DANIEL G. BROADHEAD, Employee/Petitioner, v. FISCHER BROS. PETROLEUM PRODS. and BITUMINOUS INS. CO., Employer-Insurer, and LAKELAND FORD TRUCKS and WESTERN NAT=L MUT. INS. CO., Employer-Insurer, and VIRGIL HARVEY=S TRUCK REPAIR, UNINSURED, Employer, and SPECIAL COMPENSATION FUND.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 6, 2002
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The employee established good cause to vacate the award on stipulation, based on substantial change in condition, pursuant to Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).
Petition to vacate granted.
Determined by: Wilson, J., Pederson, J., and Johnson, J.
DEBRA A. WILSON, Judge
The employee petitions to vacate the award on stipulation filed on August 21, 1995, based on substantial change in condition. Finding good cause to vacate the award, we grant the petition.
The employee sustained a work-related injury to his back on March 10, 1983, while employed by Fischer Brothers [Fischer] as a diesel mechanic. Fischer and it=s workers= compensation insurer, Bituminous Insurance Company [Bituminous], admitted liability for the injury. The employee alleged that he reinjured his back on February 11, 1992, while working as a mechanic for Lakeland Ford Trucks [Lakeland], which was insured for workers= compensation liability by Western National Mutual Insurance Company [Western National]. In addition, the employee allegedly sustained another work-related injury to his back in August of 1993, while working for Virgil Harvey=s Truck Repair [Harvey=s], which was uninsured for workers= compensation liability.
The employee underwent a bilateral fusion at L5-S1 with right iliac bone graft on March 7, 1994. The surgery was performed by Dr. James Ogilvie. His pre- and post-operative diagnosis on the operative report was L5-S1 spondylosis.
The employee filed a claim petition against Fischer on June 8, 1994, seeking payment of temporary total disability benefits continuing from October 5, 1993, permanent partial disability benefits, and medical and rehabilitation benefits as a result of the March 10, 1983, work injury. The employee was examined by independent medical examiner Dr. Mark Sigmond on August 22, 1994. At the time, the employee Adescribed some aching in his low back but >not enough to take an aspirin for.=@ Dr. Sigmond opined that the employee had sustained a 17.5% permanent partial impairment of the whole body, which should be apportioned 50% to the 1983 work injury, 40% to a Gillette injury with Lakeland, and 10% to a Gillette injury with Harvey=s. The doctor also opined that the employee was capable of very light or sedentary work with a 15-pound lifting limit. The office notes of Dr. Ogilvie dated September 14, 1994, reflect that the employee had marked decrease in his back pain at that time and that x-rays showed good progressive consolidation of the fusion. Dr. Ogilvie encouraged the employee at that time to seek employment that did not require repetitive lifting, bending, or twisting. Pursuant to a temporary order filed on October 4, 1994, Fischer/Bituminous began paying disability benefits and medical expenses. The employee returned to work as a parts manager at Darts Transit on November 11, 1994.
The employee filed an amended claim petition on January 25, 1995, naming Fischer, Lakeland, and Harvey=s as liable employers, listing injury dates of March 10, 1983, February 11, 1992, and August of 1993, and seeking temporary total disability benefits from October 5, 1993, to November 10, 1994, permanent partial disability benefits, and medical expenses. On February 17, 1995, Fischer/Bituminous filed a petition for contribution and reimbursement against Lakeland and Harvey=s. The amended claim petition and petition for contribution were consolidated for purposes of hearing. In February of 1995, the employee was terminated from his job at Darts Transit because he was not catching on to their computer system.
On April 5, 1995, the employee was seen by Dr. Nolan Segal for an independent medical examination. On examination, Dr. Segal noted that the only objective finding on examination was a well-healed low back scar, and he diagnosed a successful and solid L5-S1 fusion for L5-S1 spondylolysis without associated spondylolisthesis. He opined that the employee was at maximum medical improvement [MMI] and was capable of working with a 50-pound lifting limitation and avoidance of repetitive bending, lifting, and twisting.
The employee was seen by independent medical examiner Dr. Thomas Litman on May 16, 1995. Dr. Litman noted that the employee had no complaints of pain when at rest but would notice some soreness with lifting and twisting, although Athe soreness is brief and disappears within four to six hours.@ The doctor further noted Aan absolutely normal examination of the lumbar spine and legs.@ Dr. Litman opined that the employee had spondylolysis without spondylolisthesis, that he had had an excellent result from the fusion surgery, and that he had reached MMI by January 1, 1995.
