ANTHONY F. SEGLER, Employee/Petitioner, v. WORK CONNECTION, and CONSTITUTION STATE SERVS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 17, 2006

 

No. WC06-142

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where there has been a change in the employee=s diagnosis, more extensive medical treatment than anticipated, entitlement to additional permanent partial disability, and a causal relationship between the employee=s work injury and his worsened condition, none of which was reasonably anticipated at the time of the award on stipulation, the employee has experienced a substantial change in condition since an award on stipulation in 2002 and the employee=s petition to vacate the award is granted.

 

Petition to vacate granted.

 

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

 

Attorneys: William H. Getts, Minneapolis, MN, for the Petitioner.  Ted A. Johnson, Cousineau McGuire, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee has petitioned to vacate and set aside an award on stipulation, served and filed on March 27, 2002, based on a substantial change in his medical condition.  We conclude the petitioner has established good cause and grant the  petition to vacate the award.

 

BACKGROUND

 

On February 19, 2001, Anthony Segler, [the employee], sustained an admitted  work-related injury to his low back while working for Work Connection, a temporary employment agency,  [the employer], insured on that date by Constitution State Services Company [the insurer].  At the time he was 19 years old and was working on an assignment at Industrial Louvers in Delano, Minnesota.  He noted extreme pain in his low back after attempting to move a pallet that was frozen to the ground, and also felt pain shooting down both legs into his buttock area.  The employee first treated on February 23, 2001, at the Ridgeview Clinic in Delano, where Dr. F. Vasquez diagnosed a slight lumbar strain, assigned moderate work restrictions, and referred the employee to physical therapy.  In April 2001, the employee sought chiropractic treatment from Dr. Gary McGowan, D.C., complaining of a sharp stabbing pain in his low back, and pain and periodic numbness in his legs.  Dr. McGowan diagnosed mechanical lumbar dysfunction and provided chiropractic treatment to the employee until June 2001, without any improvement in the employee=s symptoms.

 

Dr. McGowan then referred the employee to Dr. Robert Heeter, an orthopedist, to whom the employee reported in June 2001 that he had episodic pains and numbness from his waist down either leg with pain radiating as far as his knees.  Dr. Heeter restricted the employee from work and ordered an MRI scan as a diagnostic test.  The MRI, conducted on June 11, 2001, showed a mild central annular bulging at the L4-5 level and a mild herniation at the L5-S1 level with extension and mild deformity of the thecal sac, possibly impinging on the left S1 nerve root.  Dr. Heeter diagnosed a lumbar disc syndrome with a left paricentral herniation at the L5-S1 level, and suggested that the employee might have degenerative disc disease.  Dr. Heeter  restricted the employee from work, and referred him for physical therapy and epidural steroid injections.

 

By August 28, 2001, the employee reported to Dr. Heeter that he still noted occasional back pain but had no significant radicular pain.  Dr. Heeter recommended Advil, a continued spine exercise program and physical therapy, and released the employee to work within light-duty restrictions for at least one month, until a re-examination.

 

Approximately two weeks later, on September 11, 2001, Dr. Jack Drogt, orthopedic surgeon, examined the employee on behalf of the employer and insurer.  He diagnosed a lumbar pain syndrome, temporary in nature, with no objective findings to support the employee=s ongoing complaints of pain.  Dr. Drogt found no significance in the L5-S1 disc identified in the June 11, 2001, MRI scan, noting that the disc was eccentric on the left side whereas the employee had experienced more symptoms on the right side.  Dr. Drogt concluded that the employee had reached maximum medical improvement (MMI) by the time of his IME, but recommended work restrictions, including a 35-pound lifting and carrying limit, for approximately four weeks.

 

At Dr. Heeter=s recommendation, the employee underwent three steroid injections and physical therapy.  By October 2, 2001, the employee reported that he had a slight residual back ache and felt A95% improved.@  Dr. Heeter released him to work within a 40-pound lifting limitation.

