SETH JETLAND, Employee/Petitioner, v. WAL-MART STORES, INC., and AMERICAN HOME ASSURANCE CORP./AIG/CLAIMS MGMT., INC., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 19, 2012
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The employee sufficiently established an unanticipated substantial change in diagnosis, ability to work, additional permanent impairment, and more costly and extensive medical care causally related to the subject of the October 2007 Stipulation for Settlement to warrant vacation of the award on stipulation.
Petition to vacate award on stipulation granted.
Determined by: Johnson, J., Wilson, J. and Hall, J.
Attorneys: Steven M. Bradt, Bradt Law Offices, Grand Rapids, MN, for the Petitioner. Christopher E. Sandquist, Gislason & Hunter, Mankato, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee petitions to vacate an Award on Stipulation, served and filed October 16, 2007, on the basis of a substantial change in medical condition. Concluding the employee has established good cause, we grant the petition.
Seth Jetland, the employee, sustained a personal injury to his low back on October 2, 2004, arising out of his employment as an overnight stocker at Wal-Mart Stores, Inc., the employer. In a Findings and Order served and filed August 25, 2005, a compensation judge found the employee sustained a permanent, compensable injury and awarded various medical and indemnity benefits. Wal-Mart and its insurer, American Home Assurance Company/AIG, thereafter paid medical and indemnity benefits to the employee prior to the settlement of his claim.
The employee had persistent low back and right leg symptoms, and in May 2005, was referred to Dr. Francis Denis at the Twin Cities Spine Center. The employee was then working as a clerk at Sam Goody with a 30 pound weight restriction. An MRI scan obtained March 1, 2005, showed a herniated disc at L5-S1 with impingement on the right S1 nerve root and degenerative disc disease at L4-5. Dr. Denis opined the employee’s low back pain was likely due to both degenerative discs and offered three treatment options: continued conservative care; a decompression of the L5-S1 disc; or a fusion of L4 to S1. Dr. Denis observed the employee “does understand that being a young man of 21 years, down the road he may have a problem with discs above the level of his fusion.” The employee elected to continue conservative care at that time.
The employee returned to see Dr. Denis on December 15, 2005. The doctor noted the employee had severe low back pain that was affecting all facets of his life, and stated the employee was then a candidate for fusion surgery. The surgery, consisting of an anterior-posterior fusion with instrumentation from L4 to S1, placement of anterior spinal interbody implant, and a right foraminal decompression at L5-S1, was performed on February 28, 2006. The employee made a good recovery, and was released to return to work in May 2006. At the employee’s one-year follow-up in February 2007, Dr. Denis observed the employee was doing well overall with no leg pain and minimal back pain. X-rays showed the spinal fusion was solid and the instrumentation was in good position with no evidence of loosening. The employee was working full time without significant difficulties. Dr. Denis stated maximum medical improvement (MMI) had been reached, provided a permanent lifting restriction of 35 pounds, and assessed a permanent partial disability rating of 19% to the body as a whole.
On March 3, 2007, the employee’s qualified rehabilitation consultant (QRC) reported the employee was working three jobs with no wage loss. The employee reported adequate work tolerance, had permanent restrictions, and had been released from his doctor’s care. In light of these facts, the QRC concluded no further rehabilitation services were required, and the file was closed.
Shortly thereafter, the employee asked his attorney to recommence settlement discussions with Wal-Mart. There were no claims pending at the time other than a protective claim for retraining. In October 2007, a Stipulation for Settlement was entered into between the parties in which the employee agreed to accept $25,000.00, less attorney fees of $5,200.00, in return for a full, final and complete settlement of all claims, leaving open only reasonable and necessary medical expenses related to the injury of October 2, 2004. An Award on Stipulation was issued by a compensation judge on October 16, 2007.
More than 2½ years after the fusion surgery, in October 2008, the employee returned to Dr. Denis reporting back pain over the past several months with occasional radiation down his legs. There was some suggestion the symptoms might be coming from the instrumentation, but there is no evidence of further treatment at this time. At about this same time, the employee began working as a floor sales associate at Target.
In May 2009, the employee was seen at the Grand Itasca Clinic reporting a flare-up of low back pain radiating into the right hip and some numbness and tingling in the right foot. He returned to Dr. Denis who performed a second surgery on June 26, 2009, consisting of removal of the spinal instrumentation from L4 to S1. The doctor noted a CT scan showed no involvement of the adjacent levels. The employee reported the pain and pressure in his lower back improved significantly following the surgery. He was released to return to work in July 2009, and was released from care by Dr. Denis on August 10, 2009.
