JEFFREY WRIGHT, Employee/Petitioner, v. ECOLAB, INC., and EMPLOYERS INS. OF WAUSAU, Employer/Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 31, 2005
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the employee established a substantial change in condition under the factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), vacation of the award was appropriate.
Petition to vacate award on stipulation granted.
Determined by: Stofferahn, J., Wilson, J., and Rykken, J.
Attorneys: Peter J. Williams, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Petitioner. Deborah E. Kulinski, Law Offices of Powell & Robinson, St. Paul, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee petitions to vacate a stipulation for settlement which was the subject of an award on March 17, 1999. The employee alleges that there has been an unanticipated substantial change in his medical condition. The petition is granted.
Jeffrey Wright was employed by Ecolab when he was involved in a work related motor vehicle accident on November 21, 1994. The employee alleged injuries to his cervical and lumbar spine as a result of the accident. The employer and its insurer, Employers Insurance of Wausau, admitted primary liability for the November 21, 1994, injury but denied that the employee=s lumbar spine complaints were due to that injury.
The employee was seen at the emergency room at Fairview Southdale Hospital on November 21, 1994, following the motor vehicle accident. He provided a history of driving a car when it was struck from behind by another vehicle. The employee complained of pain in his lower back, right knee, and foot. The diagnosis was of muscular back pain, right foot abrasion and contusion, and right knee contusion. The employee was provided with pain medication for his low back discomfort. Ice and elevation were recommended for his extremity injury.
The employee=s follow-up care was with Dr. J. Patrick Smith, who first saw the employee on November 23, 1994. Dr. Smith=s assessment was of soft tissue injury to the cervical, thoracic, and lumbar spine Awithout evidence of neurological compromise.@ Analgesics, anti-inflammatories, and physical therapy were recommended. Subsequent care was with Dr. David Holte and focused primarily on the employee=s cervical complaints. The employee treated through 1995 with physical therapy aimed at his cervical problems. A CT scan done in February 1996 was read as showing stenosis from C3-4 through C6-7 and Dr. Holte recommended nerve root block injections which were done in April 1996. No significant improvement from the procedure was noted. A surgical consultation was done in May 1996 with Dr. Jeffrey C. Dick for the employee=s cervical complaints but no surgical treatment was recommended.
Dr. Holte wrote a report of September 27, 1996, addressed to the attorney then representing the employee. His final diagnosis was chronic cervical sprain/strain with exacerbation of degenerative disc disease and Alumbar sprain/strain with no permanent residuals.@ Subsequently, Dr. Holte recommended that the employee see a chiropractor and the employee visited Dr. Larry Balmer twice a week for four to six weeks. Dr. Balmer=s report of August 8, 1997, summarized his findings, treatment, and opinions and referred only to the employee=s cervical problems. The employee continued to treat with Dr. Holte in 1998 for his cervical complaints. There is no mention in the records from that period of any lumbar problems.
On October 29, 1998, the employee was seen by Dr. David Boxall for an IME. Dr. Boxall took a history from the employee which included treatment for low back pain in 1975. The employee reported to Dr. Boxall that he was having no complaints referable to the lumbar spine. Dr. Boxall=s diagnosis of the employee=s injuries from the November 21, 1994, incident was of a strain to a cervical and thoracic spine and contusion to the right foot and knee. Dr. Boxall=s opinion was that these injuries were temporary and had resolved by the time of his evaluation. In 1999, as part of a mediation of his third party claims arising out of the motor vehicle accident, the employee and the employer and insurer entered into a stipulation for settlement. An award on stipulation was issued on March 17, 1999. In the stipulation, the employee agreed to waive all claims arising out of the November 21, 1994, work injury except for non-chiropractic medical care related to the cervical spine.
Subsequent to the settlement, the employee returned to see Dr. J. Patrick Smith. In his visit of July 3, 2001, the employee complained of left knee, low back and hip pain. Dr. Smith diagnosed probable lumbar disc disease and scheduled an MRI, which was done on July 6, 2001. The MRI was read as showing severe multi-level degenerative disc disease of the lumbar spine with marked central spinal stenosis at L3-4 and bilateral subarticular recess stenosis at L4-5. Full thickness posterior annular tears at the L5-S1 and L4-5 levels were also noted. On February 22, 2002, the employee underwent surgery at Abbott Northwestern Hospital. While those records are not in evidence, the surgery performed was subsequently described by Dr. Yellin as being:
1. L3-4 gill-type laminectomy with complete central and lateral recess decompression with complete foraminotomies and facetectomies.
