DONALD S. PETERSON, Employee/Appellant, v. BULLYAN MOBILE HOMES, and MINNESOTA INS. GUAR. ASS'N/GAB ROBINS, Employer/Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 23, 2005

 

No. WC04-196

 

HEADNOTES

 

VACATION OF AWARD.  Given evidence relating to the results of an EMG performed less than two weeks after the hearing on the employer and insurer=s petition to discontinue benefits, good cause had been shown sufficient to justify vacating the judge=s findings and order.

 

Petition to vacate findings and order granted.

Appeal dismissed.

 

Determined by: Wilson, J., Pederson, J., and Rykken, J.

Compensation Judge: Ronald E. Erickson

 

Attorneys: Matthew P. Bandt, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Appellant.  Timothy J. Manahan, Brown & Carlson, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the judge=s decision that the employee is at maximum medical improvement and is no longer disabled due to the effects of his work injury.  The employee also petitions this court to vacate the judge=s findings and order based on newly discovered evidence, mutual mistake of fact, and an unanticipated substantial change in condition.  Finding good cause to vacate, we grant the petition and dismiss the appeal.

 

BACKGROUND

 

The employee began working for Bullyan Mobile Homes [the employer] on March 26, 2003, as a laborer.  On April 4, 2003, the employee was operating a snow blower at work when he slipped and fell backward, landing on his buttocks on an upright two-by-four board.  He had pain in the low back in the area of his coccyx.  The employee was seen at the Duluth Clinic on April 7, 2003, complaining of coccyx and right leg pain.  The diagnosis at that time was a likely coccyx fracture, and the employee was taken off of work for two days.  On April 10, 2003, an x-ray revealed that the employee had a C1 transverse coccygeal fracture without displacement.  It was noted that the employee had been drinking at the time he presented to the emergency room that morning.  The employee was released to sedentary work, which he performed for a short period, but he was eventually taken off work again by his doctors.

 

An x-ray on May 27, 2003, revealed good alignment and no evidence of coccyx fracture.  An x-ray of the lumbar spine, performed on June 13, 2003, revealed degenerative changes but no evidence of fracture, and an MRI of the lumbar spine performed on June 27, 2003, showed arthritic changes at the L4-5 level but was otherwise essentially normal.  The employee was released to return to light-duty work with a ten-pound lifting restriction effective July 2, 2003, but has not returned to work.

 

The employee=s treatment after the April 4, 2003, injury consisted of medications, physical therapy, and facet block injections.  A bone scan performed on September 15, 2003, disclosed no areas of abnormal uptake in the spine or the lower extremities.  An EMG of the employee=s right leg on September 19, 2003, was suggestive of a polyneuropathy of a mild nature involving the sensory and motor nerves, but there was no evidence of a specific entrapment neuropathy or lumbar radiculopathy.

 

In September of 2003, the doctors treating the employee began commenting on his alcohol intake.  The employee apparently had been drinking 12 to 13 beers a day on a consistent basis since approximately 1998.

 

The employee continued to complain of back pain and right leg pain and dysesthesia.[1]  By November of 2003, Dr. Lynn Quenemoen was indicating that, while the employee was suffering from post-traumatic back pain, the employee=s alcohol abuse was a significant roadblock to his recovery and return to work.  In December of 2003, Dr. Quenemoen related the employee=s polyneuropathy to the employee=s alcohol consumption.  That same month, the employee reported that his right leg had given way and that he had fallen down some steps.  Dr. Quenemoen continued to recommend that the employee participate in an alcohol treatment program.  The employee was seen by neurologist Dr. Gary Beaver on December 12, 2003.  Dr. Beaver also opined that the employee=s polyneuropathy was likely secondary to alcohol abuse but that the polyneuropathy had nothing to do with the employee=s pain syndrome.

 

When seen by Dr. Quenemoen on April 5, 2004, the employee continued to complain of low back pain, right lower extremity pain, and dysesthesias.  Dr. Quenemoen again recommended treatment for alcohol abuse, placed the employee on light-duty restrictions, and ordered a functional capacities evaluation.  The employee was seen in consultation by Dr. Scott Dulebohn on April 7, 2004.  Dr. Dulebohn opined that the employee=s Aprofile@ was not consistent with his MRI or EMG and ordered those tests repeated.

 

An MRI of the lumbar spine performed on April 12, 2004, was interpreted as showing mild L4-5 degenerative disc disease and degenerative facet change without evidence of spinal stenosis or focal disc prolapse.

 

In an April 22, 2004, letter, Dr. Quenemoen wrote that the employee=s disabling condition was post-traumatic back pain, Aprimarily mechanical and myofascial back pain,@ and  that the only other treatment he had to offer was a chronic pain program.  However, Aif [the employee] continues to drink alcohol, the program will not let him participate.@  Dr. Quenemoen placed the employee on light-duty work restrictions Abased primarily on his subjective complaints of pain rather than objective findings.@  Dr. Quenemoen also concluded that the employee=s work injury and pain were substantial contributing causes of the employee=s depression.  At that time, Dr. Quenemoen had the April 2004 MRI results, but the repeat EMG had not been performed, and Dr. Quenemoen noted, AI suspect [the EMG] will not show anything new, based on the MRI findings.@

 

Dr. Paul Cederburg performed an independent medical examination on December 5, 2003.  He opined that the employee had sustained a strain of his low back and a contusion of his coccyx as a result of the April 4, 2003, work injury.  He further opined that the low back strain had resolved and noted that coccyx pain can last for up to two years.  It was Dr. Cederburg=s opinion that the employee=s polyneuropathy was not related to the personal injury, that the employee had reached maximum medical improvement [MMI] from the effects of his personal injury, and that the employee was restricted only to the extent of limiting his sitting if his tailbone became uncomfortable.  Dr. Cederburg also opined that the employee=s polyneuropathy was likely due to a metabolic disorder such as alcoholism.  Dr. Cederburg=s report was served on the employee and his counsel on January 6, 2004.  The employer and insurer made payment of temporary total disability benefits through April 5, 2004.

