KEVIN SMITH, Employee/Petitioner, v. OTTER TAIL POWER CO., SELF-INSURED, Employer.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 24, 2008
VACATION OF AWARD. Where the award on stipulation closed out only a lumbar spine injury, the employee=s arguments for vacation of the award based on an allegedly overlooked simultaneous cervical injury were not pertinent to this court=s consideration. The remaining arguments for vacating the award based on an alleged unanticipated substantial change to the employee=s lumbar condition or on an alleged mistake of fact regarding the employee=s ability to work, failed to establish good cause for vacating the award on stipulation.
Petition to vacate award on stipulation denied.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Attorneys: Mark L. Rodgers, Rodgers Law Firm, Bemidji, MN, for the Petitioner. Dennis W. Hagstrom, Fergus Falls , MN, for the Respondent.
DAVID A. STOFFERAHN, Judge
The employee contends that there is (1) a substantial change in his medical condition, (2) newly discovered evidence, or (3) a mutual mistake of fact, sufficient to justify vacating an award on stipulation pursuant to our authority under Minn. Stat. ' 176.461. We find that cause to vacate has not been established, and deny the employee=s petition.
The employee, Kevin Smith, worked as a lineman for the employer, a utility company. On May 19, 2000, the employee sustained an admitted work injury when a power pole fell on him, pushing him to the ground. The employee experienced pain from the lower neck to below his knees. The employee was treated the same day at the local hospital emergency room where he was provided with pain medication and advised to follow up with his family physician, Dr. Brian Livermore, who saw the employee on May 25, 2000. Dr. Livermore, in turn, subsequently referred the employee for a consultation at the Low Back Institute in Brainerd, where he was seen by Dr. Richard Salib.
Dr. Salib reviewed the employee=s x-rays on November 17, 2000. He noted that the x-rays showed juvenile discogenic disease without evidence of nerve root compression or herniation. There was some synovitis in the facet joints at L4-5. Dr. Salib=s conclusion was that the work incident had resulted in a soft tissue injury to the employee=s lumbar spine. He recommended a multilevel facet nerve medial branch blockade. The procedure significantly decreased the employee=s pain, so Dr. Salib referred the employee for a lumbar facet nerve radio frequency neurotomy. The neurotomy was performed on February 5, 2001, on the L3, L4, and L5 branches at the L4, L5 and S1 levels. The employee had some relief for three months, but his pain gradually returned.
The employee had returned to work in his pre injury job within a few days of the work injury, and was able to do this job without restrictions through mid-July, 2001. On March 29, 2001, and again on June 20, 2001, the employee was disciplined as the result of alleged job safety violations. On July 11, 2001, the employee was taken off his lead lineman position due to these incidents. The employee filed a union grievance and declined the option the employer extended for him to bid on non-lineman positions. His last paycheck from the employer was received on July 15, 2001.
On August 20, 2001, the employee filed a claim petition seeking temporary total disability compensation for certain periods, consideration of retraining, and permanent partial disability benefits predicated on an anticipated disability of at least 10 percent of the whole body. The self-insured employer answered on September 26, 2001, admitting the work injury, but disputing the employee=s entitlement to compensation.
On November 9, 2001, the employee was seen by Dr. John Dowdle, an orthopedic surgeon, for a medical examination on behalf of the self-insured employer. Dr. Dowdle diagnosed mechanical low back pain with degenerative disc disease at multiple levels of the lumbar spine resulting from juvenile discogenic disease aggravated by the work injury on May 19, 2000. He opined that the aggravation of the employee=s underlying degenerative disc condition due to the work injury had already resolved. He did not believe that formal restrictions were needed, but advised that the employee should be careful about bending and lifting and prolonged single-position activity. In his view, the employee continued to be physically able to perform his pre-injury job.
In January 2002, the employee elected to go on long-term disability status with the employer. He applied for and began receiving contract disability benefits from UNUM Life Insurance Company of America.
