JOSEPH P. DIAZ, Employee/Petitioner, v. LAKEVILLE MOTOR EXPRESS and LIBERTY MUT. INS. CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 22, 2011
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The employee adequately established an unanticipated change in diagnosis, ability to work, and permanent partial disability sufficient to warrant vacating the award on stipulation.
Petition to vacate award on stipulation granted.
Determined by: Wilson, J., Stofferahn, J., and Johnson, J.
Attorneys: David B. Kempston, Law Office of Thomas D. Mottaz, Coon Rapids, MN, for the Petitioner. Randee S. Held, Law Office of Stilp & Grove, Golden Valley, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee petitions this court to set aside an award on stipulation based on a substantial change in his medical condition. Finding sufficient basis for vacation, we grant the petition.
The employee sustained a Gillette injury to his cervical spine on May 25, 1990, while working for Lakeville Motor Express [the employer] as a truck driver. On July 18, 1991, he underwent a laminectomy and discectomy at C6-7 on the left. The employee was eventually released to return to work and began self-employment as a semi-truck driver on December 9, 1991, when he purchased his own semi-tractor.
On March 31, 1992, the employee was examined by Dr. Lloyd Leider. At that time, the employee reported that he had had an excellent result from his surgery. Dr. Leider agreed. Dr. Leider also stated that the employee had sustained a Gillete injury to his cervical spine, had reached maximum medical improvement from that injury, and needed no restrictions on his activities.
Pursuant to a findings and order filed on June 8, 1992, the employee was found to have sustained a permanent aggravation of his preexisting degenerative disc disease as a result of a Gillette injury culminating on May 25, 1990, and he was awarded temporary total disability benefits from May 30, 1990, through October 4, 1990, and July 1, 1991, through December 9, 1991; temporary partial disability benefits commencing on December 10, 1991; and permanent partial disability benefits for an 11% impairment related to his cervical condition.
The employee treated with Dr. Nolan Segal for his cervical problems. On June 22, 1993, Dr. Segal wrote a letter noting that the employee had “significant cervical disc disease” and would benefit from the use of a special seat for his truck.
Three months later the parties entered into a stipulation for settlement. At the time, the employee was claiming temporary partial disability benefits as a self-employed owner-operator of a trucking company. Pursuant to the stipulation for settlement, the employee was paid $22,500 in full, final, and complete settlement of all past, present, and future claims, with the exception of medical expenses. An award on stipulation was filed on September 21, 1993.
The employee next saw Dr. Segal on December 27, 1993. At that time, the employee was complaining of discomfort over the left lateral neck and upper arm. Dr. Segal’s impression was a flare-up of degenerative arthritis of the cervical spine.
A December 19, 1995, cervical MRI was interpreted as showing, in part, slight loss of normal cervical lordosis, right-sided bulging, and moderate bony lateral stenosis at C6-7 on the right and the left; disc bulging at C5-6; bulging at C4-5, with mild central spinal stenosis; and normal discs at C3-4 and C2-3.
In August of 1996, the employee was seen by Dr. Gaylan Rockswold, complaining of neck pain and pain down his right arm into his right hand. The employee had tried using a TENS unit with only partial success. After reviewing a CT scan, Dr. Rockswold recommended surgery, and he later performed a hemilaminectomy, microdiscectomy, and microforaminotomy at C6-7 on the right.
The employee continued to see Dr. Segal about once a year for either a follow-up visit or treatment for flare-ups of his pain. On some occasions, he received epidural injections.
The employee quit working as a truck driver in November of 2007, and he has not worked at all since then.
The employee was seen by Dr. Richard Strand at the request of the employer and insurer. In his report of December 18, 2008, Dr. Strand opined that the employee’s diagnosis was multiple-level degenerative disc disease and degenerative spondylosis, but the doctor concluded that this diagnosis was not related to any injury or accident. It was further his opinion that the employee had not sustained any injury as a result of his work activities.
On May 1, 2009, when seen by Dr. Segal, the employee was having a flare-up of neck pain. Dr. Segal advised the employee to observe various restrictions on his activities.
