DONALD BRUN, SR., Employee/Petitioner, v. RED LAKE BUILDERS and MINNESOTA WORKERS’ COMP. ASSIGNED RISK PLAN/BERKLEY RISK ADM’RS, Employer-Insurer, and SPECIAL COMP. FUND.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 3, 2012
No. WC12-5427
HEADNOTES
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Under these particular circumstances, especially in view of the fact that the employee’s ability to work has not changed and medical expenses remain available, the employee did not establish good cause to vacate the award on stipulation, despite his need for additional surgery following the issuance of the award.
Petition to vacate award on stipulation denied.
Determined by: Stofferahn, J., Hall, J., and Johnson, J.
Attorneys: Michael L. Garbow and Mark L. Rodgers, Rodgers & Garbow, Bemidji, MN, for the Petitioner. Elizabeth Holden Hill and Julie A. Williams, Law Offices of Elizabeth Holden Hill, Minnetonka, MN, for the Respondent.
OPINION
DAVID A. STOFFERAHN, Judge
The employee petitions to vacate an award on stipulation based on a substantial change in medical condition. Finding no cause to vacate, we deny the petition.
BACKGROUND
The employee sustained an admitted work-related injury to his low back on September 2, 1989, while employed by Red Lake Builders [the employer] as an equipment operator. He was seen at North Country Hospital on the date of injury and was diagnosed with a burst fracture to the L2 vertebra. He treated with Dr. T. L. Johnson, who prescribed a TLSO brace. When the brace was discontinued in early 1990, the employee’s pain increased.
The employee was examined by Dr. Michael D. Smith at the Minnesota Spine Center on April 4, 1990, complaining of severe mid-thoracic pain and occasional hip and inner thigh pain. An MRI performed three days later showed compression fracture of the L2 vertebra and degenerative dehydration and disc space narrowing at L5-S1, with a focal annular tear and small very focal right central disc herniation.
The employee was seen by Dr. John Stark on June 5, 1990, at the request of the employer and insurer. Dr. Stark concurred with Dr. Smith’s recommendation for surgery, and Dr. Smith performed an anterior/posterior fusion from L1 through L3 on September 17, 1990. On September 11, 1991, Dr. Smith opined that the employee had reached maximum medical improvement from the work injury.
On September 24, 1992, the employee filed a claim petition seeking permanent total disability benefits continuing from September 1, 1992.
The parties entered into a stipulation for settlement which indicated that the employee was claiming entitlement to permanent total disability benefits as well as benefits for a 22.5% permanent partial disability. The parties stipulated that the employee had been permanently and totally disabled since September 2, 1989, and that the employee was entitled to a 22.5% permanent partial disability rating related to his low back condition. In return for a lump sum payment of permanent partial disability benefits and payment of ongoing weekly permanent total disability benefits, the employee agreed to a full, final, and complete settlement of all claims with the exception of medical expenses. An award on stipulation was filed on July 6, 1994.
The employee was seen by Dr. Smith in July of 1994 with symptoms compatible with a metal allergy to the instrumentation used in his fusion. An instrumentation removal and exploration of the fusion was performed by Dr. Smith on December 11, 1995. The fusion was found to be solid after removal of the hardware.
The parties entered into a second stipulation for settlement, pursuant to which the employee agreed to accept a lump sum payment of $125,000 in full, final, and complete settlement of all claims, including permanent total disability benefits, but excluding medical expenses. The stipulation indicated that “the employee has opted to receive reduced permanent total disability benefits in the form of a lump sum . . . rather than receiving them on a periodic basis, having accepted a discount to present value.” The award on stipulation was filed on April 6, 1998.
The employee was seen by Dr. Manuel Pinto on October 17, 2000, with complaints of right anterior thigh numbness, tingling, and pain. X-rays taken that day revealed a well-healed fusion at L1-2 and L2-3. Dr. Pinto ordered an MRI which showed a moderate-sized, broad-based symmetrical central extruded disc herniation at L5-S1, with impingement on the thecal sac and the S1 nerve roots. It also showed a solid fusion from L1 through L3. Dr. Pinto did not think that the MRI findings explained the employee’s right anterior thigh pain, but he recommended a lumbar epidural steroid injection.