The employee began treating with a chiropractor, Dr. Larry Stember, who saw him on February 22, 2002. The employee reported dull achy pain in the lower back, with numbness bilaterally down the buttocks midway into the posterior thighs. Dr. Stember found lumbar range of motion testing positive and indicative of atypical joint mechanics into the lumbosacral region with pain and nerve irritation. The doctor noted hyperreflexia of the patellar reflex corresponding with an L4 nerve root impingement. Other tests were interpreted as showing motor loss corresponding to the L4, L5 and S1 nerve roots. Straight leg raising was positive at 30 degrees on the left and 50 degrees on the right with radiating pain in the low back and legs. Dr. Stember diagnosed an acute traumatic lumbosacral injury resulting in L4-5 and L5-S1 facet synovial impingement syndrome, radicular paresthesia, vertebral subluxation complex, chronic myofascial pain and mild broad based disc bulges at L3-5, L4-5 and L5-S1. He rated the employee with a 14 percent permanent partial disability.
In a letter dated July 26, 2002, the employee=s treating physician, Dr. Brian Livermore, reported that the employee=s present symptoms were pain all across his low back. His forward bending was limited, with pain and stiffness in the low back. Dr. Livermore rated the employee with a 14 percent permanent partial disability. He considered the employee severely disabled and unable to perform his pre-injury duties. In his opinion, the work injury was a substantial contributing factor in the acceleration and aggravation of an underlying condition which had not restricted or disabled the employee prior to that injury.
The employee entered into a stipulation for settlement with the self-insured employer on May 19, 2003. The stipulation referred only to an alleged injury to the employee=s lumbar spine on May 19, 2000. The employee claimed he had become unable to engage in his normal occupation subsequent to June 22, 2001. He claimed entitlement to temporary total disability benefits, medical expenses, retraining and permanent partial disability compensation for a permanency of at least 10 percent. The self-insured employer asserted that the employee=s injury was not permanent in nature, and that he had recovered and been able to work without restrictions before being suspended from work for performance reasons unrelated to his work injury. They denied any entitlement to wage loss benefits, rehabilitation, and ongoing medical treatment expenses. The self-insured employer agreed to pay $80,000 in return for a full, final, and complete close out of the employee=s claims, except for future medical care for the alleged lumbar injury, subject to various defenses including causation. The employer also paid for certain outstanding medical expenses and settled claims for reimbursement with disability insurer UNUM and the vocational rehabilitation unit of the Department of Labor and Industry. A compensation judge issued an award on stipulation on August 22, 2003.
The employee attended Bemidji State University during the 2003 fall term, but was suspended with a 1.53 grade point average. He contends that his failure to succeed at school was the result of back pain and inability to concentrate.
The employee was evaluated for a TENS unit at North Country Peak Performance Physical Therapy on May 11, 2005, on referral by Dr. Livermore. The employee was subsequently provided with the TENS unit, which he has continued to use.
On November 29, 2006, the employee began treating with Dr. Sunny Kim at the Central Minnesota Spine Center. His primary complaint was of chronic low back pain. Dr. Kim noted that the employee=s lumbar range of motion was limited in all directions due to diffuse low back pain. Range of motion of the cervical spine was within normal limits, without tenderness or spasm. The employee showed evidence of long tract signs including sustained clonus and Babinski signs bilaterally. Dr. Kim reviewed an MRI of the employee=s lumbar spine done on November 6, 2006, which showed a herniated disc at the L5-S1 level on the left, with some impingement on the left S1 nerve root. He recommended an MRI of the cervical and thoracic spine.
The employee returned to Dr. Kim on December 13, 2006, for review of the cervical and thoracic MRI scans, done earlier that day. Dr. Kim noted that the cervical MRI showed myelomalacia in the mid portion of the cervical cord at about the C5-C6 level. No herniation or stenosis was present. The thoracic MRI was read as normal. Dr. Kim thought that the neurological findings of long tract signs were likely related to the cervical cord findings, which might also explain the employee=s low back pain. He opined that the most likely cause of the myelomalacia was spinal cord contusion from a severe hyperflexion injury when the employee was struck by the falling power pole at work on May 19, 2000.
