THOMAS H. VELLIEUX, Employee/Petitioner, and CATHOLIC CHARITIES, and MINNESOTA WORKERS= COMP. ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS, Employer/Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 8, 2007
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The employee established a substantial change in medical condition justifying vacation of the award on stipulation.
Petition to vacate award granted.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Attorneys: Michael S. Krug, Krug & Zupke, St. Paul, MN, for the Petitioner. D. G. Fernstrom, Arthur, Chapman, Kettering, Smetak & Pikala, 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 issued on August 29, 1997. The employee alleges cause to vacate pursuant to Minn. Stat. ' 176.461, stating that there has been an unanticipated substantial change in his medical condition since the time of the award. We grant the petition.
On June 21, 1995, the employee, Thomas H. Vellieux, then 38 years old, was employed as a cook and kitchen supervisor by the employer, Catholic Charities. On that date, he claims to have sustained a low back injury when he twisted his back to the right while bending forward to lift a case of butter. He was evaluated by Dr. McPartlin for right lumbar pain with pain radiating down the back of the right leg to behind the right knee. The employee=s right leg numbness slowly intensified. A lumbar MRI scan performed on a date not disclosed by the record apparently showed mild degenerative changes at L4-5.
The employee continued to work during the next year while undergoing continued conservative treatment for his low back. On May 14, 1996, he sustained a second work injury, to the right knee. He was treated surgically for a torn meniscus of the right knee on July 25, 1996, with good results. However, within a few weeks of returning to work he was unable to continue to work in the employer=s kitchen due to his low back and right leg pain which prevented him from lifting, standing for long periods, or bending forwards repetitively. An MRI scan done in July 1996 showed a far right-sided herniated disc at the L4-5 level encroaching the right L4 nerve root.
In a letter opinion written on August 19, 1996, Dr. Terry Domino at the Aspen Worker Health Program opined that the employee=s June 20, 1995, work injury had aggravated pre-existing degenerative changes in the employee=s lumbar spine, eventually resulting in the development of the disc herniation at L4-5. He recommended that the employee be seen for a neurosurgery consultation and undergo nerve block injections.
The employee filed a claim petition on August 23, 1996, alleging temporary total disability and medical expenses related to the June 1995 low back injury. The employer and insurer denied liability.
On August 29, 1996, Dr. Donald L. Erickson performed lumbar decompression surgery at the employee=s L4-5 level. However, over the next several months, the employee continued to experience right leg pain despite the surgery, and on October 24 and November 18, 1996, further procedures were performed to implant a dorsal column stimulator via L1-2 for relief of leg pain.
The employee was examined on behalf of the employer and insurer on December 12, 1996, by Dr. Gary Wyard. He complained of low back and right leg pain with decreased sensation through his entire right leg. Forward, back and side bending were limited, and straight leg raising was positive in a supine position. Dr. Wyard suggested that the employee=s surgery had been ill-advised and that the lack of improvement in the employee=s symptoms was predictable. In his view, the employee had reached maximum medical improvement three months after the surgery, with a 12 percent permanent partial disability. Noting that the employee anticipated returning to work in January 1997, he recommended that the employee observe limitations on lifting more than 50 pounds, and avoid repetitive bending, twisting, lifting, pushing or pulling. Finally, he declined to offer an opinion as to whether the June 1996 work injury had caused the employee=s condition, citing insufficient objective medical evidence on which to base such an opinion.
The employee returned to part time work in a light-duty job with the employer as a front desk receptionist on or about January 20, 1997.
In March 1997, the employee returned to Dr. Erickson. He was experiencing partial relief of symptoms from the dorsal column stimulator but was having more dysthesia in the right leg. The doctor reprogrammed the stimulator to different settings in the hope of providing better relief. On June 19, 1997, Dr. Domino noted that the employee=s lumbar pain was not improving. The employee was then working four days per week. Dr. Domino rated the employee with an 18 percent permanent partial disability.
The employee underwent surgical revision of the dorsal stimulator mechanism on June 30, 1997, because one of the electrodes had broken. As of this date, he was noted to have no difficulty with ambulation.
