KELLY FENSTERMAKER, Employee/Petitioner, v. THERMOFORM PLASTIC, INC., and AON/VIRGINIA SURETY COS./CAMBRIDGE INTEGRATED SERVS., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 19, 2007
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where there is conflicting evidence on whether the employee has experienced a change in her ability to work and whether the employee has sustained additional permanent partial disability that is causally related to her 2001 work injury, we refer this matter to the Office of Administrative Hearings for an evidentiary hearing.
Referred to OAH for evidentiary hearing.
Determined by: Rykken, J., Wilson, J., and Johnson, C.J.
Attorneys: Jason L. Schmickle and Trisha A. Vicario, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Petitioner. Charlene K. Feenstra, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee petitions to vacate an award on stipulation issued November 6, 2002, based on a substantial change in medical condition. We refer the matter to the Office of Administrative Hearings for an evidentiary hearing and determination of whether there has been a change in the employee=s ability to work and whether the employee has sustained additional permanent partial disability that is causally related to her 2001 work injury.
On January 29, 2001, Kelly Fenstermaker, the employee, was employed by Thermoform Plastic, Inc., the employer, when she sustained an admitted injury to her neck. At the time of her injury, as the employee and a co-worker were carrying a 200-pound metal cannister, the co-worker suddenly dropped her end of the canister. The other end being held by the employee suddenly bounced up and forcefully struck her in the larynx, throwing her backwards. She underwent emergency medical evaluation at St. John=s Northeast Hospital, underwent a CT scan of her neck and was advised to consult her treating physician. Dr. Orrin Mann restricted the employee from work, prescribed physical therapy and medication and ultimately referred her to Dr. Garry Banks for an orthopedic consultation. On March 7, 2001, the employee underwent an MRI scan of her cervical spine, which revealed various positive findings including disc bulging at one level and a herniation at another level. A follow-up multilevel cervical discography showed full thickness annular tearing with moderate to moderately severe concordant pain at each level between C3 and C7.
In April 2001, the employee underwent an independent medical examination with Dr. Larry Stern, at the request of the employer and insurer. Dr. Stern concluded that no further medical treatment was necessary and recommended against surgical intervention. By May 2001, Dr. Banks concluded that it was unlikely that cervical fusion surgery would provide the employee with lasting benefits, as she did not have prominent radicular complaints and her degree of neural impingement did not necessitate surgery. He recommended that the employee undergo a functional capacities evaluation (FCE) to define her work restrictions. The employee underwent an FCE in June 2001. The results of that evaluation indicated that the employee could work full time with restrictions of no lifting over 30 pounds, 15 pounds occasionally, seldom reaching high overhead to far forward, no flexed or extended neck positions, and limited neck rotation.
The employee=s medical history includes treatment for cervical and thoracic problems for many years before her 2001 work injury, as a result of three motor vehicle accidents. Following her work injury, which aggravated her underlying condition, the employee was unable to continue working for the employer, due to her injury-related restrictions. In later 2001, she began working as a supervisor for Kohl=s Department Stores. Although that job evidently was full-time and within her physical work restrictions, the employee experienced occasional neck pain and numbness in her hands while working at Kohl=s but was able to perform all of her job requirements. She worked at Kohl=s until December 2002, at which time she moved to California, in order to live in a warmer climate.
In October 2002, the parties entered into a stipulation for settlement, wherein the employer and insurer agreed to pay the employee $29,015.62, in exchange for a full, final, and complete settlement of any and all claims arising out of her 2001 work injury, with the exception of future medical expenses. An award on stipulation was filed on November 6, 2002. At the time of this settlement agreement, the employee contended that she had a decreased earning capacity as a result of her January 29, 2001, injury, and was entitled to ongoing payment of temporary partial disability benefits; that she had sustained permanent partial disability of at least 10% of the whole body, as a result of her work injury, and that she was entitled to ongoing vocational rehabilitation services and payment of reasonable and necessary medical expenses. The employer and insurer, on the other hand, denied that the employee was entitled to any ongoing benefits, and claimed that she had no diminution in her earning capacity as a result of her 2001 injury. The employer and insurer asserted that any decreased earning capacity the employee may have experienced was solely the result of economic conditions or factors other than her 2001 injury. They additionally denied that the employee sustained a permanent partial disability as a result of her 2001 injury, and asserted that she had reached maximum medical improvement from that injury as of November 3, 2001.