Dr. Strand examined the employee again on September 24, 2009, and Dr. Strand again opined that there was no evidence that the employee had sustained a specific injury while working for the employer and no evidence that truck driving “is the direct cause of multiple-level degenerative disc disease of the cervical spine.” Dr. Strand did state that, given his diagnosis, the employee would have difficulty with a job that required frequent motion, extension, rotation, and flexion of the cervical spine, predicting that it “is unlikely that he will safely be able to drive an over the road semi because of his cervical spine restrictions.” Dr. Strand did not rate any permanent partial disability over the 11% previously rated.
When seen by Dr. Segal again in December of 2009, the employee was still having significant neck and arm symptoms. At that time, Dr. Segal opined that the employee was permanently totally disabled from gainful employment.
On May 27, 2010, Dr. Segal wrote to the employee’s attorney, explaining that the employee’s diagnosis was progressive multilevel degenerative disease of the cervical spine. It was Dr. Segal’s opinion that the employee had been capable of employment up until 2009, that the employee had sustained a 24% whole body impairment, that the May 1990 work injury was a substantial contributing factor in the employee’s cervical spine condition, and that not all of the changes in the employee’s condition could have been anticipated.
A repeat MRI on August 17, 2010, was interpreted as showing, in part, reversal of the normal curvature of the cervical spine; severe posterior and lateral degenerative endplate changes at C6-7; severe bilateral neural foraminal narrowing at C5-6; severe hypertrophic, erosive inflammatory facet joint arthrosis at C4-5; posterior bulging at C3-4; and posterior disc bulge at C2-3 with inflammatory left facet joint arthrosis.
The employee petitioned to set aside the 1993 award on stipulation on December 3, 2010, based on a substantial change in his medical condition. The employer and insurer objected, relying on excerpts from a deposition of the employee and on Dr. Strand’s two reports.
The application to set aside came on for oral argument on May 16, 2011. Two days prior to argument, the employee’s attorney filed a supplemental affidavit and a May 5, 2011, narrative report by Dr. Segal. Counsel for the employer and insurer objected to this court’s receipt or consideration of that report and affidavit. At oral argument, counsel for the employer and insurer was offered the opportunity to have Dr. Strand review Dr. Segal’s report and issue an additional report of his own. Counsel declined. This court considered the May 5, 2011, report of Dr. Segal in connection with the employee’s petition. Dr. Segal opined that the employee’s condition had worsened, and he rated the employee as having a 30% whole body impairment.
An award on stipulation may be vacated only for “cause,” including “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.” Minn. Stat. § 176.461. A number of factors are relevant when evaluating whether there has been a substantial change in the employee’s medical condition, including:
1. Change in diagnosis;
2. Change in the employee’s ability to work;
3. Additional permanent partial disability;
4. Necessity of more costly and extensive medical care than initially anticipated;
5. Causal relationship between the work injury covered by the settlement and the employee’s current worsened condition; and
6. Contemplation of the parties at the time of the settlement.
Fodness v. Standard Cafe, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).
1. Change in Diagnosis
Prior to the award on stipulation, the employee had surgery to C6-7 for a left-sided disc herniation. Subsequent to the award, the employee had surgery at C6-7 for a right-sided disc herniation. The employee contends that his diagnosis has changed significantly since the settlement in 1993. The employer and insurer contend that there has not been a change in diagnosis because the employee “continues with problems affecting C6-7 disc,” which was the same level that was affecting the employee at the time of the award on stipulation.
The 1995 MRI (the MRI performed closest in time to the award on stipulation), when compared with the August 2010 MRI (performed closest in time to the application to set aside), shows evidence of a change in diagnosis. That is, the 1995 MRI revealed no involvement of the C3-4 or C2-3 discs, whereas the 2010 MRI shows changes at those levels. In addition, “severe hypertrophic, erosive inflammatory facet joint arthrosis at multiple levels” was noted in the 2010 MRI but was not noted in the findings in 1995.
Therefore, while the employee does continue with problems affecting C6-7, those problems have moved from being left-sided only to encompassing the right side and also other levels of the cervical spine. There is adequate evidence indicating that the employee’s diagnosis has changed.
2. Change in Ability to Work
The employee contends that, by modifying his activities and avoiding lifting, he was able to continue working until approximately 2009, and Dr. Segal has found him to be permanently totally disabled since that time. In response, the employer and insurer contend that the employee testified that he stopped working in 2007 due to economic conditions, that Dr. Strand has opined that the employee is capable of working with restrictions, and that an independent vocational evaluator opined that the employee is not permanently totally disabled.
