JAMES P. SWANSON, Petitioner, v. JOHN C. WEICHT & ASSOCS. and WESTERN NAT=L MUT. INS. CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 9, 2006
File No. WC05-225
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The employee has demonstrated a substantial change in medical condition sufficient to establish good cause to vacate the award on stipulation issued in this matter in 1990.
Petition to vacate granted.
Determined by: Stofferahn J., Rykken, J. and Wilson, J.
Attorneys: Stephen P. Christiansen, Roseville, MN, for the Petitioner. Michael D. Aafedt & Radd Kulseth, Minneapolis, 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 December 19, 1990. The employee alleges good cause in that there has been a substantial unanticipated change in his medical condition. The petition is granted.
On April 7, 1989, the employee, James Swanson, was working for the employer, John C. Weicht and Associates, as a master cement finisher, block layer and cement crew foreman. On that date, he sustained an admitted low back injury when he stepped into a hole and twisted his back while carrying a cement block. His back pain worsened over the weekend and by the following Monday he also had pain radiating down his right leg.
The employee sought medical and chiropractic treatment and he was taken off work. An MRI scan, performed on April 21, 1989, showed a mild posterior disc bulge at L5-S1 without evidence of significant nerve root compression and an L4-5 disc herniation possibly compressing the right L5 nerve root. There was also degenerative disc disease at both levels. The employee=s leg symptoms improved significantly over the next few months with chiropractic treatment, but he continued to have low back pain and occasional right leg symptoms. His chiropractor referred him to a neurologist, Dr. Steven S. Lebow, at the Noran Clinic.
Dr. Lebow saw the employee on August 1, 1989. He diagnosed a mild right-sided radiculitis. He agreed with the employee=s chiropractor that the employee should observe work restrictions against heavy lifting or carrying and frequent bending. He recommended that the employee continue chiropractic treatment and an exercise program, along with a two-week trial of anti-inflammatory medication, to be followed by an epidural injection at the L4-5 level if there had not been significant improvement. Dr. Lebow also noted that if this did not improve the employee=s functional level, it might eventually be necessary to consider a CT scan and, possibly, a microdysectomy.
The employee had an epidural injection on August 21, 1989. He continued to see his chiropractor three times a week through late October 1989. He then felt sufficiently improved to discontinue chiropractic treatment.
On November 1, 1989, the employee was seen on behalf of the employer and insurer for chiropractic evaluation by Dr. Steven Jackson. Dr. Jackson diagnosed moderate levels of degenerative disc disease, unrelated to the work incident, and a moderate central and right-sided contained disc herniation at L4-5. He thought that the herniation at this level was the cause of the employee=s current right-sided symptomatology. Dr. Jackson further opined that maximum medical improvement had been reached, and that the employee had sustained a 9 percent permanent partial disability for a healed disc herniation, treated without surgery, with excellent results. He recommended only that the employee begin a structured rehabilitation exercise program.
The employee saw Dr. Lebow in December 1989, reporting an exacerbation of low back pain. He described an acute increase in low back pain with minimal radiation into the right hip and thigh. Dr. Lebow recommended that the employee begin a health club program, continue low back exercises and obtain chiropractic treatment as needed. The employee returned to Dr. Lebow on January 31, 1990. He had not been able to start a structured exercise program. He reported that on good days he had only a mild backache, but that sometimes his back would spasm and he would have low back and right leg pain. He had started searching for work with the assistance of a QRC. Dr. Lebow expressed hope that the employee would start an exercise program to stabilize his condition.
On January 30, 1990, the employer and insurer filed a notice of intention to discontinue temporary total disability benefits based on the MMI opinion of Dr. Jackson.
On February 5, 1990, the employee=s chiropractor, Dr. Gregory Smock, reported to the employee=s attorney on the employee=s progress. He noted that the employee=s right leg and low back pain had diminished after chiropractic treatment and he was now treating only on an as-needed basis. Dr. Smock stated that the employee would continue to have periodic exacerbations in the future, which could be treated with exercise and chiropractic adjustment as needed. He speculated that the employee might require surgery some time in the future if his condition were to worsen. He rated the employee with a 19 percent permanent partial disability based on an untreated herniated disc (14%) and a second herniated disc at an adjacent level (5%).