In April 2003, the employee sought further medical treatment for her neck, after experiencing an immediate sudden increase in pain and discomfort in her cervical spine while driving and turning her neck. She received cortisone injections and was prescribed pain medication. The employee contends that the employer and insurer denied her request for payment of additional medical treatment at that time.
While in California, the employee worked at various jobs, including work in customer service and work as an automotive service writer and a warehouse manager. In February 2005, the employee moved from California to North Carolina, citing various reasons. She chose to move to North Carolina due to the warm weather and because North Carolina housing costs were cheaper than those in California. According to her deposition testimony, she also hoped to consult a doctor in North Carolina, in part because her claim for treatment in California was denied and in part because the employer had a facility there and so she believed she could consult one of the employer=s physicians in North Carolina. On April 1, 2005, the employee consulted a doctor in North Carolina, requesting an evaluation for her neck symptoms. She was diagnosed with cervical spine pain and was referred for a neurological evaluation. Shortly thereafter, the employee returned to Minnesota, again for various factors. She returned to see her family and also because there was workers= compensation coverage in Minnesota.
After moving to Minnesota, the employee worked for approximately one month as a service writer at Bene Ford in Duluth, Minnesota. Although her symptoms increased when she used the telephone, she was able to perform that job. She left that position due to her limited hourly wage. She has since worked at various part-time jobs, including restaurant server, house painting and maintenance and cleaning work.
In July 2005, the employee returned to consult Dr. Banks, the physician with whom she had treated in 2001 following her injury. The employee reported increased neck pain, bilateral upper extremity numbness, bilateral arm pain, and left trapezius muscle spasms, in addition to increased difficulty sleeping due to the pain and numbness in her arms. Dr. Banks recommended a cervical MRI. On August 25, 2005, the employee underwent a cervical MRI scan, which revealed disc degeneration most markedly at the C4-C7 vertebral levels, and moderate right C4-5 disc herniation. The scan results also showed moderate left side stenosis at two levels with disc herniation impinging the C6 and C7 nerve roots. Dr. Banks diagnosed progressive neural impingement with radiculopathies, most markedly at the C4-C7 levels. Dr. Banks recommended that the employee undergo an anterior decompression with discectomy and fusion from the C4-C7 level, and based that recommendation on the duration of the employee=s symptoms, the progressive worsening of the symptoms and failure of lasting improvement with non-operative treatment.
At the employer=s request, the employee underwent a repeat evaluation with Dr. Larry Stern on October 24, 2005; the purpose of that evaluation was to determine whether the surgical procedure, as recommended by Dr. Banks, was reasonable and necessary. In a report issued on November 28, 2005, Dr. Stern concurred with Dr. Bank=s assessment of the employee=s condition and with his recommendation for surgical fusion. He concluded that the employee=s medical condition prior to her January 29, 2001, work injury represented a substantial contributing cause of her current medical condition and need for medical treatment. However, he also concluded that the employee=s work injury was a substantial contributing cause for her need for surgery.
On December 21, 2005, the employee underwent the three-level surgical fusion recommended by Dr. Banks. Post-surgery, the employee wore a neck brace and underwent physical therapy for her neck. By April 2006, in spite of initial improvement in her pain levels, the employee reported additional pain in her neck. By May 25, 2006, Dr. Banks concluded that the surgical fusion was solid. Dr. Banks released the employee to work by that date. In his report of July 31, 2006, he outlined his opinion on the employee=s restrictions, as follows:
I recommended permanent restriction[s] of 30 pounds lifting, avoiding significant overhead activities, repetitive neck bending and twisting. I also recommended that she have a head set for use with the phone. I believed these restrictions would preclude her return to her prior work, which apparently involved inspecting automobiles, getting into awkward places and I do not believe that would be in the best interest for her neck problem in the long-term.
