ALCUIN RENNEKER, Employee/Petitioner, v. MASTER MARK PRODS., INC., and AMERICAN COMP. INS. CO., Employer-Insurer.

 

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 7, 2005

 

No. WC04-220

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where it appeared that there had been a significant change in the employee=s diagnosis, his ability to work, his permanent partial disability, and his need for medical treatment since the date of his award on stipulation, and where the employer and insurer had submitted no evidence to contradict the opinions of the employee=s treating doctors that both the employee=s need for surgery at the time of the stipulation and later consequences of that surgery were causally related to the employee=s work injury, sufficient cause was shown to vacate the employee=s award on stipulation on grounds that there had been a substantial change in the employee=s medical condition, notwithstanding the fact that the employee clearly knew prior to his award on stipulation that he was going to undergo the initial surgery at issue.

 

Petition to vacate award on stipulation granted.

 

Determined by: Pederson, J., Johnson, C.J., and Stofferahn, J.

 

Attorneys: Mark R. Black, Black Law Office, St. Cloud, MN, for the Petitioner.  Gregg A. Johnson and Charlene K. Feenstra, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee petitions this court to set aside an award on stipulation served and filed in this case on November 15, 2000, on grounds that there has been a substantial change in his medical condition since the issuance of the award that was clearly not anticipated and could not reasonably have been anticipated at the time of the award.  We grant the petition.

 

On March 12, 1994, Alcuin Renneker [the employee] sustained a work-related injury to his head, cervical spine, and right lower extremity while working for Master Mark Products [the employer].  On that date, the employee was fifty-five years of age.  The injury occurred  when the employee fell twelve to fifteen feet from a ladder onto wooden stairs, the planks striking the right side of his head, his right lower extremity, and both arms.  He was subsequently diagnosed with fractures of his right cheek and right orbital socket.

 

The employee underwent two surgical procedures following the injury of March 12, 1994.  The first surgery was performed on March 24, 1994, by Dr. Todd Magnuson and was described as an open reduction and internal fixation of a trimalar fracture with exploration of the orbital floor.  This procedure required installation of plating in addition to cosmetic surgery.  A second surgery, described as a tightening of the right lower eyelid, was performed by ophthalmologist Dr. Steven Rice on September 19, 1994.

 

The employee evidently missed very little time from work following his injury, and the employer and insurer paid about four weeks of temporary total disability benefits and permanent partial disability compensation for a 3.5% whole body impairment related to a strain/sprain of the cervical spine.

 

A dispute arose regarding the nature and extent of the employee=s 1994 injury, and a hearing was held before Compensation Judge Rolf G. Hagen on September 24, 1996.  In an unappealed findings and order issued October 28, 1996, Judge Hagen determined that the employee was entitled to compensation for an additional 25.3% whole body impairment for a right knee condition, degenerative disc disease at multiple levels of the cervical spine, the fracture of the right cheekbone, injury to the trigeminal nerve, and scarring following surgery to the right eyelid.  With respect to the cheek injury and the permanency awarded for the injury to employee=s trigeminal nerve, Judge Hagen noted in his memorandum that the employee credibly testified to ongoing numbness in his right cheek area since the March 12, 1994, injury.  He concluded that this was consistent with Dr. Magnuson=s surgical report following the March 24, 1994, procedure, in which the doctor had noted that, while putting in the plate for the cheek reconstruction, he had seen a fracture line that went through the infraorbital nerve in and around the cheek area.  Dr. Robert Wengler, one of the examining physicians in the case, opined that this damage to a branch of the trigeminal nerve would account for the numbness being experienced by the employee.  Judge Hagen adopted Dr. Wengler=s opinion.

 

On July 8, 1999, the employee was seen at Neurology Clinic of St. Cloud by Dr. Keith Larson.  The employee reported Aright facial pain onset a few weeks ago.@  This was described as intense and lancinating and very sensitive to triggering with facial manipulation, especially shaving.  It was reported also to occur markedly with eating and with contact of the food on the mucosal surface on the right.  Dr. Larson diagnosed trigeminal neuralgia of the right side of the face and placed the employee on Neurontin.  Based upon Dr. Larson=s office notes of July 30, 1999, and August 4, 1999, the Neurontin was not effective in controlling the employee=s symptoms, and Dr. Larson therefore added a prescription of Tegretol, which was reportedly of more benefit.

