DAN BEBAULT, Employee/Petitioner, v. CLASSIC MFG., INC. and AMERICAN HOME ASSURANCE/AIG CLAIM SERVS., INC., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 15, 2008
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where, at the time of his stipulation for settlement, the employee was essentially unable to work and had taken the position that he was permanently and totally disabled, where that was essentially his position at the time of his petition to vacate, where his low back symptoms were little different at the time of his petition than they had been at the time of his settlement, and where his neck and upper extremity symptoms were neither clearly related to his low back injury nor, even if they were consequences of his low back surgery, legally a basis for vacating an award based on a low back injury, and where no other factor from the standard established in Fodness v. Standard Café was addressed by the employee in his petition, the court found no good cause to vacate the employee’s award on stipulation based on a substantial change in his medical condition.
Petition to vacate award on stipulation denied.
Determined by: Pederson, J., Wilson, J., and Rykken, J.
Attorneys: Roger D. Poehls, Jr., Robert Wilson & Assocs., Minneapolis, MN, for the Petitioner. Inger Hansen-Corona and Andrea C. Smith, Erstad & Riemer, Minneapolis, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee petitions this court to vacate an award on stipulation served and filed February 23, 2005. Concluding that the employee has not shown good cause to vacate the award at issue, we deny the employee’s petition.
On November 20, 2003, Dan Bebault sustained a work-related injury to his lumbar spine while moving some heavy parts in the course of his employment with Classic Manufacturing, Inc. Mr. Bebault [the employee] was 46 years old at the time and was earning a weekly wage of about $720. Classic Manufacturing, Inc. [the employer], and its insurer admitted liability for the injury and commenced payment of benefits.
Following his injury, the employee was treated by osteopath Dr. Richard Sinda at Now Care Medical Centers, who referred him to osteopath Dr. Ronald Tarrel at the Noran Neurological Clinic. Dr. Tarrel examined the employee on December 3, 2003, on which date he noted a history of three previous low back surgeries at L4-5, in 1980, 1982, and 1994, the latter of which the employee believed to have been a fusion. Dr. Tarrel diagnosed lumbar strain with a question of S1 radiculopathy, together with aggravation of underlying degenerative post surgical lumbar changes, and he restricted the employee from working and ordered an MRI scan. The MRI scan, taken that same day, revealed minimal disc bulging at L1-2, a small disc herniation at L2-3 with no evidence of nerve root impingement, no evidence of disc herniation at L3-4 or L4-5, and a laminectomy defect and mild disc bulging at L5-S1.
The employee saw Dr. Tarrel again on December 30, 2003, with continuing complaints of radiating discomfort into his right lower extremity. Dr. Tarrel prescribed epidural injection at L5-S1, “the site of previous surgery,” and restricted the employee from working for another three weeks. The employee underwent the injection successfully on January 7, 2004, and on January 14, 2004, Dr. Tarrel released him to return to work at very light duty. Symptoms were continuing on January 28, 2004. Dr. Tarrel’s certified nurse practitioner, Charlotte Farmer, increased the employee’s restrictions, referred him for physical therapy, and prescribed new medication. On February 11, 2004, with the employee’s condition unchanged, Dr. Tarrel restricted the employee again from working. On March 29, 2004, the employee underwent a lumbar CT scan, which was read to reveal a laminectomy defect and mildly bulging disc at L5-S1, lying contiguous with the thecal sac and the roots of both S1 nerves. Also evident on the scan was a small disc herniation at L2-3, which did cause a slight effacement of the thecal sac, but there was no evidence of nerve root impingement or spinal stenosis.
The employee’s progress in physical therapy in the spring of 2004 was slow, and by June of 2004 the employee was still off from and unable to work. On June 14, 2004, apparently on referral from Dr. Tarrel, he consulted with back surgeon Dr. Timothy Garvey at the Twin Cities Spine Center, who concluded that surgery would be premature, and two days later Dr. Tarrel indicated that he hoped to be able to return the employee to work within the next four to six weeks. On July 30, 2004, however, upon information from the employee’s physiatrist that the employee’s therapy had plateaued and his legs had recently given out on him at home, Dr. Tarrel concluded that “[the employee] is in the midst of an exacerbation of his chronic low back injury. He is not ready to return to work.” On that same date, Dr. Tarrel concurred with a recommendation of surgery by Dr. Garvey, but on August 9, 2004, Dr. Garvey informed Dr. Tarrel that he thought “staying nonoperative makes most sense” after all. Another CT scan of the employee’s lumbar spine on September 23, 2004, evidently revealed findings similar to those revealed on the scan of March 29, 2004: a laminectomy defect at L5-S1, together with a mild disc bulge at that level that was lying contiguous with the thecal sac and the roots of both S1 nerves, and a small disc herniation at L2-3 that was causing slight effacement to the thecal sac but without evidence of nerve root impingement or spinal stenosis.
