DAVID W. CARTWRIGHT, Petitioner, v. UNITED INT=L, INC., d/b/a/ UNITED PAYPHONE NETWORK, and MINNESOTA ASSIGNED RISK PLAN, adm=d by WAUSAU INS. CO., Employer-Insurer.
WORKERS' COMPENSATION COURT OF APPEALS
NOVEMBER 19, 2002
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The petition to vacate and set aside the Award on Stipulation of May 6, 1998, is denied where the employee=s medical records show no change in the underlying diagnosis and a failure to consolidate and pseudoarthrosis following the C5-6 and C6-7 fusion of March 1997 was clearly a possibility that could be anticipated based on the employee=s medical records prior to the stipulation for settlement.
Petition to vacate denied.
Determined by Johnson, C.J., Rykken, J. and Stofferahn, J.
THOMAS, L. JOHNSON, Judge
The petitioner seeks to vacate and set aside an Award on Stipulation, served and filed May 6, 1998, based on a substantial change in medical condition. We conclude the petitioner has failed to establish good cause, and deny the petition to vacate the award.
David W. Cartwright, the petitioner, filed a claim petition on December 11, 1997, alleging a personal injury to his neck on February 26, 1997, while employed by United Payphone Network. Mr. Cartwright sought wage loss benefits, permanent partial disability benefits, and payment of medical expenses, including bills for surgery to his neck. An amended claim petition was filed on February 18, 1998, seeking approval for a cervical MRI scan. The employer and insurer denied primary liability, denied that Mr. Cartwright was an employee of the employer, and denied timely notice of the claimed injury.
On about April 27, 1998, the parties entered into a Stipulation for Settlement. The employer and insurer continued to deny liability but, in compromise of the disputed claim, agreed to pay the employee $28,400.00, including $5,880.00 payable as attorney fees, and pay all outstanding medical bills, in return for a full, final and complete settlement of all worker=s compensation claims arising from the personal injury of February 26, 1997, with the exception of medical expenses which remained open. The settlement was approved in an Award on Stipulation served and filed on May 6, 1998.
On June 17, 2002, the employee filed a petition to vacate the 1998 award on stipulation, alleging a substantial, unanticipated change in medical condition. The employer and insurer filed a timely objection to the petition to vacate.
This court may set aside an award on stipulation Afor cause@ pursuant to Minn. Stat. '' 176.461 and 176.521, subd. 3 (1998). ACause@ is limited to four grounds, including 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(4); Franke v. Fabcon, Inc., 509 N.W.2d 373, 376, 49 W.C.D. 520, 523 (Minn. 1993).
Within a day or two of the claimed February 26, 1997 work injury, the employee was seen at the United Hospital emergency room. X-rays showed significant spinal degeneration with disc space narrowing at C5-6 and C6-7. On March 10, 1997, the employee was hospitalized with severe neck and right-sided radicular arm pain. Dr. Daniel Ahlberg, a neurosurgeon, diagnosed C6 and C7 radiculopathy on the right, secondary to disc degeneration and spondylitis at C5-6 and C6-7. The following day, March 11, 1997, Dr. Ahlberg performed a discectomy, foraminotomy and anterior fusion, including removal of a large osteophyte at C5-6 and a large free fragment of disc material from the right at C6-7.
The employee initially improved following the surgery, with resolution of his radicular pain. On August 25, 1997, however, Dr. Ahlberg noted numbness in the right index finger in the C6 nerve root distribution and about a month later, on September 29, 1997, noted chronic neck pain secondary to degenerative cervical disc and spondylitic disease. By October 27, 1997, the employee was reporting persistent neck pain and progressive right arm pain, numbness and weakness. On November 7, 1997, the employee was seen at the Unity Hospital emergency room reporting headaches, worsening over the past several weeks, with right-sided neck pain.
The employee was seen in consultation by Dr. Robert Wengler, an orthopedist, on November 26, 1997. The employee reported recurrent headaches, neck pain, and numbness and weakness in the right upper extremity. On examination, Dr. Wengler noted absent reflexes in the upper extremity, decreased sensation in the C6 distribution over the right thumb, index and middle fingers, and atrophy of the right arm. In particular, Dr. Wengler observed, A[t]he status of the fusion is questionable at this [C6-7] level. . . . X-rays today suggest the C6-7 fusion may not be consolidating.@ (Pet. Ex. G; Resp. Ex.) The doctor recommended the employee see a neurologist to evaluate the headaches. In a letter to the employee=s attorney on that same date, Dr. Wengler again noted, A[d]ynamic films today suggest that the C6-7 fusion is not solid and may be going on to a fibrous union. This represents a possible explanation for the headaches.@ (Pet. Ex. G; Resp. Ex.)
