JAMES P. HUVER, Employee/Petitioner, v. HOME MED. EQUIP./ALLINA, SELF-INSURED, adm=d by GALLAGHER BASSETT SERVS., Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 28, 2006

 

No. WC05-200

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Based on the record and evidence submitted by the parties, the employee has made a prima facie showing of cause, on the ground of an unanticipated change of medical condition, sufficient to justify vacation of the December 29, 2001, Award on Stipulation, and the petition to vacate the award is granted.

 

Petition to vacate granted.

 

Determined by Johnson, C.J., Wilson, J., Stofferahn, J.

 

Attorneys: Friedrich A. Reeker, Attorney at Law, Minneapolis, MN, for the Petitioner.  Charlene K. Feenstra and Tracy M. Borash, Heacox, Hartman, Mattaini, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondent.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee seeks to vacate and set aside an Award on Stipulation, served and filed December  29, 2000, based on a substantial change in medical condition not anticipated at the time of the settlement.  We conclude the employee has established good cause and grant his petition to vacate the award.

 

BACKGROUND

 

The petitioner, James P. Huver, is currently 52 years old.  He attended high school in Montana, obtained a GED in 1973, and worked for his father in a masonry and bricklaying business for a number of years.  The employee and his wife moved to Minnesota in 1987.  In March 1989, he began working for the  self-insured employer, Home Medical Equipment/Allina, as a liquid oxygen delivery driver.

 

The employee sustained a personal injury to his back on October 17, 1994.  He was seen the following day by Dr. Brian Fawcett, an occupational medicine specialist, who diagnosed mild lumbar pain, restricted the employee to light-duty work for one week, and advised him to take aspirin or Ibuprofen as needed.

 

On August 22, 1996, while pulling a 160 pound oxygen tank on a two-wheeled dolly up stairs into a home, the employee experienced a sharp pain in his left buttock radiating down the left leg.  He was seen by Dr. Fawcett on August 29, 1996, who diagnosed acute lumbar pain, prescribed non‑steroidal anti‑inflammatory medication, and released the employee to return to work with restrictions, including no lifting over 30 pounds.  The employer admitted liability and paid medical expenses and temporary partial disability benefits.

 

Over the next several months, the employee received conservative treatment including medication, physical therapy and chiropractic care with little improvement.  A lumbar MRI scan, in November 1996, revealed a moderately large left-sided extruded disc at L5-S1 with moderately severe to severe compression of the left S1 nerve root and mild left-sided lateral spinal stenosis.  There was also a chronic lateral disc herniation at L4-5 with moderate impingement on the caudal aspect of the right L4 nerve root ganglia and degenerative disc bulging from L1 through L4.  The employee was seen by Dr. Mahmoud Nagib, a neurosurgeon, on January 16, 1997.  The doctor diagnosed a left S1 radiculopathy and recommended surgery.  Dr. Nagib observed that despite intense pain, the employee continued to work light duty.

 

Dr. Nagib performed a left-sided discectomy and partial laminectomy at L5-S1 on February 17, 1997.  In follow-up in April 1997, the doctor noted the employee=s radiculopathy had improved significantly and his pain had decreased.  Dr. Nagib released the employee to return to work on April 21, 1997, with restrictions, including no lifting over 30 pounds, bending, twisting, turning, ladder and stair climbing on an occasional basis only, and no limitations on sitting, standing or walking.  The employee was assigned a qualified rehabilitation consultant (QRC) and returned to full-time, light-duty work with the employer.

 

On May 5, 1997, Dr. Nagib indicated no further surgical intervention was warranted.  Two weeks later, the employee returned to Dr. Nagib reporting right-sided radicular-type pain and was referred for a repeat MRI scan.  The May 21, 1997, scan showed fibrous scar tissue along the left lateral aspect of the spinal canal at L5-S1, but no evidence of a recurrent or residual disc herniation or significant spinal stenosis.  Upon review of the scan, Dr. Nagib stated the employee=s situation appeared stable and he recommended conservative treatment.  The employee returned to Dr. Fawcett in June 1997, reporting persistent numbness along the lateral aspect of the left leg and episodic right leg pain.  On examination, sensation to light touch was diminished in the left leg, but the employee moved easily and ambulated with a normal gait, could heel and toe walk without difficulty, had full low back range of motion, and strength and reflexes were equal bilaterally.  Dr. Fawcett=s diagnosis was status post lumbar surgery with residual numbness, but without weakness or radicular pain.

