The employee petitions to partially vacate an award on stipulation on grounds that there has been an unanticipated change in medical condition.  We refer this matter to the Office of Administrative Hearings for an evidentiary hearing to make findings of fact on the causal relationship between the employee’s work injury and her pre-surgical condition.  If applicable, the compensation judge should then make findings regarding (1) the reasonableness and necessity of the medical treatment at issue, including the fusion surgery and the post-fusion medical treatment, and (2) the causal relationship between the employee’s current, post-surgical condition and her condition at the time of the settlement.

Rosemary Berg, the petitioner, sustained an admitted personal injury to her low back on June 24, 2011, while working as a certified nursing assistant (CNA) for Maplewood Care Center, the employer, then insured by Liberty Mutual Insurance Company.

Following this injury, the employee sought treatment at Allina Medical Clinic on June 28, 2011, where she was initially evaluated by a nurse practitioner.  The employee reported pain along her spine from her shoulder blades to her tailbone.  She reported right buttock pain but no leg pain, tingling, or numbness.  X-rays revealed moderate degenerative spondylosis of the thoracic spine.  On July 5, 2011, the employee was evaluated at the clinic for reported back pain with radiation.  She started physical therapy on July 12, 2011.  The employee was examined by Dr. Bethany Hoffman on August 3, 2011, for radiating back pain.  The doctor performed an examination and noted the employee to be neurologically intact with negative straight leg raising.  The employee remained symptomatic and MRI and CT scans were performed.  The CT scan revealed a cystic mass in the left pelvis and surgery was performed on October 19, 2011.

In September and November of 2011, the employee received treatment from Dr. Hoffman.  The employee continued to give a history of symptoms including back pain radiating to both legs.  Dr. Hoffman recommended physical therapy and continued pain medications.  Following Dr. Hoffman’s examination on November 10, 2011, the employee was referred to Dr. Francis Denis at Twin Cities Spine on December 12, 2011, for a surgical evaluation.  Dr. Denis reviewed the MRI, noting the scan showed some subarticular and foraminal stenosis at the L4-5 and L5-S1 levels.  Dr. Denis diagnosed right L5 radiculopathy associated with L4-5 and L5-S1 foraminal stenosis.  The doctor recommended steroid injections and discussed a right-sided L4-5 and L5-S1 decompression.

The employee returned to see Dr. Hoffman in December of 2011.  Multiple treatment options were discussed, including a TENS unit and a referral to a pain clinic.  The employee remained symptomatic with numbness in both legs and in her right hand.  Dr. Hoffman continued to treat the employee in January of 2012.  The doctor recommended physical therapy and weight reduction, prescribed medication, and referred the employee for a second surgical consult.

The employee was evaluated by Dr. Alejandro X. Mendez of HealthPartners Neurosurgery & Spine for a surgical consultation on February 9, 2012.  The doctor assessed chronic back pain and mild degenerative disc disease with mild facet arthropathy.  He noted symptoms consistent with fibromyalgia.  The doctor recommended medication and discussed a dorsal column stimulator.

The employee returned to see Dr. Mendez on May 10, 2012.  The doctor recommended a repeat MRI and discussed a lumbar discogram.  The insurer approved the MRI but denied the discogram.^[1]  The employee returned to see Dr. Hoffman in June of 2012.  The doctor discussed a multidisciplinary pain clinic approach to pain management.  Dr.  Hoffman again recommended a referral to a pain program.

The employee returned to see Dr. Mendez on June 28, 2012.  The employee stated that her right leg went numb and her left leg was starting to go numb.  The doctor reviewed the MRI scans and discussed surgical intervention.

The employee was evaluated by Dr. Matthew Monsein at Courage Center on July 30, 2012.  Dr. Monsein reviewed the history of the employee and performed an examination.  Dr. Monsein recommended pain management techniques that did not include surgical intervention.