 

On September 8, 1999, while still working for the employer, the employee was lifting pails full of recycled plastic pellets when he sustained an injury to his mid and low back.  The employee evidently missed no time from work as a result of this injury.  On March 17, 2000, the employee filed a claim petition in which he claimed entitlement to compensation for a 10% whole body impairment related to his low back.  Two weeks later, the employee amended his petition to include a claim for compensation for another 2.5% whole body impairment related to the thoracic spine.

 

About a month later, on May 5, 2000, the employee contacted Dr. Larson=s office complaining of recurring facial pain.  The employee=s medications were adjusted on that date and again on several later dates over the succeeding weeks.

 

The employee was seen by Dr. Larson on September 12, 2000.  On that date, the doctor noted that the employee had not responded to either Neurontin or Tegretol for treatment of the right trigeminal neuralgia that had recurred in May.  Dr. Larson was Aquite pessimistic of using alternative medications@ and decided to seek a consultation with neurosurgeon Dr. Jeffrey Gerdes.

 

The employee was seen by Dr. Gerdes on October 10, 2000.  In a letter addressed to Dr. Larson on October 11, 2000, Dr. Gerdes recounted the employee=s history of surgical repair of  facial fractures in 1994 and his subsequent development of pain in the V2 distribution of the right side of his face.  The doctor noted that the employee was treated with Tegretol and initially did well but that his pain had returned and, despite attempts with Neurontin and further Tegretol, had persisted.  The doctor indicated that the employee had described lancinating pain triggered by eating or drinking and had indicated that the pain was becoming quite intolerable.  Dr. Gerdes indicated that he had found the employee=s symptoms consistent Awith classic tic,@ that he had recommended that the employee undergo a posterior fossa microvascular decompression, and that surgery was scheduled for November 20, 2000.

 

Around this same time period, the parties were evidently engaged in settlement negotiations, and they concluded a verbal settlement agreement by October 5, 2000.  On October 20, 2000, counsel for the employer and insurer forwarded a stipulation for settlement to the employee=s attorney.  The stipulation was signed by the employee and his attorney on October 30, 2000, and forwarded to the Office of Administrative Hearings for approval on October 31, 2000.

 

At the time of the parties= settlement, the employee was alleging entitlement to (1) permanent partial disability compensation for a 10% whole body impairment related to the lumbar spine and for a 2.5% whole body impairment related to the thoracic spine, (2) payment of itemized outstanding medical expenses related to the injury of September 8, 1999, and (3) Roraff attorney fees.^[1]  It was the employer and insurer=s position that the employee=s injuries did not substantially contribute to the employee=s disability and need for medical treatment and that the permanency assessments of the treating physicians were without adequate foundation.  Under the terms of the stipulation, the employee was paid $20,000.00 in full, final, and complete settlement of all worker=s compensation claims arising from the employee=s personal injuries of both March 12, 1994, and September 8, 1994, with the exception of medical expenses not otherwise closed out.  The settlement was approved by a compensation judge of the Office of Administrative Hearings, and an Award on Stipulation was served and filed on November 15, 2000.

 

As scheduled, the employee underwent the recommended microvascular decompression on November 20, 2000.  Unfortunately, two days after surgery, the employee developed an intracerebral hemorrhage that required evacuation.  Post evacuation, the employee was thought to have a left visual field cut^[2] and mild left hemiparesis.  He was transferred to the inpatient rehabilitation unit, where he was seen by rehabilitation medicine specialist Dr. Gregory Schlosser.  The employee was discharged on December 5, 2000, with plans for outpatient occupational and physical therapy through Melrose Hospital.^[3]

 

The employee continued to be seen periodically by Dr. Gerdes.  On March 15, 2001, Dr. Gerdes noted that the employee had reported some difficulty with his memory and that he continued to have persistent left visual field cut.  On June 5, 2001, Dr. Gerdes reported that the employee=s greatest complaint was difficulty with memory.  The employee had advised the doctor that he was filing for disability, which the doctor felt was appropriate.

 

On June 16, 2003, in response to a letter from the employee=s attorney, Dr. Gerdes opined that the employee=s significant facial trauma did play a role in his need for surgical intervention.  He commented that, consequent to his surgery, the employee did develop an intracerebral hemorrhage, which left him with visual field defect and some issues regarding memory loss.