 

That same day, the employee was seen by Dr. Richard Johnson, a neurologist, complaining of pain, numbness and tingling in both hands that he related to his light-duty job cleaning equipment for the employer.  An EMG/needle electrode study on June 12, 1997, was abnormal, consistent with bilateral carpal tunnel syndrome (CTS).  Dr. Johnson prescribed splints and took the employee off work.  The employer accepted liability for a Gillette[1] injury to the hands, culminating May 2, 1997.

 

The employee returned to Dr. Nagib in June 1997.  The doctor noted the employee had significant improvement of his radicular pain post-surgery but continued to have residual left leg numbness.  The doctor released the employee to return to work, continuing his previous restrictions and adding a new restriction limiting repetitive wrist movement.  The employee=s CTS did not improve, and Dr. Nagib performed carpal tunnel surgery on the right on July 18, and a left carpal tunnel release on August 26, 1997.

 

In September 1997, Dr. Nagib released the employee to return to light-duty work with restrictions of no lifting over 20 pounds for his wrists for four weeks, then gradually increasing wrist activity and lifting.  The doctor permanently restricted the employee from lifting over 35 to 40 pounds due to his back, stating this would preclude the employee from returning to his pre-injury occupation.  The employee returned to light-duty work with the employer at full wage on September 26, 1997.

 

Dr. Johnson saw the employee in follow-up in October 1997.  The doctor assigned permanent restrictions including no firm repetitive gripping, no rotation of the hands, and up to three hours of keyboarding with breaks at least every half hour, but no work requiring keyboarding all day.  Dr. Johnson opined the employee would reach maximum medical improvement (MMI) for his CTS within a month.  The employee was last seen by Dr. Johnson on January 21, 1998, reporting he had been doing some keyboarding and was getting some tingling back, particularly in the left hand.  The doctor noted positive Phalen=s and Tinel=s signs in the left extremity, indicated the employee might be getting some CTS back, and advised him to wear a splint at night.

 

On December 22, 1997, the employee reported to Dr. Nagib an exacerbation of leg pain a month earlier, on Thanksgiving day, that was somewhat improved, with intermittent calf pain and some radiation to the lateral aspect of his foot.  The doctor observed mildly positive straight leg raising with decreased ankle reflex on the left, but no motor weakness.  He advised the employee to continue work hardening.  The employee was last seen by Dr. Nagib on February 26, 1998, at which time he stated his left leg pain had resolved, although he still had some pain around the hip joint and some right gluteal and leg pain.  Dr. Nagib opined the employee had reached MMI, approved a proposed permanent job with the employer, and stated he had no further treatment recommendations.

 

The employee began working in a permanent position with the employer on March 5, 1998, at a wage loss.  The employer reinstated payment of temporary partial disability benefits and, on August 17, 1998, paid permanent partial disability of 14 percent for the lumbar spine.  By report dated July 15, 1998, the employee=s QRC stated the employee was working full time for the employer as an equipment processing technician.  According to the employee and his supervisor, he was doing well in the job and his responsibilities were physically suitable.

 

More than two years later, in December 2000, the parties executed a Stipulation for Settlement.  The sole matter in dispute was entitlement to ongoing temporary partial disability benefits.  Pursuant to the stipulation, the employee accepted a lump sum payment of $6,000.00, less attorneys fees, in return for a full, final and complete settlement of all claims relating to his three work-related injuries, except causally related medical expenses.  A compensation judge approved the stipulation and an Award on Stipulation was served and filed December 29, 2000.

 

The employee testified he voluntarily left his work with the employer and in about June or July 2001, moved to Wyoming where his wife=s family lived.  He obtained employment with Community Home Oxygen/Rotech within a few months after the move.  The job involved office work, sitting at a desk and using the telephone.  The employee stated he was terminated by Rotech after two or three months, prior to the end of his probationary period, because he was not qualified for the job.  He received unemployment benefits for a period of time, and worked for Mac Construction doing clean-up and light work to pay off an electric bill.  The employee testified this job did not physically work out for him and was temporary.  He last worked on December 18, 2001.

 

On April 17, 2002, the employee was examined by Dr. John Reckling.  The employee stated he had not been to a doctor for quite some time and wanted a complete physical.  The doctor noted the employee had lumbar surgery in 1997 and felt his symptoms had returned over the past several months.  The employee described episodes of pain shooting from the left buttock to the back of the knee and to the calf, but no leg weakness or back pain, along with chronic left lateral numbness.  Dr. Reckling diagnosed sciatica and requested an MRI scan.  The April 19, 2002, scan was interpreted as showing a left paracentral foraminal disc protrusion at L5-S1 impinging on the left S1 nerve root with mild to moderate bilateral facet hypertrophy at that level.

