THOMAS GUNDERSON, Employee/Petitioner, v. A E CONRAD CO., and CNA/ TRANSP. INS. CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 22, 2007
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where there is conflicting evidence on the issues of whether the employee=s ability to work had changed and whether the employee=s current medical condition was causally related to his work injury, we refer the matter to the Office of Administrative Hearings for an evidentiary hearing and findings on those issues.
Referred to OAH for evidentiary hearing.
Determined by Rykken, J., Wilson, J., and Johnson, C.J
Attorneys: David W. Blaeser, Woodbury, MN, for the Petitioner. Jeffrey A. Magnus, Law Offices of Jeffrey A. Magnus, Edina, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee petitions to vacate an award on stipulation issued May 13, 1998, 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 diagnosis and ability to work.
On September 27, 1995, Thomas Gunderson was employed as a carpenter by A E Conrad Company, the employer. On that date, as he was installing sheet rock, the employee strained his low back while lifting a plank as he worked on a scaffold. He consulted Dr. John Doyle, at the River Valley Clinic, who diagnosed an acute low back strain and recommended work restrictions of no lifting and carrying, no pushing or pulling, and no bending, squatting, kneeling, twisting, turning, reaching below his knees or climbing. The employee remained off work for approximately two weeks as a result of his injury; the employer and its insurer, CNA/Transportation Insurance Company, admitted primarily liability for the injury and paid the employee temporary total disability benefits for his time loss.
On November 8, 1995, the employee sustained an additional admitted work injury to his low back while lifting a panel of sheet rock, and was temporarily restricted from work. At the time of both injuries, the employee was 36 years old and earned a weekly wage of $861.60, which entitled him to an initial compensation rate of $573.74.
The employee continued working for the employer until December 15, 1995, when he was laid off from his position as part of an economic layoff. Following his layoff, the employee received re-employment insurance benefits from the Minnesota Department of Economic Security for approximately six months. In February 1996, his back symptoms flared up as a result of an incident at home, when he picked up a laundry basket and noted a sharp pain in his low back along with numbness and tingling in his right leg. He filed a claim petition in April 1996, seeking payment of temporary total disability benefits for two weeks in April 1996, as well as reimbursement of medical mileage and provision of rehabilitation services. According to the parties, that claim was informally resolved in 1996.
The employee was self-employed for a period of time, between June 1996 and through at least early 1998, performing estimating and subcontracting work for a drywall installer, and hiring crews to do the actual physical work. He later worked as a car salesman for almost two and a half years, but was dismissed from his job in January or February 2003. The employee contends that he was let go from that position after he had missed work for approximately one month, at a time when he was continuing to receive medical treatment and was, in particular, attempting to undergo a transition from a prescription regimen of Percocet to Methadone.
In the years following his injury, the employee consulted various physicians, seeking treatment to relieve his low back pain and radicular symptoms. Dr. Doyle, as the employee=s treating physician, oversaw his care and referred him to specialists for surgical consultations, physical therapy, injection treatment and pain management consultations and treatment. Between October 1996 and April 1997, the employee underwent twenty physical therapy sessions at the Physicians Neck and Back Clinic; he received only limited relief from those sessions, and complained that the therapy seemed to exacerbate his symptoms. At the conclusion of his therapy program, Dr. Joseph Wegner concluded that the employee had reached maximum medical improvement (MMI), and assigned a permanency rating of 10% permanent partial disability of the whole body, pursuant to Minn. R. 5223.0390, subp. 3.C.2. Dr. Wegner recommended physical work restrictions, including no lifting over 50 pounds, avoidance of repetitive bending, stooping and twisting at the waist, changing positions frequently, and occasional lifting up to 70 pounds if using good body mechanics.
