Rackow v. Midwest Coast Transp., Inc.

MICHAEL RACKOW, Employee/Petitioner, v. MIDWEST COAST TRANSP., INC., and CNA INS. CO., Employer-Insurer.

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION; PRACTICE & PROCEDURE - REFERRAL FOR EVIDENTIARY HEARING. Where there was no real dispute over the fact that the employee had suffered a substantial change in his medical condition since his settlement, but where there was conflicting evidence as to whether that change was causally related to the employee=s work injury, the employee=s petition to vacate his settlement on grounds of substantial change in condition was referred to the office of Administrative Hearings for an evidentiary hearing and findings, subject to appeal, on the causal relationship between the evident post-settlement changes in the employee=s condition and the employee=s work injury.

Attorneys: William H. Getts, William H. Getts, P.A., Minneapolis, MN, for the Petitioner. Thomas P. Kieselbach, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Respondents.

The employee petitions to vacate his 1985 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 the employee=s current condition is causally related to his work injury of December 31, 1979.

Michael Rackow, a lifelong resident of Winona, Minnesota, was born on March 26, 1952, and is currently fifty-four years old. Mr. Rackow has a long history of low back problems dating back to at least 1971. On March 3, 1971, while employed by Winona Industries, Inc., he injured his lower back while lifting a heavy bundle of vinyl. He sustained another injury to his back on November 6, 1973, while employed by Fiberite Corporation. On the latter occasion he was apparently filling a bin with materials. Mr. Rackow received workers= compensation benefits following both injuries and eventually entered into a settlement with both employers and their insurers in 1975.

On December 31, 1979, Mr. Rackow [the employee] again injured his low back when he reached to catch a falling box of frozen pizza while working as a truck driver for Midwest Coast Transport, Inc. [the employer]. The employer and insurer acknowledged liability for the injury but subsequently disputed its nature and extent. Following hearings before a compensation judge in 1981 and 1983, the employee was awarded various wage loss benefits, rehabilitation and medical benefits, and compensation for a minimum rating of 10% permanent partial disability of the back.

Following his 1979 injury, the employee was examined by a number of medical doctors and by chiropractor Dr. H. Robert Woolley. The employee continued to complain of low back problems, and in March of 1984 he advised his treating orthopedist, Dr. Robert Wengler, of increasing back pain and pain into the right leg to the level of the knee. The doctor obtained a lumbar CT scan on April 5, 1984. In a letter to the employee=s attorney on April 12, 1984, Dr. Wengler reported that the employee Aha[d] a fairly impressive looking CAT scan@ and that there was a possibility that the employee might obtain some relief from a Chymopapain injection at L4-5 and L5-S1. He reported also that, barring specific treatment, the employee=s permanent partial disability was Ain the range of 30%@ of the spine. He recommended a ten pound lifting restriction and restrictions against repetitive bending, stooping, and heavy pushing or pulling.

The employer and insurer arranged for a neurologic evaluation by Dr. David R. Johnson on June 6, 1984. Dr. Johnson had previously examined the employee for the employer and insurer on December 7, 1982, and also at the request of Fiberite Corporation and its insurer on June 25, 1974, and February 19, 1981. In a report issued June 7, 1984, Dr. Johnson stated that the employee=s findings on examination, including a normal neurologic exam, did not fit with the radiologist=s interpretation of the recent CT scan. He stated that it was still his opinion that the employee had a relatively minimal physical impairment of his spine as a whole, and he disagreed with Dr. Wengler=s opinions regarding permanency and restrictions. In light of the employee=s CT findings, Dr. Johnson concluded that A[the employee] probably does have some degenerative disc disease at L4-L5 and L5-S1 and may have on that basis a 10 to 15 percent permanent partial disability of his back.@

In 1985, the parties entered into a full, final, and complete settlement of any and all past, present, and future claims arising out of the December 31, 1979, injury, including claims for rehabilitation and medical benefits. At the time of settlement the employee was not actively receiving medical care for his back. He was paid $40,000 under the stipulation, and an award on stipulation was issued on November 6, 1985.

In July of 1988 the employee returned to truck driving work with an Indiana company named Labor Resources, Inc. [LRI]. Under an agreement between LRI and Kujak Transport [Kujak], a Minnesota Corporation, LRI provided licensed drivers to Kujak for its trucking operations. On September 22, 1998, the employee was involved in a truck accident while performing services for Kujak. Following the 1988 accident, the employee received certain payments for temporary total and temporary partial disability, and he was awarded economic recovery compensation for a 9% whole body disability relative to his cervical spine.^[1]

In September of 1992, the employee returned once again to a truck driving position. He worked for Canamer International, delivering to farmers tarps that were used to cover crops. By the fall of 1998, Canamer had apparently phased out the employee=s driving job, and the employee evidently has not returned to work since that time.