 

Dr. Joseph Sramek, a neurosurgeon, examined the employee in May 2002.  The employee=s primary complaint was persistent left leg pain that increased significantly with work and activity.  On examination, the employee had no significant pain with flexion or extension, negative straight leg raising, no muscle weakness, slight hypesthesia in the lateral aspect of the left foot, and an absent left ankle reflex.  Dr. Sramek diagnosed left-side lateral recess stenosis at L5-S1 likely a result of either a recurrent disc or scar tissue.  He prescribed physical therapy and an epidural steroid injection, neither of which was helpful.

 

On September 20, 2002, Dr. Sramek performed a surgical re-exploration at L5-S1 with foraminotomy, laminotomy and microlumbar discectomy.  The employee initially did well with significant improvement in his preoperative symptoms, but complained of a Acatch@ in his low back.  In follow-up in December 2002, the employee complained of episodes of severe left-sided low back pain with occasional radiation into the left buttock.  The employee also reported persistent left foot paresthesias and numbness.  On examination, range of motion was restricted on extension and left lateral flexion and there was an increase in left-sided low back pain with facet loading maneuvers and extension.  Dr. Sramek referred the employee for physical therapy and prescribed Vioxx.

 

On February 17, 2003, the employee reported a recent increase in his left leg symptoms and in his low back pain.  On examination, Dr. Sramek noted positive straight leg raising, increased pain with extension and facet-loading maneuvers, mild antalgia, and weakness with toe walk on the left.  Dr. Sramek diagnosed low back pain and left leg radicular pain syndrome, and referred the employee for a repeat MRI scan.  The scan, according to Dr. Sramek, showed improvement in the left lateral recess at L5-S1 and nothing new that would explain the employee=s left leg pain.  The employee continued to experience significant pain, and on April 4, 2003, Dr. Sramek recommended fusion surgery.

 

The employee was seen on May 14, 2003, by Dr. Meredith Miller, a neurosurgeon, for a second opinion.  The employee reported left leg pain radiating down the posterior lateral thigh to the foot since the re-do surgery and trouble walking on his heels and toes.  On examination, Dr. Miller noted definite weakness in the muscles of the left leg and foot, hypalgesia over the S1 distribution on the left and a diminished left ankle reflex.  The doctor diagnosed recurrent S1 radiculopathy on the left, etiology unclear, and recommended a myelogram/CT scan.

 

In August 2003, the employee was awarded Social Security disability benefits retroactive to December 18, 2001.  On September 26, 2003, the employee was examined by Dr. David Cook at the request of the self-insured employer.  The employee stated following the first surgery his left leg pain was much better, but he developed constant numbness in the leg.  He described his current symptoms as pain in the left low back, pain radiating from the buttock and down the outside of the left leg to his foot and little toe that increased with activity, and a very painful (10/10) Acatch@ in the low back that did not seem to be activity or position related, new since the second surgery.  The employee reported that walking, standing or sitting for more than an hour were limited by pain and numbness, and stated he was getting worse.  On examination, Dr. Cook observed difficulty in rising from a sitting position, and a hesitant but not antalgic gait.  The employee was unable to rise on his toes on the left, showed left muscle loss and demonstrated a significant reduction in extension, along with decreased sensation over the left S1 dermatome and an absent left ankle reflex.  The doctor diagnosed left S1 radiculitis, spinal stenosis, post-laminectomy syndrome, herniated nucleus pulposis left L5-S1 and back pain.  Dr. Cook observed the second surgery had failed to alleviate the employee=s lower extremity symptoms and appeared to be associated with the spasmodic Acatch@ in his low back.  In Dr. Cook=s opinion, the second surgery had not been successful and had instead added a more severe, new pain component.  Dr. Cook opined the August 22, 1996 work injury was a substantial contributing factor to the employee=s current condition and was Adirectly related by subsequent treatment or natural expected progression of same.@  (Resp. Ex. P.)  He agreed that new imaging and testing was indicated and that a lumbar fusion would be reasonable and necessary.