The parties entered into a stipulation for settlement in August of 1995. At the time of the stipulation, the employee was contending that he was Atemporary totally and/or temporarily partially disabled at this time@ and that he had suffered a 17.5% whole body impairment. Lakeland and Harvey=s denied liability for any work injury. Under the terms of the stipulation, the employee was paid $33,000.00, for a full, final, and complete settlement of any and all claims, with the exception of medical benefits, as against Fischer and Lakeland. Harvey=s entered into a full, final, and complete settlement with respect to their alleged liability for claims filed by the employee, Fischer, and Lakeland, including medical expenses. Bituminous remained the paying agent and Western National agreed to reimburse Bituminous for 33.25% of future payments.
The employee apparently returned to employment in June of 1996, working as a machinist for Northfield Foundry and Machine. He was able to perform this work without difficulty until the spring of 1998, when he stretched at home and experienced a sensation of something twisting and dropping in his low back. The employee was seen by Dr. Ogilvie on April 15, 1998, for the first medical treatment for his back since the spring of 1995. Dr. Ogilvie noted that the employee had right anterior thigh pain in the L4 nerve root distribution and requested a CT. The CT scan revealed pseudoarthrosis, and Dr. Ogilvie recommended an anterior threaded bone dowel fusion at L5-S1. On August 17, 1998, the employee underwent the recommended surgery. Dr. Ogilvie=s operative report contains a pre- and post-operative diagnosis of L5-S1 pseudoarthrosis and grade I spondylolisthesis at L5-S1. The employee had increasing leg pain after the surgery, and, by October 21, 1998, Dr. Ogilvie was recommending posterior pedicle instrumentation and decompression.
Bituminous had independent medical examiner Dr. Paul Hartleben conduct an independent medical review and, in a report on November 27, 1998, Dr. Hartleben opined that it would be premature for the employee to have the surgery recommended by Dr. Ogilvie. The employee filed a medical request seeking authority to go forward with the surgery, and, in findings and order filed on March 24, 1999, following a hearing, a compensation judge determined that it was not premature to go forward with the proposed surgery.
Dr. Ogilvie performed the recommended procedure on May 24, 1999. In his July 12, 2000, office note, Dr. Ogilvie noted that the employee was still suffering from back pain and numbness and pain in his feet. The doctor=s diagnosis at that time was a solid L5-S1 fusion and Aprobably arachnoiditis.@ In October of 2000, the employee was evaluated at the United Pain Center, complaining of pain in his legs and feet and indicating that he had no periods that were pain free. The diagnosis at that time was chronic low back and leg pain, early arachnoiditis, and grade I-II anterior spondylolisthesis at the L5-S1 level.
On August 22, 2001, Dr. Ogilvie issued a report stating that, after the 1994 surgery, the employee had been Aquite functional without pain medication and he had a normal neurologic examination.@ Dr. Ogilvie opined that the employee=s recurrence of symptoms in 1998 and the subsequent surgeries could not have been anticipated at the time of the August 1995 settlement, and he outlined the changes in the employee=s diagnosis, ability to work, permanent partial disability, and medical treatment. He also opined that the employee=s current medical condition was causally related to the work injury for which he received his treatment in 1994.
On October 4, 2001, the employee filed a petition to vacate the award on stipulation filed on August 21, 1995, based on a substantial change in condition that was clearly not anticipated and could not reasonably have been anticipated at the time of the award. Fischer/Bituminous sought an additional opinion from Dr. Hartleben. In a report dated November 9, 2001, Dr. Hartleben opined that
a discussion of indications, general and specific risks, benefits and rehab issues for spine surgery always includes discussion of a potential failed fusion or pseudoarthrosis including neurologic trauma or postoperative complications such as arachnoiditis. . . . The previous settlement dating back to 1995 ought to have considered the potential of this complication and the need for subsequent surgery and possible adverse outcome of occupational impairment and worsening pain.
Fischer/Bituminous and Lakeland/Western National object to the employee=s petition.
For awards issued on or after July 1, 1992, cause for vacation of an award on stipulation includes Aa substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated at the time of the award.@ Minn. Stat. '176.461. A number of factors may be considered in determining whether an award should be vacated based on a substantial change in condition, including:
(a) a change in diagnosis;
(b) a change in the employee=s ability to work:
(c) additional permanent partial disability;
(d) necessity of more costly and extensive medical care/nursing services than initially anticipated;
(e) causal relationship between the injury covered by the settlement and the employee=s current worsened condition.
Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).