On February 12, 2002, the employee allegedly noted a significant increase in low back pain and leg pain following a bout of coughing. About six days later, he suffered a worsening of his low back pain and also noted shooting pain and numbness in both of his legs while reaching to flush a toilet. Following both episodes the employee sought chiropractic care with Dr. Woolley, but following the second incident he also sought treatment with his family doctor, Dr. Thomas Retzinger. Dr. Retzinger referred the employee for a CT scan on February 19, 2002, which was read as negative for any disc herniations or stenosis.

Three days later, on February 22, 2002, while trying to slip on his shoes, the employee felt severe pain in his low back and noted perianal and genital anesthesia. He was admitted to Community Memorial Hospital in Winona and then, because of continued pain and evidence of a neurogenic bladder, was transferred the following day to Lutheran Hospital in La Crosse, Wisconsin. The employee then came under the care of neurosurgeon Dr. Jerry Davis. Dr. Davis diagnosed cauda equina syndrome secondary to spinal stenosis and a disc herniation, and on February 24, 2002, he performed a surgical decompression at L4-5. Later that same year, in July 2002, the Social Security Administration issued a Notice of Award, finding the employee disabled under its rules as of February 22, 2002, and entitled to disability benefits commencing in August 2002.

In June 2003, the employee came under the care of Dr. Bruce Krueger at the Mayo Clinic. Dr. Krueger continued to diagnose a cauda equina lesion, active lumbosacral radiculopathies, neurogenic bowel, bladder and sexual dysfunctioning, and a disc herniation. Three months later, on September 26, 2003, the employee filed with this court a petition to vacate the November 6, 1985, award on stipulation on grounds that he had experienced a substantial deterioration in his work-related low back condition that had caused him to undergo an extensive surgical procedure and rendered him permanently and totally disabled. Included with the employee=s petition were a number of medical reports, including reports from Dr. Robert Wengler, Dr. Thomas Retzinger, and Dr. H. Robert Woolley, all expressing the opinion that the employee=s 1979 work injury was a substantial contributing factor in the employee=s worsened condition and need for surgery in February of 2002. Subsequent to his filing of his petition to vacate, the employee underwent a second operation on his back, in October of 2003 at the Mayo Clinic.

The employer and insurer arranged for an evaluation by neurologist Dr. Joel Gedan on December 19, 2003. Dr. Gedan obtained a history from the employee, reviewed his medical records, and performed a physical examination. The doctor opined that the employee had had multiple episodes of low back pain over many years but that none of those episodes had contributed to the major disc herniation and cauda equina syndrome that occurred in February 2002. Specifically, Dr. Gedan found no causal relationship between the employee=s current low back condition and his injury in 1979. He stated that, based on his review of the employee=s medical records, the employee=s 1979 injury was a lumbar strain that represented no more than a temporary aggravation of a chronic pre-existing and ongoing condition, that A[i]t did not lead to nor cause a disc herniation and cauda equina syndrome 23 years later.@ Relying in part on Dr. Gedan=s opinion, the employer and insurer object to the employee=s petition to vacate, contending that no causal relationship exists between the employee=s injury on December 31, 1979, and his current condition.

DECISION

This court=s authority to vacate a compensation judge=s award is found in Minn. Stat. ' 176.461 and, with regard to settlements, 176.521, subd. 3. An award may be set aside if the petitioning party makes a showing of good cause to do so. With regard to awards issued prior to the 1992 amendment of Minn. Stat. ' 176.461, such as the award in the present case, good cause is held to exist if there has been a substantial change in the employee=s condition. Stewart v. Rahr Malting Co., 435 N.W.2d 538, 41 W.C.D. 648 (Minn. 1989). In a change of condition case, inquiry is limited to the extent of improvement or worsening in the condition on which the original award was based. See Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993). In Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), this court identified a number of factors that it may consider in deciding whether to vacate an award based on a substantial change in condition. These factors include the following: (1) changes in the employee=s diagnosis; (2) changes in the employee=s ability to work; (3) the development of any additional permanent partial disability; (4) the necessity of more costly and extensive medical or nursing care than was anticipated; and (5) the causal relationship between the work injury and the worsening of the condition. Fodness, 41 W.C.D. at 1060-61.

In the present case, there appears to be no real dispute over the fact that the employee has suffered a substantial change in his medical condition since his 1985 settlement. In comparing the employee=s condition at the time of settlement to his current condition, there clearly appear to have been changes in the employee=s diagnosis, his ability to work, his permanent partial disability, and his need for more costly and extensive medical care. There is conflicting evidence, however, as to whether these changes demonstrated by the employee are causally related to his work injury of December 31, 1979. Under the circumstances, we deem it appropriate to refer this matter to the office of Administrative Hearings for an evidentiary hearing and findings, subject to appeal, on the causal relationship between the evident post-settlement changes in the employee=s condition and the employee=s work injury of December 31, 1979. Following the hearing and decision, the matter should be returned to this court for a final determination on the employee=s petition to vacate.

^[1] On May 12, 1997, a mediation award was issued by the Department of Labor and Industry, pursuant to which the employee received $47,000.00 in full settlement of his 1988 work-related injury.