JERALD TOMAN, Employee/Petitioner, v. HALLETT WIRE PRODUCTS CO. and ST. PAUL FIRE & MARINE INS. CO., Employer-Insurer, and NORTHWOODS CHILDREN=S HOME and ST. PAUL FIRE & MARINE INS. CO., Employer-Insurer.
WORKERS' COMPENSATION COURT OF APPEALS
AUGUST 26, 2004
No. WC04-153
HEADNOTES
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the employee had recurrences of his disk herniations requiring two additional surgeries, developed worsened radicular symptoms and foot drop, his permanent partial disability rating increased from 16 or 20 percent of the whole body to 38 percent, and his work restrictions became significantly more stringent affecting his ability to perform sedentary work he was still able to perform at the time of the stipulations, good cause was present for vacation of prior awards on stipulation.
Petition to vacate awards on stipulation granted.
Determined by Rykken, J., Stofferahn, J., and Johnson, C.J.
Attorneys: James Balmer, Falsani, Peterson, Baldwin & Quinn, Duluth, MN, for Petitioner. Thomas A. Atkinson, Law Offices of Candlin & Heck, St. Paul, MN, for Respondents.
OPINION
DAVID A. STOFFERAHN, Judge
The employee has petitioned to set aside two Awards on Stipulation, served and filed July 11, 1989and October 18, 1994, on the grounds of substantial change in medical condition. We grant the petition.
BACKGROUND
The employee, was working as a reeler for Hallett Wire Company on August 1, 1981, when he lifted a 100-pound bundle of wire and felt a pinch and then pain in his low back. After a time his symptoms began to improve, so he so did not seek medical attention, although he reported the injury to his supervisor. Thereafter he had difficulty with his low back from time to time but did not lose time from work. In 1983 the employee was promoted to a job as a foreman for the employer and some time later he was further promoted to plant superintendent. These positions did not involve strenuous physical work and the employee=s back problems did not significantly interfere with his employment.
In January 1987, the employee=s back pain became more severe while he was packing, loading and hauling boxes at work in anticipation of the employer closing its business. The employee did not pursue medical care at that time since his job ended and his condition was no longer exacerbated by his job duties. However, in July 1987 he had an onset of left leg pain, and he then sought medical treatment. A lumbar CT scan done on July 7, 1987, showed a very large free fragment of the L5-S1 herniated nucleus pulposus with significant compression of the caudal thecal sac and the left S1 nerve root. This condition was treated surgically on July 9, 1987, by Dr. R.E. Freeman with a left L4-5 discectomy and L5-S1 laminotomy and discectomy. The employee gained significant relief from the surgery and on September 16, 1987, Dr. Freeman released him to return to his previous occupational levels without restrictions. He rated the employee as having a nine percent permanent partial disability.
On January 14, 1988, the employee was evaluated by Dr. Duane F. Person. The employee told Dr. Person that he still had back pain, but it was not severe. Sitting for long periods was painful, but standing was not uncomfortable, coughing and sneezing caused no pain, there was no buttock pain, and leg pain had resolved since the surgery, although there was still occasional numbness and tingling in the left foot. Dr. Person recommended restrictions of no lifting over 15 to 20 pounds, no repetitive lifting, no working in crouched or cramped positions, and no repetitive bending, twisting, pulling or pushing. He concluded the employee had a 16 percent permanent partial disability of the whole person.
The employee subsequently filed a claim petition alleging work-related injuries to the low back on August 1, 1981 and February 13, 1987. The employer Hallett Wire Company and its insurer St. Paul Fire and Marine Insurance Company filed an answer denying liability.
On June 30, 1989 the employee, employer Hallett Wire Company and insurer St. Paul Fire & Marine Insurance Company reached an agreement for a full, final and complete settlement of the employee=s claims arising out of the alleged August 1, 1981 and February 13, 1987 dates of injury, reserving only claims for future reasonable and necessary medical expenses, for a lump sum payment of $15,000, with $5,000 of that amount being specifically allocated to future occupational rehabilitation or retraining. At the time the employee entered into the stipulation he had already made arrangements to begin a four-year program of study for a degree in accounting at the University of Wisconsin - Superior. The stipulation was reviewed by a compensation judge and an Award on Stipulation was served and filed on July 11, 1989.