In September 2009, the employee was seen at Grand Itasca Clinic with an abrupt onset of severe back pain after bending over at work. The doctor diagnosed an acute lumbar strain and prescribed a muscle relaxant. In December 2009, an MRI scan showed a moderate disc herniation at L3-4 protruding into the right L3 neural foramen. The employee was seen by Dr. Denis who noted the employee felt better after the removal of the instrumentation, but then started having problems with his back “giving out.” The employee reported weakness in the right leg and tripping over his right foot. The doctor diagnosed a herniated disc at L3-4 with right L3 and possible L4 radiculopathy.
A right L3-4 foraminotomy and discectomy with release of the L3 nerve root was performed by Dr. Denis on February 29, 2010. Following the surgery, the employee reported his radicular symptoms resolved, but he continued to have some low back pain and right hip pain. He was released to return to work with a 20 pound weight restriction, was provided physical therapy, and was prescribed pain medications.
The employee continued to have chronic low back and right hip pain. On about May 16, 2010, he bent over and felt a pop in his back and hip, followed by radicular symptoms into the right leg. The employee was seen by Dr. Denis on June 28, 2010, who noted low back pain with radiating pain into the left hip and down the right leg to the foot. The doctor diagnosed a large, recurrent herniation at L3-4 and recommended a decompression and fusion at that level. The employee continued to work at Target, but reported increasing back pain and bilateral lower extremity symptoms.
A fourth surgery was performed by Dr. Denis on December 3, 2010, consisting of a posterior spinal reconstruction and fusion with instrumentation at L3-L4, and a decompression of the right L3 nerve root. The employee had a difficult recovery and was taken off work for four months to allow his back to heal. At his three month follow-up with Dr. Denis, the employee reported “horrible” back pain with pain radiating down the left leg to the knee. CT scans of the lumbar spine in March and May 2011 showed evidence of a loose screw and/or fracture of the pedicle. The employee was taking narcotic medication for pain and walking with a cane as his left knee buckled when walking.
By August 2011, a CT scan showed a solid fusion. The employee had not, however, improved, experiencing persistent low back and left leg pain, as well as occasional right leg pain. On December 6, 2011, Dr. Denis performed a fifth surgery on the employee’s low back. It was noted that following the L3-L4 fusion, the left L3 pedicle and left transverse process appeared to have separated from the rest of the posterior arch. The operation consisted of removal of the L3-4 instrumentation, exploration of the fusion which appeared to be solid, and decompression of both the left L3 and L4 nerve roots.
The employee was seen by Dr. Denis for a six-week follow-up on January 20, 2012. The employee described low back pain with a sharp pain in his left hip, thigh and foot with numbness in the left foot. He remained off work. Dr. Denis believed the employee was making some slow progress, and felt the employee would be a candidate for a six-week work hardening program with an eventual return to work.
On January 23, 2012, the employee filed a petition to vacate the October 16, 2007, Award on Stipulation, contending there has been a substantial change in his medical condition since the time of the award. The employer and insurer object to the employee’s petition.
This court may vacate and set aside an award on stipulation upon a showing of good cause. Minn. Stat. §§ 176.461 and 176.521, subd. 3. Cause includes “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(4). Cause sufficient to justify setting aside an award on the grounds of a change in medical condition exists where there is evidence of a substantial deterioration in the employee’s condition or significant additional disability since the time of the settlement and a showing of a causal relationship between the injury covered by the award and the employee’s present condition. Davis v. Scott Moeller Co., 523 N.W.2d 464, 51 W.C.D. 472 (Minn. 1994). In determining whether there has been a substantial change in condition, this court generally considers a number of factors including a change in diagnosis, a change in the employee’s ability to work, additional permanent partial disability, more costly and extensive medical care, and the contemplation of the parties at the time of settlement. Fodness v. Standard Cafe, 41 W.C.D. 1054 (W.C.C.A. 1989).
1. Change in diagnosis
At the time of the settlement, the employee had undergone a two-level fusion surgery from L4 to S1 with good results. Since that time, the employee has undergone four additional surgeries including removal of hardware at L4 to S1, a foraminotomy and discectomy at L3-4, a posterior spinal reconstruction and fusion with instrumentation at L3-L4 with decompression of the right L3 nerve root, and removal of the L3-4 hardware and decompression of both the left L3 and L4 nerve roots. The employer and insurer concede there has been a change in diagnosis with respect to the October 2, 2004, personal injury.