 

On July 15, 2003, also in response to a letter from the employee=s attorney, Dr. Schlosser wrote,

 

[The employee=s] neurologic problems date back to 1994 when he suffered severe right facial fractures as a result of an injury at work.  He also developed a trigeminal neuropathy, and in November of 2000, he underwent a trigeminal nerve decompression procedure for relief of the pain symptoms.  Post-operatively, he was noted to have a left field cut and left sided motor limitations and CT scan revealed a large right occipital hemorrhage with associated edema and midline shift.  As a result, Mr. Renneker has a persistent homonymous hemianopsia.  Other persisting neurologic deficits include decreased coordination in his left upper extremity, which is his dominant extremity due to a congenital right hand deformity.  He is also experiencing difficulty with short-term memory skills.  The combination of these neurologic deficits has made return to work impossible for Mr. Renneker.

 

His short-term memory deficits do result in mild impairment of complex integrated cerebral function, giving him a disability rating of 10%.  I feel his left upper extremity impairments would also qualify him [for] a 10% disability rating for Mr. Renneker.  These percentages are based on my clinical judgment and could be further defined with standardized testing if needed.  It is my understanding  that ophthalmology will be providing a rating for his visual field loss.

 

The employee was also seen for evaluation by occupational medicine specialist Dr. D. M. Van Nostrand at the request of his attorney on July 7, 2003.  Dr. Van Nostrand obtained a history from the employee, performed an examination, reviewed pertinent medical records, and issued a report dated July 21, 2003.  Dr. Van Nostrand opined that the employee is totally disabled and that Athe extent of his multiple injuries is so severe that . . . he is likely to spend most of his time trying to maintain some form of activities of daily living.@  He found the employee=s need for surgery on November 20, 2000, to be causally related to the employee=s injury of March 12, 1994, and he related also the employee=s post-surgical intracerebral hemorrhage to that injury.  With regard to additional permanent partial disability, Dr. Van Nostrand concluded that the employee has a mild impairment of complex integrated cerebral function equivalent to a 10% whole body impairment under Minn. R. 5223.0360, sup. 7.C.(1).^[4]  As to the employee=s vision loss, Dr. Van Nostrand indicated that he preferred to have an ophthalmologist determine the degree of impairment, but he stated, AMy inclination is to think that it would be significant because he does have a complete homonymous hemianopsia.@

 

On July 12, 2004, the employee filed a Petition to Vacate his 2000 Award on Stipulation, contending that there had been a substantial change in his medical condition.  On August 23, 2004, the employer and insurer filed a memorandum in opposition to the employee=s Petition.

 

DECISION

 

For this court to grant a petition to vacate, the moving party must show good Acause@ to do so, pursuant to the provisions of Minn. Stat. ' 176.461 and Minn. Stat. ' 176.521, subd. 3.  For awards filed on or after July 1, 1992, good Acause@ is limited to the following: (1) a mutual mistake of fact; (2) newly discovered evidence; (3) fraud; or (4) a 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.  The employee claims good cause to vacate his award on stipulation based on a substantial change in his medical condition.  Where a change of condition is alleged, the focus of this court=s inquiry is on whether there has been a significant change and whether there is adequate evidence of a causal relationship.  Setting aside an award is justified where there has been a substantial worsening in the employee=s condition or significant additional disability since the time of the settlement.  Davis v. Scott Moeller Co., 524 N.W.2d 464, 466-67, 51 W.C.D. 472,475 (Minn. 1994); Franke v. Fabcon, Inc., 509 N.W.2d 373, 376-77, 49 W.C.D. 520,525 (Minn. 1993).  This court has delineated a number of factors that may be considered in determining whether a substantial change in medical condition has occurred.  These factors include the following:  a change in diagnosis, a change in the employee=s ability to work, an increase in permanent partial disability, the necessity of more costly and extensive medical care or nursing services than was initially anticipated, the causal relationship between the injury covered by the settlement and the employee=s current worsened condition, and the contemplation of the parties at the time of settlement.  Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).

 

The employee contends first that there has been a change in his diagnosis.  This clearly is true and is not disputed by the employer and insurer.  In his report of July 21, 2003, Dr. Van Nostrand notes that, following the employee=s microvascular decompression surgery of November 20, 2000, the employee developed a post-surgical intracerebral hemorrhage with evacuation, homonymous hemianopsia, and traumatic brain injury secondary to surgical etiology.  Dr. Gregory Schlosser, in his report of July 15, 2003, offered a diagnosis also of left sided coordination deficits impairing the employee=s left upper extremity.  Based on these significant developments, we conclude that the employee=s diagnosis has changed since the 2000 settlement.