It is unclear from the record but it appears that the employee did not work between June 30, 1997 and August 25, 1997. On the latter date, the employee was seen by Dr. Domino, who authorized the employee to return to work on August 25, 1997, with light-duty restrictions on a part-time basis four days per week, noting that this would be a continuation of the same restrictions the employee had been given previously.
On the same day, August 25, 1997, the employee entered into a stipulation for settlement with the employer and insurer. In the stipulation, the employee claimed entitlement to permanent partial disability at 18 percent, temporary total disability from July 23 to 28, 1996, and August 16, 1996, to January 19, 1997, and temporary partial disability compensation from January 20, 1997, and forward, based on a weekly wage of $379.39. The employer and insurer denied liability on the basis of Dr. Wyard=s IME and further asserted that the employee=s permanency was at most 12 percent.
The stipulation provided for a $68,000.00 lump sum payment in return for a full, final and complete settlement of all lumbar injury claims with the exception of future reasonable and necessary medical treatment. For purposes of future medical claims, the employer and insurer agreed to accept primary liability for the injury. They also agreed to accept liability for the costs of the employee=s June 30, 1996, dorsal column stimulator repair surgery as reasonable and necessary. An award on stipulation was served and filed on August 29, 1997.
For reasons undisclosed by the record, the employee did not return to work for the employer on or since the date of the stipulation.
On November 20, 1997, the employee was readmitted to the hospital with complaints of progressive right leg pain in the right inner thigh. His dorsal column stimulation was reduced to a lower level and a Medrol dose pack was prescribed.
On December 23, 1997, the employee underwent further surgery by Dr. Erickson in the form of an L4-5 foraminotomy. Following this, the employee experienced several months of relief, but his right lower extremity dysasthetic pain eventually returned, extending from just above the right knee down to the ankle. There was also progression of his low back discomfort.
The employee was seen by Dr. Leslie A. Sebring at the University of Minnesota neurosurgery clinic on November 25, 1998. Straight leg raising was positive and there was decreased sensation to light touch. Dr. Sebring suspected recurrent nerve impingement and degenerative disc disease, as well as chronic dysasthetic neuropathy.
On July 13, 1999, the employee underwent revision of his dorsal column stimulator, with replacement of the battery and lead. However, over time, the employee=s pain continued to escalate and the dorsal column stimulator stopped providing any relief. Accordingly, on December 13, 1999, an intrathecal catheter was surgically placed at the L3-4 level preparatory to the installation of a SynchroMed opioid pump for continuous delivery of medications into the spine to control pain. The dorsal column stimulator was surgically removed on January 31, 2000, and on February 1, 2000, the final surgical placement of the intrathecal catheter and SynchroMed pump was performed.
The employee had an initial significant reduction in pain with continuous delivery of Sufentanil to his spine via the SynchroMed pump. However, the relief waned and the medication being used was changed to Sufentanil with Bupivacaine. Relief from this also waned after about a year, and the medication was again changed, to Dilaudid. The Dilaudid caused some impotence, so the employee was at first returned to Sufentanil. He then experienced withdrawal symptoms and was returned to Dilaudid in December 2001. Shortly after that, he began to experience a Amental fog,@ mood disturbances, personality changes, panic attacks, increased constipation, urinary retention, and lethargy. He was seen by Dr. Mark W. Stuckey, at the Fairview Pain Program in early 2002. Dr. Stuckey diagnosed over administration of Dilaudid and recommended slowly diminishing the employee=s dose.
On November 13 and 14, 2002, Dr. Stuckey noted that the employee was now experiencing deep aching and burning pain such that he needed to remain off his feet for 12 hours in a day. Dr. Stuckey further reported that the employee had suffered impotence, with abnormally low testosterone levels. The doctor attributed this to the opioid medications given for his neuropathic pain. He recommended testosterone replacement.