On September 15, 1997, the employee was seen by Dr. Daniel Tynan, for a neurosurgical consultation. The employee reported low back pain, with pain radiating into his right leg and foot, occasional right leg weakness, and some sensation of frequent urination, and advised that steroids, anti-inflammatory medication, physical therapy and home exercises had provided no benefit. Dr. Tynan diagnosed lumbar degenerative disc disease with chronic low back and right leg pain. He concluded that the employee would not benefit from a simple laminectomy, and instead recommended attempting continued conservative treatment and referral to a pain clinic where he could be evaluated for a possible injection. Dr. Tynan advised the employee that Awhen he gets to the point where he simply can no longer live with his pain, that we could consider asking the pain clinic to perform a lumbar discogram to see if he would be a reasonable candidate for a fusion.@
On February 5, 1998, the employee underwent an independent medical examination by Dr. Mark Thomas, on behalf of the employer and insurer. Dr. Thomas diagnosed the employee as having multilevel degenerative disc disease, and limited the employee to medium-duty work with a lifting limit up to 40 pounds. Dr. Thomas recommended that the employee avoid repetitive bending, stooping, and twisting, similar restrictions to those recommended by Dr. Wegner when he discharged the employee from the Physician=s Neck and Back program in April 1997. Dr. Thomas concurred with Dr. Wegner=s assessment that the employee had a 10% permanent partial disability of the body as a whole. He determined that the employee was not a good candidate for surgery, as had the employee=s treating physicians. Instead, Dr. Thomas recommended a Aself-directed treatment program involving his home exercises and the use of over-the-counter analgesics for relief of pain.@ Dr. Thomas concluded that the employee=s condition had stabilized, and he could not recommend any further treatment that he felt would either improve the employee=s function or decrease his level of pain.
In August 1996 and July 1997, the employee filed amended claim petitions, seeking payment of temporary total disability benefits between December 15, 1995, through June 1, 1996; intermittent temporary total or temporary partial disability benefits after June 1, 1996; payment of permanent partial disability benefits based upon a 10% whole body impairment rating; payment for prescription medication expenses and medical mileage; payment for penalties based upon an alleged refusal/delay in paying benefits; and rehabilitation benefits. Those claims were scheduled for a hearing in February 1998.
Before the hearing, however, the parties resolved the employee=s claims by way of settlement. In exchange for settlement on a full, final, and complete basis, the employer and insurer paid the employee a lump sum payment of $90,000.00, from which $3,500.00 was deducted for reimbursement of unemployment benefits the employee had been paid following his layoff, and also agreed to pay a compromised amount to the Minnesota Department of Labor and Industry Vocational Rehabilitation Unit as well as specified medical expenses. As part of the settlement terms, the employee agreed that he had voluntarily resigned from employment with the employer. The stipulation for settlement stated that the employee=s claims remained open for payment of future medical treatment costs that are causally related to his injuries, but with certain exceptions. Payment was foreclosed for the following treatment or expenses: chiropractic care, osteopathic care, pain clinics, bio-feedback, massage therapy, acupuncture, health club memberships, and psychological/psychiatric treatment, including psychotropic medications.
Due to continued low back pain, the employee sought additional medical treatment. During the years since his original 1995 injury, he has been evaluated and treated by numerous physicians with only limited success. Diagnostic testing has revealed four structurally abnormal discs from the L2-S1 vertebral levels. He has undergone various types of conservative medical treatment, including physical therapy, traction, chiropractic treatment, facet injections, botox injections, Vax-D treatment, use of a TENS unit, chronic pain consultations, and has been prescribed various pain medications.
On May 27, 1998, the employee was examined by a physician=s assistant at St. Croix Orthopedics, reporting pain and discomfort. The PA recommended multilevel facet joint injections and also a chronic pain program, and warned the employee against long-term use of narcotic pain medication. Dr. Doyle recommended narcotic pain medication to control the employee=s pain. By May 2000, the employee advised Dr. Doyle that he was Aslowly getting worse.@ He admitted to using the narcotic pain medication, and reported frequent urinary urgency and sometimes bowel urgency, as well as symptoms of erectile dysfunction. Dr. Doyle commented that the symptoms of bladder and bowel symptoms may or may not be related to the employee=s underlying low back condition.
On October 23, 2002, the employee was evaluated by Dr. Samuel Yue, at the HealthEast Bethesda Pain Center. The employee reported that his low back condition, including pain and numbness, had accelerated over the past several years, as had his problems with memory recall and concentration, depression and mood swings; at that time, he was prescribed Percocet and OxyContin. Dr. Yue provided various treatments to the employee, including diagnostic injections, physical therapy, and botox injections, to treat what he considered a possible muscular condition related to fibromyalgia. Dr. Yue last saw the employee in January 2005, and discussed with the employee the possibility of another treatment, radiofrequency nerve ablation. In addition to his treatment with Dr. Yue between 2002 and 2005, the employee obtained treatment at the Sister Kenny Sports and Physical Therapy Center in 2004. The employee=s low back discomfort and pain continued, as did his use of narcotic pain medication.
