The employee petitions to vacate an award on stipulation issued November 6, 2002, based on a substantial change in medical condition.  We previously referred the matter to the Office of Administrative Hearings for an evidentiary hearing and, upon review of the compensation judge’s findings issued following that hearing, we grant the petition.

On January 29, 2001, Kelly Fenstermaker sustained an admitted injury to her neck while employed by Thermoform Plastics, Inc., the employer.  On that date, the employee was struck in her larynx by a large metal canister and was forcefully thrown backwards.  She underwent emergency medical evaluation at St. John’s Northeast Hospital, including a CT scan of her cervical spine.  Her treating physician, Dr. Orrin Mann, restricted her work and prescribed physical therapy and medication.  At Dr. Mann’s referral, the employee consulted Dr. Garry Banks, orthopedic surgeon, who, in turn, referred the employee for an MRI scan of her cervical spine.  That scan, conducted in March 2001, revealed various positive findings including disc bulging at one level and a herniation at another level.  A follow-up multilevel cervical discography showed full thickness annular tearing with moderate to moderately severe concordant pain at each level between C3 and C7.  By May 2001, Dr. Banks concluded that it was unlikely that cervical fusion surgery would provide the employee with lasting benefit, as she did not have prominent radicular complaints and her degree of neural impingement did not necessitate surgery.  Dr. Larry Stern, who examined the employee in April 2001 at the request of the employer and insurer, also recommended against surgical intervention.

At Dr. Banks’ recommendation, the employee underwent a functional capacities evaluation (FCE) in June 2001 to define her work restrictions.  The evaluation showed that the employee could work full time with restrictions of no lifting over 30 pounds, only occasional lifting up to 15 pounds, a limit on tasks requiring reaching high overhead to far forward, a restriction against working in flexed or extended neck positions, and limited neck rotation.

The employee’s medical history includes treatment for cervical and thoracic problems for many years before her 2001 work injury, resulting from three motor vehicle accidents.  Following her work injury, which aggravated her underlying condition, the employee was unable to continue working for the employer, due to her injury-related restrictions.  She began working as a supervisor for a Kohl’s retail store in late 2001.  Although that job evidently was full-time and within her physical work restrictions, the employee experienced occasional neck pain and numbness in her hands while working at Kohl’s but was able to perform all of her job requirements.

In 2002, the parties entered into a stipulation for settlement, wherein the employer and insurer agreed to pay the employee $29,015.62, in exchange for a full, final, and complete settlement of any and all claims arising out of her 2001 work injury, with the exception of future medical expenses.  At the time of this settlement agreement, and as outlined in the stipulation for settlement, the employee contended that she had a decreased earning capacity as a result of her January 29, 2001, injury, and was entitled to ongoing payment of temporary partial disability benefits, that she had sustained permanent partial disability of at least 10% of the whole body, as a result of her work injury, and that she was entitled to ongoing vocational rehabilitation services and payment of reasonable and necessary medical expenses.  The employer and insurer’s contentions were also outlined in the stipulation for settlement.  They denied that the employee was entitled to any ongoing benefits, and claimed that she had no diminution in her earning capacity as a result of her 2001 injury.  The employer and insurer asserted that any decreased earning capacity the employee may have experienced resulted solely from economic conditions or factors other than her 2001 injury.  They also denied that the employee had sustained any permanent partial disability as a result of her 2001 injury, and asserted that she had reached maximum medical improvement from that injury as of November 3, 2001.

An award on stipulation was filed on November 6, 2002.  The employee worked at Kohl’s until December 2002, at which time she moved to California and worked at various jobs, including work in customer service and work as an automotive service writer and a warehouse manager.  In April 2003, the employee sought further medical treatment for her neck, after experiencing an immediate sudden increase in pain and discomfort in her cervical spine while driving and turning her neck.  She received cortisone injections and was prescribed pain medication. The employee contends that the employer and insurer denied her request for payment of additional medical treatment at that time.

In February 2005, the employee moved from California to North Carolina, in part with the hope of consulting a doctor in North Carolina, where the employer had a facility and ostensibly could provide the employee with access to one of the employer’s physicians there.  On April 1, 2005, the employee consulted a doctor, requesting an evaluation for her neck symptoms.  She was diagnosed with cervical spine pain and was referred for a neurological evaluation, and shortly thereafter returned to Minnesota, in part to seek medical care there.  Following her return to Minnesota, the employee worked for approximately one month as a service writer at Bene Ford in Duluth, Minnesota.  Although her neck symptoms increased from the telephone work required of that job, the employee was able to perform her job as a service writer.  She left that position due to her limited hourly wage, and later worked at various part-time jobs.