The employee was seen by Dr. Donald M. Garland on April 26, 1990, at the request of his attorney. Dr. Garland diagnosed lumbar strains and sprains with herniated discs at the L4-5 and L5-S1. At the L5-S1 level, the herniation was small and contained, without impingement. Dr. Garland noted that the disc herniation at the L4-5 level had initially showed significant nerve root involvement but had improved with treatment. However, he thought the improvement was Asomewhat tenuous.@ Dr. Garland concluded that MMI had not been reached until April 7, 1990. He rated the employee with a 14 percent permanent partial disability. While he anticipated that the employee would likely experience some flare ups in the future in his discogenic low back pain, he opined that this should respond to physical therapy, medications and chiropractic treatment. Dr. Garland noted, however, that if significant right leg symptoms recurred, the employee could need further evaluation by a neurologist, with a possibility of surgical treatment.
About one year after the work injury the employee first found work within his restrictions at a job grinding eyeglass lenses. He subsequently worked at Beck=s Greenhouse as a seasonal truck driver, then later that year took a job at Bob=s Sport Shop as a sales clerk.
In December 1990, the parties entered into a stipulation for settlement. The employee alleged a permanent partial disability of 19 percent, while the employer and insurer alleged that permanency was limited to the 9 percent assessed by Dr. Jackson, which they had already paid to the employee. They also asserted that the employee=s chiropractic treatment had not been reasonable or necessary, that he had failed to cooperate with rehabilitation, and that his earning capacity was greater than he alleged or exhibited at the time of the settlement. The employee accepted $75,000 for a complete closeout of all claims, except for future reasonable and necessary medical treatment. A compensation judge issued an award on stipulation on December 19, 1990.
In April 1991, Dr. Lebow noted that the employee=s condition had been stable. His symptoms were mainly backache with occasional radiation down the right leg. The employee next returned to Dr. Lebow in August 1991 due to an exacerbation of low back pain and an onset of left lateral leg pain after helping a friend with some shoveling. A new CT scan was read as showing diminished disc height with degenerative changes of the L4-5 disc space, a questionable herniation at L4-5 without nerve root compression, and a diffuse bulge at L5-S1 with minor degenerative spurring.
In 1992 the employee began a two-year program for training and certification as a building inspector. During this period the employee occasionally did some work in his prior occupation as a cement block layer for financial reasons, despite admonitions from his chiropractor and Dr. Lebow that he change professions. Nonetheless, Dr. Lebow noted on September 4, 1992, that the employee had significantly improved, with a resolution of the left leg pain that he had been experiencing earlier that year. He continued to experience backaches and chronic right-sided leg pain to the same extent as in the past.
The employee last worked as a block layer or mason in 1993. In the same year he began working in a temporary job as a building inspector for Isanti County.
On August 25, 1993, Dr. Smock wrote to Dr. Lebow to update him on the employee=s situation. The employee had not required treatment for a year and had experienced no recurrence of severe pain down the left leg, although he still had pain in his low back and into the right thigh.
In 1994 the employee completed his certificate course. He then found work as a building inspector for the City of Chaska. He continued to work as a building inspector for various employers over the next five or six years.
The employee returned to Dr. Lebow in February 1995. He was now having severe pain radiating down the right leg. Dr. Lebow recommended an EMG to check for denervation in the right leg. The EMG showed chronic moderately severe neurogenic changes at the L5 level. An MRI was also done, and compared to prior scans. A vacuum disc phenomenon was seen to have developed since 1992. Dr. Lebow recommended that the employee consider a CT contrast study and a neurosurgical consultation if his radicular pain down the right leg persisted. The employee, who had recently started a new job, wished to wait before considering further treatment options, hoping that his condition would stabilize.
