MARK WAYNE MCLEOD, Employee/Petitioner, v. MAGNUSON FARMS, UNINSURED, Employer, and SPECIAL COMPENSATION FUND.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 10, 2007
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the employee=s petition to vacate the 1989 award on stipulation is based on a change in medical condition since the time of the award, and while the employee has demonstrated his need for more extensive medical treatment, causally related to his work injury, than was contemplated at the time of the award but has not necessarily shown a change in diagnosis nor entitlement to additional permanent partial disability since the 1989 award on stipulation, and where there is inadequate information to determine whether later-developed medical conditions and a subsequent injury are causally related to his 1985 low back injury, and where the employee has not demonstrated a change in his ability to work, there is an inadequate basis for vacating the award on stipulation and the petition to vacate is denied.
Petition to vacate award denied.
Determined by: Rykken, J., Johnson, C.J., and Wilson, J.
Attorneys: Candice Hektner, Peterson & Hektner, Minneapolis, MN, for the Petitioner. Matthew L. Benda, Peterson, Savelkoul & Benda, Albert Lea, MN, for the Respondent. Sara Stoltman, St. Paul, MN, for the Special Compensation Fund.
MIRIAM P. RYKKEN, Judge
The employee has petitioned to vacate and set aside an award on stipulation, served and filed on December 20, 1989, based on a substantial change in his medical condition. Finding an inadequate basis to vacate, we deny the petition to vacate the award on stipulation.
On October 3, 1985, the employee sustained an injury to his low back while employed by Magnuson Farms, the employer. At that time, he was 36 years old, and worked as a farm manager, earning a weekly wage of $303.25. According to his medical records, the employee lifted some gates, and as he lifted the last gate, he felt something Apop@ in his low back, noted immediate pain that extended into his back and right lower extremity, and was unable to move his right leg. He sought medical treatment, and was hospitalized at St. Mary=s Hospital in Rochester, Minnesota, for one week where he was placed in traction. His initial diagnosis was lumbar disc syndrome.
Following the injury, a dispute arose concerning cancellation of the employer=s insurance coverage; eventually the Special Compensation Fund assumed liability for the uninsured employer, pursuant to Minn. Stat. ' 176.183. The Fund paid benefits to the employee pursuant to a temporary order, including temporary total and temporary partial disability benefits, provision of rehabilitation assistance, an advance payment of $19,000.00 for permanent partial disability benefits, and payment of medical expenses.
The employee has undergone extensive medical treatment following his injury. His initial conservative treatment was overseen by Dr. Michael Kearney, of the Orthopaedic and Fracture Clinic, in Mankato, Minnesota. Dr. Kearney diagnosed bilateral spondylolysis at the L-4 and L-5 levels with mild central disc bulge at the L5-S1 level. Dr. Kearney concluded that the employee would be unable to return to his pre-injury level of work activity and advised that he hoped the employee could avoid surgery unless his symptoms proved to be too disabling. Following a few months of limited conservative treatment, the employee was referred by the Special Compensation Fund to orthopedist Dr. James Ogilvie, University of Minnesota, for a second opinion, who examined him in June 1986 and diagnosed a Apars defect on one side of L5 and a fracture through the facet of the other side.@ Dr. Ogilvie recommended surgery in view of the employee=s symptoms not responding to nonoperative treatment.
On October 6, 1986, Dr. Ogilvie performed surgery in the nature of ASteffee instrumentation and fusion L4 to sacrum.@ On January 15, 1987, due to a failed fusion, Dr. Kearney performed a removal of broken surgical hardware and a repeat fusion surgery, with bone graft, at the L4 to S1 levels. By November 1987, Dr. Ogilvie assigned a permanency rating of 29.5% whole body impairment based on the employee=s low back condition.
The employee applied for and received Social Security disability income (SSDI) benefits, and was determined to be entitled to SSDI as of April 1986. In 1987, the employee moved from Minnesota to Maryland, and later worked for a garbage hauling business which previously was owned by his parents. According to the employee, he was hired by the new business owners primarily to acquire new accounts because of his name, reputation in the industry and his family history. The employee described his work as being sedentary, except for occasional pick ups of small loads weighing less than 10 pounds. He initially worked one to two hours per day, and increased his work to five or six hours per day between December 1987 and July 1988. By June 1988, the employee reduced his work hours to three to four hours per day, due to a deterioration in his physical condition, and frequently took days off because of his symptoms. At some point before entering into the settlement agreement in 1989, the employee changed jobs and worked for another garbage hauling business. It appears that the Special Compensation Fund had continued to pay the employee ongoing disability benefits, as the stipulation for settlement notes that the Fund had commenced payment of supplementary benefits as of October 3, 1989.