I believe the progression of her degenerative disc problem in her neck is the result of her initial work injury from [January 29, 2001,] and I believe that this represents a significant and largely unforeseen change in the medical condition that was present for which she settled in 2002. The development of radiculopathy certain[ly] can occur as a result of the progression of a degenerative problem from the initial injury; however, there is really no way to predict on an individual basis whether this will occur.
The employee petitions this court to vacate the November 6, 2002, award on stipulation on the basis of a substantial change in medical condition. She contends that she has experienced a change in her diagnosis and a change in her ability to work since the time of the award on stipulation, and has also sustained additional permanent partial disability since then, all as a result of the ongoing effects of her 2001 work-related injury.
This court has jurisdiction to set aside an award on stipulation upon a showing of cause. Minn. Stat. '' 176.461 and 176.521, subd. 3. Cause, as defined in the statute, 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(4). In considering whether there has been a substantial change in medical condition, this court has generally applied the factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989):
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. A causal relationship between the injury covered by the settlement and the covered condition.
See, e.g., Bresnahan v. Vicorp/Bakers Square, No. WC05-292 (W.C.C.A. Apr. 27, 2006); Bartz v. Meadow Lane HealthCare, No. WC06-184 (W.C.C.A. Feb. 26, 2007). Applying these factors to the analysis of the case, this court compares the employee=s condition as it was at the time of the award with the employee=s condition at the time vacation of the settlement is sought. See Davis v. Scott Moeller Co., 524 N.W.2d 464, 466-67, 51 W.C.D. 472, 475 (Minn. 1994).
In this case, the employee contends there has been a substantial and unanticipated change in her diagnosis and medical condition since the time of the award on stipulation. The employee claims that she has also experienced a change in her ability to work and has sustained additional permanent partial disability since the time of the award.
The employee=s contention that there has been a change in diagnosis is well supported by the medical records submitted with her petition to vacate and the objection to that petition. And there is no dispute that the employee=s work injury of January 29, 2001, aggravated her underlying preexisting condition; Drs. Banks and Stern differ on whether that aggravation was temporary or permanent in nature. Both agree, however, that the need for the employee=s 2005 cervical fusion surgery was related to her 2001 work injury.
At the time of the stipulation for settlement, the employee had been diagnosed with multilevel cervical degenerative disc disease. Following the award, the employee=s symptoms worsened, and a cervical MRI scan showed progressive degenerative problems with disc space narrowing as well as spinal stenosis and right C4-5 disc herniation and foraminal stenosis at the C5-C7 levels. In December 2005, based on the progression of the employee=s symptoms and the development of objective radiculopathy, Dr. Banks recommended and performed surgery in the nature of an anterior cervical decompression and fusion at three levels, between the C4 and C7 vertebral levels. The employee=s symptoms were not entirely alleviated by that surgery. In April 2006, she was evaluated by Dr. Banks, who noted markedly restricted neck motion, tenderness in the left mid-central area and mild left shoulder tenderness. Dr. Banks indicated that the employee might have a new problem with nerve impingement in her neck, and recommended a cervical MRI. The employee is now status post anterior fusion at the C4 to the C7 vertebral levels. Considering all of the medical evidence discussed above, we conclude that the employee=s diagnosis has changed since the award on stipulation.
As for the employee=s need for additional medical care, the record does show that in 2002, before the parties entered into a settlement agreement, neither Dr. Banks nor Dr. Stern recommended surgery. Both concluded at that time that the multilevel cervical fusion of the extent required to cover all cervical levels would be inappropriate and could result in severe chronic neck pain. In 2006, however, both Drs. Banks and Stern concluded that the surgery recommended by Dr. Banks would be reasonable and necessary for the employee, based upon the radiographic findings at that time, the employee=s worsened symptoms, and her additional symptoms of radiculopathy. There has clearly been a substantial change in the extent of medical care, with the employee having now undergone a triple-level fusion in her cervical spine. The employer and insurer point to language in prior opinions by this court noting that this factor is of diminished significance where, as here, the award leaves open the employee=s claims for future medical care. Accordingly, they argue, we need not consider the extent of post-stipulation medical care in determining whether to grant the employee=s petition to vacate. However, we have also repeatedly stated that even where medical benefits are left open, changes in the extent of treatment since the time of the settlement may nonetheless be useful evidence bearing on whether there has been a substantial change in the employee=s medical condition. We find the extent of additional treatment here an indication of such a change in condition.