 

The employee earlier had filed a claim petition in July 2001, contending he was entitled to temporary total disability benefits from the date of his injury, February 19, 2001, to the present and continuing.  He also reserved a claim for permanent partial disability benefits, with no percentage indicated, and claimed entitlement to medical and rehabilitation benefits.  In their answer to the employee=s claim petition, the employer and insurer contended that the employee was not entitled to the claimed benefits and that his work injury in January 2001 represented a temporary aggravation of a pre-existing condition.  In early 2002, the parties entered into a settlement of the employee=s claims, on a full, final and complete basis.  In exchange for payment of $8,000.00 to the employee and payment of his outstanding chiropractic expenses, the employee agreed to foreclose all past and future claims, including rehabilitation benefits, with the exception of  Afuture non-chiropractic medical expenses that are reasonable and necessary, subject to defenses.@  At the time of the settlement, the employee noted mild spasm in his low back and buttock area without radiating pain.  The award on stipulation was issued on March 5, 2002.

 

In April 2002, the employee returned to work for the first time since his injury, working as a truck driver for Segler Trucking, a business owed by his father.  He noticed occasional low back pain.  In October 2003, the employee experienced an onset of shooting pains down both legs and numbness in his low back while pushing in the clutch on a truck he drove for Segler Trucking.  An MRI scan on October 21, 2003, showed an interval enlargement of the previously-noted central and pericentral L5-S1 disc herniation with left S1 nerve root compression.  Dr. Heeter placed the employee on bed rest and prescribed pain medication and a follow-up Medrol Dose Pak.  Dr. Heeter recommended that the employee use a lumbar support when not resting.  He still reported incapacitating back and leg pain on October 30, 2003, and Dr. Heeter recommended that the employee undergo surgery.

 

Dr. Robert Barnett conducted an independent medical examination of the employee on March 26, 2004, and concluded that the February 19, 2001, injury caused his lumbar disc herniation, and that the employee=s condition in 2004 represented a permanent aggravation of that injury.  Dr. Barnett recommended the same type of surgery as suggested by Dr. Heeter in 2003.  Although the employer and insurer initially denied liability for payment for medical treatment, they  later petitioned for a temporary order for payment of surgical expenses.  Dr. Heeter performed surgery on June 25, 2004, in the nature of a left-sided L5-S1 decompressive laminotomy and discectomy.  The employee underwent post-surgical physical therapy and exercise, and noted an improvement in his symptoms.

 

By August 5, 2004, the employee had no further pain or discomfort.  In May 2005, however, he noted an abrupt onset of back pain and spasms, and was restricted from work for one month by Dr. Heeter.  He later underwent physical therapy and worked within restrictions.  In December 2005, the employee noted another abrupt onset of symptoms while walking, and again was temporarily restricted from work.  At Dr. Heeter=s recommendation, the employee underwent a third MRI scan of his lumbar spine, which showed no recurrent disc herniation at the L5-S1 level and a diffuse disc bulge at the L5-S1 level unchanged from the previous MRI study.  The scan also showed enhancing granulation tissue present in the epidural space adjacent to the left L5 and S1 nerve roots, and Dr. Heeter concluded that there was residual scarification in the vicinity of the nerve root.  According to the last medical treatment note in the record, dated January 3, 2006, the employee reported an improvement in his symptoms.  Dr. Heeter advised that the employee could return to work on a light-duty basis, driving truck, but that he should do no shoveling and no forward bending or twisting.  By February 28, 2006, Dr. Heeter released the employee to unrestricted work, and prescribed an air ride truck seat.

 

On March 27, 2006, the employee filed a petition to vacate the award on stipulation served and filed on March 5, 2002.  The employee alleged that he had suffered a substantial deterioration of his injury-related low back condition that was unanticipated at the time the award was entered into, and that his change in condition led to a surgical procedure, permanent partial disability and an additional period of temporary total disability following his surgery.