After his move to Maryland, the employee received ongoing medical treatment. Due to worsening low back pain radiating into his left leg, he was referred for a surgery in August 1988, in the nature of a decompressive laminotomy at the L5-S1 level. His pain persisted post-surgery, and, in October 1988, he consulted Dr. Gerald Schuster at the Center for Pain Management and Rehabilitative Medicine in Bowie, Maryland. At Dr. Schuster=s recommendation, the employee participated in a spinal rehabilitation program to treat his chronic pain syndrome. In a letter dated July 10, 1989, Dr. Schuster advised that the employee was Amuch better able to cope and move about in spite of his rather severe residual spinal problems.@ Dr. Schuster concurred with the permanency ratings earlier assigned by Dr. Ogilvie, and also assigned a 30% whole body impairment rating as a result of permanent emotional disturbance related to depression, based on the employee=s Asevere depressional problems which are directly related to the injury and the subsequent unsuccessful surgery.@
Dr. Schuster later recommended surgical removal of a residual fragment of screw at the L5-S1 nerve root, in an attempt to alleviate some of the low back pain; that procedure was performed on October 16, 1989.
In 1989, the employee and Special Compensation Fund entered into a settlement agreement, finalized by an award on stipulation dated December 20, 1989. As part of the stipulation for settlement, the employee contended that he had been temporarily and totally disabled and/or permanently and totally disabled since his October 3, 1985, work injury, that he had sustained severe depression as a direct result of that injury, and that he had sustained 59.5% permanent partial disability of the whole body, relative to his low back condition and depression. In the stipulation, the Fund took the position that the employee was not permanently and totally disabled, as he claimed, and that he was capable of working within physical work restrictions. The Fund also asserted that the employee had sustained, at most, 27.925% permanent partial disability of the body as a whole, relative to his low back condition, and that his depression was not causally related to his work injury.
Under the terms of the agreement, and in exchange for payment of $157,000.00, the parties settled and closed the employee=s claims on full, final and complete basis, with the exception of rehabilitation and retraining benefits, reimbursement for mileage incurred pursuant to a rehabilitation plan, medical and psychological expenses, nursing care, and home remodeling expenses. The parties stipulated that the employee had been permanently and totally disabled from employment since October 3, 1985, and stipulated that they had taken into consideration the employee=s receipt of SSDI, and statutory provisions concerning an offset for SSDI payments, when arriving at the terms of the settlement agreement.
In 1989, the employee purchased a garbage hauling company, which he operated until 1992. In August 1990, he consulted Dr. Joseph Lin, a specialist in physical medicine and rehabilitation, to address his chronic lower back pain. The employee periodically consulted Dr. Lin through at least June 1992, during which time Dr. Lin treated the employee with prescription pain medication, a TENS unit, trigger point injections, and conservative treatments such as exercises, massage, heat treatment and electrical stimulation therapy. Dr. Lin referred the employee for neurosurgical consultations, and also for counseling and biofeedback to address his pain-related emotional distress and depression. He also referred the employee to a clinical rehabilitation specialist for a work site evaluation and recommendations for physical modifications to his work.
As early as 1990, Dr. Lin recommended that the employee decrease his level of work. In early 1991, Dr. Lin encouraged the employee to limit his work activity so that he could decrease his intake level of pain medication, recognizing that the employee worked out of financial necessity. In March 1992, the employee underwent a surgical implantation of a morphine pump, which was later removed in August 1992 due to complications. By 1992, Dr. Lin emphasized that the employee cease all work activity to avoid aggravation of his back problems. The employee eventually discontinued his business and has not returned to work since 1992.
In 1992, the parties entered into a separate settlement agreement to resolve rehabilitation and medical disputes. In that stipulation for settlement, the employee contended that he was presently receiving rehabilitation assistance from a QRC to assist him in his efforts to continue to manage and operate his garbage hauling business, that Dr. Lin had recommended the employee refrain from performing physical work due to his low back and leg symptoms, that the employee would need to hire an additional worker for his business in order to reduce his physical work load, and that if the employee=s current business would fail, he would need extensive rehabilitation and retraining assistance in order to locate another job. The Special Compensation Fund contended that if the employee were to stop performing certain work activities, his symptoms would be reduced and his need for pain medication correspondingly would be reduced. The Fund agreed to pay $20,000.00 to close out the employee=s future claims for rehabilitation assistance and retraining, and also agreed to pay for certain outstanding prescribed medication expenses, surgical implantation of a morphine pump and ongoing expenses as long as those were reasonable and necessary and causally related to the employee=s injury of October 3, 1985. That settlement agreement was finalized by an award on stipulation served and filed on April 3, 1992.