On February 14, 2007, the employee was examined by Dr. Sanjiv K. Sahoo on referral from Dr. Livermore. The employee told Dr. Sahoo that after his May 19, 2000, work injury, he had severe back pain radiating bilaterally into his legs, which had now become more right-sided and radiated into his right lower leg and foot. His back pain had been recently worsening with worsening leg stiffness. He also reported bowel and bladder urgency in the morning. Dr. Sahoo reviewed the cervical MRI from December 13, 2006, noting a mild disk bulge at C6-7 with either cervical cord gliosis or syrinx at that level. He described the lumbar MRI from November 2006, as showing lateral L5-S1 disc bulges impinging on the exiting nerve roots at the right neuroforamina. The employee reported having been off work for five and half years as a result of back discomfort. On examination, Dr. Sahoo observed mild numbness in the employee=s bilateral lower extremities up to the thigh level. There was hyperreflexia and numbness below the C6 level. Dr. Sahoo diagnosed a possible cervical spine crush injury with cervical myelopathy at C6-7 with either a gliosis or syrinx of the cervical spinal cord. He recommended conservative management, with a repeat cervical MRI in six months to assess whether there had been progression. If no progression was present, he noted that the employee=s problems were likely due to spinal cord contusion rather than syrinx.
In a letter dated January 2, 2008, Dr. Livermore opined that the employee=s treatment with him since May 19, 2000, was causally related to the work injury on that date.
The self-insured employer requested that Dr. Richard F. Galbraith review the employee=s records and provide a medical opinion. Dr. Galbraith=s opinion was expressed in a letter report dated March 7, 2008. He noted that the records showed only ongoing treatment for lumbar spine symptomology for several years, with no mention of or medical treatment for problems relating to the cervico-thoracic spine until about November 2006, when Dr. Kim first referred to a possible cervical spinal cord contusion or injury. Dr. Galbraith further noted that the employee had been able to work without restrictions as a lineman until June 22, 2001, when he was terminated for reasons allegedly unrelated to his injury. In his view, a traumatic injury to the cervical spine would have caused immediate clinical and neurological changes that would have rendered the employee both subjectively and objectively symptomatic immediately after the injury. Dr. Galbraith concluded that none of the conditions presently diagnosed by the employee=s doctors were causally related to the original work injury. In his opinion, there had been no substantial change in condition related to the original work injury since the date of the stipulation for settlement.
An MRI scan of the employee=s cervical spine performed on April 8, 2008, was unchanged when compared to the prior scan of June 2007. It was read as suggestive of a syrinx at the C6-7 level.
On February 4, 2008, the employee filed his petition to vacate the Award on Stipulation dated August 22, 2003. The self-insured employer responded opposing the petition.
This court has authority to set aside an award for cause under Minn. Stat. ' 176.461. Cause is defined in the statute as: 1) a mutual mistake of fact; 2) newly discovered evidence; 3) fraud; or 4) 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.
The employee=s petition alleges that grounds exist to vacate the August 22, 2003, award on stipulation, including a substantial change in his medical condition, mutual mistake of fact, and newly discovered evidence.
The majority of the employee=s arguments are predicated on his contention that the work injury of May 19, 2000, caused an injury to the cervical portion of his spine or spinal cord, which was overlooked until he was seen by Dr. Kim in 2006, because of an initial lack of subjective and objective findings relating to the cervical area. It was not until 2006, more than three years after the award on stipulation, that any physician diagnosed an injury to this area. He contends that the parties were thus mistaken about the full nature of his injury as of the date of the stipulation, that the evidence of the cervical injury constitutes newly discovered evidence, and that the appearance of symptoms related to his cervical spine constitutes an unanticipated substantial change in his medical condition.
We note, however, that the stipulation for settlement addresses only a lumbar spine condition. There was no evidence or claim of a possible cervical injury through the date of the stipulation and for several years thereafter. A stipulation for settlement does not foreclose claims not contemplated by the parties at the time of the settlement. Sweep v. Hanson Silo Co., 391 N.W. 2d 817, 39 W.C.D. 51 (Minn. 1986); Gates v. Costco Wholesale, No. WC04-201 (W.C.C.A. Jan. 14, 2005). We conclude that the stipulation for settlement did not close out the employee=s claims for compensation as the result of a cervical injury. Accordingly, we will not consider the effects of the alleged cervical injury in determining whether to grant the employee=s petition to vacate.
The employee=s request to vacate based on newly discovered evidence relates solely to the evidence of his cervical condition, and is therefore rendered moot by our conclusion that the stipulation does not close out claims for compensation relating to that condition. The remaining bases for the employee=s petition are, first, that the employee=s lumbar spine injury has substantially worsened to an extent that the parties could not reasonably have anticipated as of the date of the stipulation, and second, that the parties were mutually mistaken in failing to apprehend that the employee was totally disabled. We will consider these in turn.