At the request of the employer and insurer, Dr. Gary Wyard examined the employee on August 17, 2012.  Dr. Wyard discussed the employee’s history of previous low back issues, including an L5 decompressive laminectomy on July 30, 2003.  He diagnosed the employee with a longstanding history of lumbar degenerative disc disease, and he noted obesity, deconditioning, and psychosocial behaviors with nonorganic back and leg complaints.  Dr. Wyard stated that the MRI revealed disc disease but no stenosis or nerve root compression.  The doctor concluded that the employee had no objective findings attributable to the work injury and no objective medical evidence that the work injury was a substantial contributing factor to the current diagnosis.  Dr. Wyard also gave an opinion regarding surgical intervention:

In October of 2012, the parties entered into a stipulation for settlement.  In the written agreement, the employee contended that she had sustained a work-related back injury, and that as a result of the injury, she was entitled to a discogram and a back fusion.  The employer and insurer admitted a temporary work injury but claimed the employee reached maximum medical improvement within three months after the injury with no permanent partial disability.  The employer and insurer also claimed that the employee “has received any and all workers’ compensation benefits and medical benefits to which she is entitled to-date and will be entitled to in the future,” and they claimed that they “have no liability for any outstanding medical or intervention claims, inasmuch as said medical treatment is unreasonable, unnecessary, and/or unrelated to the work injury on June 24, 2011.”^[3]  Based on their contentions, the parties agreed to the following:

An award on stipulation was served and filed on October 29, 2012.

Dr. Mendez performed an L4-L5 and L5-S1 anterior-posterior lumbar fusion with anterior lumbar interbody fusion from the front and percutaneous pedicle screws from the back in stages on December 7 and 8, 2012.  After the surgery, the employee noticed shooting pain down the left lower extremity as well as foot drop.

The employee continued to have complaints and symptoms after the fusion, and she had two additional operations in January 2013 related to issues with her surgical wounds.  The employee has continued to treat with various medical providers.  In the spring of 2013, Dr. Mendez ordered an EMG of the lower extremities that revealed left peroneal neuropathy not localized and peripheral neuropathy elsewhere.  The employee met with Dr. Mendez in November 2013.  In a November 4, 2013 letter, Dr. Mendez indicated that the employee had not shown any signs of improvement, and he opined, in pertinent part, that:

In July of 2014, the employee filed a petition seeking to partially vacate the Award on Stipulation filed October 29, 2012.

The employee argues that she has had a substantial change in her medical condition and that her current condition and need for more extensive medical care could not have been anticipated at the time of the settlement.  Minn. Stat. § 176.461 permits “the Workers’ Compensation Court of Appeals, for cause, at any time after an award, . . . to set the award aside and grant a new hearing and refer the matter for a determination” by a compensation judge.^[6]  In Minn. Stat. § 176.461(b), the phrase “for cause” is limited to the following:

The employee has submitted a causation opinion from Dr. Mendez in support of her position that her current, post-surgical condition represents a substantial change in her medical condition and a need for more extensive medical care, neither of which could have been anticipated at the time of the settlement herein.  Therefore, the employee is asking this court to vacate the portion of the award that purportedly closes medical care.^[9]  However, vacation of an award on the basis of change in medical condition is not appropriate unless there is a showing of a causal relationship between the employee’s current condition and the work injury.^[10]

In this case, there is conflicting evidence regarding causation for the employee’s condition both before and after the fusion surgery.  The employer and insurer agreed to a compromised settlement in which they would pay for the fusion surgery, but the employer and insurer have maintained, based in part on Dr. Wyard’s opinions, that the employee’s June 2011 injury is not a substantial contributing factor in her current condition or even in the condition leading up to the fusion surgery.^[11]  Dr. Wyard stated in his August 22, 2012 report that the employee had no objective findings attributable to the work injury and no objective medical evidence that the work injury was a substantial contributing factor in her diagnosis before the fusion surgery.  Dr. Wyard also opined that the fusion was not reasonable, necessary, and causally related to the employee’s injury.  Therefore, although the employee has presented an opinion from Dr. Mendez that may provide some basis for concluding that the employee’s condition has changed since the settlement and the subsequent fusion surgery, it is not clear that the employee’s post-settlement and post-surgical condition is causally related to the work injury.

A finding regarding causation is one of ultimate fact,^[12] and “[t]his court is not a factfinding tribunal.”^[13]  Because this court is not empowered to conduct a fact-finding proceeding in this case, we refer this matter to the Office of Administrative Hearings for an evidentiary hearing to make findings of fact on the causal relationship between the employee’s work injury and her pre-surgical condition.  If applicable, the compensation judge should then make findings regarding (1) the reasonableness and necessity of the medical treatment at issue, including the fusion surgery and the post-fusion medical treatment, and (2) the causal relationship between the employee’s current, post-surgical condition and her condition at the time of the settlement.  After the compensation judge’s findings are issued, this court will consider whether there has been a substantial change in the employee’s condition since the settlement and reach a final decision on the petition to vacate.