The employee petitions to vacate an Award on Stipulation served and filed December 27, 2010, based on a substantial change in medical condition.  We grant the employee’s petition.

On April 20, 2005, Jason Brist, the employee, sustained an admitted low back injury after moving a 500-pound concrete foundation and placing a large granite cemetery monument on it.  The employee was injured while working for Fergus Falls Granite, Inc., the employer, which was insured for workers’ compensation liability by Westfield Insurance Company.  Westfield paid various benefits, including temporary total disability benefits and medical expenses.  The employee treated with Dr. James Andrews, who diagnosed sacroiliac joint dysfunction.  The employee reached maximum medical improvement on October 7, 2005, and was released to return to work for the employer with no restrictions.  Over the years, the employee experienced episodic low back pain and underwent periodic chiropractic treatment.  He did not lose time from work due to low back pain from October 2005 through April 3, 2009.

On April 3, 2009, the employee sustained another work-related low back injury while the employer was insured for workers’ compensation liability by Cincinnati Insurance Company.  Cincinnati denied the claim.  The employee treated again with Dr. Andrews, who took the employee off work as of April 16, 2009.  Dr. Andrews referred the employee to Dr. Michael McCue for a surgical consultation.  Dr. McCue diagnosed a left L5-S1 herniated disc.  On May 22, 2009, the employee underwent a left L5-S1 hemilaminectomy and microdiscectomy performed by Dr. McCue.  In June 2009, Dr. McCue released the employee to work with a 10-pound lifting restriction.  He discouraged the employee from working at full capacity for three months for fear of a recurrent herniation.

On May 13, 2009, Westfield filed a petition for a temporary order.  The order was served and filed on May 15, 2009.  Under this order, Westfield paid wage loss benefits, medical expenses, and rehabilitation benefits.  The employee was released to return to work without restrictions by Dr. McCue as of August 22, 2009.  The employee was terminated from his employment on November 13, 2009.

On November 18, 2009, the employee underwent an independent medical examination with Dr. Paul Wicklund at Westfield’s request.  (Westfield Ex. L.)  Dr. Wicklund diagnosed post left L5-S1 herniation and ongoing back pain.  He opined that the 2009 injury was a substantial contributing cause of the employee’s current low back condition and of his 14 percent permanent partial disability.  He concluded that the employee’s 2005 injury was not a substantial contributing cause of the employee’s low back condition.  Dr. Wicklund based his opinion on his understanding that the employee first experienced radiating left leg pain and a L5-S1 herniated disc after the 2009 injury.  He opined that the employee was at maximum medical improvement since September 2009 and had restrictions of no lifting over 35 pounds and no repetitive bending, twisting, or stooping.

On January 8, 2010, Westfield petitioned for contribution and/or reimbursement against Cincinnati for all benefits paid after the April 2009 injury.  On March 15, 2010, the employee filed a claim petition against the employer and both insurers for wage loss benefits after April 16, 2009, and a 14 percent permanent partial disability.  In March 2010, the employee underwent a rehabilitation consultation and was found to be qualified for rehabilitation services with a goal of returning to work with a different employer.

On May 3, 2010, the employee was examined by Dr. Nolan Segal at Cincinnati’s request.  Dr. Segal found the employee was not at maximum medical improvement and that his symptoms were suggestive of a recurrent disc herniation at L5-S1.  Dr. Segal opined that the employee’s problems before April 2009 were a substantial contributing factor to his current symptoms and condition and that the April 2009 injury was a permanent aggravation of a pre-existing condition.  He also stated that the employee should have had permanent restrictions since 2005 and recommended an MRI scan and consideration of an epidural steroid injection.  Dr. Segal apportioned liability for the employee’s low back condition as 50 percent due to his degenerative disc disease, 25 percent due to the 2005 work injury, and 25 percent due to the 2009 work injury.

The employee consulted with Dr. Ensor Transfeldt for his low back pain on October 19, 2010.  Dr. Transfeldt diagnosed multilevel disc degeneration of the lumbar spine and left L5-S1 foraminal stenosis.  He recommended an L5 nerve root block with transforaminal epidural steroids.  If the injections did not help, he stated that surgery, a L5-S1 foraminotomy or possibly a fusion, was a last resort.  He did not recommend specific restrictions.  (Employee Ex. I.)

The employee began sporadic part-time work within his restrictions for Northland Chimney in early 2010.  The parties entered into a stipulation for settlement and an Award on Stipulation was served and filed December 27, 2010.  The employee was paid $60,000.00 for a full, final, and complete settlement with medical expenses open and administered by Cincinnati.

