STEVEN BETCHER, Employee/Petitioner, v. MODERN TOOL, INC., and BITUMINOUS CAS. CORP., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 11, 2012
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. When the employee had additional surgeries and additional permanent partial disability since the settlement, his ability to work has apparently changed, and he submitted medical evidence establishing a connection between the work injury and his current condition, good cause had been shown to vacate.
Petition to vacate award on stipulation granted.
Determined by: Wilson, J., Hall, J. and Milun, J.
Attorneys: Thomas D. Mottaz and David B. Kempston, Coon Rapids, MN, for the Petitioner. Richard L. Plagens, Kay Nord Hunt, and Bryan R. Feldhaus, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee petitions to set aside a July 1987 award on stipulation based on a substantial change in condition. Finding sufficient cause to vacate, we grant the employee’s petition.
The employee sustained a work-related injury to his back on November 13, 1970, when he was eighteen years old. The employer and insurer admitted liability for the injury and paid various workers’ compensation benefits, including temporary total and permanent partial disability benefits and medical expenses. The employee was diagnosed as having a herniated L4-5 disc and on April 19, 1972, he underwent a bilateral decompressive laminectomy of the L5 nerve root and excision of the L4-5 disc. He did not have a good result and on June 23, 1972, two months later, he underwent a second decompressive laminectomy of the L5 nerve root and a transverse process fusion bilaterally from L4 to S1.
The employee went without additional medical treatment from September 15, 1972, to June 21, 1976. In June of 1976, the fusion was determined to be solid, and, while the employee reported experiencing occasional symptoms in his leg, he was released from care.
In late 1983 or early 1984, the employee sustained a back injury while helping a friend lift a roof truss. On January 6, 1984, the employee was seen by Dr. Robert Field, complaining of back pain and of having intermittent mild back pain over the past several years, the pain being more severe in the past two months. An x-ray revealed some overgrowth in the superior portion of the graft that appeared to be irritating the facet joint of L3-4. Dr. Field opined that the employee could return to light-duty work and rated the employee as having a 25% permanent partial disability of the spine.
On February 15, 1984, the employee was seen by Dr. Robert Mumby. At that time, the employee reported having experienced back pain while lifting a 250-pound truss and that he had been unable to work since January 6, 1984. In August of 1984, after conservative treatment failed, the employee’s fusion was extended to L3-4. From 1984 to 1987, the employee continued to treat with Dr. Mumby for back pain. In January of 1987, the employee entered into a stipulation for settlement that closed out permanent partial disability benefits to 35% of the back.
On July 20, 1987, the employee was seen again by Dr. Mumby, complaining of back pain aggravated by bending and lifting. His pain was located at the L2-3 level of his spine, with some degenerative changes, at that level, noted on x-ray. According to his office note of that date, Dr. Mumby believed that the employee “should be able to be gainfully employed in a light-duty capacity.” Also in July of 1987, the employee entered into a stipulation for settlement, at which time he claimed that he was permanently totally disabled and the employer and insurer contended that he was not. Under the terms of the settlement, the employee was paid $81,500.00 in full, final, and complete settlement of all past, present, and future claims, with the exception of claims for reasonable and necessary medical expenses. An award on stipulation was filed on July 21, 1987.
Following the stipulation, the employee continued to treat for back pain. On June 6, 1988, the employee underwent a posterior spinal fusion with instrumentation from T12 through L5, performed by Dr. Grady McBride. Dr. McBride had recommended this surgery because of spinous process impingement and degenerative changes at the L2-3 level. The employee followed up with Dr. McBride and Dr. Mumby, who released him on October 17, 1989, to treat as needed.
On April 27, 1999, the employee was examined at the Twin Cities Spine Center. He reported that he had done well for the past nine or ten years with only a low level of aching in his back. At the time of the exam, he complained of severe spasms. On July 29, 1999, he underwent posterior instrumentation removal and posterior pseudoarthrosis repair and instrumentation along with anterior spine fusion at L2-3.
By February of 2004, the employee was reporting daily back spasms. He was eventually diagnosed with chronic low back pain and treated with medications, a brace, and a TENS unit. Subsequently, on February 17, 2005, the employee underwent removal of the posterior instrumentation from L2 to S1. Later that year, on December 20, 2005, he underwent a T9-10 laminectomy with placement of a spinal cord stimulator. He nevertheless continued to experience back pain with pain radiating into his thighs and calves.
On June 16, 2011, the employee was examined by Dr. Robert Wengler. Dr. Wengler opined that the employee’s work injury had caused him to develop “a cascade of degenerative instability at the juxtafusion discs ultimately requiring extension of the fusion up to the T12 and placement of the spinal cord stimulator for intractable pain.” It was his opinion that the employee was permanently totally disabled and had a 50% permanent partial disability of the back.
The employee filed an application to set aside the award on stipulation on February 9, 2012. The employer objected, and oral argument was heard on June 11, 2012.
Pursuant to Minn. Stat. § 176.461 (1986), an award may be set aside “for cause,” which, pursuant to case law, includes a substantial change in condition. In Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993), the Minnesota Supreme Court further explained that, under pre-1992 law, the inquiry in change of condition cases was limited to the extent of improvement or worsening of the injury, with no need to show that the change in condition was unanticipated.
The employee contends that reasonable grounds exist to vacate the July 21, 1987, award on stipulation because his condition has substantially changed since the time of that stipulation and because the benefits paid per the award on stipulation “are not commensurate with the degree of disability experienced by the employee.”