 

On March 24, 2005, the employee was seen by Dr. Roger Gose, his primary physician.[2]  Dr. Gose noted the employee continued to have radicular pain in the left buttocks, hip, thigh and calf with a weak great toe extensor and positive straight leg raising on the left.  The employee also complained of midthoraic pain and numbness and tingling in both hands.  An EMG on March 25, 2005, was consistent with chronic left S1 radiculopathy.  MRI scans on the same day showed degenerative changes throughout the spine, most pronounced in the thoracolumbar area; a small, left paracentral disc herniation at C3-4 with mild cervical stenosis; and soft tissue material in the left lateral recess at L5-S1 suspicious for a recurrent herniated disc with compression of the left S1 nerve root, but without significant spinal stenosis.

 

The employee was then seen by Dr. John Moseley for a neurosurgical evaluation on April 26, 2005.  The employee reported persistent left leg pain and occasional right leg pain.  Dr. Moseley noted positive straight leg raising bilaterally and requested a lumbar weight-bearing CT/mylogram.  The employee also complained of neck stiffness and continuing bilateral hand pain.  Noting the MRI scan showed abnormalities in the cervical spine, Dr. Mosely requested a CT/mylogram of the cervical spine as well.  When seen by Dr. Mosely on September 29, 2005, the employee reported left greater than right leg numbness and fatigue after walking less than a block.  The doctor interpreted the August 19, 2005, lumbar CT/mylogram as showing stenosis at L4-5 with foraminal stenosis from L4 through S1, stating the employee=s current problems were likely mechanically related to the stenosis.  Dr. Mosely recommended a re-exploration and decompression of the lumbar spine or, in the alternative, consideration of a dorsal column stimulator for neruopathic pain.  Dr. Mosely  further noted complaints of significant right scapular pain and neck pain, headaches and bilateral hand pain, diagnosed cervical foraminal stenosis, and recommended diagnostic cervical foraminal blocks.

 

Dr. Cook performed a second independent medical examination at the request of the employer on September 18, 2005.  On examination, the doctor noted instability on toes and heels, left extensor hallucis longus[3] 50 percent of right, significantly limited extension, increased symptoms in left leg with left lateral bending, absent ankle reflex on the left and +1 on the right with reinforcement, mixed straight leg raising, and tenderness to palpation from L4 to S1 and in the sciatic notch, buttock and posterior thigh on the left, as well as decreased sensation over the left S1 dermatome. He interpreted the CT/mylogram as showing a broad-based disc bulge at L5-S1 with bilateral foraminal narrowing.  The doctor diagnosed left S1 radiculitis, spinal stenosis, post laminectomy syndrome and back pain of undetermined etiology.  Dr. Cook opined Athere is a very high probability that the primary etiology of the employee=s current low back pain, disability and left lower extremity pain is the direct result of his injury, his subsequent treatment, and activities of normal daily living.@  (Pet. Ex. 1/11/06.)  Dr. Cook further opined that decompressive surgery with fusion was reasonable, necessary and causally related to the August 22, 1996, injury and was the treatment most likely to give the employee relief from his S1 radiculopathy.

 

The employee filed a petition to vacate the December 29, 2000, Award on Stipulation on June 14, 2005, asserting as grounds a substantial, change in medical condition not reasonably anticipated.  The self-insured employer objects to the petition.

 

DECISION

 

This court=s authority to vacate an award on stipulation is governed by Minn. Stat. '' 176.461 and 176.521, subd. 3.  An award may be set aside if the employee makes a showing of good cause, 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.@  Minn. Stat. ' 176.461(4).  A number of factors may be considered in determining whether an award should be vacated based on a substantial change in condition, including a change in diagnosis, a change in the employee=s ability to work, additional permanent partial disability, the necessity of more costly and extensive medical care than initially anticipated, and whether there is a causal relationship between the employee=s changed condition and the personal injury.  Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).  The inquiry in change of condition cases looks back on events, and compares the employee=s condition as it was at the time of settlement with the employee=s condition at the time of the petition to vacate.  The focus of the inquiry is on whether a change has occurred and whether the change is substantial or significant.  Davis v. Scott Moeller Co., 524 N.W.2d 464, 466-67, 51 W.C.D. 472, 475 (Minn. 1994); Franke v. Fabcon, Inc., 509 N.W. 2d 373, 376-77, 49 W.C.D. 520, 525 (Minn. 1993).