In 2011, the employee began working within his restrictions for Tysdal Construction.  In June 2011, the employee experienced worsened symptoms and treated with Dr. Andrews, who diagnosed foraminal stenosis with lumbar radiculopathy with recurrence.  Dr. Andrews took the employee off work and recommended an epidural steroid injection, which was performed on July 15, 2011.  The employee has not returned to work since June 2011.  Dr. Andrews later ordered a lumbar MRI, which indicated a moderate-sized left L5-S1 extruded herniated disc posteriorly which had developed since the May 2010 MRI, slight to moderate generalized spinal canal stenosis at L3-4, mild generalized spinal canal stenosis at L4-5, and narrowing of the intervertebral foramina bilaterally at L5-S1 in August 2011.

Dr. Andrews referred the employee to Dr. Hamid Abbasi at Central Minnesota Spine Center for a surgical consultation.  Dr. Abbasi examined the employee on March 29, 2012, and assessed post L5-S1 microdiscectomy and severe degenerative L5-S1 disc disease, disc herniation, and listhesis.  He recommended L5-S1 posterior interbody fusion with interbody graft.  Dr. Andrews also referred the employee to Dr. Jeffrey Gerdes at Central Minnesota Neurosciences.  On November 12, 2012, Dr. Gerdes recommended and performed an L3 to L5 decompression and microdissection surgery at L3-4, L4-5, and L5-S1 for the employee’s lumbar stenosis.  Cincinnati approved and paid for the surgery.  Also in November 2012, the employee was notified of the amount of his approved social security disability benefits.

Dr. Gerdes released the employee to work four hours per day with no lifting over 20 pounds as of February 11, 2013.  The employee underwent a functional capacities evaluation on February 11 and 12, 2013.  The employee was given restrictions of working three to four hours per day, minimal lifting, light non-repetitive hand activity, and restrictions on bending, sitting, standing, walking, kneeling, and climbing.  Dr. Gerdes indicated that the restrictions were permanent.  On April 15, 2014, the employee was evaluated by a vocational consultant, who opined that the employee was limited to very selective part-time sedentary employment, and with his age, limited education, lack of transferable skills, and restrictions, he was permanently and totally disabled at that time.

On April 15, 2014, the employee was evaluated by Dr. Mark Halstrom, who opined that the employee had undergone a significant and substantial change in his low back condition, functional ability, and need for ongoing care since 2010.  He also opined that the employee now had 30 percent permanent partial disability and that the April 2009 injury was a substantial contributing factor to the employee’s lumbar spine injury.  He concluded that “[g]iven his marked limitations it is likely that he is not employable in any gainful manner.”  (Employee Ex. T.)  The employee filed a petition to vacate the Award on Stipulation on July 25, 2014.

On September 22, 2014, the employee was again evaluated by Dr. Segal, who stated that the employee’s current symptoms, medical treatment, and surgery were due to a natural progression of his degenerative disease.  (Cincinnati Ex. T.)  He concluded that the employee’s need for surgery and any change in his condition were not related to the 2005 or 2009 work injuries.  He also stated, however, that the employee’s surgery in November 2012 represented a substantial change in condition and that the surgery was not reasonably anticipated at the time of the December 2010 settlement.

On October 7, 2014, the employee was evaluated by Dr. Richard Strand at Westfield’s request.  (Westfield Ex. A.)  Dr. Strand diagnosed the employee with progressive multi-level degenerative disc disease and degenerative spondylosis with spinal stenosis related to his age, genetics, and smoking history; post herniated disc at L5-S1; post L5-S1 microdisecetomy with excellent result; and post L3-L5 decompression, failed.  Dr. Strand determined that the employee’s 2005 work injury was a temporary aggravation of his degenerative lumbar spine, that the employee has had no change in diagnosis since 2010, and that any changes in restrictions or need for additional treatment were anticipated and were due to progression of his degenerative condition.  He concluded that neither of the work injuries was a substantial contributing factor of the employee’s current condition.

The Workers’ Compensation Court of Appeals has the authority to vacate an award on stipulation “for cause.”  Minn. Stat. §§ 176.461, 176.521, subd. 3.  “Cause” to set aside an award exists if (1) the award was based on a mutual mistake of fact, (2) there is newly discovered evidence, (3) the award was based on fraud, or (4) there is 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; see also Franke v. Fabcon, Inc., 509 N.W.2d 373, 376, 49 W.C.D. 520, 523 (Minn. 1993).  When evaluating a petition to vacate, this court compares the employee’s condition at the time of the settlement award to the condition at the time the petition was filed.  See Virnig v. Carley Foundry, Inc., slip op. (W.C.C.A. Nov. 14, 2000).

