STEVEN K. HAUGEN, Employee/Petitioner, v. DIETMAN SANITATION SERV. and EMPLOYERS INS. OF WAUSAU, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 26, 2003

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where evidence as to the causal connection between the employee=s work injury and his current worsened condition was equivocal, and where the causation issue was critical to this court=s resolution of the petition to vacate, the matter was referred to the Office of Administrative Hearings for an evidentiary hearing and findings, after which this court will make a final determination on the petition.

 

Petition to vacate referred to OAH for evidentiary hearing.

 

Determined by Wilson, J., Johnson, C.J., and Pederson, J.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee petitions to vacate the award on stipulation filed on December 9, 1987, on the basis of a substantial change in condition.  We refer the matter to the Office of Administrative hearings for an evidentiary hearing.

 

BACKGROUND^[1]

 

The employee was a garbage thrower for Dietman=s Sanitation Service [the employer] on March 11, 1986, when he sustained an injury to his low back, for which he underwent a lumbar discectomy at L5-S1.  The employee=s surgeon, Dr. A. R. Watts, rated the employee as having an 11% whole body impairment on September 9, 1986, and restricted him from lifting over fifty pounds or prolonged standing.  On September 19, 1986, Dr. Watts opined that the employee had reached maximum medical improvement from the work injury.  The employer and insurer paid temporary total disability compensation from March 14, 1986, through December 12, 1986, and impairment compensation for a 10.29% whole body impairment.^[2]  

 

The employee=s condition eventually worsened, and, on June 22, 1987,  he underwent a lumbar discectomy and foraminotomy for a right intraforaminal disc extrusion at L5-S1.  On July 23, 1987, the employee filed a claim petition seeking temporary total disability compensation continuing from June 12, 1987.  The employer and insurer answered, denying liability for the March 11, 1986, work injury.  The claim petition was eventually amended to include claims for reimbursement of medical expenses and medical mileage.

 

The parties entered into a stipulation for settlement in December of 1987, at which time the employer and insurer admitted liability for the claimed work injury but denied that the employee=s outstanding medical expenses, lost time from work, and need for rehabilitation were causally related to that injury.  Pursuant to the stipulation, the employer and insurer paid the employee a lump sum of $28,000 for a 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 December 9, 1987.

 

On January 22, 1993, the employee underwent spinal fusion from L4 through S1.  About six weeks later, on March 9, 1993, Dr. Eric Green reported that the employee=s leg symptoms had completely resolved and he was having some back discomfort, which was characterized as tolerable.  However, on October 22, 1993, Dr. Watts reported that the employee Awas continuing to complain of a lot of low back pain,@ which he was Aunable to put up with,@ even though the fusion showed no movement and there was no abnormal movement adjacent to the fusion.  On March 4, 1994, Dr. Watts wrote that the employee then had unspecified limitations on his work-related activities that were not evident in 1987 and that could not have been foreseen.

 

On April 25, 1994, the employee filed a petition to vacate the 1987 award on stipulation on the grounds of a substantial change in medical condition.   In a decision filed on August 9, 1994, this court denied the petition, based in part on the employee=s failure to show a change in ability to work or causation for the worsened condition.

 

Since the issuance of our 1994 decision, the employee has undergone two additional surgeries, a fusion from L1 through L-4 on October 11, 1999, and a fusion from T10 through L3  in July of 2002, performed by Dr. Manuel Pinto.  In addition, the employee represents that he has not worked since 1994 and that he now receives social security disability benefits. In a report dated November 19, 2002, Dr. Pinto opined that the employee was Anot capable of meaningful gainful employ at this time.@

 

On April 1, 2003, the employee filed another petition to vacate the December 9, 1987, award on stipulation based on a substantial change in condition.  The employer and insurer object to the petition.

 

DECISION

 

Applying the factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989),  we first note that there has been a change in diagnosis since the time of the award on stipulation.  While the diagnosis at the time of the stipulation was Apost-discectomy low back pain@ and the employee=s diagnosis on October 28, 2001, was chronic low back pain secondary to disc problems and status post multiple surgeries, a lumbar myelography and CT scan performed on January 24, 2002, suggests incomplete fusions at L1-2 and L2-3.

 

The employee has also demonstrated a change in his ability to work, as he was working full time at the time of the stipulation for settlement, but is now, according to Dr. Pinto, unable to work.

 

While the employee has not obtained a doctor=s report rating additional permanent partial disability, we take judicial notice of the applicable permanency schedules, which rate each fused spinal level at 5% of the body as a whole. 

 

With regard to the necessity of more costly and extensive medical care than was initially anticipated, we note that this court stated in its earlier decision that substantial additional medical care was clearly anticipated at the time of the award on stipulation.^[3]  However, Dr. Pinto has now opined that the fusions that the employee eventually underwent were not anticipated.

 

The employee did not address, in his brief, the causal relationship between the injury covered by the settlement and his current worsened condition.  However, at oral argument, counsel for the employee indicated that he was relying on the opinions of Dr. Pinto and of independent medical examiner Dr. Rodney H. Peterson.  Dr. Peterson, in a report of April 12, 2002, opined that the fusion recommended at that time was reasonable treatment.  Dr. Peterson did not, however, render an opinion as to whether the surgery was causally related to the 1986 work injury. And, while the insurer paid for the surgery, counsel for the employer and insurer contended at oral argument that medical bills had been paid by mistake.   Moreover, Dr. Pinto=s opinion is equivocal.  He stated,

 

Regarding your last question, I cannot answer that question to a reasonable degree of medical certainty.  It is certainly possible that the work injury played a role in this patient=s disc problems; however, this patient also has underlying degenerative disc disease which has progressed with time.  I believe that the fusions, by transmitting some increased stress to the levels above and below can accelerate degenerative processes above and below the fusion and, in that sense, if the fusion originally done (which seems to be the case) was related to the work injury, then it could relate the need for further fusion surgery to the original injury.

 

The question of causation is critical to this court=s resolution of this petition to vacate, and we believe that the issue should be more fully explored.  We therefore refer this matter to the Office of Administrative Hearings for an evidentiary hearing and findings on the issue of causation.  Specifically, the compensation judge should address what the employee=s current condition is and whether that condition is causally related to the 1986 work injury.  After findings have been made, the matter should be returned to this court for final determination on the employee=s petition to vacate.