The employee was also seen by Dr. Pinto on April 19, 2001, and June 28, 2001, for persistent low back and bilateral anterior thigh pain.
The employee was seen again by Dr. Pinto on December 7, 2004, complaining of persistent low back pain and right anterior thigh pain. Dr. Pinto opined that it was “possible” that the employee had developed discogenic back pain and also a herniation or stenosis that could be producing his leg symptoms. The plan at that time was to proceed with an MRI scan of the lumbar spine.
On January 16, 2007, the employee informed Dr. Pinto that he was reaching a point where he no longer wanted to live with the pain. Following an MRI and discography, Dr. Pinto recommended an anterior spine fusion at L4-5 and L5-S1, with reconstruction.
On December 17, 2007, the employee underwent anterior discectomy and fusion at L4-5 and L5-S1, with insertion of intravertebral devices, and posterolateral fusion L4-5 and L5-S1, performed by Dr. Pinto. The surgery did not relieve the employee’s low back pain and bilateral lower extremity pain. On January 4, 2011, Dr. Pinto reviewed an MRI that showed some evidence of facet arthritis at L3-4.
Dr. Pinto subsequently opined that the L3-4 facet arthritis was substantially related to the employee’s work injury, because the fusion from L1 through L3 placed additional stress on the levels above and below the fusion. With respect to the L4-5 and L5-S1 levels, Dr. Pinto opined that those “bad discs” were “likely” substantially aggravated by the work injury.
A medical record review was performed by Dr. Charles Burton at the request of the employer and insurer. In a report dated July 24, 2012, Dr. Burton opined that, following the 1990 surgery, the employee had developed a chronic pain syndrome associated with significant psychosocial and psychogenic factors. It was his opinion that the surgical treatment in 2007 for longstanding degenerative disc disease at L4-5 and L5-S1 in a neurologically intact person was inappropriate and unrelated to the employee’s work injury and that the employee’s subsequent problems were related to that surgery.
The employee petitions to vacate the April 1998 Award on Stipulation, alleging a substantial change in condition.
DECISION
Minn. Stat. §176.461 governs this court’s authority to set aside an award. Cause to vacate an award includes a substantial change in the employee’s medical condition after the award that could not reasonably have been anticipated.
In considering whether there has been a substantial change in medical condition, this court has generally applied the factors listed in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989). Those 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 previously anticipated; and
5. a causal relationship between the injury covered by the settlement and the employee’s current condition.
1. Change in Diagnosis
The employee contends that there has been a change in his diagnosis because he underwent an additional two-level fusion at L4-5 and L5-S1 following the award on stipulation. At oral argument, counsel for the employer and insurer admitted that the employee has had an additional fusion. There has therefore been a change in the employee’s diagnosis since the issuance of the award.
2. Change in Ability to Work
The employee contends that, at the time of the settlement, he was planning to attend school to get his GED and that he was “hoping” to work in a sedentary job but that, because his pain is so severe, he has been unable to work at all since the award. In his affidavit, the employee states that, shortly after receiving the lump sum payment under the 1998 award, he went to the Adult Learning Center in Bemidji to pursue his education but had “particular difficulty with the writing portion of the program,” and “his pain became so great during the writing portion of the program that he came to the conclusion that he would not be able to work in the real world.” In response, the employer and insurer contend that there is no contemporaneous evidence from the time of the award showing that the employee had been contemplating a return to school or retraining, and there is no evidence that the employee ever returned to work or looked for work after he was declared permanently totally disabled.
When evaluating whether the employee has established a substantial change in condition, the relevant comparison is between the employee’s present condition and the employee’s condition at the time of the award. Battle v. Gould, Inc., 42 W.C.D. 1085 (W.C.C.A. 1990). In the instant case, the parties stipulated in 1994 that the employee had been permanently totally disabled since September 2, 1989. At the time of the 1998 award, the employee was receiving permanently total disability benefits and was not working or looking for work. The employee remains permanently totally disabled. There has been no change in the employee’s ability to work.
