ALBERT W. HERGOTT, Employee, v. RAHR MALTING CO. and LIBERTY MUT. INS. CO., Employer-Insurer/Petitioners.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 12, 2010
VACATION OF AWARD - NEWLY DISCOVERED EVIDENCE; VACATION OF AWARD - MISTAKE. Where the employee’s condition deteriorated substantially following the hearing before the compensation judge, in ways apparently not contemplated by physicians as of the date of that hearing, where the employee’s working diagnosis has changed, and where there was no evidence tying the new diagnosis to the employee’s work injury, good cause was sufficiently established to justify vacation of the compensation judge’s findings and order.
Petition to vacate findings and order granted.
Determined by: Wilson, J., Stofferahn, J., and Pederson, J.
Attorneys: David G. Johnson, Prior Lake, MN, for the Respondent. Sandra J. Grove, Law Offices of Stilp, Robinson & Grove, Golden Valley, MN, for the Petitioners.
DEBRA A. WILSON, Judge
The employer and insurer petition this court to vacate a compensation judge’s findings and order, filed on January 23, 2008, on grounds of newly discovered evidence. Finding good cause to vacate, we grant the employer and insurer’s petition.
On December 16, 2005, the employee sustained a work-related injury when a 30-pound metal grate fell on his right big toe, stretching or rupturing his extensor tendon. In early March 2006, he underwent surgery to repair the tendon, following which his foot was casted for about 10 days. When the cast came off, the employee was unable to dorsiflex his right big toe, and he began to develop foot drop on that side. After a round of physical therapy with no improvement, the employee was referred for an MRI scan and an EMG. The MRI was apparently unremarkable, but the EMG was interpreted to show diffuse polyradiculopathy involving L2-S1.
In mid August of 2008, the employee came under the care of Dr. Ingrid Abols, a neurologist. Another EMG showed evidence of a diffuse denervation involving nerves of the lumbosacral plexus. The employee was also referred to Dr. Leland Scott, another neurologist, for further evaluation. Treatment included specialized physical therapy and drug infusions.
Over the course of the employee’s treatment, both Dr. Abols and Dr. Scott expressed concern that the employee might be suffering from a motor neuron disease. However, both doctors eventually rejected that diagnosis and concluded that the employee had developed an immune-mediated lumbosacral plexopathy, with foot drop, either as a result of the original work injury or the surgery to treat that injury.
When the matter came on for hearing before the compensation judge in December of 2007, the employee was claiming that he had developed a consequential injury in the nature of a lumbosacral plexopathy. The employer and insurer denied liability for the claimed condition, relying largely on the opinion of Dr. Thomas Raih, an orthopedist. In his November 2006 report, Dr. Raih had concluded that the employee was suffering from an “incidental lumbar polyneuritis with weakness in the right lower extremity associated with a foot drop,” which, in Dr. Raih’s opinion, “has no relationship to the injury to the great toe and/or [related] surgical intervention.”
In his decision issued on January 23, 2008, the compensation judge determined that the employee had sustained a compensable consequential injury “in the nature of post-surgical immune-mediated lumbosacral plexopathy and resultant foot drop,” as claimed. The employer and insurer were therefore ordered to pay the employee various related benefits, including medical expenses and benefits for a 10% whole body impairment.
On October 28, 2009, the employer and insurer filed a petition to vacate the compensation judge’s January 23, 2008, findings and order, on the ground of newly discovered evidence. In that petition, the employer and insurer explained that, in response to a new claim petition, the employer and insurer had had the employee evaluated by Dr. Khalafalla Bushara, a neurologist, who concluded that the employee is suffering from motor neuron disease, amyotrophic lateral sclerosis [ALS], that the employee’s current disability is related solely to that condition, and that the ALS is not related to the work injury.
Subsequently, just prior to oral argument on the petition to vacate, the employer and insurer submitted additional recent records from Dr. Praful Kelkar of the ALS Clinic at the University of Minnesota Medical Center, Fairview, who had evaluated the employee at the request of Dr. Scott. Dr. Kelkar agrees that the employee is likely suffering from a motor neuron disease unrelated to the work injury.
Pursuant to Minn. Stat. § 176.461, this court may vacate an award for cause, which is defined by statute as a mutual mistake of fact, newly discovered evidence, fraud, or a substantial change in medical condition “that was clearly not anticipated and could not reasonably have been anticipated at the time of the award.”
In the present case, the employer and insurer contend that the compensation judge’s January 23, 2008, decision should be vacated on the basis of newly discovered evidence, that is, the “newly discovered diagnosis of ALS.” In response, the employee contends that, because motor neuron disease had been considered as a diagnosis prior to the hearing and award at issue, “there is no newly discovered evidence” sufficient to justify vacation. After thorough review of the records submitted by both parties in connection with the employer and insurer’s petition, we conclude that good cause has been established.