Concerning the factor of whether the employee=s level of permanent partial disability has changed since the time of the award on stipulation, the record does indicate that there has been an increase in her level of disability. The employer earlier paid the employee permanency benefits based on a 3% whole body impairment rating. At the time of the award on stipulation, the employee contended that the level of her permanent partial disability was at least 10% whole body impairment. Dr. Stern, the independent medical examiner, examined the employee on December 13, 2006, at which time he assigned a disability rating of 20% permanent partial disability to the body as a whole, based upon the employee=s cervical spine and her multilevel cervical fusion. Dr. Stern, however, expressed his opinion that this permanency was related to the employee=s condition that predated her 2001 work injury.
There is also conflicting medical evidence in the record before this court concerning the employee=s contention that there has been a change in her ability to work since the award on stipulation in 2002. The employer and insurer contend that the employee=s ability to work since the award on stipulation has not substantially changed, or at least that the change was clearly within the employee=s anticipation at the time of the settlement. We note that the employee was working at the time of the award on stipulation in December 2002.
The employer and insurer provided statutory rehabilitation assistance to the employee, between March 2001 and December 2002. In June 2001, at the recommendation of Dr. Banks, the employee underwent a functional capacities evaluation to assess her physical work restrictions. The therapist conducting the evaluation determined that the employee could work in a light-duty capacity and should avoid working in awkward positions, such as sustained flexion, and should not reach high overhead or forward nor lift over 30 pounds. These restrictions precluded her from returning to her pre-injury job. The employer had no job available for the employee. In December 2001, the employee worked on a seasonal basis for Kohl=s retail store in Duluth, Minnesota. In 2002, she worked at Kohl=s on a full-time basis. Her QRC eventually recommended that the parties consider a retraining program, in order to aid in restoring the employee=s pre-injury earning capacity.
At the time the employee last worked for Kohl=s, she noted continued neck pain, as well as numbness in her arms when she raised them above her shoulders. In December 2002, the employee moved to California, and worked at various jobs, primarily in service writing. In February 2005, she moved to North Carolina, and later explained that she moved there with the hopes of being able to consult a physician in North Carolina, because the employer had a facility located in that state. The employee did not work while in North Carolina, but in April 2005, moved back to Minnesota, again explaining that she hoped to obtain medical treatment in Minnesota through the employer=s workers= compensation insurer. Since returning to Minnesota, the employee has worked periodically, as a service writer for an automobile dealership, and on a limited basis in 2006 as a restaurant server and bartender, and also has performed some painting and cleaning jobs. At some point in 2006, the employee began working at Kohl=s Department Store in Duluth, in the housekeeping and maintenance department, although the employee testified that she felt the work was outside of her work restrictions and that she did not plan on staying at that job.
In a report dated July 31, 2006, Dr. Banks reiterated his post-surgery work restrictions, including no lifting over 30 pounds, avoidance of significant overhead activities, and no repetitive neck bending and twisting. Dr. Banks also recommended that the employee use a telephone headset, and expressed concern that the employee would be unable to return to her prior work involving inspecting automobiles, because of the awkward positions required of that work. In Dr. Stern=s opinion, however, there was no significant difference in the employee=s ability to work at the time of the 2002 award on stipulation and the present time. He concluded that Athe restrictions needed for a patient who has significant multilevel cervical degenerative spondylosis [are] not appreciably different from that same individual who carried that same diagnosis, but is now status post a successful multilevel cervical fusion.@
In summary, the record contains conflicting evidence or medical expert opinion as to whether there has been a substantial change in the employee=s condition, specifically, whether there has been a change in the employee=s ability to work and whether the employee has sustained additional permanent partial disability that is causally related to her 2001 work injury. Under these circumstances, we deem it appropriate to refer this matter to the Office of Administrative Hearings for an evidentiary hearing and findings on those issues. Following the hearing and decision, the matter should be returned to this court, at which time we will make a determination on whether there has been a substantial change in condition sufficient to vacate the 2001 award on stipulation.
 Dr. Stern assigned that rating pursuant to Minn. R. 5223.0370, subp. 4C(2), and subp. 5B.