In a letter dated June 20, 2003, Dr. Stuckey summarized the employee=s history and status. He noted that the employee had undergone a number of surgeries, including an L4-5 discectomy, laminectomy, L4 foraminotomy, L4-5 foraminotomy, redo L4-5 foraminotomy, various medication trials and physical therapy, and placement of an intra spinal catheter and pump. Dr. Stuckey concluded that the employee had reached maximum medical improvement as of March 2003, having undergone all possible therapies for his particular type of pain process. He agreed with several urologists who had evaluated the employee and concluded that his impotence was due to the medications administered for his low back condition. Dr. Stuckey rated the employee with a 20 percent permanent partial disability for a sexual dysfunction, a 21 percent permanency for radicular pain, and a 2 percent permanent partial disability of the knee.
On July 23, 2003, the employee was seen at the Fairview Pain Clinic seeking authorization to try to work two hours per day assisting his father in a paper delivery route. It was noted that he continued to suffer low back, right leg and foot pain. The employee was authorized to attempt the work but on trying to do so found himself unable to due to his symptoms.
On August 3, 2004, the employee filed a claim petition alleging a consequential injury in the form of impotence. Later that month, MRI studies revealed that a granuloma had developed at the tip of the employee=s intrathecal catheter. On September 21, 2004, he underwent a procedure to relocate the catheter from T7-8 to T9.
By late 2004 or early 2005 the employee noted the onset and subsequent worsening of left leg symptoms, including weakness and pain with numbness and tingling into the anterior thigh, groin and knee and into the anterior shin. These new symptoms were in addition to his longstanding and persistent right leg symptoms with burning, weakness and partial foot drop.
A lumbar MRI was performed on February 18, 2005, to evaluate the new symptoms. It showed a left intraforaminal disc herniation at L3-4 with probable compression of the L3 nerve root and possibly also of the descending left L4 nerve root. At L4-5, post surgical changes were evident along with a right intraforaminal disc herniation with moderate foraminalstenosis which appeared to possibly compress the right L4 nerve root. At L5-S1 there was a generalized disc bulge without herniation or stenosis.
The employee was seen for a neurological consultation by Dr. Andrew Freese on March 17, 2005. The employee reported that he was quite disabled by his pain syndrome, and now required a cane to ambulate. Straight leg raising was positive bilaterally and deep tendon reflexes were diminished at the Achilles tendon. Dr. Freese recommended a selective nerve block at L3-4 on the left, to see if that improved the employee=s symptoms. He noted that further surgery might need to be considered.
A left L3 nerve block was performed on March 28, 2005. The employee was seen again by Dr. Freese a few weeks later. He reported that the nerve block gave him only a few days of pain relief. On April 21, 2005, Dr. Freese again saw the employee, who reported severe pain into his left anterior thigh and groin, which the doctor viewed as consistent with a lateral disc herniation at L3-4. The employee also continued to have intractable back pain and diffuse leg pain, with weakness and right-sided neurologic deficits. Dr. Freese noted that the employee was now dependent on the medications being delivered to his spine, and that this method of pain relief was also slowly losing optimal function. He suggested that the employee=s options included surgery focusing only on the L3-4 disc herniation, addressing only part of the employee=s symptoms, or a much more extensive procedure with a multi level decompression, fixation, and fusion. He felt that the likelihood of success for the more extensive surgery would be limited given the employee=s ten prior procedures. He recommended that the employee undergo a discogram to determine if the L5-S1 level should also be included in addition to L3-4 and L4-5 should the employee elect multilevel surgery.
The employee underwent lumbar discography at multiple levels on May 11, 2005. The procedure produced 9/10 concordant pain at L5-S1, 7.5/10 concordant pain at L4-5, 7/10 concordant pain at L3-4, and 7/10 concordant pain at L2-3. A post discogram CT showed a broad-based posterior and right-sided herniation and annular tear at L5-S1; a broad-based posterior and right-sided lateral protrusion and annular disruption at L4-5; status post L4-5 laminectomy on the right; an L3-4 broad-based posterolateral and lateral left-sided disc herniation with annular tear; and inner annular fissuring and Schmorl=s nodes at L2-3.