On September 14, 1998, the employee saw Dr. Gaylan Rockswold, a neurosurgeon. He had been unable to return to Dr. Lebow, who had retired. The employee reported that he had recently become almost incapacitated at times from low back pain. He was finding it increasingly difficult to keep working, but could not stop for financial reasons. Straight leg raising was now positive on the right. An MRI showed severe degenerative disc disease at L4-5 and L5-S1, worse at L4-5, where there was marked space narrowing, bulging and dessication. Comparing the 1995 and 1998 scans, Dr. Rockswold saw a progression of the employee=s degenerative disc disease. He recommended that the employee undergo an anterior two-level BAK fusion in order to reestablish normal disc height.
The fusion was performed by Dr. Rockswold on October 6, 1998. The employee was able to return to work at his job as a building inspector by mid-December of that year. After the surgery, the employee had a significant reduction in his back and right leg pain and was able to work more normally. For the next several years he had only mild on and off back pain.
In late February 2000, the employee had a return of pain in his right buttock radiating down to the right calf. He also had pain radiating into his left leg. He returned to Dr. Rockswold=s office, where he was prescribed medications and told to return in one month. When he returned, on April 17, 2000, he reported difficulty with both sitting and standing. Dr. Rockswold recommended a CT scan. The scan, performed on April 19, 2000, was suggestive of a pseudoarthrosis. There were also indications of a bone spur at L5-S1 contributing to foraminal stenosis with impingement to the exiting right L5 ganglion.
It is unclear from the medical records what recommendations Dr. Rockswold made to the employee at this time. The employee told a subsequent physician that he had been advised to wait to see if his condition settled down. Dr. Rockswold=s records indicate that the employee did return on June 11, 2001, but primarily was seen for a disability rating. The doctor recorded that the employee was then getting along well. He rated the employee=s permanent partial disability at 22.5 percent for a two-level fusion.
In January 2001, the employee began working for Edina Development as a job superintendent overseeing housing development projects. This job lasted until October 10, 2001, when the employee was laid off for economic reasons. The employee then sought work within his restrictions but was unable to find work for about a year and a half.
On September 11, 2001, the employee was seen by Dr. Seth Rosenbaum for a clinical consultation at the recommendation of his attorney. Dr. Rosenbaum opined that the employee=s 1989 work injury was permanent in nature and was causally related to his subsequent treatment including the 1998 surgery. He also rated the employee with a 22.5 percent permanent partial disability. He recommended that the employee restrict lifting to no more than 30 pounds occasionally or 15 pounds frequently, bend at the waist only occasionally, limit sitting to 30 minutes at a time and standing to 45 minutes.
The employee filed a claim petition on September 19, 2001, seeking payment for the expenses of the 1998 fusion surgery and other treatment expenses. The employer and insurer answered denying liability for any treatment expenses after the date of the 1990 stipulation on the basis of lack of causal relationship. This issue was resolved by a stipulation for settlement in 2002, in which the employer and insurer did not admit liability but agreed to pay substantially reduced amounts negotiated with the various health care providers concerned. A compensation judge issued an Award on Stipulation on December 27, 2002.
Meanwhile, on November 18, 2002, the employee consulted with Dr. Richard Salib at the Institute for Low Back and Neck Care, for assessment of the pain in his left leg, which was now constant. Dr. Salib had briefly seen the employee in 1996 and 1997. The employee returned to Dr. Salib because Dr. Rockswold had retired. Dr. Salib instituted conservative treatment and over the next several months recommended a variety of tests, including a new CT scan, diagnostic injections and discography. By August 2003 Dr. Salib had concluded that the most likely reason for the employee=s continued low back and leg symptoms was a pseudoarthrosis of the interbody fusion cages and persistent nerve compression at those levels. He recommended that the employee undergo further surgery to explore the fusion and determine if it was in fact solid.
The employee found work for Franzen Contracting as a general superintendent in 2003. He was laid off for seasonal reasons in January 2004.
