MARK V. LARSON, Employee/Petitioner, v. HUTCHINSON PUB. UTILS., SELF-INSURED, LEAGUE OF MINN. CITIES/BERKLEY RISK ADM’RS, Employer.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 29, 2011
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Pursuant to application of the factors contained in Fodness v. Standard Cafe, 41 W.C.D. 1054 (W.C.C.A. 1989), the employee established good cause to vacate the award on stipulation based on a substantial change in condition.
Petition to vacate award on stipulation granted.
Determined by: Wilson, J., Pederson, J., and Johnson, C.J.
Attorneys: Michael G. Schultz, Sommerer & Schultz, Minneapolis, MN, for the Petitioner. Thomas M. Peterson, League of Minnesota Cities, St. Paul, MN, for the Respondent.
DEBRA A. WILSON, Judge
The employee petitions to vacate an award on stipulation filed on September 20, 2001, based on a substantial change in medical condition. Finding sufficient basis to do so, we vacate that award.
The employee sustained a work-related injury to his neck and back on December 17, 1999, while employed by Hutchinson Public Utilities [the employer]. The self-insured employer admitted liability for the injury and paid workers’ compensation benefits, including temporary total and temporary partial disability benefits and medical expenses.
The employee was seen on May 22, 2000, by Dr. Garry Banks, for evaluation of neck and back pain that had been present since the December 1999 work injury. He was diagnosed with degenerative disc disease at L4-S1 and a chronic right L5-S1 disc herniation. A cervical MRI performed on that date showed small disc herniations with degeneration at C5-C7.
On July 26, 2000, Dr. Banks performed an anterior/posterior fusion at L4 to S1, with instrumentation. His post-operative diagnosis was severe L4-S1 disc degeneration and bilateral L5-S1 foraminal stenosis, with right-sided disc herniation. The employee was subsequently diagnosed with a non-union of his fusion, and, on August 29, 2000, Dr. Banks performed a revision anterior fusion at L4-5.
When the employee was seen by Dr. Banks on May 14, 2001, x-rays showed a solid fusion at both levels.
The following month, on June 21, 2010, the employee saw Dr. Banks again, complaining of increased neckache and headaches. The doctor noted that the employee’s symptoms “likely are related to chronic cervical strain superimposed upon preexisting degenerative disc problems.”
The employee followed up with Dr. Banks again on August 20, 2001, reporting that his back and neck pain were “quite markedly improved.” He was working light duty and seemed “to be doing quite well with this.” Dr. Banks opined that the employee appeared to have a solid fusion. He went on to state, “I believe that his situation is stable and I have recommended permanent restrictions of 20 pounds lifting. . . . I believe his prognosis should be quite good within these restrictions. He is at maximum medical improvement.”
In September of 2001, the employee and employer entered into a stipulation for settlement. At that time, the employee was claiming temporary total and temporary partial disability benefits on various dates from and after December 17, 1999, permanent partial disability benefits for a 19.5% whole body disability, ongoing rehabilitation/retraining, and ongoing medical expenses. Under the terms of the stipulation, the employee was paid $62,500 for a full, final, and complete settlement of all past, present, and future claims, with the exception of medical expenses. Temporary partial disability benefits were to continue through the date of the award on stipulation, which was filed on September 20, 2001.
The employee next sought medical treatment with Dr. Banks on December 20, 2001, for increasing neck, shoulder, and arm pain. An MRI of the cervical spine performed on January 7, 2002, showed a broad-based central posterior disc bulge at C6-7, broad-based disc protrusion at C5-6, a broad-based disc herniation at C4-5, and a mild central posterior disc bulge at C3-4. Dr. Banks opined that these findings represented progression of the employee’s “previously work related disc problems.” He subsequently performed a cervical fusion at C4-6.
The employee progressed nicely after this cervical fusion, and, by March of 2002, the fusion appeared to be solid. Subsequently, however, he had flare ups of both his cervical and lumbar pain.
By September of 2002, the employee was complaining of symptoms in the C6-7 area, and a cervical MRI showed a C6-7 disc herniation, which represented a change from the January 2002 MRI. Dr. Banks opined that this was a progression of the employee’s 1999 work injury, and an anterior discectomy and fusion at C6-7 was performed.
On November 7, 2002, Dr. Banks permanently restricted the employee from all work as a result of his back and neck conditions. On February 11, 2003, additional surgery was performed by Dr. Banks to remove hardware from the employee’s L4-S1 level.
The employee’s neck and low back symptoms recurred, and on June 16, 2004, a lumbar spine MRI showed moderate disc degeneration at L3-4, with some broad-based disc herniation, and a subsequent discogram confirmed abnormal disc morphology at that level. In November of 2004, the employee’s fusion was extended to include L3-4.
The employee continued to experience neck and back symptoms, and, in May of 2009, Dr. Banks recommended hardware removal at the L3-4 level as a way to address the low back pain. This procedure was performed in June of 2009.
The employee developed progressively worsening neck pain, and an MRI on February 8, 2010, showed severe stenosis with a large central disc herniation at C3-4. Dr. Banks performed a fusion at C3-4 on March 31, 2010.
The employee filed a petition to vacate the 2001 award on stipulation, in December of 2010, on the basis of a substantial change in medical condition.
Subsequently, on February 11, 2011, Dr. Banks performed a decompression and fusion at L2-3. Shortly thereafter, on February 15, 2011, Dr. Banks wrote that the employee’s current back and neck problems were related to the 1999 work injury. He rated the employee as having a 35% whole body disability, and he stated that the progressive worsening of the employee’s neck and low back problems could not reasonably have been anticipated at the time of the 2001 award.
