Brovitch v. Park Landscaping

JOHN F. BROVITCH, Employee/Petitioner, v. PARK LANDSCAPING and FLORIST MUT. INS. CO./CRAWFORD & CO., Employer.

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where there was conflicting evidence as to whether the employee=s work-related condition had substantially worsened since the issuance of the award on stipulation, and where there was no medical opinion specifically addressing the employee=s current ability to work or permanent partial disability, the court deemed it appropriate to refer the matter to the Office of Administrative Hearings for an evidentiary hearing and findings, prior to final determination of the employee=s petition to vacate.

Attorneys: William J. Krueger, Attorney at Law, New Brighton, MN, for the Petitioner. Christopher R. Grote, Richard L. Plagens and Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, Minneapolis, MN, for the Respondents.

OPINION

The employee petitions to vacate a 1991 award on stipulation based on a substantial change in medical condition. We refer the matter to the Office of Administrative Hearings for an evidentiary hearing and determination as to whether there has been a change in the employee=s ability to work, whether the employee has additional permanent partial disability, and whether the employee=s current condition is causally related to his work injury.

The employee was employed by Park Landscaping [the employer] on September 6, 1988, when he sustained a work-related injury to his back. The employer and insurer admitted liability for the injury and paid wage loss benefits and medical expenses.

A CT scan performed on September 14, 1988, revealed in part Aa small central left disc herniation at L4-5,@ which appeared to displace the left L5 nerve root posteriorly.

In April of 1989, the employee began to treat with orthopedic surgeon Dr. Richard Smookler. At the time, the employee was complaining of low back pain and pain into both legs, right more than left. An MRI was performed on July 25, 1989, and revealed in part a small central disc herniation at L4-5, without neural compression. Dr. Smookler continued the employee on exercise and restrictions.

The employee was examined by neurosurgeon Dr. Richard Gregory on November 8 and 27, 1989. Dr. Gregory noted that the employee=s EMG was not positive for evidence of radiculopathy and that the employee had no obvious atrophy or weakness. Dr. Gregory reviewed with the employee Aa list of non-surgical things@ and gave him instructions on activity restrictions and complications to watch for, indicating that the employee Amay become a candidate for lumbar laminectomy.@

A repeat EMG performed on June 4, 1990, was within normal limits. In June of 1990, Dr. Smookler continued the employee=s restrictions and exercises and noted that the employee=s low back Aremained unchanged.@

The employee began treatment with Dr. David Witte, D.C., on July 6, 1990. Dr. Witte diagnosed lumbar disc syndrome with associated radicular symptoms and began a series of chiropractic treatments.

Dr. Jeffrey Bonsell conducted an independent medical examination on November 21, 1990. He diagnosed a chronic intervertebral disc herniation and opined that the employee was not at maximum medical improvement [MMI] at that time. Dr. Bonsell also opined that the employee might possibly need surgery if his symptoms continued and Aelectrodiagnostic findings warrant that.@

In January of 1991, the parties entered into a stipulation for settlement, wherein the employer and insurer agreed to pay the employee $19,500 for a full, final, and complete settlement of any and all claims arising out of his work injury, with the exception of medical expenses. At the time of the stipulation, the employee was contending that he was temporarily totally disabled and in need of ongoing medical care, including chiropractic care. It was the employer and insurer=s position that the employee was at or near MMI and that chiropractic care was not reasonable or appropriate. An award on stipulation was filed on January 24, 1991.

On April 7, 1997, the employee was seen in the emergency room of St. Paul-Ramsey Medical Center with complaints of rib pain due to a fall days before. The records from that visit indicate that the employee had a long history of his legs giving out. On August 29, 1997, the employee returned to the emergency room, complaining of low back pain radiating down the left leg.

An MRI taken on September 12, 1997, revealed a posterior central and left paramedian disc herniation at L4-5 with neural impingement at L5. When the employee was seen by Dr. Gregory on December 22, 1997, the doctor noted atrophy of the left lower leg from the knee to the ankle and diminished sensation in the L4-5 dermatomes. Dr. Gregory indicated that the employee would be a candidate for a lumbar laminectomy at L4-5 on the left, with decompression of the left L5 nerve root, if his symptoms persisted. On January 7, 1998, Dr. Gregory made the recommendation for surgery.

