or demeanor. The commission's reversal is not based on a differing assessment of witness credibility but upon reaching a different legal conclusion when applying the law to the facts.
cc: ATTORNEY PHILIP L ATINSKY
ATINSKY KAHN SICULA & TEPER
ATTORNEY KURT R ANDERSON
NELSON DRIES CONNELL & KRAMER SC
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