On June 1, 2005, the employee was seen by Dr. David Polly at the University of Minnesota=s orthopaedic surgery department for a second opinion about his surgical options. Dr. Polly concluded that it was unlikely the employee would respond well to a fusion given his positive concordant discography at the four lower lumbar levels. He thought the employee=s recent left leg pain was the result of the far lateral disc herniation which appeared to be significantly compressing the nerve root. While he acknowledged that the employee had a recurrent herniation at L4-5, he recommended against additional discectomy at this level in light of the previous resection at L5, suggesting that fusion there would likely increase stress on adjacent areas without a sufficiently high probability of helping the employee=s symptoms. Dr. Polly recommended that the employee undergo a far lateral decompression at L3-4, freeing up the L3 nerve root on the left. The goal of the surgery would be diminution of the employee=s recent progressive and intractable pain, rather than an attempt to resolve all of the employee=s pain symptoms.
On June 7, 2005, the employee=s claim petition was stricken pending filing and determination of a petition to vacate the prior stipulation for settlement.
The employee underwent the recommended L3-4 discectomy on July 19, 2005. On August 23, 2005, Dr. Freese wrote a letter requesting that the employee be provided with a power operated scooter to keep him mobile as he continued to have intractable pain and neurologic deficits despite 14 surgical procedures.
On October 6, 2005, the employee was seen in follow up at the University of Minnesota neurosurgery department. On that date, he reported that he had not had much benefit from his recent surgery. His leg symptoms affected even greater portions of his legs, and he continued to have significant back pain. The employee was scheduled for implantation of a larger SynchroMed pump. It was also recommended that he have additional imaging studies. A lumbar MRI on October 14 showed a persistent disc herniation at L3-4 with narrowing of left lateral recess abutting the L4 left nerve root.
No subsequent medical records are in the record provided to this court.
On July 28, 2006, the employee filed a petition to vacate the 1996 award on the basis of an alleged substantial change in his medical condition which could not have been anticipated at the time of the settlement.
This court has authority to vacate an award for cause under Minn. Stat. ' 176.461. 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.@ The employee claims that there has been a substantial unanticipated change in his medical condition.
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.
While these factors are a useful guide for our review of such cases, we also remain mindful that the primary 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).
As a preliminary matter, we note that the employer and insurer have conceded causation for the purposes of our review of the employee=s petition, with the exception of causation for the employee=s impotence. We thus need not discuss that factor in this opinion.
With regard to the first factor, that of a change in diagnosis, the employee as of the date of the stipulation had been diagnosed with radicular pain syndrome associated with a far right-sided disc herniation at the L4-5 level encroaching the right L4 nerve root, treated with surgery other than fusion. His symptoms consisted of low back and right leg pain with decreased sensation through his right leg. While the employee=s current diagnosis is still one of a radicular pain syndrome, it is now associated with and secondary to a broad-based posterior and right-sided herniation and annular tear at L5-S1, a broad-based posterior and right-sided lateral protrusion and annular disruption at L4-5, and a broad-based posterolateral and lateral left-sided disc herniation with annular tear at L3-4, post 14 surgical procedures. While he continues to experience the low back and right leg symptoms, he now also has new and significant left leg symptoms, including weakness and pain with numbness and tingling into the anterior thigh, groin and knee and anterior shin.
The employer and insurer argue that any change in diagnosis is not significant, as the overall diagnosis of a radicular syndrome remains operative. They further argue that the employee could reasonably have anticipated that he might develop additional disc herniations at levels adjacent to that where herniation was present before the settlement. We disagree with the characterization of the employee=s change in diagnosis as insignificant and reasonably anticipated. Whether or not a reherniation of the L4-5 level might have been anticipated based on the failure of the employee=s initial surgery in stabilizing his condition, nothing in the medical records prior to the stipulation gives a specific reason to anticipate the development of further herniations at additional levels. The herniations at two new levels constitute both a substantial and unanticipated change, particularly where discography suggests that these herniations contribute to the employee=s symptoms and where there has been an onset of new symptoms into the employee=s opposite leg.
The evidence is somewhat ambiguous as to whether there has been a substantial change in the employee=s ability to work. He is currently unable to work. The employer and insurer argue, however, that the employee has not really been able to work since the date of the settlement. They point out that he has applied for and been found eligible for social security disability payments, and that the social security decision, dated May 14, 1999, found that he last engaged in substantial gainful activity on June 27, 1997, a date which precedes the stipulation. Further, they note that language in the stipulation itself acknowledges that the employee might become permanently totally disabled and addresses matters relevant to the coordination of social security disability benefits. Accordingly, they contend that the employee=s ability to work has not substantially changed, or at least that the change was clearly within the employee=s anticipation.