On September 29, 2004, Dr. Tarrel stated,
It is my feeling at this point that [the employee] avoid surgery if at all possible. I do not think that, with or without surgery, he would be able to return to his previous job. I do not think that, with or without surgery, he would be able to take a prolonged sitting job even with a sit-stand option. I recommend that he begin job retraining as soon as possible. He will hopefully find work that will accommodate his low back pain. Should that prove difficult and he continue to have symptoms, then I would, at that point, recommend surgery.
Less than a week later, however, on October 4, 2004, Dr. Garvey once again recommended a fourth low back decompression surgery, this time also including arthrodesis. His notes for that date indicate that he informed the employee that “I cannot guarantee that he will have resolution of symptoms” and that “[h]e understands [the] potential risks,” of anything from infection to “failure of fusion, general medical complication, and small chance of more serious complication such as heart attack, stroke, paralysis and/or death.”
The employee was eventually examined for the employer and insurer by orthopedic surgeon Dr. William Simonet. In his report on December 9, 2004, Dr. Simonet opined in part that the employee’s injury of November 20, 2003, was only a temporary aggravation of a pre-existing degenerative disc disease, which resolved by December 3, 2003, and was not a causative factor in his current condition. He concluded further that the two level fusion from L4 through S1 that was being proposed by the employee’s treating doctors was a reasonable procedure but that the need for it was not causally related to the employee’s November 2003 work injury. Dr. Simonet concluded further that the employee was capable of working with restrictions and that he had sustained no additional permanent partial disability as a result of his November 2003 work injury.
In a chart note on December 22, 2004, Dr. Tarrel, noting little change in the employee’s condition, concluded that the employee had reached maximum medical improvement, indicating for the first time that the employee “really isn’t a candidate for job retraining” because his medical history also included a significant learning disability. On January 10, 2005, upon receipt of Dr. Simonet’s report, the employer and insurer filed a Notice of Intention to Discontinue the employee’s benefits, based on Dr. Simonet’s opinions. As of January 10, 2005, the employer and insurer had paid the employee $28,119.13 in compensation benefits.
In February 2005, the parties entered into a stipulation for full, final, and complete settlement of all claims of the employee related to his November 20, 2003, work injury. At the time of the settlement, the employee had been unemployed and unable to work for most of the fifteen months since the injury, and it was his stipulated position that he was permanently and totally disabled as a result of it. It was also his position that he had, as a result of that injury, sustained unspecified permanent partial disability for which he was entitled to compensation. Also at the time of the settlement, the employee was claiming entitlement to the two-level spinal fusion from L4 to S1 that had been recommended by Dr. Garvey.
It was the employer and insurer’s position at the time of the settlement that, at the time of his November 20, 2003, work injury, the employee had been subject to a significant pre-existing low back condition that had resulted in at least two prior lumbar surgeries. It was also their position that the work injury at issue was a temporary one that had resolved and that all of the employee’s ongoing low back problems related to his pre-existing condition and not to his November 20, 2003, work injury. It was their further position that the fusion surgery currently being recommended by the employee’s treating doctors had already been recommended prior to the work injury and that the employee’s symptoms ever since a 1992 surgical procedure right up until his November 20, 2003, work injury were essentially the same as the symptoms that he complained of after that injury. It was also their position that the employee was not permanently and totally disabled and that he had no permanent partial disability related to his work injury.
Under terms of the stipulation for settlement, and in exchange for the employee’s agreement not to bring any further claims for benefits based on his November 20, 2003, work injury, the employer and insurer agreed to the following: (1) to pay the employee a lump sum of $81,000.00, minus $13,000.00 to be paid in compensation for his attorney’s work; (2) to pay for the two-level spinal fusion that had been recommended for the employee, together with the appropriate pre-operative examination and tests and six weeks of post-operative care as ordered by the treating orthopedist; and (3) to pay $1,143.44 in reimbursement for the employee’s attorney’s taxable costs and disbursements. Aside from the surgery and the preoperative and post-operative care that would accompany it, the stipulation expressly closed out all future medical benefits in addition to indemnity and other benefits. The stipulation was signed by the parties, and an Award on Stipulation was issued by a compensation judge on February 23, 2005.