In 1997, the employee consulted Dr. Martin McLaren, Pain Management Center, in Hyattsville, Maryland, and received treatment through him until at least November 2005. Those treatments included numerous facet injections, epidural steroid injections, two implantations and removals of epidural catheters for spinal injections of morphineBin 1992 and 1997, an implantation and removal of a morphine pump in 1992, and another implantation of a morphine pump in 1997 which was removed later due to nervous system complications.
In January 2001 the employee fell when his legs gave way, which he attributed to his low back symptoms. He injured his left upper extremity and sustained a left biceps tendon tear, and has since undergone three surgeries to repair the tendon. At some point, the employee also developed new symptoms of bladder incontinence and sexual dysfunction, conditions that he attributes to his low back symptoms and nerve damage resulting from multiple surgeries.
Dr. McLaren=s records document ongoing treatment the employee has received since 1997. In a report dated November 18, 2005, Dr. McLaren outlined his opinion that the employee=s Acondition has substantially worsened to the extent that he is now permanently and totally disabled from all work, a condition that was definitely unanticipated in 1989. The 1989 medical records document that he was totally disabled from his prior work as a farm manager, but it was anticipated that he would be able to do some work. And he did work for a number of years after that.@
On August 1, 2006, the employee filed a motion to set aside the initial award on stipulation served and filed on December 20, 1989, based on a substantial change in his medical condition. The Special Compensation Fund filed a response to the employee=s petition to vacate, contending that the employee=s claim to vacate the stipulation for settlement does not fulfill the requirements of Minn. Stat. ' 176.461, and requesting that the petition to vacate the stipulation be denied. The matter was heard at oral argument on November 6, 2006; on January 5, 2007, the employer submitted a separate objection to the employee=s petition to vacate.
Minn. Stat. '' 176.461 and 176.521, subd. 3, govern this court=s authority over petitions to vacate awards. A party must show good cause in order for the court to grant a petition setting aside an award. As this award was issued on December 20, 1989, before a later statutory change went into effect on July 1, 1992, Agood cause@ to vacate exists if (1) the award was based on fraud; (b) the award was based on mistake; (c) there is newly discovered evidence; or (d) there is a substantial change in the employee=s condition. Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648 (Minn. 1989), citing to Krebsbach v. Lake Lillian Coop. Creamery Association, 350 N.W.2d 349, 353, 36 W.C.D. 796 (Minn. 1984); Turner v. Federal Reserve Bank of Minneapolis, 298 Minn. 161, 166-67, 213 N.W.2d 414, 417-8, 27 W.C.D. 149 (1973).
Where a change in condition is alleged, the focus of the court=s inquiry is on whether there has been a substantial or significant worsening of the employee=s condition, and whether there is adequate evidence of a causal relationship to the employee=s work injury. The employee=s condition at the time of settlement is compared with the employee=s condition at the time of the petition to vacate, and the change in condition need not be unanticipated. Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993). In this case, the employee contends that he has experienced a substantial change in his condition since the award on stipulation was issued. A number of factors may be considered in determining whether an award should be vacated based on a substantial change in condition, including:
(a) a change in diagnosis;
(b) a change in the employee=s ability to work;
(c) additional permanent partial disability;
(d) necessity of more costly and extensive medical care/nursing services than initially anticipated;
(e) causal relationship between the injury covered by the settlement and the employee=s current worsened condition; and
(f) contemplation of the parties at the time of the settlement.
Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).
Change in Diagnosis
Concerning the issue of whether the employee=s diagnosis is substantially different from his diagnosis in December of 1989, the employee argues that his low back condition has dramatically worsened since 1989, as evidenced by the more than 40 spinal injections or surgical procedures he has undergone since then. We note that most of these procedures were paravertebral blocks and spinal injections. The Fund contends that the employee=s current low back diagnosis is not substantially different from 1989, citing to a March 1, 1989, report by Dr. Gerald Schuster, in which he stated that the employee Ahas been diagnosed as having post laminectomy pain syndrome and chronic lumbar syndrome. The patient has spasms, tightness, and pain which involved his low back.@ The employer argues that the employee=s injuries are essentially the same as they were in 1989, and echoes the Fund=s allegations that those conditions were significant in negotiating and determining the large settlement award paid to the employee. The employer also argues that the treatments that the employee has received since the settlement largely deal with his chronic pain. It is not clear whether the employee=s condition represents an actual change in diagnosis as opposed to a continuation and worsening of symptoms.