In his deposition taken on August 24, 2009, the employee testified that he quit driving his truck in 2007 due to economic conditions. However, in an November 12, 2010, affidavit attached to the application to set aside, the employee stated that he thought that he was currently incapable of work. In addition, in September of 2009, Dr. Strand stated that he did not think that the employee could safely work as an over-the-road semi-truck driver, and, in December of 2009, Dr. Segal stated that the employee was permanently totally disabled. Even independent vocational evaluator Michael Kahnke opined that the employee can no longer function as a truck driver. It is not necessary to conclude that the employee is permanently totally disabled in order to find a change in the employee’s ability to work. The employee was working as a truck driver at the time of the award on stipulation and he is no longer physically capable of performing that job. There is adequate evidence to support the conclusion that there has been a change in the employee’s ability to work.
3. Additional Permanency
The employee contends that he had an 11% whole body impairment at the time of the stipulation for settlement but that Dr. Segal has since rated him at 24%. The employer and insurer contend that there has been no change in permanent partial disability, as Dr. Strand continues to rate the employee at 11%.
Dr. Segal’s reports reflect that the employee has increased permanent partial disability at this time. The difference between a rating of 11% and 25% is substantial. Dr. Strand’s report notwithstanding, Dr. Segal’s opinion provides evidence that the employee’s permanent impairment has increased since the parties’ settlement.
4. Necessity of More Costly and Extensive Medical Treatment
The employee contends that he has incurred more costly and extensive medical care than was anticipated at the time of the award on stipulation, because, following that award, he underwent surgery for a right-sided disc herniation at C6-7. The employer and insurer contend that further treatment was anticipated and that, “for that reason . . . medical care and treatment was not foreclosed in the Stipulation for Settlement.”
Under the terms if the stipulation for settlement, the employer and insurer are obligated to pay for reasonable and necessary medical treatment related to the employee’s work injury. Where medical expenses are not closed out by the award on stipulation, the need for additional care is generally given less emphasis. Burke v. F & M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996).
Dr. Segal has issued detailed reports opining that the employee’s May 1990 work injury is a substantial contributing cause of the employee’s current cervical symptoms. The employer and insurer’s only argument about causation is that “the Employee continued to work an additional 2 years before the filing of his Claim Petition seeking further benefits.”
The employer and insurer’s point here is unclear. In any event, there is adequate evidence, for purposes of the petition to vacate, that the employee’s current condition is causally related to the work injury.
6. Contemplation/Anticipation of the Parties
The employee contends that he was working and doing well at the time of the stipulation for settlement and did not anticipate becoming permanently totally disabled. The employer and insurer contend that in 1993, $22,500 “did represent a reasonable sum at that time, and the Employee freely entered into the settlement.”
The evidence submitted to this court supports the employee’s contention that he did not anticipate that his condition would worsen to this degree. Dr. Leider’s report indicates that the employee was doing well and needed no restrictions in March of 1992. The employee’s affidavit states that he was doing well when he settled his case and that he had no indication that he would be unable to work at all by 2009. And, in his May 27, 2010, report, Dr. Segal stated that
Although one might have anticipated and certainly would have anticipated a gradual deterioration of the cervical spine with increasing degenerative disease, one could not have anticipated a significant right-sided disc herniation at C6-7, nor an additional and enlarged disc herniation at the C2-3 level.
The employee has provided sufficient evidence that the change in his condition was not anticipated and could not reasonably have been anticipated at the time of the award on stipulation.
After considering the entire record, we conclude that the employee’s application to set aside is sufficiently supported by the evidence to warrant vacation of the 1993 award on stipulation. We caution, however, that our decision should not be read as involving any final determination as to diagnosis, ability to work, degree of permanent partial disability, or causation. Those issues remain to be resolved, if necessary, through litigation.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 In his May 5, 2011, supplemental report, Dr. Segal rated the employee at 30% impairment but did so under the current workers’ compensation permanency schedules. At oral argument, the employee’s counsel was unable to say how that rating would translate to the schedules in effect at the time of the employee’s injury.