On October 10, 2005, the employee indicated to Dr. Garvey that he was interested in going ahead with the surgery that had been recommended a year earlier and authorized under his February 2005 Award on Stipulation. On November 8, 2005, he evidently underwent a lumbar MRI scan that was read to reveal the following: moderate disc degeneration and laminectomy defects at L5-S1, with mild stenosis at this level and diffuse bulging of the disc annulus but without neural impingement; mild stenosis at S1-2 without neural impingement; mild disc degeneration at L2-3 and L1-2, with a small disc herniation at L2-3 but no neural impingement. On March 27, 2006, Dr. Garvey reiterated his recommendation of the proposed surgical decompression and fusion from L4 to S1, and on April 18, 2006, the employee evidently underwent another lumbar MRI scan. The scan was read to reveal findings similar to those on the November 8, 2005, scan, except that there was now increased impingement on the S1 nerve root sleeves and increased constriction and compression of the thecal sac, and some slight annular bulging at L2-3 and L5-S1 was also reported.
After conferring with the employee one more time on May 15, 2006, Dr. Garvey performed the recommended two-level lumbar fusion on the employee’s spine on August 15, 2006. Medical records on that and the following day, August 16, 2006, indicate that the employee was complaining of numbness, tingling, and weakness in both of his arms postoperatively. By August 17, 2006, all of these symptoms were substantially diminished, and by August 19, 2006, there is no longer any mention of them until October 9, 2006. On the latter date, Dr. Garvey reported that the employee was doing well with regard to his right leg radicular symptoms but that he was having significant pain in his left leg and was again having some numbness and tingling in his arms together with some pain in his shoulder. On December 4, 2006, Dr. Garvey noted that the left leg symptoms were persistent but not as great as they had been preoperatively.
About this time, the employee began to experience also some cervical symptoms, and on December 7, 2006, he underwent an MRI scan of his cervical spine, which was read to reveal multilevel degenerative spondylosis, with a central disc herniation at C3-4 that indented and compressed the ventral cord and bilateral posterolateral disc herniations at C4-5 that flattened and deformed the cord. Also revealed were a small midline herniation at C5-6 that mildly flattened the cord and multilevel chronic degenerative foraminal stenosis from C3-4 through C5-6. In a chart note on January 8, 2007, Dr. Tarrel reported that the employee’s low back fusion had failed to relieve his symptoms and that the cervical symptomology that he had developed since his low back surgery “seems to be mechanical and is probably ultimately related to the changing mechanics in his low back.” Noting also that the employee was clearly depressed, Dr. Tarrel concluded categorically that the employee was “totally disabled” and “not capable of returning to work.”
On January 25, 2007, the employee saw Dr. Garvey again, to whom he reported neck and arm pain in addition to continuing left leg symptoms. He reported to Dr. Garvey that Dr. Tarrel had told him that nothing could be done about this pain. Dr. Garvey responded, however, “I would disagree with that opinion. [The employee] has clear cut three level disc herniations with mild ventral cord and exiting nerve root compression. If he failed nonoperative management, then surgical decompression and fusion would be an option.” Dr. Garvey concluded also, finally, that, for the employee to return to even light duty employment, “he is going to need vocational retraining. . . . At this point in time he does not appear capable of gainful employment.”
On July 30, 2007, the employee petitioned this court to vacate his February 23, 2005, Award on Stipulation, contending that he had experienced a substantial change in medical condition since the date of that award.
On December 20, 2007, the employee was examined for the employer and insurer by neurologist Dr. Daniel Randa, to whom the employee complained of low back pain, cervical pain, arm pain, and frequent headaches. After conducting general, neurological, and musculoskeletal examinations of the employee, and after thoroughly reviewing his medical records, including his radiological reports, Dr. Randa concluded in part that the employee’s November 20, 2003, work injury was a temporary aggravation of a preexisting condition most likely reflecting a musculoligamentous strain, with L5-S1 nerve root irritation but without new structural spinal damage. He indicated that such an injury would normally resolve within a few weeks or months and that the employee’s “long-standing pain complaints are atypical for the nature of the event, objective physical findings, and neuroimaging abnormalities.” Dr. Randa diagnosed the employee’s current lumbar condition as “multilevel degenerative lumbar spondylosis status post three lumbar laminectomies and L4-5 lumbar fusion with instrumentation.” He indicated that the employee’s failure to recover more quickly after his surgery presented “a clinical scenario typical of a psychologically based chronic pain syndrome.” He indicated similarly that there was no pathophysiologic basis for the employee’s cervical complaints either and that such complaints were, at any rate, unrelated to the employee’s fusion surgery and likely psychologically based. Dr. Randa opined that the employee was perfectly capable of resuming reasonable work activities with appropriate restrictions regarding his low back and without restrictions regarding his cervical spine condition.