On April 1, 2004, the employee filed a claim petition seeking authorization for surgery as recommended by Dr. Salib. The employer and insurer answered denying liability.
On May 14, 2004, Dr. Salib recorded that the employee was now in a lot of pain and could barely function. He had taken the employee off work pending the recommended surgery. In a letter dated May 24, 2004, Dr. Salib explained his opinion that the employee=s 1989 injury had initiated a pattern of recurring episodes of pain, intermittent over the years. He considered that the employee=s current back and left leg pain was likely related to failure of the 1998 fusion, as the employee=s left leg pain followed both an L4 and an L5 dermatomal pattern. Dr. Salib noted that leg pain was a frequent problem with a pseudoarthrosis or failed fusion. He further pointed to radiographic evidence of foraminal narrowing due to subsidence of the interbody fusion cages into the vertebral end plates. Dr. Salib stated that he could allow the employee to work in a light duty or moderate duty job as an inspector, so long as the activities performed did not aggravate his pain.
A hearing was held before a compensation judge of the Office of Administrative Hearings on July 28, 2004, over whether the surgery proposed by Dr. Salib was causally related to the employee=s 1989 work injury. Following the hearing, the compensation judge found that the 1989 work injury was a substantial contributing factor to the employee=s increased pain complaints and ongoing symptomology following the 1998 surgery. No appeal was taken from this determination.
The employee returned to Dr. Salib in October 2004 in order to proceed with the surgery. Dr. Salib, noting that the last CT scan was now two years old, recommended that a new CT scan be obtained in order to assess whether there had been further changes in the healing process. The new scan revealed the development of degenerative changes at the L3-4 level, which had not been present in 2003 when the employee had undergone a discogram. Dr. Salib concluded that the employee should undergo another discogram, at the L3-4 level. The employee did not want another discogram, and ultimately Dr. Salib recommended that he have an MRI scan instead. The MRI was performed on March 18, 2005. It showed a circumferential disc bulge at L3-4 producing subarticular recess stenosis and contacting the traversing nerve root. There was also foraminal stenosis at this level.
On May 27, 2005, Dr. Salib saw the employee for review of the MRI findings. He concluded that while the L4-5 and L5-S1 levels were probably not totally fused, they had been sufficiently immoveable to place stress on adjacent levels, causing the new degeneration at the L3-4 level. He still recommended that the employee undergo exploration of the former fusion, but now combined with either a fusion at L3-4 or the insertion of an artificial disc. The employee opted for an artificial disc. Dr. Salib thought the best option was an artificial disc for which FDA approval was still pending. The employee decided to wait for the approval of the disc, which Dr. Salib anticipated would take about a year and a half. The employee was given a prescription for vicodin. He told Dr. Salib that he no longer was capable of maintaining steady employment. Dr. Salib restricted the employee from all work indefinitely.
On July 27, 2005, the employee petitioned this court to vacate the 1990 stipulation. The employee alleges 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 under Minn. Stat. ' 176.461 and 176.521, subd. 3, to set aside an award on stipulation good cause. Good cause, as defined by the statute, includes a substantial change in medical condition since the time of the award. See, e.g., Wollschlager v. Standard Construction Co., 220 N.W.2d 346, 27 W.C.D. 495 (Minn. 1974). 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 1990 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). These factors include whether there has been (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; and (5) whether there is a causal relationship between the injury covered by the settlement and the covered condition.
In the present case, there has already been an unappealed determination that the employee=s increased symptoms are causally related to the 1989 work injury. The parties agree that this factor is therefore not in dispute.
The employer and insurer focus on the remaining factors in opposing the employee=s petition to vacate. With regard to the question of a change in diagnosis, the employer and insurer point out that the employee=s diagnosis at the time of the 1990 stipulation was degenerative disc disease with foraminal narrowing and disc herniations at L4-5 and L5-S1. They argue that the diagnosis of a pseudoarthrosis, or failed fusion, does not really constitute a change in the employee=s diagnosis since the fusion was performed to treat the same underlying condition present at the time of the stipulation.