 

On May 5, 2006, the employer and insurer filed a memorandum of law in opposition to the employee=s petition to vacate the award, contending that the employee has not shown that he has experienced a substantial change in his condition that was causally related to his injury and that was reasonably unanticipated at the time the award was filed.

 

DECISION

 

Minn. Stat. '' 176.461 and 176.521, subd. 3, govern this court=s authority over petitions to vacate awards.  A party must show good cause in order for the court to grant a petition setting aside an award.  For awards issued after July 1, 1992, Agood cause@ to vacate is limited to (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; Franke v. Fabcon, 509 N.W.2d 373, 48 W.C.D. 520 (Minn. 1993).  Where a change in condition is alleged, the focus of this court=s inquiry is on whether there has been a substantial or significant worsening of the employee=s condition, and whether there is adequate evidence of a causal relationship.  The employee=s condition at the time of settlement is compared with the employee=s condition at the time of the petition to vacate.  Davis v. Scott Moeller Co., 524 N.W.2d 464, 466-67, 51 W.C.D. 472, 475 (Minn. 1994); Franke, 509 N.W.2d at 376-77, 49 W.C.D. at 525.

 

The employee asserts that his medical condition has substantially changed since the award in 2002.  A number of factors may be considered in determining whether a substantial change in condition has occurred, including a change in diagnosis, a change in the employee=s ability to work, additional permanent partial disability, the necessity of more costly and extensive medical care than anticipated, a causal relationship between the work injury and the worsened condition, and the contemplation of the parties at the time of the settlement.  Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).

 

Change in Diagnosis

 

The employee contends that his diagnosis has changed since the 2002 award on stipulation.  At the time of the award, he was diagnosed as having a single-level degenerative change at the L5-S1 level, with limited symptoms.  At the time of the petition to vacate, the employee=s diagnosis was post L5-S1 laminotomy and discectomy with residual scarring.  In addition, he has experienced more severe symptoms since March 2002 than those he reported at the time of the award.

 

In June 2001, the employee=s MRI scan showed a mild central annular bulging at the L4-5 level and very mild pericentral herniation at the L5-S1 level.  By late August 2001, Dr. Heeter had concluded the employee had a single-level degenerative change at the L5-S1 level, and recommended continued conservative treatment.  At that time, the employee reported occasional back pain but no radicular pain in his legs.  By September 2001, Dr. Drogt examined the employee and concluded there were no objective findings to support the employee=s ongoing complaints of pain.  He also found no significance in the disc herniation identified in the MRI scan, because the MRI showed a left-sided herniation that did not correlate with the employee=s right-sided symptoms.  On October 2, 2001, shortly after Dr. Drogt=s examination, Dr. Heeter re-examined the employee; the employee reported that he felt A95% improved@ and had very little residual backache.  Dr. Heeter advised that the employee had reached MMI; he cautioned the employee about bending and twisting and his restrictions of no lifting or carrying over 40 pounds.  The employee testified that he still noted mild symptoms, between October 2001 and the March 2002 award, including muscle tension, back spasms, numbness and weakness, but that his shooting pain in both legs had subsided.

 

By contrast, by October 2003, approximately 1/1/2 years after entering into the settlement, the employee experienced a significant flare-up of symptoms, including low back pain and numbness and radicular pain more severe than any he had experienced after his February 2001 injury.  Dr. Heeter diagnosed a large central disc herniation at the L5-S1 level along with recess stenosis and foraminal stenosis on the left side, persistent sciatic neuritis in the employee=s left leg, and mild neuropathy with numbness and weakness in his left ankle, and recommended that the employee undergo surgery  Ain an effort to reverse the neuropathy and alleviate him of his intractable leg pain symptoms.@  Dr. Barnett, who examined the employee in March 2004, also recommended surgery, and he did undergo surgery in June 2004.

 

The employee has experienced periodic flare-ups of his symptoms since that surgery.  Based on a repeat MRI scan in December 2005, conducted to assess the employee=s increased symptoms in his low back and right leg, Dr. Heeter found residual scarring near the nerve root at the level near the employee=s surgery, and restricted the employee to light-duty work, with no shoveling, forward bending or twisting.  By February 28, 2006, Dr. Heeter lifted those restrictions, but prescribed an air ride truck seat for the employee.