In July 2005, the employee returned to consult Dr. Banks, the physician with whom she had treated in 2001 following her injury.  The employee reported increased neck pain, bilateral upper extremity numbness, bilateral arm pain, and left trapezius muscle spasms, in addition to increased difficulty sleeping due to the pain and numbness in her arms.  Based on an MRI scan of her cervical spine, Dr. Banks diagnosed progressive neural impingement with radiculopathies, most markedly at the C4-C7 levels.  Dr. Banks recommended that the employee undergo an anterior decompression with discectomy and fusion from the C4-C7 level, and based that recommendation on the duration of the employee’s symptoms, the progressive worsening of the symptoms and failure of lasting improvement with non-operative treatment.

At the employer’s request, the employee underwent a repeat evaluation with Dr. Stern on October 24, 2005, to obtain his opinion on whether the recommended surgical procedure was reasonable and necessary.  Dr. Stern concurred with Dr. Banks’ recommendations for surgery.  Dr. Stern concluded that both the employee’s pre-existing medical condition and her January 29, 2001, work injury represented substantial contributing causes of her current medical condition and need for medical treatment and surgery.

On December 21, 2005, the employee underwent a three-level surgical fusion, performed by Dr. Banks.  Post-surgery, the employee wore a neck brace and received physical therapy for her neck.  By April 2006, in spite of initial improvement in her pain levels, the employee reported additional pain in her neck.  By May 25, 2006, however, Dr. Banks concluded that the surgical fusion was solid, and released the employee to work.  In his report of July 31, 2006, he outlined his opinion on the employee’s restrictions, as follows:

In 2005 and 2006, the employee worked on a very limited part-time basis as a restaurant server and bartender, and also performed some painting and cleaning jobs.  Between October 2006 and April 2007, the employee worked at a Kohl’s retail store in Duluth, in the housekeeping and maintenance departments, although she felt that the work was outside of her work restrictions.  In April 2007, she moved back to North Carolina, and since then has worked as a warranty administrator for Land Rover.  Her job includes computer work and work with transfer programs, tickets and account journals.  The employee testified that it is difficult to look up and down at paperwork, and that she feels she won’t stay with that particular job because of her neck pain and her concerns that her job duties could cause damage to her neck.  The employee also testified that she currently feels pain and pressure in her neck and has difficulty turning her head, which makes driving difficult for her.  She has physical limitations and difficulty sleeping, she experiences muscle spasms approximately every two months, and she believes she would be unable to perform her earlier work as a service writer.

The employee petitioned this court to vacate the November 6, 2002, award on stipulation on the basis of a substantial change in medical condition, contending that she has experienced a change in her diagnosis and a change in her ability to work since the time of the award on stipulation, and has also sustained additional permanent partial disability since then, all as a result of the ongoing effects of her 2001 work-related injury.  After our earlier review of the petition, we concluded that the record contained conflicting evidence and medical expert opinions as to whether there has been a change in the employee’s ability to work since the 2002 settlement and whether the employee has sustained additional permanent partial disability that was causally related to her 2001 work injury.  This court therefore referred the case to the Office of Administrative Hearings for an evidentiary hearing and findings on those issues.  See Fenstermaker v. Thermoform Plastics, Inc., No. WC06-239 (W.C.C.A. June 19, 2007).  Following a hearing before a compensation judge on August 5, 2008, the parties submitted post-hearing medical reports and written closing arguments.  In her findings and order, served and filed October 21, 2008, the compensation judge concluded, based on medical records generated since 2002, and based on the employee’s testimony, that the employee has experienced a change in her ability to work and has sustained additional permanent partial disability since the 2002 settlement.

The matter was later returned to this court for additional review of the employee’s petition to vacate the November 6, 2002, award on stipulation.

This court has jurisdiction to set aside an award on stipulation upon a showing of cause.  Minn. Stat. §§ 176.461 and 176.521, subd. 3.  Cause, as defined in the statute, includes “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(4).  In considering whether there has been a substantial change in medical condition, this court has generally applied the factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989):

In this case, the employee contends there has been a substantial and unanticipated change in her diagnosis and medical condition since the time of the 2002 award on stipulation, and that she has satisfied the factors set forth in Fodness.  The employee specifically claims that she has experienced a change in both her ability to work and the level of her permanent partial disability since 2002.

The employee’s contention that her diagnosis has changed since 2002 is well supported by the medical records submitted with her petition to vacate and with the employer and insurer’s objection to that petition.  At the time of the stipulation for settlement, the employee had been diagnosed with multilevel cervical degenerative disc disease.  Following the award, the employee’s symptoms worsened, and a cervical MRI scan showed progressive degenerative problems with disc space narrowing as well as spinal stenosis and right C4-5 disc herniation and foraminal stenosis at the C5-C7 levels.  In December 2005, based on the progression of the employee’s symptoms and the development of objective radiculopathy, Dr. Banks recommended and performed surgery in the nature of an anterior cervical decompression and fusion at three levels, between the C4 and C7 vertebral levels.  As noted in our earlier decision, the employee’s diagnosis has changed since the award on stipulation.