After his employment with Hallett, the employee went to work for Northwoods Children=s Home. He was employed there as a cook when he claimed to have sustained an injury to his low back on April 1, 1989. There is no information in the record as to the nature of this claimed injury.
The employee returned to Dr. Freeman=s clinic on August 1, 1989. He had not been seen there since September 1987 and reported that he did not have further problems until the last three months, when he had renewed low back and left leg pain. A CT scan was ordered which suggested a possible recurrent disc at L4-5 on the left. An MRI scan on August 31, 1989 was interpreted as showing a disc herniation at L5-S1 with posterior displacement of the left S-1 nerve root sheath and left L-5 nerve root. On September 7, 1989 the employee underwent a left AL6-S1" laminotomy, foraminotomy and discectomy for a small recurrent disk herniation at the L5-S1 or L6-S1 level. A small extruded fragment was evident during the surgery and the nerve root was noted to be severely compromised by scar tissue in conjunction with the extruded fragment.
Following this surgery, the employee was off work until August 1991 when he helped his father-in-law reopen a restaurant in Proctor, Minnesota, and then worked for him as a kitchen manager. The work involved some lifting and bending and his back symptoms slowly and progressively worsened, so he discontinued working there in March 1992 and began working part time as a clerk in a liquor store.
By November 30, 1992, when evaluated by Dr. Person, the employee=s symptoms had become essentially static and the employee was not in active medical treatment. The employee had intermittent low back pain, mostly aching but sometimes sharp. Bending, lifting, and sitting for long periods of time was painful, and excessive standing aggravated his symptoms. His back flexion was diminished by about 25 degrees, extension by about five degrees, lateral bending by about 15 degrees bilaterally, and rotation by about 20 degrees bilaterally. Ankle jerk was absent on the left and his reflexes were diminished at both knees and the right ankle. Straight leg raising was positive at 45 degrees on the left and at 65 degrees on the right. There was decreased sensation in both the L5 and S1 nerve distributions on the left. Dr. Person=s diagnosis was of a recurrent herniation at the last lumbar disk along with degenerative disk disease. Dr. Person recommended restrictions consisting of no lifting over 15 pounds, no repetitive lifting, no working in crouched, cramped or unusual positions, on ladders or in the air. The employee was to avoid repetitive flexion, extension, lateral bending or rotating motions of the lumbar spine. Dr. Person rated his permanent partial disability at 20 percent of the whole body.
In the fall of 1993 the employee completed his four year accounting degree and in November 1993 he obtained credentials as a certified public accountant. He began working part time as a self-employed accountant and also ran a daycare business from his home, employing assistants who performed any lifting activities.
The employee filed a claim petition on April 6, 1994, alleging entitlement to benefits as the result of his claimed April 1, 1989, work injury at Northwoods. Northwoods, also insured by St. Paul Fire & Marine Insurance Company, answered denying liability.
He was evaluated by Dr. Jay Davenport on behalf of the employer Northwoods and the insurer on July 12, 1994. The employee told Dr. Davenport that he did not have any difficulty in performing his part-time accounting work and was attempting to seek additional employment. He reported that his condition was now back to where it was after his first surgery, and that he could lift up to 50 pounds if he did so carefully, and that he could tolerate riding in a car for up to two hours at a time. He no longer had numbness in his left leg and foot and had resumed normal recreational activities, such as mowing the lawn, fishing and gardening. Dr. Davenport noted that the employee=s lateral flexion to the right and left was within normal limits and he could reach down to 80 percent of a full range of motion.
Dr. Davenport rated the employee with a 16 percent permanent partial disability. He believed the employee had reached maximum medical improvement and needed no further treatment. He suggested that restrictions include avoidance of repetitive bending or lifting, no lifting from the waist to shoulder over 50 pounds or from floor to waist over 40 pounds. The doctor did not think the employee had any limit on standing, walking or sitting. He opined that the employee would continue to have problems with low back and leg pain in the future and that there was a one in four chance he could require additional surgery, either at a previously operated level or a new level.
On September 30, 1994 the employee, Northwoods, and the insurer entered into a stipulation for settlement which closed out the employee=s claims related to the alleged April 1989 work injury on a full, final and complete basis in return for a one-time lump sum payment of $2,500.00. The parties further agreed that no benefits had been paid to date as a result of the 1989 work injury and that the employee was presently employed and not in need of rehabilitation services. A compensation judge reviewed the stipulation and an Award on Stipulation was served and filed on October 18, 1994.