The employee also asserts that he has experienced bladder and sexual dysfunction problems caused by his numerous surgeries and related nerve damage. Dr. McLaren, who has monitored the employee=s treatment and pain medication regimen since 1997, concluded that the employee=s bladder complaints resulted from his spinal surgeries. The record, however, contains no medical opinion addressing the causation of the employee=s sexual dysfunction symptoms; neither have the Fund and employer submitted any medical record or report refuting Dr. McLaren=s opinion concerning causation of the employee=s bladder complaints. As to the causal relationship between the employee=s 1985 work injury and his 2001 left upper extremity and biceps tendon injury, the record contains medical records supportive of the employee=s argument that those may be causally related. The Fund earlier denied primary liability for the employee=s shoulder and tendon injury and related medical expenses, but has provided no medical support refuting the employee=s contention that there is a causal relationship. We take no position on this matter, however, and we do not take any position on whether the employee=s claimed bladder symptoms or sexual dysfunction are causally related to the employee=s low back injury. The 1989 stipulation for settlement did not close out potential claims for those conditions.
Change in Ability to Work
The record contains conflicting evidence on the employee=s ability to work at the time of the award on stipulation. The employee worked intermittently and part-time between 1987 and 1989 and operated his own garbage hauling business between 1989 and 1992, when he ceased operation of his business due to his low back condition. Certain claims remained open under the terms of the settlement agreement, including Areasonable and necessary rehabilitation costs,@ such as mileage reimbursement for travel associated with a job search as well as retraining benefits; claims for claims for rehabilitation assistance and retraining, however, were closed out later through a separate settlement agreement in 1992.
While the employee had purchased and began operating a garbage hauling business in 1989, at the time of the stipulation for settlement he claimed that he was either temporarily totally disabled or permanently totaled disabled from employment. In addition, in the stipulation for settlement, the parties stipulated that the employee had been permanently totally disabled from employment as of the date of his injury, October 3, 1985. The parties also stipulated that the employee had become entitled to SSDI effective April 1986, and that in arriving at the lump sum settlement paid to the employee, they took into consideration the statutory offsets allowed for the employee=s receipt of Social Security disability benefits. In 1989, the employee stipulated that he was totally disabled from employment. When comparing the employee=s stipulation in 1989, that he was permanently and totally disabled from work, to his current contention that he is permanently and totally disabled, we do not find a change in the employee=s ability to work since the time of the award on stipulation.
The employee contends that the extensive medical and surgical procedures the employee has undergone since 1989 clearly were not contemplated by the parties. The employee underwent four surgeries to his lumbar spine before the award on stipulation was issued, including two fusion surgeries, two procedures for removing surgically-implanted hardware, and a nerve root decompression. Shortly before the award on stipulation was issued, the employee had undergone a surgery to remove a broken pedicle screw. Although the employee=s pain and symptoms continued, it appears that he received limited medical treatment for his low back between 1989 and late 1990.
Since 1991, however, he has received extensive medical care for his persistent low back pain and radicular symptoms. These treatments and procedures have been performed at vertebral levels beyond those treated prior to the settlement, including lumbar facet blocks at the L3, L4 and L5 levels exploration and catheterization done at the L1 and L2 levels, and a catheter at the T11 and T12 levels. The employee has also undergone three surgeries to repair his left biceps tendon rupture which resulted from his fall in January 2001. Although the employee=s claims for future medical care and treatment remained open under the terms of the settlement agreement, and although the Special Compensation Fund continued to pay for portions of the employee=s treatment, the medical records indicate that certain payments were limited and that no payment was provided for the treatment necessitated by the employee=s left biceps tendon rupture.
The Fund argues that the employee already had undergone extensive treatment by the time the parties entered into the settlement, and that the stipulation for settlement left open the employee=s claims for payment of future medical expenses, in anticipation that future medical expenses would be incurred and paid. The employer argues that most of the medical procedures the employee has undergone since 1989 have been implants or blocks to deal with the employee=s chronic pain. While that may be the case, it appears that the extensive nature of the ongoing medical treatment the employee has undergone since 1991 clearly exceeds the amount contemplated by the parties to the settlement, and the employee has satisfied this Fodness factor.