We disagree. The diagnosis of a failed fusion in the present case indicates more than the failure of treatment returning the employee to the condition that existed prior to the fusion. The medical evidence available indicates that the employee=s pseudoarthrosis has now resulted in significant left-sided radicular symptoms that were not present at the time of the stipulation, when the employee=s radicular symptoms were not only largely resolved, but primarily confined only to the right leg. Dr. Salib has also pointed to radiographic evidence of additional foraminal narrowing which has occurred since the surgery due to subsidence of the interbody fusion cages into the vertebral end plates. In addition, the evidence presented suggests that the employee now has a further level of disc involvement at L3-4 that, according to Dr. Salib, resulted from greater stress on that level from the effects of the 1998 fusion instrumentation.
The employer and insurer also argue that there has been no real change in the employee=s ability to work. The employee was able to work under restrictions, and in fact was working, at the time of the 1990 stipulation for settlement. The employer and insurer argue that the employee could work now in a similar capacity. They point out that Dr. Salib indicated in May 2004, that the employee could perform light or medium duty work. Although Dr. Salib has since taken the employee entirely off work, they contend that the employee=s current off-work restrictions should be discounted as based Asolely on the subjective belief of the employee, rather than on a medical opinion . . .@ (Memorandum in Opposition to Vacation of Award at 10.)
We are not persuaded to wholly discount Dr. Salib=s restrictions on the basis of this argument. In May 2004, when Dr. Salib authorized the employee to work under restrictions, he did so only with the caveat that the employee could try such work only to the extent that it did not cause him pain. Under such circumstances, it is not contradictory for the doctor to take the employee off work when the employee subsequently indicates an inability to do such work. In addition, we note that in 2004 it was anticipated, both by Dr. Salib and the employee, that the surgery then recommended would be performed fairly soon, so that the employee would be able to tolerate working for the relatively brief period prior to the surgery. In 2005, new radiographic findings indicated that there were now significant degenerative changes at the employee=s L3-4 disc level. In light of the changes in the employee=s condition since early 2004, Dr. Salib was then recommending a more complicated surgical procedure which, due to pending FDA approval, could not be performed for perhaps a year and a half. Given the changes in the employee=s condition since May 2004, we will not assume that Dr. Salib simply deferred his medical judgment to the employee by concluding in 2005 that it had become necessary to restrict the employee from all work.
The employee=s current permanency has been rated at 22.5 percent. The employee=s chiropractor, Dr. Smock, rated the employee with a 19 percent permanent partial disability shortly before the 1990 stipulation. Accordingly, the employer and insurer argue, this is not a significant change. We note, however, that the employer and insurer admitted only a 9 percent permanent partial disability at the time of the stipulation, and that Dr. Smock=s rating was based on the view that the employee had two ratable herniated discs, even though none of the scans at that time had showed evidence of the requisite nerve root impingement from the disc bulge at the L5-S1 level. Dr. Garland, who examined and provided the only other rating offered prior to the 1990 stipulation, rated the employee with a 14 percent permanency for one herniation with radicular symptoms. We conclude that the evidence of a change in permanent partial disability, though somewhat inconclusive, suggests something more than a merely insubstantial change as argued by the employer and insurer.
Finally, the employer and insurer argue that it has not been established that there is a need for more costly and extensive medical care than was anticipated at the time of the stipulation. They contend that the employee certainly could have anticipated surgical treatment might eventually be needed. Dr. Lebow, Dr. Garland and Dr. Smock all noted prior to the date of the stipulation that there was at least a possibility that surgical treatment might be needed if the employee=s radicular symptoms returned. However, although it may have been reasonable for the employee to have anticipated that he would eventually require surgery, there is nothing in the record to indicate that in 1990 he should have anticipated further surgery to correct a failed fusion, or to address problems at a third disc level not even present at the time of the stipulation.
Based on our review of the record, we conclude that sufficient cause exists to vacate the award of stipulation, served and filed December 19, 1990. The petition is granted.