In December 1995 the employee returned to Dr. Freeman and reported that about two months previously he had begun experiencing low back pain with radiation into the left buttock, left posterior thigh, left posterior calf and sole of left foot. The pain had initially cleared but then worsened. He had seen his family physician and received six sessions of physical therapy and had been relatively pain free the weekend prior to his appointment with Dr. Freeman. Dr. Freeman felt the symptoms were suggestive of a left L5-S1 radiculopathy and suggested an MRI scan.
The scan, performed on December 12, 1995, showed a moderate sized broad-based central posterior disc protrusion at L5-S1 which did not result in direct nerve compression. However, there was a new moderate sized left extruded disc fragment which extended into the upper left sacral spinal canal resulting in marked compression of the left S1 nerve root. At L4-5 a small to moderate sized central and predominantly left paramidline disc protrusion was present with posterior displacement and compression of the proximal left L5 nerve root. There was moderately severe bilateral L5-S1 foraminal narrowing and early cephalocaudal compression of both L5 nerve roots within the proximal foramina.
The employee underwent his third low back surgery on January 18, 1996 in the form of a left L5-S1 laminotomy and discectomy with placement of a free fat graft. He did relatively well after this third surgery and was able to continue working at his home accounting and daycare businesses.
In the fall of 2002 the employee began to experience renewed low back pain radiating into the left leg as well as weakness in the left foot causing it to drop. An MRI on September 26, 2002 showed left side L5 nerve root compression from an L4-5 bulging disc. The employee was seen by a neurosurgeon, Dr. Donald Palmquist, on October 16, 2002. The doctor noted that the employee had developed a significant left foot drop and was unable to dorsiflex the foot more than about ten degrees. The employee was advised that there might be some benefit with repeating surgery, although he might have some permanent residual left foot drop.
On October 23, 2002, the employee underwent an expansion of his previous partial hemilaminectomy at L4 and at the superior aspect of L5 on the left with removal of an extruded transligamentous disk fragment. A few weeks after the surgery, Dr. Palmquist noted that the employee did have some improvement following the discectomy as his foot drop was not as pronounced. He recommended continued home physical therapy with strengthening exercises and walking. In an addendum note on December 6, 2002, Dr. Palmquist noted that while the employee had partial relief of pain when standing he continued to experience a significant exacerbation of pain when sitting, and thus had difficulties in performing his accounting work.
The employee was evaluated by Dr. Person on January 14, 2004. Dr. Person stated that the employee was essentially sedentary and was taking narcotic medications including 30 mg morphine twice a day and Lortab twice a day. He continued to have a drop foot on the left and used a drop foot brace. Sitting, riding in a vehicle, bending, lifting, twisting and even coughing and sneezing were very painful for the employee. His range of motion was markedly limited, with flexion only to ten percent, extension to five percent, lateral bending ten percent on the left and 15 percent on the right and rotation 15 percent bilaterally. The employee reported steady back pain, buttock pain on the left and pain radiating down the left side to the foot. He had similar symptoms on the right but not as severe and only occasional. Straight leg raising was positive both left and right and there was decreased sensation in the L5 and S1 distributions on the left.
Dr. Person offered the opinion that the employee was substantially worse than when he last saw him in November 1992, with a more limited level of physical activity, now fully sedentary. He concluded that there was no potential for improvement and that the employee might very well even get worse. He rated the employee with a 38 percent permanent partial disability of the whole body.
The employee filed a petition to vacate the prior Awards on Stipulation with this court on March 16, 2004 on the basis of a substantial change in medical condition. The employers and insurer responded opposing the petition.
DECISION
This court=s authority to consider petitions to vacate awards on stipulation is governed by Minn. Stat. '' 176.461 and 176.521, subd. 3. For this court to vacate an award on stipulation, the petitioner must show good cause. Good cause includes Aa 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. After reviewing the evidence presented, we have determined that the employee has made a sufficient showing to warrant a vacation of the award on stipulation.