A number of factors may be considered in determining whether an award should be vacated on the basis of substantial change in condition, including:
a) A change in diagnosis;
b) A change in the employee’s ability to work;
c) Additional permanent partial disability;
d) Necessity of more costly and extensive medical care/nursing services than initially anticipated;
e) Causal relationship between the injury covered by the settlement and the employee’s current worsened condition; and
f) Contemplation of the parties at the time of the settlement.
Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).
1. Change in Diagnosis
The employee contends that, at the time of the stipulation for settlement, his diagnosis was a stable fusion from L3 to S1. Dr. Wengler has now diagnosed the employee with “chronic discogenic low back pain and sciatica, status post multiple surgeries with reported stable fusion from T12 through sacrum.”
The employer and insurer contend that the diagnosis has not changed but has been “relatively stable over the past 42 years.”
The employee’s diagnosis in 1987 did not include chronic pain or involvement of the T12-L2 spinal levels. There is adequate evidence that the employee’s diagnosis has changed.
2. Change in Ability to Work
At the time of the award on stipulation, Dr. Mumby had opined that the employee “should be able to be gainfully employed in a light-duty capacity.” Dr. Wengler now opines that the employee is permanently totally disabled. There being no evidence to the contrary, for purposes of vacation of the award on stipulation, the employee has established a change in his ability to work.
3. Additional Permanent Partial Disability
The employee had been rated with a 35% permanent partial disability of the back, and permanency had been closed out to that extent at the time of the July 1987 award on stipulation. Dr. Wengler has since rated the employee with a 50% permanent partial disability of the back.
The employer and insurer’s argument is that “the pre-1984 nonscheduled rating system is significantly subjective and lacks the objectivity inherent in the current rating system.” On that basis, the employer and insurer dispute that the employee has had a change in permanent partial disability. However, the employer and insurer did not submit any medical opinion disputing Dr. Wengler’s 50% rating. The employee has adequately established that he has sustained additional permanency since the issuance of the award.
4. Necessity of More Costly and Extensive Medical Care than Initially Anticipated
The employee contends that none of the providers with whom the employee treated before the award on stipulation anticipated the need for further fusion surgery or implantation of a spinal cord stimulator. The employer and insurer cite to Burke v. F & M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996), as support for their position that the need for additional treatment is less important when medical expenses are not closed out by the award. However, this court has also repeatedly stated that changes in the extent of treatment since the time of the stipulation may be useful evidence bearing on whether there has been a substantial change in the employee’s medical condition. Vellieux v. Catholic Charities, No. WC06-223 (W.C.C.A. Mar. 8, 2007). There is no evidence indicating that the additional surgeries were anticipated. This factor also weighs toward vacation.
5. Causal Relationship
The employee contends that his treating doctors and Dr. Wengler have all related his chronic low back and lower extremity symptoms to his work injury. The employer and insurer nevertheless contend that the employee “cannot establish any causal relationship between his injury of November 13, 1970, and his current medical condition.”
The exhibits submitted as part of the employee’s petition to vacate contain sufficient medical opinion evidence connecting the employee’s current medical condition to his work injury in 1970. The employer and insurer offered no recent medical opinion stating otherwise. For purposes of the petition to vacate, the employee has adequately established a causal relationship between his worsened condition and the 1970 work injury.
6. Contemplation of the Parties
The employee contends that, at the time of the stipulation for settlement, he contemplated returning to work and did return to work but, in 2007, he was unable to continue working as a result of his injury. The employer and insurer contend that the language of the stipulation confirms the employee’s contemplation that the settlement would fully and finally settle his claims.
Unless the parties are in agreement, it is often difficult to determine precisely what was contemplated at the time of a settlement. The language from the stipulation, which is quoted by the employer and insurer as evidencing the employee’s acknowledgement that the settlement was a full, final and complete settlement, is the same as or similar to language contained in virtually all settlements of this sort. That standard language does not serve as a bar to the vacation of an award on stipulation where the employee has otherwise proven a substantial change in his condition.
Finally, the employer and insurer contend that they “are entitled to have the issues of fact presented here referred to a Compensation Judge for hearing and determination.” We are not persuaded. Minn. Stat. § 176.521, subd. 3, provides that, “in appropriate cases, the court of appeals may refer the matter” to a compensation judge for hearing. However, referral is never mandatory. In limited circumstances, this court has referred petitions to vacate to the Office of Administrative Hearings for specific fact finding, but typically only when medical opinions conflict or credibility issues exist. In this case, the employer and insurer have provided no medical opinion to contradict Dr. Wengler, nor have they suggested that there are credibility issues. We see no reason to refer this case for findings.
The employee’s petition to vacate is granted. However, nothing in this decision should be construed as a finding as to diagnosis, ability to work, permanent partial disability, or causation for purposes of future litigation.
 In September of 1999, Dr. Paul Wicklund performed an independent medical examination of the employee at the request of the employer and insurer. In his report of September 20, 1999, Dr. Wicklund opined that the 1970 work injury was not a substantial contributing cause of the employee’s condition at that time. However, in September of 2004, Dr. Mark Larkins performed an independent medical examination of the employee and opined that the employee’s condition at that time was related to his work injury.
 “The employee agrees to accept said payments in full, final and complete settlement and satisfaction of any and all claims that he might have, past, present, and future…irrespective of any future changes in the employee’s condition, capacity, and functional ability (physical and/or mental).”