Between at least May 2004 and October 2005, at Dr. Doyle=s referral, the employee consulted physicians at Midwest Spine and Orthopaedics, including Dr. Lewis Saeger. Based on the employee=s continued symptoms, Dr. Saeger recommended and provided a course of psoas sheath injections and intradiscal injections, and possibly radiofrequency neurolysis depending upon the outcome of the injections. Dr. Saeger also prescribed medication to treat the employee=s depression, and in January 2005 referred him to Medical Pain Clinics (MAPS) for a medication regimen and consideration of an intrathecal medication delivery system.
In 2005, the employee participated in a chronic pain program at MAPS; he participated for at least one and a half weeks but later withdrew from the program. According to the latest report in the record from MAPS, dated June 9, 2005, the employee Aexhibited significant difficulties with participating in the program,@ including difficulty reducing his medications, and Aperseveration on his needs for opioids.@ Dr. Murray McAllister, psychologist at MAPS, recommended that the employee seek substance dependence treatment.
The employee continued to consult Dr. Saeger; at an appointment on October 25, 2005, the employee advised Dr. Saeger that he had chronic pain on a daily basis, and that his sleep was interrupted by his urinary frequency. The employee was, at that time, prescribed Methadone, and reported that he had done much better with using Percocet due to fewer side effects but that he Atended to overuse it for pain flare-ups.@ Dr. Saeger continued the employee=s prescription for Methadone, and again suggested that a Medtronics pump for intrathecal medication delivery might be of assistance.
In August 2003, the employee filed a medical request for reimbursement of out-of-pocket expenses for prescription medications, including narcotic pain medications. Following a hearing held on February 5, 2004, a compensation judge issued a findings and order on March 12, 2004. He concluded that the 1998 stipulation for settlement had not foreclosed future claims for prescription medications, and that the employee suffered from chronic low back pain and leg pain as a result of his 1995 injury. The judge found that although the employee=s physician had prescribed narcotic pain medication, a number of doctors had recommended that he discontinue narcotic pain medication, and that the employee had exceeded his treating physician=s recommended dosages. He found that the employee did not prove that the disputed prescriptions for narcotic pain medications were reasonable and necessary to cure and relieve the effects of his 1995 injury. He based this in part on doctors= recommendations that the employee attend a pain clinic, acknowledging that payment for pain clinic expenses, however, was one type of medical treatment that had been closed out by the 1998 stipulation for settlement. No appeal was taken from those findings and order.
The employee petitions this court to vacate the May 13, 1998, Award on Stipulation on the basis of a substantial change in medical condition. He contends that he has experienced a change in his diagnosis and his ability to work, that he has experienced additional permanent partial disability, that he has required medical care that has been more costly and extensive than initially anticipated at the time of the settlement, and that there is a direct causal relationship between his original 1995 injuries and his current worsened condition. The employer and insurer object.
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 his diagnosis and medical condition since the time of the award on stipulation. The employee claims that he has also experienced a change in his ability to work and has sustained additional permanent partial disability since the time of the award. He contends that his deteriorating condition has decreased his ability to perform any physical activities, including activities of daily living and work, that he is virtually homebound, and that he never expected that his condition would develop to this extent.
The employee=s contention that there has been a change in diagnosis is supported by the medical records submitted with his petition to vacate and the objection to that petition. At the time of the stipulation for settlement, the employee had been diagnosed with multilevel degenerative disc disease in his lumbar spine and, by then, he had received physical therapy, and had been advised by treating and consulting physicians, and by Dr. Thomas, the independent medical examiner, that he was not a good candidate for surgical intervention. Subsequent MRI scans of the employee=s lumbar spine were interpreted as showing little appreciable change. The employee=s low back and leg pain have worsened, however, and he has undergone additional treatment for his continued pain since the 1998 award on stipulation. The employee reports that since the award, he has noted progressively worsening conditions of bladder and bowel dysfunction and erectile dysfunction. Although the employer and insurer correctly note that the employee first complained of a sensation of frequent urination in September 1997, the employee contends that those symptoms have greatly worsened since the award on stipulation and have not abated. The employee also claims that he has developed depression, which has not subsided and which has continued to worsen to an extent that he has been prescribed antidepressant medication.