Where a change in condition is alleged, we focus on comparing the employee=s condition at the time of settlement with the employee=s condition at the time of the petition to vacate. Davis v. Scott Moeller Co., 524 N.W.2d 464, 51 W.C.D. 472 (Minn. 1994); Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993). Factors which may be considered in determining whether a substantial change in condition has occurred include:
1. A change in diagnosis;
2. A change in the employee=s ability to work;
3. Additional permanent partial disability;
4. A necessity for more costly and extensive medical care than initially anticipated; and
5. A causal relationship between the injury covered by the settlement and the worsened condition.
Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).
When the initial stipulation for settlement was executed in 1988, the employee=s diagnosis was of disc herniation at the L4-5 and/or L5-S1 level. At the time of the second stipulation for settlement in 1994, the employee=s diagnosis was post surgical treatment for disc herniation at L5-S1 and L4-5 and for a recurrent disc at L5-S1. The employee has now had a further recurrence at L5-S1 and another at L4-5, both since treated surgically. The employers and insurer argue that the employee=s diagnosis is therefore essentially unchanged, as herniations at the same disc levels have been responsible for the employee=s condition both before and after the settlements. We note, however, that the employee has been diagnosed with additional radicular symptoms and with a significant foot drop related to these recurrences. Recurrences of herniations already treated may, in appropriate circumstances, be properly viewed as constituting a potentially significant change in diagnosis for purposes of evaluating whether good cause is shown to vacate an award on stipulation.
We have held that the mere fact that the employee has undergone additional surgery is generally not sufficient alone to justify vacation of an award. Burke v. F&M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996). However, treatment since the time of settlement may still be significant in determining whether there has been a substantial change in medical condition. The employee has had two additional surgeries since the last settlement in 1994 and while Dr. Davenport indicated in 1994 that there was a one in four likelihood of further surgery, it appears the most recent surgery was necessitated by an increase in symptoms which were not reasonably anticipated at that time.
With respect to the factor of a change in the employee=s ability to work, the evidence presented clearly shows a significant decrease in the employee=s ability to work since the settlements.
It is true that the employee had substantial limitations on his ability to perform physical labor by the time of the second settlement, but he was able to perform sedentary work as an accountant and daycare operator for the next eight years without reported difficulty. According to the employee=s treating physician, he now has great difficulty even in working in a sitting position, and thus now difficulty even in performing non-physical work such as his accounting employment. At oral argument, the employee=s attorney characterized the medical evidence as essentially suggesting that the employee is now permanently totally disabled. Respondents object that the evidence is not so clear, that no doctor has in fact offered an opinion whether the employee is permanently totally disabled, and that the question of total vocational disability has not yet been tested by a job search. Respondents further argue that they have undisclosed surveillance evidence suggesting that the employee=s foot drop is not as severe as might appear from the medical records alone. They argue that this court should refer this case to the Office of Administrative Hearings for factual findings as to whether the employee is in fact totally disabled, and for consideration of the other Fodness factors, before reaching a decision on whether the employee has shown good cause to vacate.
We note, however, that while there is a dispute concerning the full extent of employee=s ability to work, it is not disputed that there has been a substantial change in the employee=s functional ability and his ability to work. The employee=s current condition has resulted in far more stringent work restrictions than were in effect at the time of the prior stipulations for settlement. The issue is not whether the employee is now permanently and totally disabled, only whether there has been a substantial change in his ability to work. We think that has been shown in this case, and do not believe a referral for factual findings is necessary.
Comparison of the permanency ratings given by the various physicians now and prior to the settlements shows that the employee=s physicians currently rate him with a disability about twice that previously rated. In 1992 Dr. Person had rated the employee=s whole body disability at 20 percent, and in 1994, shortly prior to the 1994 settlement, Dr. Davenport offered a 16 percent permanency rating. Dr. Person now rates the employee with a 38 percent permanent partial disability. The evidence submitted clearly indicates a substantial change in the form of additional permanent partial disability.
Finally, while the employers and insurer reserve the right to challenge the original causation of the injuries, there is no real dispute that the current conditions are causally related to those foreclosed in the stipulations and based on the employee=s alleged work injuries in 1981, 1987 and 1992. The question of causation as it relates to the issue of vacation of the awards on stipulation is not implicated in this case.
In view of all the Fodness factors, the employee has made a showing of good cause to warrant vacation of the awards on stipulation on the grounds that he has experienced a substantial change in medical condition. We therefore grant the employee=s petition.