As to the issue of causation of the employee’s current condition, there is no dispute that the employee’s work injury of January 29, 2001, aggravated her underlying preexisting condition; Drs. Banks and Stern both agreed that the employee’s current condition and her need for the 2005 cervical fusion surgery were related to the employee’s 2001 work injury.

As for the employee’s need for additional medical care, the record shows that in 2002, before the parties entered into a settlement agreement, neither Dr. Banks nor Dr. Stern recommended surgery.  By 2005, however, both Drs. Banks and Stern concluded that surgery would be reasonable and necessary for the employee, based upon the radiographic findings at that time, the employee’s worsened symptoms, and her additional symptoms of radiculopathy. There clearly has been a substantial change in the extent of medical care, with the employee having now undergone a triple-level fusion in her cervical spine.  We find the extent of additional treatment here an indication of a substantial change in the employee’s medical condition.

The employee’s level of permanent partial disability has increased since the time of the award on stipulation.  Whereas Dr. Stern assigned a rating of 10% following his examination of the employee in 2001,^[1] he has now assigned a 15% whole body impairment rating, with the additional 5% rating attributable to the employee’s 2005 fusion surgery.^[2]  The compensation judge concurred that, based on the employee’s fusion surgery that was performed after the 2002 settlement, her level of permanent partial disability has increased.  The remaining issue to consider, therefore, is whether the employee’s ability to work has changed since the 2002 award on stipulation.

The record contains conflicting medical evidence concerning the employee’s alleged change in her ability to work.  The employer and insurer contend that the employee’s ability to work since the 2002 settlement has not substantially changed, or at least that any alleged change was clearly within the employee’s anticipation at the time of the settlement.

Following the employee’s December 2005 surgery, Dr. Banks assigned work restrictions for the employee, including a recommendation that she use a telephone headset.  Dr. Banks expressed concern that the employee was unable to return to her prior work involving inspecting automobiles, because of the awkward positions required of that work.  Dr. Stern also recommended restrictions, although he found no significant difference between the employee’s ability to work at the time of the 2002 award on stipulation and the present time.

We note that the employee was working at the time of the settlement in November 2002.  Although her restrictions precluded her from returning to her pre-injury job, by 2002 the employee worked at a Kohl’s retail store on a full-time basis.  While working for Kohl’s, the employee noted continued neck pain, as well as numbness in her arms when she raised them above her shoulders.  She later worked at other types of jobs, including work for an automobile dealership, and on a limited basis in 2006 as a restaurant server and bartender; she also has performed some painting and cleaning jobs.  Since April 2007, the employee has worked as a warranty administrator, but her symptoms persist and she currently has difficulty performing some of her required tasks.

The compensation judge concluded that the employee has experienced a change in her ability to work.  The judge relied on Dr. Banks’ recommendation that the employee not perform work as a service writer, and accepted his opinion as showing a change in the employee’s work ability.  The judge also referred to Dr. Stern’s opinions that although the employee need not entirely avoid inspecting automobiles, which was a task required of her earlier work as a service writer, she should avoid highly repetitive neck bending and twisting.  Dr. Stern also recommended that the employee should avoid repetitive overhead activities in view of the hyperextension of her neck that such activities required, and that it would not be appropriate for her to drive many vehicles if she would need to look over her shoulder repeatedly to safely move them.

The compensation judge concluded that, based on the record, the employee’s ability to work has changed since the 2002 settlement.  The judge referred to the employee’s ability to work at Kohl’s and then at various service-writing jobs following the 2002 settlement, and was persuaded by Dr. Banks’ opinion that the employee was no longer able to perform work as a service writer.  The judge explained the basis for her conclusion, as follows:

Based on the evidence of record, including the employee’s testimony, and also in view of the compensation judge’s findings, we conclude that the employee has experienced a substantial change in condition since she entered into the settlement agreement in 2002 that was not clearly anticipated by the parties at the time of the settlement agreement. The employee’s diagnosis has changed since the time of the award on stipulation.  In addition, she has undergone surgery since then and has experienced a decrease in her ability to work since then, neither of which was anticipated at the time of the award on stipulation.  In view of those factors, and considering the employee’s increased permanent partial disability attributable to the surgical procedure and the causal relationship between the employee’s work injury and her current condition and need for surgery, we grant the employee’s petition to vacate the award on stipulation served and filed on November 6, 2002.