 

The employee=s diagnosis has significantly changed since he entered into a settlement in March 2002.  The progression of his symptoms and enlarged disc herniation, diagnosed in 2003,  necessitated surgery in 2004; in spite of that surgery, the employee has continued to note symptom flare-ups of a more severe nature than what he felt at the time of the settlement.   We conclude that the progression of the employee=s treatment, along with Dr. Heeter=s diagnosis made following his January 2006 examination, establish that the employee=s diagnosis has changed since the award on stipulation, thereby satisfying the first Fodness factor.

 

Ability to Work

 

The employee argues that his ability to work has changed since the 2002 award, that he had not earlier anticipated he would be disabled from work in 2003 and 2004, and thereby has satisfied this second Fodness factor.  The stipulation for settlement reflects that the parties disputed the reasons why the employee was not working at the time of the March 2002 award on stipulation, and the record contains very limited information on the employee=s medical ability to work either at the time of the award or at the time the employee petitioned to vacate the award.

 

At the time of the award on stipulation in March 2002, the employee had not yet returned to work even though Dr. Heeter had released him to return to work within light-duty restrictions as of late August 2001.  In late 2001, the employee was experiencing mild spasms in his back without radiating pain into his legs, but was able to return to work by April 2002, when he began working for his father=s trucking business.  Although he has continued to work to the present time, the employee lost time from work following a symptom flare-up in October 2003 and after his June 2004 surgery, and again as a result of symptom flare-ups in 2005 and 2006.  The employee also testified that his worsened symptoms continue to restrict or limit his work.  By way of example, following periodic symptom flare-ups, the employee was restricted to light-duty work for one month in May 2005, was restricted entirely from work for two weeks in late 2005 and early 2006, and was restricted to light-duty work for approximately two months in early 2006.

 

It appears that the employee=s low back condition and symptoms continue to affect his ability to work.  That being said, however, based on the record before the court, we cannot conclusively state that the employee=s ability to work has worsened since the time of the award.  The employee was not working at the time of the award.  He began working again in April 2002 and continued to work at the time of the petition to vacate.  Therefore, arguably, his ability to work has improved since the time of the award on stipulation.  Under these circumstances, the employee has not clearly satisfied this particular Fodness factor.

 

Medical Treatment

 

Since 2002, the employee has undergone surgery to his low back, in the nature of a left-sided L5-S1 decompressive laminotomy and discectomy.  The employer and insurer argue that while it is unclear from the record whether the surgery was anticipated in March 2002, the more important factor for this court to consider is whether the stipulation allowed the employee=s claim for future medical expenses to remain open.  In this case, the insurer has paid the medical expenses incurred by the employee since March 2002, including those related to the June 2004 surgery, and the employee=s claim remains open for payment of future medical expenses.

 

We acknowledge that, in the past, this court has held that when the settlement in question does not close out future medical costs, the issue of whether the employee has undergone more extensive medical treatment that originally anticipated Acarries less weight when determining whether a substantial change in condition has occurred.@  The court also has concluded that the employee having undergone surgery, standing alone, Awill generally not justify vacation of the award.@  Burke v. F.&M. Asphalt, 54 W.C.D. 363, 368-69 (W.C.C.A. 1996), summarily aff=d (Minn. June 4, 1996).  However, a change in recommended medical treatment since the time of settlement may still be significant in determining whether there has been a substantial change in medical condition.  At the time of the award in 2002, neither Dr. Heeter nor Dr. Drogt had recommended surgery for the employee.  We conclude that the employee has undergone more extensive medical treatment, including surgery in 2004, than was reasonably anticipated at the time of the award on stipulation.