There remains a question as to whether the symptoms of bladder and bowel dysfunction, erectile dysfunction and depression, are causally related to the employee=s low back condition. Medical conditions that have developed as a consequence of an earlier work-related injury, following the settlement of a claim, may be a sufficient basis to conclude that a substantial change in condition has occurred. See Buske v. State, Dep=t of Human Services, slip op. (W.C.C.A. Aug. 5, 2002). The record contains limited medical opinions as to the causal relationship between these new conditions and the employee=s 1995 injuries. In May 2002, Dr. Doyle concluded that the employee=s bladder and bowel dysfunction may or may not be related to the employee=s underlying low back condition. Nevertheless, the employee=s overall medical condition, including his low back and radicular pain, has deteriorated over the past nine years since the award on stipulation, and his depression is documented in his medical records.
As for the employee=s need for additional medical care, the employee has undergone significant medical care since the award on stipulation. As the employer and insurer note in their objection to the employee=s petition to vacate, they have continued to pay for medical treatment although certain treatment expenses have not been covered, specifically, narcotic medications which were addressed at a hearing in 2004, and treatment at a chronic pain clinic, which was a method of treatment specifically closed out in the stipulation for settlement. At issue at the present time, and evidently the subject of ongoing litigation at the Office of Administrative Hearings, is whether the employee=s use of narcotic medication represents reasonable and necessary medical treatment for cure or relief of the effects of the employee=s injury. Certainly medical records in the file show that doctors have recommended that the employee limit his use of narcotic medication. The employee participated in a chronic pain program through MAPS, including a systemized reduction in his use of narcotic medication. By June 2005, Dr. McAllister, at MAPS, recommended that the employee decrease his use of narcotic medication and that he seek substance dependence treatment.
In summary, there has been a substantial change in the extent of medical care since the award on stipulation. The employer and insurer argue that this factor is of diminished significance, where, as here, the award left open the employee=s claims for future medical care, except for certain types of treatment. They argue that this court should not consider the extent of post-stipulation medical care in determining whether to grant the employee=s petition to vacate. However, we have stated in the past that even where medical benefits are left open, as is the case here, 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 shows that the employee asserted a claim for 10% permanent partial disability to the body as a whole at the time of the 1998 award on stipulation. Even though the employee asserts that he might be entitled to additional permanency ratings based on his bladder and bowel dysfunction and his erectile dysfunction, the record does not contain any updated report indicating an increased level of permanent partial disability, and therefore we cannot conclude that the employee has satisfied this particular Fodness factor.
The record before this court also contains conflicting medical evidence concerning the employee=s claim that his ability to work has diminished since the award on stipulation in 1998. The employee contends that whereas at the time of the award on stipulation, he anticipated continuing to work, and was self-employed following the award on stipulation, he currently is unable to work. Following the award on stipulation, the employee attempted self-employment, including working as a sheet rock installer, estimator, and contractor, and later worked as a car salesman for almost two and a half years. He was dismissed from his sales job purportedly for reasons related to his ongoing symptoms and medical treatment. The employee contends that he has been unable to work since early 2003, in large part because he barely can find a comfortable position, he sleeps fitfully, low back chronic pain persists, and his symptoms of bladder and bowel dysfunction impede his ability to work. At some point following the 1998 award on stipulation, the employee applied for and was awarded Social Security Disability Income (SSDI).
The employer and insurer contend that the employee=s ability to work since the award on stipulation has not substantially changed, that the employee has had the same functional limitations since 1996 or 1997, or, alternatively, that any change he has experienced in the past nine years was clearly anticipated by the employee at the time of the settlement. They point to his deposition testimony taken in January 1998, prior to the settlement, that he had conducted a limited job search due to his level of pain, and that he was unsure what hours he would be available to work at that time due to his pain. The employer and insurer also refer to the employee=s affidavit of significant financial hardship, submitted in October 1997 during earlier litigation, wherein the employee asserted that he was unable to maintain substantial gainful employment. They acknowledge that the employee worked as a car salesman following the award on stipulation, but contend that his restrictions or limitations that led to the termination of his sales position predated the award on stipulation. Finally, the employer and insurer note that the employee applied for and has received Social Security disability income, and therefore, has had Aless incentive to continue his employment.@
The record contains conflicting evidence and medical expert opinion as to whether there has been a substantial change in the employee=s condition since the award on stipulation, specifically, whether there has been a change in the employee=s ability to work, and whether a causal relationship exists between the injuries covered by the settlement and the employee=s current condition. Under these particular circumstances, we deem it appropriate it 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, as which time we will make a determination on whether there has been a substantial change in condition sufficient to vacate the 1998 Award on Stipulation.