Increased Permanent Partial Disability
At the time of the award on stipulation, Dr. Ogilvie had assigned a permanency rating of 29.5% based on the employee=s low back condition. He assigned a 22.5% whole body impairment rating pursuant to Minn. R. 5223.0070, subp. 1D, based on his spinal fusion surgery at two levels, and a 7% whole body impairment rating pursuant to Minn. R. 5223.0160, subp. 2, based on his diagnosis of chronic lumbar arachnoiditis. In addition, the Dr. Schuster had assigned a 30% whole body impairment rating, pursuant to Minn. R. 5223.0060, subp. D(2), as a result of permanent emotional disturbance related to depression.
There are no current medical reports in the record that reflect specific permanency ratings. The employee contends that he clearly qualifies for additional ratings, based on the additional spinal surgeries and procedures he has undergone since 1989, his left biceps tendon condition and multiple surgeries resulting from his left upper extremity injury in 2001, and his bladder and sexual dysfunction problems which the employee claims are causally related to his repeated surgeries and resultant nerve damage. Although the level of the employee=s permanent partial disability may have increased since 1989, the record does not contain any definitive information on which we can base any conclusion on this particular factor.
The Fund argues that it is uncertain whether the employee=s current condition is causally related to his 1985 work injury. It refers to medical records from 1991 and 1992 in which Dr. Lin expressed his concern that the employee=s continued work aggravated his symptoms, and that Ahis lower back function will continue to deteriorate if he continues to work at his present level.@ The Fund also argues that it is questionable whether the employee=s fall in January 2001, purportedly caused by his legs giving-way, was causally related to the employee=s 1985 injury, although there is very limited medical evidence in the record to support the Fund=s arguments.
The employer also argues that the employee aggravated his condition in late 1991 by shoveling and lifting heavy barrels while running his own garbage hauling business. Whereas there is a reference in the employee=s medical records to an aggravation in 1991, within approximately three weeks the employee=s treating physician noted that the employee=s symptoms had returned to their previous baseline following that aggravation. The evidence submitted into the record, including the voluminous records documenting treatment between 1985 and 2005, and including the causation opinion of Dr. McLaren, all support the employee=s contention that his current low back condition is causally related to his original work injury in 1985.
The employee has satisfied some of the factors outlined in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989). While he has demonstrated his need for more extensive medical treatment than was contemplated at the time of the award, he has not necessarily shown a change in diagnosis since the 1989 award on stipulation. Medical records show a causal relationship between the employee=s work injury and his ongoing medical treatment, but there is inadequate information to make a definite determination whether the new diagnoses of bladder and sexual dysfunction symptoms, and his left upper extremity and biceps tendon injuries, are causally related to his 1985 low back injury. It also remains unclear, or at least unresolved, whether the employee would be entitled to additional permanent partial disability relative to his 1985 work injury. In addition, the employee has not demonstrated a change in his ability to work. After considering the record as a whole, we conclude that the employee has not established cause to vacate the award on stipulation served and filed on December 20, 1989.
 Dr. Ogilvie assigned a 22.5% whole body impairment rating pursuant to Minn. R. 5223.0070, subp. 1D, based on spinal fusion surgery at two levels, and a 7% whole body impairment rating pursuant to Minn. R. 5223.0160, subp. 2, based on the diagnosis of chronic lumbar arachnoiditis.
 There are no records documenting these payments, and it is unclear from the record as to when the employee began receiving SSDI benefits; the 1989 stipulation for settlement states that the employee became entitled to SSDI effective April 1986.
 Dr. Schuster assigned a 30% whole body impairment rating pursuant to Minn. R. 5223.0060, subp. 8D(2), based on the employee=s emotional disturbance.
 The record does not show when the employee began operating his garbage hauling company, although in his affidavit the employee states that he used his settlement money to start that business.
 Between December 1989 and November 2005, the employee underwent two morphine pump implants and removals, two implantations and later removals of an intraspinal catheter for spinal injections of morphine, a surgical exploration of a pump implant site due to infection, and approximately 28 spinal injections such as paravertebral blocks and lumbar facet nerve blocks.
 The court takes no position on whether the employee=s fall in January 2001 and resulting injury to his left upper extremity were causally related to the employee=s 1985 low back injury, as the employee=s claims remain open for that separate condition.