2. Change in ability to work
At the time of the stipulation for settlement, the employee was working three jobs, within the permanent restrictions provided by Dr. Denis, earning more than his pre-injury wage. Vocational rehabilitation services had been terminated. The employee has been unable to work since the December 2010 surgery.
The employer and insurer argue this factor should be given less weight, asserting that in January 2012, Dr. Denis felt the employee was a candidate for a work hardening program and an eventual return to work. The fact remains, however, that the employee, who at the time of the settlement was fully employed, has been unable to work for over a year following his fourth and fifth surgeries. There is adequate evidence to support the conclusion that there has been a change in the employee’s ability to work.
3. Additional permanent partial disability
The employee contends, based on a medical records review by Dr. William Fleeson, that he has sustained permanent partial disability to the body as a whole in excess of 35%. The employee was paid for a 19% permanency prior to the settlement. The employer and insurer contend the employee has sustained no more than an additional 2% permanency since the award, maintaining that such an amount is not a substantial increase and does not support the employee’s petition to vacate.
Since the award on stipulation, the employee has been diagnosed with a new herniated disc at L3-4, a recurrent herniated disc with symptoms at L3 and L4, has had an additional fusion at L3-L4, and two surgeries to remove hardware from his fusion surgeries. We need not calculate the amount of permanent partial disability at this point, but observe only that the employee has clearly sustained some significant additional permanent impairment as a consequence of his low back problems following the settlement. There is sufficient evidence that the employee’s permanent partial disability has increased since time of the stipulation for settlement.
4. Need for medical care
Where, as here, medical expenses are left open by the stipulation for settlement, the need for additional medical care carries less weight in determining whether a substantial change in medical condition has occurred. Burke v. F & M Asphalt, 54 W.C.D. 363, 368069 (W.C.C.A. 1996). However, this court has also noted that, even where medical expenses are left open, the need for more costly and extensive medical care remains useful evidence bearing on whether there has been a substantial change in the employee’s condition. See, e.g., Hughes v. Medcor, Inc., 69 W.C.D. 258, 269 (W.C.C.A. 2009). There is no dispute the employee has incurred substanial medical costs since the award on stipulation.
The employer and insurer concede there exists a causal relationship between the October 2, 2004, low back injury covered by the award on stipulation and the employee’s current low back condition.
6. Reasonable foreseeability of the change in condition
Pursuant to Minn. Stat. § 176.461(4) the employee must establish a substantial change in medical condition that “was clearly not anticipated and could not reasonably have been anticipated at the time of the award.” Prior to the first fusion surgery, Dr. Denis noted the employee, “being a young man of 21 years, down the road  may have a problem with discs above the level of his fusion.” The employer and insurer assert the question is, therefore, whether the parties reasonably contemplated that the employee might have problems in the future with adjacent discs above his L4-S1 fusion. We disagree.
While, as observed by Dr. Paul Wicklund, who performed an independent medical examination in October 26, 2010, progressive disc degeneration above a fusion is well documented, the employee in this case suffered from more than the usual progressive deterioration. Dr. Fleeson found the employee’s case “significantly unusual,” stating:
At the time of the first surgical procedure, there was nothing particularly un-ordinary about the clinical status of the patient except that he was young, and no one recorded any anticipation or the faintest expectation that he would have subsequent difficulties . . . . Even now looking in restrospect at all the file material in detail and in chronological order, I do not see that there was any conceivable clinical way to anticipate or predict that the subsequent events, including the subsequent surgeries, would occur. . . . Knowing now the details of all the subsequent events, and analyzing all the file material as it stands, I am unable to find any hint in the 2006-2007-2009 time period that would have suggested to any clinician that there was a significant likelihood of future needs for lumbar surgeries other than perhaps in the distant future . . . .
Since the 2007 award on stipulation, from June 2009 through December 2011, the employee has undergone four surgeries. His long-term prognosis is uncertain. There is nothing in the medical records following the initial fusion surgery in February 2006 until the settlement in October 2007, or for that matter, for more than three years after the initial surgery, to suggest such a course of events. We conclude the employee has established 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, and grant the employee’s petition to vacate.
 Dr. Denis initially assessed a 28% permanent partial disability rating consisting of 9% pursuant to Minn. R. 5223.0390, subp. 4.D., 9% under Minn. R. 5223.0390, subp. 4.D.(4) and 10% pursuant to Minn. R. 5223.0390, subp. 5. The insurer’s attorney objected, stating the operative report indicated the S1 nerve root only was affected and that Dr. Denis had provided a second 9% rating which was applicable only when there was more than one affected nerve root either at a contralateral side or at a different level. Dr. Denis agreed and modified his rating accordingly.