It appears from the medical records that a great deal has changed since the December 2007 hearing. When that hearing was held, the employee’s symptoms were largely if not entirely confined to his right lower leg and foot. Now, according to the November 12, 2009, report of Dr. Kelkar, the employee also exhibits atrophy in the right hand as well as both legs, he experiences very frequent muscle twitching in both upper extremities as well as over his chest and trunk, and his reflexes are abnormal in both arms and both legs. In fact, the employee is now “unable to stand or walk even with support.” Dr. Bushara, the employer and insurer’s examiner, similarly noted generalized muscle wasting and weakness in all four extremities and twitching “in all muscle groups.”
In addition to the severe changes in the employee’s symptoms, records indicate that the employee’s working diagnosis has likely changed from a lumbar plexopathy to a motor neuron disease. It is true, as the employee points out, that motor neuron disease had been suggested as a possible diagnosis on several occasions prior to the hearing before the compensation judge. At the same time, however, the employee’s physicians had not only considered but had rejected that diagnosis, given the employee’s symptoms and test results, as of the time of the hearing. Now, based at least in part on the way the employee’s symptoms have progressed since the first hearing, recent medical opinion evidence - - both from the employer and insurer’s examiner and the employee’s newest treating physician - - strongly indicates that the employee may indeed have ALS.
At oral argument, the employee’s counsel adamantly declined to concede that the employee has ALS, indicating that additional testing is pending and that he is seeking an opinion as to whether the employee’s work injury could have triggered the onset of ALS, if that is, in the end, the employee’s diagnosis. However, no evidence on these matters was submitted to this court, and the employee has similarly submitted no evidence indicating that any of his physicians still believe that he is suffering from a work-related lumbar plexopathy. Whether that condition may exist in combination with the employee’s probable motor neuron disease has yet to be determined, but Dr. Kelkar addressed the issue of diagnosis and causation as follows:
Based on what we see now, I think this is clearly not a peripheral neuropathic process as what was previously suspected . . . . The patient had a question about the issue of the workman’s comp since initially he had foot drop following the surgery which was done for the trauma that he had sustained. Clearly at this time, the patient has marked involvement in the distribution that is outside the scope of the initial injury and at this time, the presentation has nothing to do with the initial injury.
Dr. Bushara went even further, indicating that the employee’s dorsiflexion problems after the tendon repair were probably the initial manifestations of ALS.
It is evident to us, even from the limited record, that ALS is a difficult disease to diagnose with any certainty, and Dr. Bushara has indicated that the employee would have been in the very early stages of ALS at the time of the hearing before the compensation judge. Moreover, we find no evidence that a definitive diagnosis of motor neuron disease could or should have been made prior to hearing. Rather, it appears that physicians were not entirely certain of the nature of the employee’s condition all along, despite multiple tests, examinations, and referrals. And, again, not only has the employee’s diagnosis arguably changed, his condition has deteriorated beyond anything contemplated in the medical records as of the hearing date. We would also note that we see nothing indicating that a lumbar plexopathy could be expected to affect all four limbs.
This is obviously not a case in which the crucial issues of diagnosis and causation were “susceptible of best and final decision in the initial hearing.” Turner v. Federal Reserve Bank of Minneapolis, 298 Minn. 161, 167, 213 N.W.2d 414, 418, 27 W.C.D. 149, 155-56 (1973). Nor is this simply a case of conflicting medical opinions. See, e.g., Stewart v. Rahr Malting Co., 435 N.W.2d 538, 41 W.C.D. 648 (Minn. 1989). Rather, given the evidence before us, this appears to be a case in which vacation is justified based on “[t]he development of new facts about the injury after the award, or . . . the subsequent discovery of facts in existence but unknown at the time the award was made.” Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 539-40, 63 W.C.D. 337, 344 (Minn. 2003), citing Dudansky v. C.H. Sault Constr. Co., 224 Minn. 369, 372, 70 N.W.2d 114, 116, 18 W.C.D. 286, 289 (1955). It was simply too early, at the time of hearing before the compensation judge, to accurately assess the nature of the employee’s condition.
When deciding whether or not to vacate, fairness is the overriding principle. Krebsbach v. Lake Lillian Coop., 350 N.W.2d 349, 36 W.C.D. 796 (Minn. 1984). Here, given the complexity of the employee’s medical condition and the development of important and apparently unexpected facts after the issuance of the award, fairness dictates that the compensation judge’s decision be vacated, either on grounds of mistake or newly discovered evidence. We caution, however, that our decision should not be read as involving any determination either as to the employee’s diagnoses or the question of causation. Those issues remain to be resolved, if necessary, through litigation.
 In that claim petition, the employee was alleging entitlement to permanent total disability benefits and benefits for an 80% whole body impairment.
 Also known as Lou Gehrig’s disease.
 We would note here, however, that the submissions by the parties are remarkably meager given the complexity of the employee’s condition.
 Referred to in the reports as fasciculations.
 For example, in late September of 2006, Dr. Abols predicted that recovery would take 12 to 18 months. The hearing before the compensation judge took place in December of 2007, well within that time frame.
 Quoting Elsenpeter v. Potvin, 213 Minn. 129, 132, 5 N.W.2d 499, 501, 12 W.C.D. 366, 369 (1942).