Substantial Change in 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 noted above, we have limited our consideration only to whether a substantial, unanticipated change has occurred in the employee=s lumbar spine condition. In support of his position, the employee points out that an MRI scan in November, 2006, shows an L5-S1 disc herniation. He contends that this is evidence of a substantial change in his condition. He further argues that he has had greater pain and a broader set of symptoms since the stipulation, necessitating a TENS unit. Finally, he relies on the assertion that his ability to work has deteriorated, and that he is now permanently and totally disabled.
We conclude the employee has not established a substantial change in condition. First, we find no change in the diagnosis of the employee=s lumbar condition. In 2002, before the settlement, Dr. Stember diagnosed the employee as having bulging discs at L3-4, L4-5, and L5- S1. Dr. Livermore was also of the opinion that the employee=s condition included disc involvement. Dr. Kim=s statement in his chart notes that he believed the November 2006 MRI showed a herniated disc does not constitute a new diagnosis but rather additional findings of the same diagnosis used by the employee=s doctors before the injury.
The evidence supporting a change in the ability of the employee to be employed is ambiguous at best. The employee had not worked since July 2001, almost two years before the stipulation was signed. His physicians had restricted him to very light work, and had indicated that his disability was likely to persist. By the time the stipulation was signed, he had been receiving disability payments from UNUM Life Insurance Company for over a year. We note, further, that the stipulation for settlement recites that the lump sum payment to the employee was calculated on the basis of Aa compromise payment of weekly indemnity benefits over the projected term of the employee=s life expectancy.@ These factors would indicate that the employee was already unable to work at the time of the settlement. No evidence which would support the idea of the employee being able to work at the time of the agreement is referenced by the employee.
There is no medical opinion of additional permanent partial disability to the lumbar spine and no medical records which would support a higher rating.
A substantial change in medical condition may also be demonstrated in part by a need for more costly and extensive medical treatment. In the present case, there are no treatment recommendations by the employee=s doctors for the lumbar spine. Instead the records show that the focus has been the employee=s alleged cervical condition. As we have pointed out previously, the cervical spine is irrelevant to this inquiry.
Finally, the employee has not provided a medical opinion linking many of his new post-stipulation symptoms and pain complaints to the lumbar condition; some of these new complaints, in fact, have been specifically tied instead to his cervical condition.
Mutual Mistake of Fact
Under Minn. Stat. ' 176.461, this court=s authority to vacate an award on the ground of mistake extends not to any mistake, but only to a mutual mistake of fact by the parties to the agreement. A mutual mistake of fact occurs when the parties to the agreement both misapprehend some fact material to their intended settlement of a claim. Shelton v. Schwan=s Sales Enters., 53 W.C.D. 110, 113 (W.C.C.A. 1995). In a mutual mistake case, the inquiry focuses on what the situation was, and what was known at the time of the agreement settling the case. Franke v. Fabcon, 509 N.W.2d, 49 W.C.D. 520 (Minn. 1993).
The employee contends that neither party considered the employee permanently totally disabled at the time of the stipulation for settlement, but that events have since demonstrated that he is in fact unable to return to work. He contends that there was, accordingly, a mutual mistake of fact with respect to his ability to work. We disagree.
We note, first of all, that there is no language in the settlement that sets forth the understanding of the parties as to the employee=s employability. In the absence of such language it is speculative to conclude what the parties= contemplation on this issue might have been. In addition, as we pointed out previously, the employee had been unemployed by reason of his work injury for more than two years by the date of the award. The parties also included language concerning the lump sum payment being allocated over the employee=s life expectancy. Such language is often added to a stipulation when the parties anticipate that the employee might be eligible for Social Security disability.
The issue is further complicated by the question of whether, when, and from which condition, the employee subsequently became permanently totally disabled. His current restrictions are apparently also for very light duty work, although there seems to be some further tightening of the specific restrictions. He is now receiving Social Security disability, but there has been no determination from a workers= compensation standpoint as to whether he is, in fact, permanently and totally disabled. As we have discussed above, his disability is now affected by another physical condition, relating to his cervical spine. It is not at all clear what impact the cervical spine condition has on his ability to work, and whether his ability to work has diminished as a result of either, or both, the cervical and lumbar conditions since the time of the settlement.
Because of the ambiguity surrounding all aspects of the question of the employee=s ability to work, and because of the possible significant involvement of the cervical injury, which is not foreclosed by the stipulation, we decline to vacate on the basis of a mistake of fact.