2. L3-4 posterior lumbar interbody fusion.
3. L3-4 posterior lumbar fusion with autograft.
4. L3-4 instrumentation with pedicle screws.
5. Frameless stereotactic intraoperative navigation.
6. Harvest of right illiac bone graft.
In his report dated July 23, 2002, to the employee=s attorney, Dr. Smith provided his opinion that the employee=s low back condition, which he diagnosed as degenerative spondolysthesis at L3-4 and very severe spinal stenosis, was due to the employee=s activities as a professional football player.
On October 23, 2002, the employee filed a petition to vacate the 1999 stipulation with this court. The employee alleged that there had been a significant change in the condition of his lumbar spine and that this change constituted good cause for vacating the stipulation. After determining that the employee had pending a claim petition which alleged that his lumbar spine problems were the result of earlier injuries sustained while employed by the Minnesota Vikings, this court dismissed the petition to vacate as premature. Wright v. Ecolab, slip op. (W.C.C.A. Mar. 7, 2003).
The employee was evaluated on behalf of his attorney on June 25, 2003, by Dr. Robert Wengler. In his report of that date, Dr. Wengler summarized the employee=s history, reviewed medical records, and provided his opinion as to the extent of permanent partial disability and causation for the employee=s lumbar spine and knee problems. It was Dr. Wengler=s opinion that Athe automobile accident of 1994 resulted in a material aggravation of the degenerative spondylosthesis necessitating the surgical procedure.@
The employee was evaluated by Dr. Paul Yellin on September 3, 2004, and provided a report on the employee=s lumbar condition. Dr. Yellin stated, AMr. Wright had a motor vehicle accident which caused a permanent aggravation of this condition and most likely sped up the degeneration leading to his surgery.@
The employee=s claims were heard by a compensation judge at the Office of Administrative Hearings and in unappealed Findings and Order of January 24, 2005, the compensation judge denied the employee=s claims. The compensation judge determined that the employee had failed to establish an injury to his lumbar spine during his employment with the Minnesota Vikings.
On June 2, 2005, the employee petitioned this court to vacate the 1999 stipulation. The employee alleged that there has been an unanticipated change in the condition of his lumbar spine and that he has established good cause to vacate the stipulation. The employer and insurer have objected to the petition.
This court has authority to set aside an award on stipulation for cause. Minn. Stat. ' 176.461. Cause is defined in the statute as 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.@ In the present case, the employee claims that there has been a substantial change in his lumbar spine condition from the time of the settlement in 1999 to the time of the filing of the petition in 2005.
The purpose of allowing a vacation of an award is to assure compensation proportionate to the degree and duration of disability. Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 63 W.C.D. 337 (Minn. 2003). In considering whether there has been a substantial change in medical condition which would justify vacating an award, this court has generally reviewed a petition in light of the factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989). The Fodness factors are:
1. A change in diagnosis;
2. A change in the employee=s ability to work;
3. Additional permanent partial disability;
4. A necessity for more costly and extensive medical care than previously anticipated;
5. A causal relationship between the injury covered by the settlement and the covered condition.
Change in Diagnosis
The doctors who expressed an opinion on this subject before the stipulation, Drs. Holte and Boxall, both stated that the employee=s lumbar condition was that of a resolved sprain. The employer and insurer point to records which indicate that the employee may have had low back pain radiating into his legs on one occasion in 1987, and to some indication in the records that there were degenerative changes in the employee=s back before his work injury in 1994. There is no record, however, of a diagnosis before the settlement other than that of healed sprain/strain. There are no medical records in which there is any indication that the employee might need lumbar fusion at a point in the future. The current diagnosis of multi-level degenerative disc disease, spondolysthesis, stenosis and herniated discs is clearly a change from the diagnosis prior to the settlement.
Change in Ability to Work
From the records provided, it appears this is not a factor in the present case.
Additional Permanent Partial Disability
No permanent partial disability was rated prior to the 1999 settlement for the employee=s lumbar spine. The employee=s current diagnosis which includes disc herniation, stenosis and fusion surgery would result in a rating of permanent partial disability.
Necessity of Extensive Medical Treatment
No treatment was recommended for the employee=s lumbar spine at the time of the settlement. The settlement closed out all claims for medical treatment other than for treatment of the employee=s cervical spine. The employee had fusion surgery in 2002 to his lumbar spine and represents in this current proceeding that he has incurred medical expenses in excess of $92,000.00 from the surgery.
In its objection, the employer and insurer cite to records and reports in which the November 1994 injury is stated not to be a factor in the employee=s lumbar condition. The employee however, refers to the report and deposition of Dr. Wengler and the report of Dr. Yellin. Both doctors Yellin and Wengler provide opinions that the employee=s work injury of November 21, 1994, was a substantial contributing factor in the employee=s low back problems and eventual need for surgery.
Based on our review of the record, we conclude cause exists to vacate the award of stipulation, served and filed March 17, 1999. The petition is granted.