 

By February 26, 1998, the employee=s low back condition was stable and Dr. Nagib, the employee=s neurosurgeon, saw no need for further surgical intervention and had no further recommendations for treatment.  The repeat MRI scan of May 21, 1997, showed no evidence of a recurrent or residual disc herniation and no significant foraminal stenosis. Neither party submitted any evidence of medical treatment for the low back from February 26, 1998, through the Award on Stipulation on December 29, 2000, almost three years later.[4]

 

The employee continued to work for the employer following all three, admitted injuries, with only short periods of temporary total disability.[5]  He began working in a new, permanent position with the employer as an equipment processing technician on March 5, 1998.  A Notice of Benefit Payment, dated January 16, 2001, shows payment of temporary partial disability benefits to the employee from March 5, 1998, continuously through October 20, 2000.  The employee testified that he left his employment with the employer voluntarily, prior to moving to Wyoming, and no evidence was submitted that any doctor took the employee off work at that time.

 

In contrast, at the present time, the employee has undergone a second surgery, with poor results.  A third surgery, in the nature of a decompression and fusion has been recommended.  The employee is experiencing persistent pain and numbness from his low back and left buttock radiating down the leg to his foot and toes, he has significant left leg weakness, significantly limited extension and left lateral bending, and bilateral straight leg raising signs. The employee testified his symptoms increase with activity and he has difficulty walking more than a block. The employee=s primary diagnosis is now bilateral forminal stenosis at either L4-5 and/or L5-S1, along with the previously diagnosed S1 radiculopathy.

 

Vocationally, the employee has not worked since December 18, 2001, and is receiving Social Security disability benefits.[6]  The independent medical examiner, Dr. Cook, has opined the employee=s current low back and lower extremity problems are causally related to his August 22, 1996, work injury and he agrees with the recommendation for a third surgery.

 

At the time the parties entered into the stipulation for settlement, the sole issue in dispute was entitlement to ongoing temporary partial disability benefits.  Although the stipulation includes a full, final and complete settlement of the employee=s potential workers= compensation claims (except medical expenses), the employee was paid only $6,000.00, less attorney fees.  The employee had some lingering effects from the August 22, 1996, work injury, but continued to work for the employer from the date of the injury until shortly before the settlement, a period of more than four years.  There was no suggestion at the time of the settlement the employee would require further surgery, nor could it be anticipated that the second surgery would fail and the employee suffer additional disability.

 

Based on the record and the evidence submitted by the parties, we conclude that employee has made a prima facie showing of cause sufficient to justify vacation of the December 29, 2001, Award on Stipulation.[7]  The petition to vacate is, therefore, granted.

 


 


[1] Gillette v. Harold, Inc., 257 Minn.313, 101 N.W.2d 200, 21 W.C.D.105 (1960).

[2] In his December 16, 2005, report, Dr. Cook indicated the employee became quite ill in October 2003.  He was seen by Dr. Gose at that time who determined the employee had elevated liver enzymes.  The employee also underwent radio frequency prostate surgery in the interim.

[3] The Aextensor hallucis longus@ is the long extensor muscle of the great toe, originating in the front of the fibula and extending to the dorsal surface of the base of the distal phalanx of the great toe.  The muscle dorsiflexes the ankle joint and extends the great toe.  Dorland=s Illustrated Medical Dictionary 1154 (29th ed. 2000).

[4] The employee was last seen for treatment of his carpal tunnel syndrome on January 21, 1998, at which time he had some mild recurrence of tingling on the left and was advised to wear a splint at night.  The current diagnosis, need for treatment, and any causal relationship between the employee=s work-related CTS and his current bilateral hand and/or neck symptoms is less than clear.

[5] The employee was paid temporary partial disability benefits from August 31, 1996 through February 16, 1997.  He then received nine weeks of temporary total disability benefits following the first back surgery.  Temporary partial disability was resumed for one week following the employee=s return to light-duty work on April 21, 1997, after which he continued to work at full wage.  The employee was paid one week of temporary total disability benefits after the diagnosis of CTS, then returned to work at full wage.  He was paid 10.8 weeks of temporary total disability benefits at the time of and following his carpal tunnel surgeries in July and August 1997.  The employee again returned to work at full wage from September 26, 1997, until March 8, 1998, when he began a new permanent job with the employer at wage loss and temporary partial disability benefits were resumed.

[6]  The decision awarding Social Security disability benefits dated August 12, 2003, clearly states the basis for the award is the employee=s low back condition, specifically, herniated nucleus pulposis (HNP) spinal disorder, status post two operative procedures, with continuing compromise of the nerve root at the L5-S1 disc space with pain and limitation of motion, reflex and sensory involvement.

[7] By this decision the court makes no determination relative to the merits of any claim for additional benefits advanced by the employee.  Such claims remain subject to the usual standards of proof in a workers= compensation case.