Pursuant to Minn. Stat. § 176.461, this court may vacate an award for cause, which includes a substantial change in medical condition “that was clearly not anticipated and could not reasonably have been anticipated at the time of the award.” The employee contends that there has been a substantial change in his medical condition since the time of the award on stipulation.
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. A 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. The causal relationship between the work injury covered by the settlement and the employee’s current worsened condition; and
6. The contemplation of the parties at the time of the settlement.
Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989) (citations omitted). These factors are to be applied in a manner consistent with the requirement that the change be one that was clearly not anticipated and could not reasonably have been anticipated. Powell v. Abbott Northwestern Hosp., slip op (W.C.C.A. Aug. 17, 1995).Change in Diagnosis
At the time of the award, the employee was post-fusion at L4-S1 for treatment of severe L4-S1 disc degeneration and bilateral L5-S1 foraminal stenosis with a right disc herniation. His diagnosis for his cervical spine condition was chronic cervical strain superimposed on degenerative changes.
At the time of the petition to vacate, the employee had been diagnosed with post-cervical fusion for disc herniation at C4-6, post-discectomy and fusion at C6-7 for disc herniation at that level, post-fusion at L3-4 for herniation at that level, and stenosis and herniation at C3-4.
The employer contends that the employee’s diagnosis at the time of the stipulation was degenerative disc disease and that there has been no substantial change in the employee’s diagnosis since that time. We disagree and conclude that the occurrence of additional disc herniations after the award on stipulation provides adequate indication of a substantial change in diagnosis.
Change in Ability to Work
At the time of the stipulation for settlement, the employee was working. At the time of the petition to vacate, the employee had been declared by Dr. Banks to have been permanently totally disabled for over eight years. At oral argument, counsel for the employer conceded that there has been a substantial change in the employee’s ability to work, arguing only that this change was anticipated.
Increase in Permanent Partial Disability
The parties agree that, prior to the award on stipulation, Dr. Banks had rated the employee as having a 20% whole body disability related to the lumbar spine and a 10% whole body disability related to the cervical spine.
In his report of February 15, 2011, Dr. Banks rated a 20% whole body disability related to the lumbar spine and a 15% disability related to the cervical spine. This does not appear to be a substantial increase in permanent partial disability.
The employee has undergone six additional surgeries since the time of the award on stipulation. The employee contends that the surgeries cost over $100,000. At oral argument, counsel for the employer conceded that the surgeries cost a “substantial” amount of money but argued that this factor should carry less weight because all medical care, including the surgeries, has been paid for by the employer.
This court has held that this factor carries less weight where a stipulation for settlement leaves future medical benefits open. Burke v. F-M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996). However, it is still a factor to be considered, and, in this case, there has been extensive and costly medical care since the time of the award on stipulation.
At oral argument, counsel for the employer conceded that, if there has been a substantial change in the employee’s medical condition, then that worsened condition is causally related to the 1999 work injury.
The employer contends that, because the employee began receiving PERA disability benefits on January 17, 2002, he must have known, at the time of the award on stipulation, that he would soon be quitting his job with the employer because of neck and back pain. There is no evidence in the record before us that would support that assumption.
The evidence, instead, establishes that the employee did not anticipate and could not reasonably have anticipated the change in his condition. Medical records from August of 2001 indicate that Dr. Banks believed that the employee’s “prognosis should be quite good” within the restrictions the doctor had recommended, and he did not suggest that the employee required any additional treatment at that time. In his affidavit attached to the petition to vacate, the employee indicated that he was not having consistent neck or back pain at the time of the settlement and had been advised by Dr. Banks that he did not require additional treatment. And, in his letter of February 15, 2011, Dr. Banks stated that “the extensive progressive degenerative problems that [the employee] has experienced are certainly out of the ordinary and as such could not be reasonably anticipated.”
The employer also contends that even if this court determines that there was a substantial change in the employee’s condition after the award on stipulation, “the employee, acknowledged, in his own hand when answering the questions in that stipulation for settlement, that he anticipated the possibility of that change.” We are not persuaded.
As stated above, the medical records and report of Dr. Banks clearly establish that the doctor did not anticipate the changes that occurred in the employee’s medical condition after the award on stipulation. The employee’s affidavit indicates that he did not anticipate the changes that occurred. The employee’s response to a question asking if he understood that his condition “might” change in the future is not evidence that the employee “anticipated” a change in his medical condition.
The employee has shown a change in diagnosis, a change in ability to work, the need for more costly and extensive medical care than anticipated, and a causal relationship between his current worsened condition and his 1999 work injury. We therefore find that the employee has established a substantial change in medical condition that was not anticipated and could not reasonably have been anticipated, and we grant the employee’s petition to vacate the September 20, 2001, award.
 In his petition to vacate, the employee contended that he had also been diagnosed with chronic pain syndrome and had been rated as having a 32% whole body disability for this consequential psychological injury. At oral argument, both parties agreed that a 2008 stipulation for settlement closed out all claims for the employee’s psychological condition, including claims for related permanent partial disability.
 The issue of anticipation of the employee’s need for that treatment will be addressed in the section on contemplation of the parties.
 Specifically, the employee had answered yes to the questions, “Do you realize and understand that in entering into this Stipulation for Settlement the difficulties that your work-related injuries [caused] might change in the future and become substantially worse than they are at the present?” and “Do you realize and understand that in entering into this Stipulation for Settlement if your condition unfortunately should become worse in the future, it could involve a very large amount of medical and surgical expense and disability of a very serious and prolonged nature?”