3. Additional Permanent Partial Disability
The employee contends that he is entitled to an additional 22.5% permanent partial disability rating as a result of the fusion surgery performed in 2007. At oral argument, counsel for the employer and insurer admitted that 22.5% would likely be the appropriate rating for the additional fusion surgery. While causation remains disputed, the employee has established that he has sustained additional permanent partial disability since the time of the 1998 award.
4. Necessity of More Costly and Extensive Medical/Nursing Care
The employee contends that the post-settlement surgery in 2007 was unexpected.
An employee’s need for additional medical care carries less weight in determining whether a substantial change in condition has occurred if medical expenses remain available under that award. Burke v. F & M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996). However, even where medical benefits have been left open, the need for more expensive medical care than anticipated remains useful evidence bearing on whether there has been a substantial change in the employee’s condition. Vellieux v. Catholic Charities, slip op. (W.C.C.A. Mar. 8, 2007). In the instant case, the employer and insurer have paid all medical bills submitted to them by the employee but, at oral argument, indicated causation may be raised as a defense to future medical expense claims.
The additional treatment in this case is significant, and, if causally related to the work injury, might constitute evidence of a substantial change in the employee’s condition.
5. Causal Relationship
The employee’s argument regarding causation is that “Dr. Pinto’s patient note dated October 11, 2011, and letter dated December 16, 2011, make it clear that the fusion at L4-S1 is substantially caused by the work injury.”
In a questionnaire completed on July 19, 2011, Dr. Pinto had been asked whether the surgery at L4-5 and L5-S1 was substantially caused by the employee’s work injury. His response was, “possibly.” Then, in his letter of December 16, 2011, Dr. Pinto changed his answer to yes and indicated that the explanation for this change was outlined in his office note of October 11, 2011. According to that note, with respect to the L4-5 and L5-S1 levels, “[the employee] tells me that after the first surgery that he had elsewhere to address his work injury, he never got better and we knew from additional testing that he had bad discs at L4-5 and L5-S1 which likely were aggravated substantially by the work injury.” Dr. Pinto’s opinions are not a model of clarity.
The employer and insurer rely on the report of Dr. Burton, which indicated that the causal relationship between the employee’s condition and the work injury ended in 1991. Dr. Burton also opined that the employee’s current condition is causally related to “an inappropriate two-level fusion” performed in 2007. Dr. Burton, however, is also less than clear as to whether the work injury might have aggravated or accelerated problems at the L4-5 and L5-S1 levels.
6. Anticipation
For awards on stipulation filed after 1992, the statute requires that the change in medical condition must clearly not have been anticipated and could not reasonably have been anticipated at the time of the award. Neither party addresses this directly. Rather, they both address the contemplation of the parties at the time of the award.
The employee contends that he entered into the stipulation for settlement “out of concern for his family,” that he was “unsure of what the future would bring,” and that “he knew if something happened to him, the payments he was getting for workers’ compensation would end.” He went on to state that he “never realized that he would be in so much pain for so long.” At oral argument, counsel for the employee argued that it is the “fairness element that underlies [his] whole argument,” that “fairness would dictate that we be able to reopen this.” Further he argued that, while the employee received $119,000 to close out permanent total disability, “now he’s completely unable to work or do anything.”
The employer and insurer contend that they knew that the employee was permanently totally disabled at the time of the award and that they assumed that he would continue to be permanently totally disabled. They also allegedly anticipated that the employee would continue to incur medical expenses for treatment of his condition and that they would continue to pay those expenses if the treatment was reasonable and necessary.
In this case, the employee was receiving permanent total disability benefits at the time of the award, and the employer and insurer anticipated paying those benefits into the future. Under the circumstances, the employee cannot now argue that the lump sum reduced payment of permanent total disability benefits is unfair. Neither do we consider payment of $125,000 (before attorney fees) to be an insubstantial or unfair sum in 1998.
Were the award on stipulation to be vacated, the employee would be making a claim for permanent total disability benefits and permanent partial disability benefits. The employee’s ability to work has not changed since the award on stipulation, so the only pertinent change in his condition would be the additional permanent partial disability. Given the facts of this case, we do not find a claim for additional permanency to be a sufficient reason to vacate the award on stipulation.
The employee’s petition to vacate is therefore denied.