The employee returned to see Dr. Wengler on December 22,1997. The doctor noted the employee was experiencing worsening right arm radicular symptoms with associated neck pain and headaches. He suggested the employee return to Dr. Ahlberg, but the employee indicated that Dr. Ahlberg would not see him because of disputed liability for payment of his outstanding medical bills. Dr. Wengler also recommended an MRI scan of the cervical spine to evaluate the C6 level. On January 12, 1998, Dr. Wengler noted they had not been able to obtain authorization for a scan. He further noted the employee had requested an expedited hearing of his workers= compensation claim.
The employee was last seen prior to the stipulation for settlement on March 22, 1998, in the emergency room at Unity Hospital. The employee presented with right-sided neck pain and right arm pain with a new tingling sensation in the 4th and 5th fingers of the right hand. The employee reported A[h]e was told that there may be some instability to the area of his neck, possibly involving the area around the fusion.@ (Pet. Ex. H; Resp. Ex.) Approximately one month later, on April 24, 1998, the employee signed the stipulation for settlement.
On August 27, 1998, following issuance of the Award on Stipulation, the employee underwent the recommended cervical MRI scan. The radiologist noted persistent severe right-sided foraminal stenosis at C5-6 and C6-7, further indicating that he could not determine whether the fusion was solid or not. The employee=s right arm symptoms continued to worsen, and on April 22, 1999, the employee underwent a second surgery, a hemilaminotomy and foraminotomy at C5-6 and C6-7, performed by Dr. Thomas Bergman, a neurosurgeon. Following this surgery, the employee=s condition improved, although he continued to experience numbness in the right thumb and index finger and persistent, although somewhat milder, neck pain. Within about a year, however, the employee was reporting recurrence of his headaches along with persistent neck tightness and stiffness and intermittent numbness and tingling in the right upper extremity.
On November 7, 2001, Dr. Bergman noted the employee=s symptoms were again worsening. The doctor noted the employee had known cervical spondylitic disease and stated that as conservative treatment appeared to have failed, the employee might need a repeat cervical discectomy and fusion. In reviewing a CT scan taken December 10, 2001, Dr. Bergman indicated he was Anot one hundred percent sure that the fusion is solid. In fact, on the plain films and on the CT scan, there is a lucency in the fusion suggesting a possible pseudoarthrosis.@ (Pet. Ex. D, 12/19/01.) On January 15, 2002, the employee underwent a third surgery. In the operative report, Dr. Bergman noted there was obvious and significant pseudoarthrosis at the C6-7 level with foraminal stenosis. Following the surgery the employee had immediate improvement of his headaches along with a decrease in right arm pain.
By letter report dated March 13, 2002, Dr. Bergman related that following the first fusion surgery at C5-6 and C6-7, the employee continued to have neck and arm pain and ultimately had a second surgery at the same levels. Over time, the employee again developed neck pain, headaches and severe right arm pain, resulting in a re-do of the anterior cervical discectomy and fusion. Dr. Bergman opined, Ait would be impossible to anticipate that two additional neck surgeries would have been expected in [the employee=s] situation.@ (Pet. Ex. D.)
It is apparent from a review of the evidence, that the employee=s diagnosis has not significantly changed since the date of the stipulation. The underlying diagnosis has remained radicular symptoms in the right upper extremity and neck pain secondary to significant cervical disc degeneration and spondylosis at the C5-6 and C6-7 levels. It is also evident the employee knew or should have known prior to entering into the Stipulation for Settlement that there was a possibility the fusion at C6-7 was not solid. Whether or not two additional surgeries could have been expected, based on the employee=s medical records as of the date of the Stipulation for Settlement, a pseudoarthrosis and failure to consolidate at the C6-7 level was clearly a possibility that could have been anticipated at the time of the settlement. We, accordingly, deny the petition to set aside and vacate the Award on Stipulation of May 6, 1998.