The employee contends that there has been a change in diagnosis as the employee=s diagnosis at the time of the award on stipulation was L5-S1 spondylolysis without associated spondylolisthesis, treated successfully with an L5-S1 fusion, and his diagnosis now is grade I-II spondylolisthesis, pseudoarthrosis, arachnoiditis, and chronic pain. The reports of Drs. Litman and Segal support the contention that the employee=s diagnosis did not include spondylolisthesis prior to the date of the award on stipulation. However, Dr. Ogilvie=s records prior to the stipulation contain a diagnosis of spondylolisthesis at L5-S1, and, in his report of May 11, 1994, Dr. Ogilvie indicated that the 1994 surgery was a Alow back fusion of his spondylolisthesis.@ No doctor, however, had diagnosed pseudoarthrosis, arachnoiditis, or chronic pain as of the date of the award on stipulation. This constitutes evidence of a change in diagnosis.
The employee also claims that there has been a change in ability to work, as he worked for Darts Transit after the 1994 fusion surgery, losing that job only because of an inability to learn the computer system, and then working from June of 1996 until August of 1998 for Northfield Foundry, but now having been unable to work at all since August of 1998. Generally, the relevant comparison is between the employee=s present condition and the condition at the time of the award. Battle v. Gould, Inc., 42 W.C.D. 1085 (W.C.C.A. 1990). The employee was not working at the time of the award on stipulation and he is not working now. However, at the time of the award on stipulation, the employee had demonstrated an ability to work and was released to return to work. In contrast, the August 22, 2001, report of Dr. Ogilvie states that the employee is now permanently totally disabled from working. The affidavit of the employee and the medical records attached to the petition to vacate therefore provides evidence of a change in ability to work.
The employee agrees that, although he has had two additional surgeries to the lumbosacral spine, no additional permanency would be payable under Minn. R. 5223.0070, subp. 1D, because the surgeries have all involved the same vertebral level. He contends, however, that Athe development of arachnoiditis will result in motor or sensory loss giving rise to additional permanent partial disability@ and that the diagnosis of spondylolisthesis would result in an extra 7% whole body impairment. Dr. Ogilvie=s August 22, 2001, report does support the theory that arachnoiditis will result in additional permanent partial disability. Although the doctor did not assign a particular rating for that condition, his report nevertheless supports the conclusion that at least some additional permanency benefits may be payable.
The next Fodness factor is the necessity of more costly and extensive medical care/nursing services than initially anticipated. The employee contends that nothing in the medical records, including the independent medical examinations, would have provided a basis for the employee to anticipate that his injury would require two additional surgeries or treatment for chronic pain. Fischer/Bituminous contends that the employee cannot claim that the need for additional medical treatment was not anticipated because, at the time of his 1994 surgery, the employee was advised Athat it is not guaranteed to relieve his pain,@ the risks of the surgery were discussed with him, Aincluding but not limited to bleeding, phlebitis, infection, paralysis, and death,@ and Acomplications@ were also discussed. We are not persuaded. If this argument were to be adopted, virtually any employee who underwent surgery prior to a stipulation for settlement would be unable to prove an unanticipated substantial change in condition. As stated earlier, the relevant comparison is between the situation at the time of the award on stipulation and the situation subsequent to the award. Here, at the time of the award, the employee had a successful fusion at L5-S1, he did not have ongoing pain in his back or legs, and he was not receiving medical treatment. In addition, on August 22, 2001, Dr. Ogilvie stated that, in 1995, he did not anticipate the subsequent medical treatments that the employee had required. An employee cannot reasonably be expected to anticipate the need for treatment when even his doctor has not anticipated it. The employers and insurers also argue that the fact that the stipulation left medical claims open is evidence that the employee anticipated that he would need additional treatment. Whatever the merit to this argument, the fact that medical claims were left open provides no evidence that the employee anticipated two additional surgeries and treatment for chronic pain. In any event, where medical expenses are not closed out by the award, this court places less emphasis on the factor of the necessity of more costly and extensive medical care. Burke v. F&M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996).
The final Fodness factor is a causal relationship between the injury covered by the settlement and the employee=s current worsened condition. Causation is not disputed.
Fischer/Bituminous and Lakeland/Western National both contend that, if this court finds that there has been a substantial change in condition, the employee=s petition should nevertheless be denied because any change was clearly anticipated. Both rely on the fact that the employee had a long history of low back pain and that the employee=s own physician had advised him that there were no guarantees that the 1994 surgery would relieve his pain. Fischer/Bituminous relies on Dr. Hartleben=s opinion that the risk of a non-union would have been an explained potential complication at the time of the 1994 surgery. Again, we are unconvinced. At the time the employee entered into the stipulation for settlement, he had not suffered any complications from the surgery, and there is no evidence that Dr. Ogilvie had ever advised him that after a successful fusion surgery he could reasonably anticipate the development of pseudoarthrosis, arachnoiditis, or chronic pain, resulting in an inability to work and the necessity of two additional surgeries.
Based on all the evidence submitted in connection with the petition to vacate, including the affidavit of the employee, we find that the employee has established sufficient cause to vacate the award on stipulation filed on August 21, 1995.