Dr. Larry Stern conducted an independent medical examination on April 16, 1998. In his report of that date, Dr. Stern opined that the surgery recommended by Dr. Gregory was reasonable and appropriate and that the herniated disc at L4-5 was related to the 1988 work injury.

The employee underwent surgery on June 1, 1998, in the form of a partial hemilaminectomy at L4-5 on the left, with decompression of the left L5 nerve root and removal of the herniated disc. The employee initially reported that his pain was better following the surgery but, by July of 1998, the employee was again complaining of low back and left leg pain.

In December of 1998, Dr. Gregory concluded that the employee was a chronic pain patient and referred him to Dr. Stephen Wagner at the United Pain Center. In February of 1999, Dr. Wagner diagnosed epidural fibrosis and nerve root entrapment syndrome. Nerve blocks and various medications, including narcotics, were tried thereafter, but the employee experienced no long term relief. In February of 2000, Dr. Wagner diagnosed post laminectomy syndrome and arachnoiditis with epidural scarring, and a possible trapped left L5 nerve root. It was his opinion that the employee was a potential candidate for a spinal cord stimulator if his condition failed to improve.

Another MRI was performed on July 15, 2003, and revealed Asome element of underlying adhesive arachnoiditis.@ The employee petitions this court to vacate the 1991 award on stipulation based on a substantial change in condition. The employer and insurer object.

For awards issued prior to July 1, 1992, Acause@ to vacate includes a substantial change in condition. A number of factors may be considered in determining whether an award should be vacated based on a substantial change in condition, including:

(e) causal relationship between the injury covered by the settlement and the employee=s current worsened condition.

Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989). The employee contends that a substantial change in his condition has occurred because there has been a change in diagnosis, a change in his ability to work, and additional permanent partial disability.

The employee=s contention that there has been a change in diagnosis is well supported by the medical records submitted with the petition to vacate and the objection to that petition. At the time of the stipulation for settlement, the employee had been diagnosed with a small central disc herniation at L4-5 without neural compression; subsequent to the award on stipulation, the L4-5 disc herniation progressed and impinged on the L-5 nerve root. The employee had a poor response to surgery performed to treat the herniation and now suffers from adhesive arachnoiditis.

However, there is no medical evidence before this court by which we can evaluate the contention that there has been a change in the employee=s ability to work. In a deposition taken on March 18, 1998, the employee testified that, at the time of the stipulation for settlement, he had not worked for approximately two years, but that in 1991 he took a job driving cab. The employee further testified that he worked periodically from 1991 until October of 1997, at which time he stopped working because Athe pain was so bad, I couldn=t hardly walk anymore.@ No recent medical records were submitted that would indicate the employee=s current ability to work. While the employee points to the Social Security Administration=s determination that he qualified for supplemental security income as of September 1999, the social security decision submitted with the petition to vacate does not specify the medical condition upon which that award was premised.

Similarly, the employee did not provide this court with any medical opinion regarding his current level of permanent partial disability. We note that a 19% whole body impairment rating had been made by a doctor prior to the award on stipulation, and it is unclear whether the employee=s permanent partial disability would now be greater.[1]

As for the employee=s need for additional medical care, this court has held that this factor is entitled to less emphasis when medical expenses have not been closed out by the award on stipulation. Burke v. F&M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996). We would note, however, that while surgery was arguably anticipated at the time of the award on stipulation, treatment for arachnoiditis was not.

Finally, the employee did not submit a current medical report definitively linking his current condition to the 1988 work injury. However, in 1998 Dr. Stern related the employee=s need for surgery at that time to the work injury.

There is conflicting evidence as to whether there has been a substantial change in the employee=s condition, and no medical evidence was submitted specifically addressing whether there has been a change in the employee=s ability to work or permanent partial disability, or whether the employee=s current condition is causally related to the 1988 work injury. Under these circumstances, we deem it appropriate to refer this matter to the Office of Administrative Hearings for an evidentiary hearing and findings. Following the hearing and decision, the matter should be returned to this court, at which time we will make a determination as to whether there has been a substantial change in condition sufficient to vacate the 1991 award on stipulation.

[1] In making this observation, we do not intend to suggest that the employee=s condition at the time of settlement necessarily qualified for a 19% rating.