 

Increased Permanent Partial Disability

 

The employee was not assigned any permanency rating until 2004.  In his report of September 11, 2001, Dr. Drogt assigned no permanent partial disability rating, concluding that there were no objective findings to substantiate the employee=s symptoms.  Likewise, Dr. Heeter had assigned no permanent partial disability rating before the 2002 award on stipulation.

 

Since the employee=s surgery in June 2004, Dr. Heeter has assigned a rating of 9% whole body impairment, pursuant to Minn. R. 5223.0390, subp. 4D, and an additional 2% whole body rating under subpart D(2) for the employee=s surgery.  The employer and insurer argue that this factor is not determinative.  They argue that even though there was no disability rating formally assigned before the award on stipulation, all the factors required for a 9% rating were present by then but had not been specifically assessed by one of the physicians.  The employer and insurer therefore argue that the employee=s permanency has only  Aincreased@ by 2% since the award.  We disagree.  Although by October 2001, Dr. Heeter advised that the employee had reached maximum medical improvement and that a permanent partial disability rating may be given, he issued no rating at that time, and it is not clear what rating would have been appropriate in light of the employee=s then-current diagnosis.  We conclude that the employee has sustained an increase in his permanent partial disability since the award on stipulation.

 

Causal Relationship Between Work Injury and Worsened Condition

 

The employee argues that a causal relationship exists between the employee=s 2001 injury and his medical treatment and disability since October 2003.  The employer and insurer contest liability for the employee=s current condition and need for additional medical treatment since 2003, however, and argue that it is not clearly established in the record that the employee=s changed condition is indeed causally related to his 2001 injury.  The employer and insurer argue that the Fodness factors require a showing that the employee=s 2001 work injury was causally related to the employee=s worsened condition, not simply his overall condition, basing that argument on Dr. Barnett=s conclusion that the 2001 injury merely was Aa substantial contributing factor in his lumbar spine condition.@  The employer and insurer argue that because there were no treatment records from March 2002 until October 2003, the 2001 injury should only be deemed as causing the employee=s overall condition and not any Aworsened condition@ that the employee currently claims.

 

We do not agree.  There is no dispute that the employee=s current condition, which has worsened since the 2002 award, is causally related to the employee=s 2001 injury.  Even the employer and insurer=s independent medical expert, Dr. Barnett, has apportioned 50% liability for the employee=s disability and medical expenses to his 2001 injury.  This court has long held that an employee need not prove that the employment was the sole cause, only a substantial contributing cause of the disability for which benefits are sought.  Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989).  In this case, through medical reports submitted to the court, the employee has established that a causal relationship exists between the employee=s 2001 injury and his current condition.  He therefore has satisfied this Fodness factor.

 

Contemplation of Parties at Time of Settlement

 

As described above, the employee=s symptoms had almost entirely resolved at the time of the 2002 settlement, and he had essentially been released from care on an Aas-needed@ basis by Dr. Heeter, his treating physician.  Dr. Drogt, who examined the employee in September 2001, had determined that the employee had a lumbar pain syndrome, that his injury had been temporary, and that he had no objective findings on examination.   By the time of the award, both Drs. Heeter and Drogt had determined that the employee had reached MMI, and neither Dr. Heeter=s records nor Dr. Drogt=s records refer to any recommendations for surgery in the future.  It was within this context that the parties entered into a settlement of the employee=s claim, and so it appears that, at the time of the award on stipulation, the employee=s worsened medical condition and need for the 2004 surgery were  Aclearly not anticipated and could not reasonably have been anticipated at the time of the award.@  See  Minn. Stat. ' 176.461.

 

SUMMARY

 

In view of the change in the employee=s diagnosis, as well as his need for more extensive medical treatment than was anticipated at the time of the award, his entitlement to additional permanent partial disability, the causal relationship between the employee=s work injury and his worsened condition, and the contemplation of the parties at the time of the settlement, we conclude that the employee has experienced a substantial change in condition since he entered into the settlement agreement in 2002 that was not clearly anticipated by the parties at the time of the settlement agreement.  Therefore, we grant the employee=s petition to vacate the award on stipulation served and filed on March 5, 2002.