The employee claims that the December 27, 2010, award on stipulation should be vacated based on a substantial change in medical condition.  The party petitioning to vacate an award has the burden of proof to show such cause exists.  Groshung v. The Light Depot, 65 W.C.D. 349, 355 (W.C.C.A. 2005); see also Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989).  A substantial change in an employee’s medical condition may be demonstrated by several factors, 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 initially anticipated, a causal relationship between the work injury covered by the settlement and the employee’s current worsened condition, and the contemplation of the parties at the time of the settlement.  Fodness v. Standard Cafe, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989) (citations omitted).

In this case, Cincinnati admitted in its memorandum that the employee has had a change in diagnosis, a change in his ability to work, likely additional permanent partial disability related to the decompression surgery, and additional medical care and treatment.  Cincinnati bases its objection to vacating the award on stipulation on grounds that there is no causal relationship between the employee’s April 2009 work injury and his L3-L5 back condition and that this condition is related to the employee’s degenerative disc disease, pre-existing Scheuermann’s juvenile disc disease, his weight, and his smoking history.  Westfield argues that the employee’s 2005 injury was not causally related to the employee’s current condition and that the employee has not met the Fodness factors since any changes were clearly anticipated due to the employee’s known progressive degenerative disease in his lumbar spine and Dr. Transfeldt’s indication that surgery was possible in the future.

Due to the employee’s surgery, the employee has incurred additional medical expenses, a change in diagnosis, and additional permanent partial disability.  Dr. Halstrom opined that the employee had undergone a substantial change in condition, functional ability, and need for ongoing care since 2010.  Dr. Segal, Cincinnati’s medical examiner, stated that the employee’s surgery in November 2012 represents a substantial change in condition and that the surgery was not reasonably anticipated at the time of the December 2010 settlement.

The employee has also shown a change in ability to work.  In the stipulation for settlement, the employee asserted that he was limited in his ability to earn and that he was qualified for rehabilitation benefits, including job placement services and/or retraining, but at the time he was working.  Cincinnati and Westfield asserted that the employee had not conducted a reasonable job search and that work was available for the employee.  At the time of the petition, the employee has shown that he has not worked since June 2011 and is receiving social security disability benefits.  In 2014, a vocational consultant opined that the employee is permanently and totally disabled.  In addition, Dr. Halstrom concluded that the employee was not employable in any gainful manner given his restrictions.

The employee admits that the parties contemplated that there may be the need for additional medical treatment after the settlement, but argues that the parties did not anticipate his significant deterioration to the point of permanent and total disability.  While the employee’s doctors had mentioned the possibility of need for future back surgery at the time of the settlement, Dr. Transfeldt had indicated that surgery, a L5-S1 foraminotomy or possibly a fusion, “would be our last resort of treatment.”  (Employee Ex. I.)

Both insurers emphasize the argument that the employee’s work injuries are not substantial contributing factors of his current condition.  The employee argues that all of the treating doctors and Dr. Halstrom indicated that the employee’s need for treatment after the settlement was substantially caused by the 2009 injury.^[1]  Cincinnati argues that the employee’s L3-5 condition is not causally related to the 2009 injury involving the L5-S1 disc herniation, but is consistent with the employee’s degenerative disc disease.  Dr. Strand opined that the employee’s 2005 work injury was a temporary aggravation of his degenerative lumbar spine and that neither of the work injuries was a substantial contributing factor of the employee’s current condition.  Dr. Wicklund opined that the 2005 work injury was not a substantial contributing factor to the employee’s current condition.  Dr. Segal opined in his 2014 report that the employee’s need for surgery and any changes in his condition were not related to the 2005 or 2009 work injuries, but at the time of the settlement, he had apportioned 25 percent liability for the employee’s low back condition to the 2005 work injury and 25 percent to the 2009 work injury.

While there is conflicting medical evidence on causation, cause “sufficient to justify reopening an award exists ‘upon a prima facie showing by the employee that evidence of subsequent developments exists which will establish that [the employee’s] condition has substantially worsened, and that there is a causal relationship between the injury covered by the award and [the employee’s] present worsened condition.’” Davis v. Scott Moeller Co., 524 N.W.2d 464, 466-67, 51 W.C.D. 472, 474-75 (Minn. 1994) (quoting Bennett v. Hoiseth Motor Sales, 302 Minn. 534, 535, 224 N.W.2d 148, 149, 27 W.C.D. 604, 605 (1974) (citations omitted)).  The employee has shown prima facie evidence that his current condition is causally related to his work injuries.^[2]

We grant the employee’s petition to vacate the 2010 award on stipulation.