 

The employee contends also that there has been a change in his ability to work.  It appears from the records submitted that, at the time of the settlement, the employee was working on a full-time basis with restrictions.  In a report dated March 24, 2000, chiropractor Dr. Michael Balfanz, recommended that the employee not lift or carry over twenty-five pounds, that he minimize any repetitive bending, lifting, twisting, or stooping, and that he avoid pushing or pulling of over fifty pounds.  Similar restrictions were noted by rehabilitation specialist Dr. Thomas Balfanz in his report of July 11, 2000.  Now, at the time of his Petition to Vacate, the employee contends that he is permanently and totally disabled.  The employee=s contention is supported by Dr. Van Nostrand=s report of July 21, 2003.  The doctor stated that A[i]n my opinion the extent of his multiple injuries is so severe that it is my opinion he is likely to spend most of his time trying to maintain some form of activities of daily living.@  Dr. Van Nostrand concluded that the employee is totally disabled and that A[t]his includes his spinal difficulties, visual difficulties and his central nervous system difficulties.@  While we would have preferred, in addition to this evidence, also an affidavit from the employee or other evidence relative to his current ability to work, we conclude the evidence submitted establishes a change in the employee=s ability to work since the Award on Stipulation.

 

The employee contends also that he has sustained additional permanent partial disability for conditions that occurred following the complications of the November 20, 2000, surgery.  In this regard, he again relies upon the opinions of Drs. Van Nostrand and Schlosser, that the employee has a 10% whole body impairment related to a mild impairment of complex integrated cerebral function and a 10% whole body impairment related to left-side coordination deficits.  It is also apparent that the employee will qualify for compensation for permanent partial disability of his visual system.  While they contend that it has not yet been established that the November 20, 2000, surgery was causally related to the cure and relief of a work-related injury and, therefore, that the work injuries are a substantial contributing cause of the additional ratings, the  employer and insurer have submitted no evidence to contradict the ratings of the employee=s doctors.  Additional permanency has been adequately established for purposes of the current petition.

 

While it was clear at the time of settlement that the employee intended to undergo microvascular decompression surgery and that future medical expenses had not been closed out under the stipulation, it is equally clear that the employee did incur more costly and extensive medical care than initially anticipated when he developed his intracerebral hemorrhage post surgery.

 

With regard to the issue of causal relationship, the employer and insurer argue that the evidence offered by the employee is insufficient to establish that the November 20, 2000, surgery and the resultant complications were causally related to the work injuries.  We find the employee=s evidence of causal relationship adequate in this case.  Causation by the work injury is clearly supported by Dr. Van Nostrand=s report, and the employer and insurer have submitted no evidence to the contrary.

 

The primary argument of the employer and insurer is that at the time of settlement, the parties contemplated that the employee=s condition could worsen, and that any change in the employee=s condition is not of such a nature that it could not have been reasonably anticipated at the time the award was issued.  We disagree.  While it is clear that the employee was made aware of certain risks associated with his microvascular decompression surgery, we note that there is a clear distinction between risks and reasonably anticipated results.  We do not believe that the employee=s post-surgical complications and resultant disability could reasonably have been anticipated at the time of the award.

 

It is apparent from a review of the evidence that there has arguably been a significant change in the employee=s diagnosis, his ability to work, his permanent partial disability, and his need for medical treatment since the date of his award on stipulation.  While the employer and insurer do not concede that a causal relationship exists between the 1994 work injury and the employee=s need for surgery in November 2000, they have submitted no evidence to contradict the opinions of the employee=s doctors.  It is evident that, while the employee clearly knew that he was going to undergo surgery for his trigeminal neuralgia prior to entering into the settlement, the substantial change in his medical condition was clearly not anticipated and could not reasonably have been anticipated at the time of the award.

 

We conclude that the employee has demonstrated a sufficiently substantial change in his condition since the time of his settlement to warrant vacating his award on stipulation, and accordingly we vacate the award.  We caution, however, as we have in previous decisions granting petitions for vacation, that no inference as to the merits of the employee=s claim should be drawn from this decision.  Should the matter proceed to hearing, the employee remains subject to the usual burden of proving all elements of his claim, including causation if it is still in dispute, and it is the responsibility of the trier of fact to weigh all of the evidence submitted without any deference to conclusions drawn in the present decision.  Cf. Shelton v. Viewcrest Nursing Home, slip op. (W.C.C.A. May 4, 1995).