 

In March of 2004, Dr. Cederburg was provided with additional information about the employee=s medical history prior to 2003.  On April 5, 2004, he issued an addendum report wherein he stated that the April 9, 2003, work injury would not have aggravated or accelerated the employee=s chronic low back pain in any significant way.  Dr. Cederburg clarified that he related the employee=s right lower extremity symptoms to polyneuropathy probably caused by alcoholism.

 

On November 17, 2003, and March 31, 2004, the employer and insurer filed notices of intention to discontinue benefits based on allegations that the employee would have returned to work but for his alcohol abuse problem and that the employee was 90 days post-MMI.  On February 4, 2004, the employer and insurer filed a petition to discontinue workers= compensation benefits, contending that the employee either had no significant restrictions or that any necessary restrictions were the substantial result of conditions related to causes other than the work injury, including chemical dependency and/or alcoholism.

 

The petition to discontinue  proceeded to hearing on April 22, 2004, at which time the issues of MMI and whether the employee was disabled due to the work injury were presented to the compensation judge.  In findings and order filed on May 4, 2004, the judge found that the employee had sustained a lumbar strain and a fractured coccyx as a result of the work injury; that the effects of the lumbar strain had resolved; and that any disability beyond April 5, 2004, was likely due to the employee=s long standing alcohol abuse, not the work injury.  The employee appeals and also petitions to vacate the judge=s decision.

 

DECISION

 

Petition To Vacate

 

On May 3, 2004, less than two weeks after the hearing, the employee underwent an EMG, which was interpreted by Dr. T. Mark Seidelmann as showing Aimpairment of S3 and S4 related neural tissues.@  Dr. Seidelmann opined,

 

I am unable to determine at this time whether this is related to an S3-4 radiculopathy or a prudendal neuropathy.  There would appear to be a direct correlation with sacral region injury.  From history he has developed a neurogenic bowel and bladder which is consistent with the abnormalities noted on EMG.

 

When seen by Dr. Quenemoen on May 13, 2004, the employee reported bowel dysfunction, and the doctor noted that the employee had described one or two occasions of incontinence previously.  By July 1, 2004, the employee was reporting sexual dysfunction as well.

 

Dr. Quenemoen reviewed the EMG, and, in letters dated July 22, 2004, and August 4, 2004, he stated that the EMG findings changed the employee=s diagnosis and that the employee=s low back pain, as well as bowel, bladder, and sexual dysfunction, were related to his fall at work.

 

For awards issued on or after July 1, 1992, Acause@ to vacate includes a mutual mistake of fact; newly discovered evidence; and an unanticipated substantial change in medical condition since the time of the award.  Minn. Stat. ' 176.461.  In the present case, the employee contends that the judge=s May 4, 2004, decision should be vacated based on grounds of mistake in diagnosis at the time of the hearing, newly discovered evidence of an objective basis for the employee=s symptoms, or in the alternative, a substantial change in medical condition that was not anticipated at the time of trial.  The employer and insurer contend that any mistake was not mutual and that the EMG simply provided cumulative support for the employee=s contention that his work injury was a substantial contributing factor in his disability; that the new EMG does not satisfy the definition of newly discovered evidence; and that the employee has not demonstrated that any change in his condition was unanticipated.

 

This court generally has wide discretion in determining whether to vacate an award.  Krebsbach v. Lake Lillian Coop. Creamery Ass=n., 350 N.W.2d 349, 36 W.C.D. 796 (Minn. 1984).  The supreme court has noted that fundamental fairness is the overriding principle for determining whether the award should be set aside.  Id.; Landon v. Donovan Constr. Co.,  270 N.W.2d 15, 31 W.C.D. 135 (Minn. 1978); Wollschlager v. Standard Constr. Co., 300 Minn. 550, 220 N.W.2d 346, 27 W.C.D. 495 (1974).  Unfairness alone, however, provides insufficient cause to vacate.  Fodness v. Standard Cafe, 41 W.C.D. 1054 (W.C.C.A.1989).

 

The compensation judge=s decision that the employee was at MMI and that he was no longer disabled due to his work injury appears to be based in large part on the lack of evidence of Asignificant pathology@ and the doctors= opinions that the employee=s leg symptoms were related to alcohol abuse.  There was no evidence in the medical records of an objective basis for the employee=s symptoms following his work injury, until the post-hearing EMG.[2]  In addition, there was no evidence of bowel or bladder dysfunction related to the work injury until twelve days post-hearing.  As of the hearing date, Dr. Quenemoen had released the employee to light-duty work; however, following the EMG, he took the employee off of work entirely.

 

While it is difficult to fit this case neatly into a specific category, we conclude that the employee has established good cause sufficient to justify vacating the judge=s findings and order.  See Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 63 W.C.D. 337 (Minn. 2003).  However, our decision to this effect should not be interpreted as expressing any opinion as to whether the employee should prevail on his claims.

 

Appeal

 

Having vacated the judge=s findings and order, we need not address the appeal, which is therefore dismissed.


[1]  ADysesthesia@ is a distortion of any sense, especially that of touch.  Dorland=s Illustrated Medical Dictionary 553 (29th ed. 2000).

[2]  That EMG had apparently been scheduled prior to the trial, but even the treating doctor had indicated that he did not expect it to show anything new.