This court's authority to vacate a compensation judge’s award is found in Minn. Stat. § 176.461 and, with regard to settlements, § 176.521, subd. 3. An award may be set aside if the petitioning party makes a showing of good cause to do so. Good cause has long been held to exist if “(a) 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, 649 (Minn. 1989). These bases were codified in slightly different language in a 1992 amendment of Minn. Stat. § 176.461. In that amendment, the substantial change basis was defined as “a 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.” Id. (emphases added). The supreme court has indicated that the statute's language as to foreseeability of the change in condition constitutes a modification in the law not applicable to awards on stipulation predating the July 1, 1992, effective date of the amendment of Minn. Stat. § 176.461. See Franke v. Fabcon, Inc., 509 N.W.2d 373, 377, 49 W.C.D. 520, 525 (Minn. 1993).
In Fodness v. Standard Café, this court identified the following factors as ones to be considered in deciding whether to vacate an award based specifically on a substantial change in condition: (1) changes in the employee's diagnosis; (2) changes in the employee's ability to work; (3) the development of any additional permanent partial disability; (4) the necessity of more costly and extensive medical or nursing care than was anticipated; (5) the causal relationship between the work injury and the worsening of the condition; and (6) the contemplation of the parties at the time of the award. Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989). The employee contends that, since his award on stipulation and his surgery authorized thereunder, his ability to work has been diminished, and more costly and extensive medical treatment has become necessary, both of which outcomes, he argues, were clearly not anticipated - - and could not reasonably have been anticipated - - at the time of his award. We are not persuaded.
While clearly referencing the six Fodness factors as a continuing standard for determining whether a substantial change in medical condition has taken place following a settlement agreement, the employee does not argue in his brief that he has undergone either any change in diagnosis or any increase in permanent partial disability. Therefore we will not address his petition on either of those bases. With regard to any change in his ability to work, we would note that, at the time of his award on settlement, the employee had been unable to work for most of the fifteen months since his work injury, and it was clearly his position at the time that he was permanently and totally disabled. That remains his position now at the time of his petition for vacation of his award, and, notwithstanding arguable references in the pre-settlement medical records that retraining options may have been more reasonably available for him then than now, we see no good cause for vacating his award on the ground of any truly material change in his ability to work.
The employee was clearly subject to a long and very problematic history of low back problems by and at the time of his stipulation for settlement, a history including as it did three surgeries in essentially the same area of his spine as that in which he was then anticipating further surgery. Based on the medical record submitted in this case, the employee’s low back symptoms appear little different from what they were prior to his award. With respect to the employee’s cervical problems, which are apparently the basis for the employee’s claim of more costly and extensive medical care in this case, we note that the employee’s neck and upper extremity problems were not the subject of the parties’ settlement and were not closed out by the agreement. To the extent the employee is contending that he sustained a new injury to his cervical spine at the time of the lumber spine surgery in August 2006, he need not vacate his 2005 settlement in order to assert such a claim. See Phillips v. Honeywell, Inc. 48 W.C.D. 223, 229 (W.C.C.A. 1992) (where claimed injury was to employee’s low back, no evidence or claim of cervical injury existed through time of settlement, and stipulation language indicated parties intended to settle only claims relating to employee’s 1985 back injury or psychological disability, court concluded parties did not intend to foreclose future claims for unknown cervical injury).
After application of all of the factors from Fodness v. Standard Café that were argued by the employee, we find no good cause to vacate the award on stipulation filed in this matter on February 23, 2005, and therefore we deny the employee’s petition that we do so.
 The surgery that Dr. Tarrel identifies as a 1994 surgery appears to have been the last of several revisions of a procedure to repair a herniated disc first surgically addressed by a laminectomy in 1992. This is evident from Respondent’s Exhibits B and C, a February 28, 1996, Findings and Order in a dispute between the employee and an earlier employer and a surgical report of Dr. David Kraker dated September 3, 1993, respectively.
 The results of this scan are reported in the December 20, 2007, independent medical report of Dr. Daniel Randa to the employer and insurer’s attorney. The radiologist’s report itself has not been submitted by either party.
 Like the results cited above with regard to the CT scan of September 23, 2004, both these results of this November 2005 MRI scan and our citation below of the results of the employee’s MRI scan on April 18, 2006, are drawn from the December 20, 2007, independent medical report of Dr. Daniel Randa, the original radiologist’s report having not been submitted into the record before us.
 We note in this regard that Dr. Tarrel was concluding prior to the settlement, on December 22, 2004, that retraining was not an option for the employee, due to a significant learning disability, while Dr. Garvey, on January 25, 2007, was still posing the possibility after the settlement that the employee might still return someday to light duty by mean of retraining.