We note, on the other hand, that the employee was actually working, albeit on a part time basis under light duty restrictions, until very shortly before the stipulation. He apparently went off work in late June 1997, in order to undergo the surgical revision of his dorsal stimulator mechanism. The record does not disclose why the employee did not return to work for the employer after the parties reached a settlement of the case, but there is nothing in the contemporary medical records to suggest that his restrictions or ability to work had changed or were expected to change, and in fact he was given medical authorization to return to part-time light duty work on the very day he entered into the stipulation for settlement. In addition, the employee later returned to school and completed an extensive multi year degree course in social work, which does not seem consistent with an expectation of permanent total disability. Finally, with respect to the language in the stipulation concerning social security benefits, we are aware that this type of language is commonly inserted into a stipulation for a full and final settlement as a precaution so that receipt of the settlement proceeds does not reduce any social security benefits which may later become applicable, regardless of whether the parties actually anticipate that an employee is likely to become permanently and totally disabled in the foreseeable future.
On balance, we conclude that the employee=s ability to work has undergone an unanticipated change, from the ability to perform at least part time, light duty employment, to the present total inability to work.
We next consider whether the employee has established a change in the extent of permanent partial disability. At the time of the settlement, the employee claimed an 18 percent whole-body permanency as the result of his low back condition, while the employer and insurer claimed that the employee=s permanency was 12 percent or less. Thus, an 18 percent permanency certainly was anticipated by the employee. The most recent disability rating in evidence for the employee=s low back condition is the 21 percent rating given by Dr. Stuckey in June 2003. That rating differs from the pre-stipulation rating given by Dr. Domino only in the addition of a further three percent pursuant to Minn. R. 5223.0390, subp. 4E, to reflect the chronic nature of the employee=s symptoms despite treatment. We agree with the employer and insurer that this additional three percent permanency could reasonably have been anticipated.
However, we note that the employee had an onset of severe new symptoms in the opposite leg in late 2004 and that subsequent CT findings showing a right-sided herniation at L5-S1, a reherniation at L4-5, and a left-sided herniation at L3-4. These significant developments have not yet been considered in rating the employee=s disability. Overall, given that the most recent rating available fails to consider subsequent significant changes to the employee=s condition, we have not given as much weight to the minimal extent of change between the ratings currently in evidence.
There has clearly been a substantial change in the extent of medical care, with the employee having now undergone 14 invasive procedures, at least ten of which post date the stipulation. 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 a significant indication of such a change in condition.
The employer and insurer next argue that, in any event, the employee could reasonably anticipate a need for further and protracted medical treatment in this case, particularly in light of the failure of the initial 1996 surgery to relieve his symptoms. While we agree that some further treatment, perhaps including some surgical treatment, could have been thought probable, the extent of treatment actually needed in the present case far exceeds that which we think could reasonably have been anticipated. The employer and insurer point to no medical records which would suggest that any of the doctors who evaluated the employee before the settlement considered such extensive treatment. In addition, the latest surgery was performed at a spinal level where herniation was not even present at the time of the stipulation, and was largely done in response to new symptoms in the employee=s left leg, which had not been present prior to late 2004 and certainly were not anticipated in 1997.
After considering the record as a whole, we conclude that the employee has established good cause. The petition to vacate is granted.
 This rating was arrived at by combining a 9 percent permanency for radicular pain syndrome pursuant to Minn. R. 5223.0390, subp. 4.E. with an additional 5 percent under subp. E.(2), and an additional 3 percent under subp. E.(3) for multiple surgical procedures.
 Dr. Stuckey explained his radicular pain rating as consisting of 10 percent pursuant to Minn. R. 5223.0390, subp. 4.E. as in effect for the employee=s date of injury, plus each of 3 percent under subp. 4.E.(1), 5 percent under subp. E.(2), and 3 percent under subp. E.(3).