The employee petitions this court to vacate an award on stipulation, served and filed in this case on July 26, 1993, on grounds that there has been a substantial change in his condition since the issuance of the award.  Having found a sufficient basis to vacate the award on stipulation, we grant the petition.

The employee, Martin Larson, was working for the Michigan Peat Company in October 1988, when he was injured in an incident where his coworkers tipped over a portable toilet with him inside.  While several dates were identified as to when this injury took place, the most recent determination was October 21, 1988, and that date is accepted for purposes of this proceeding.  The employee suffered an injury to his low back, which resulted in two back surgeries.  In 1989, the employee underwent a central and right L4-L5 laminotomy and discectomy and removal of an extruded fragment that contacted a nerve root.^[1]  In 1990, employee underwent a right L4-L5 laminotomy and discectomy to address a recurrent disc herniation.^[2]

On October 9, 1990, Dr. Richard Freeman rated the employee as having 16% impairment of the body as a whole under Minn. R. 5223.0070, subp. 1.B.(3).^[3]  An IME opinion on behalf of the employee by Dr. Wengler on January 30, 1991, agreed with the overall rating.  The employee described certain difficulties with some tasks at work, but Dr. Wengler opined that these were “things that [the employee] can be reasonably expected to do.”^[4]  On September 11, 1992, the employee was examined by Dr. Dennis Callahan for an IME on behalf of the employer and insurer.  Dr. Callahan noted the employee’s post-injury employment history and opined that the employee could return to normal activities without restriction.^[5]

As of September 1992, the employee was working approximately 30 hours per week as a cashier.  The employee expressed the opinion that he could perform the duties of that position within his physical limitations.^[6]  The employee also held a job delivering pizza as of January 1993.^[7]

In July 1993, the employee entered into a stipulation with the employer and insurer that temporary total disability (TTD), temporary partial disability (TPD), and permanent partial disability (PPD) benefits would be paid and a lump sum payment of $40,000.00 would be made.  The PPD portion was based on a 16% rating and itemized at $12,000.00.  The settlement was full, final, and complete, except for non-chiropractic medical treatment to the employee’s low back.^[8]  The settlement formed the basis for the Award on Stipulation issued on July 26, 1993.^[9]

The employee described working as a truck driver from 1996 to 1998.  The employee indicated that he quit that work because “his back got too bad.”  The employee indicated that he then began work as a foster care provider.^[10]

In 2001, the employee underwent physical therapy to address ongoing low back symptoms.  On January 24, 2006, the employee underwent a second L4-L5 discectomy.^[11]  After the surgery, the employee continued to experience low back pain and bilateral radicular pain, with occasional bowel incontinence.^[12]  The employee was kept off of work following the surgery due to the condition of his low back.^[13]  An MRI conducted on August 28, 2006, showed abnormal disc morphology at L4-L5 and normal disc morphology at L5-S1.^[14]

On January 9, 2007, the employee underwent fusion surgery at L4-L5.^[15]  The employee continued to experience pain post-surgery and he underwent revision surgery on March 11, 2008.^[16]

In June 2008, the employee underwent an FCE in which the employee displayed a number of limitations.  In arriving at work restrictions, the employee’s treating physician emphasized that the employee would need to change position frequently and could not stand for more than 5 to 10 minutes.^[17]

In August 2008, the employee underwent imaging which indicated that recurrent disc protrusion was present at L4-L5, but no significant degenerative changes were present at other levels.^[18]  The employee was assaulted by a neighbor in June 2009 and he received emergency care.  Imaging was performed subsequent to the assault and no acute low back injury was identified as arising from the assault.^[19]

The employee applied for social security disiability (SSDI) benefits.  On February 5, 2009, the employee was found to be disabled, effective January 13, 2006.^[20]

On August 22, 2011, the employee underwent an L3-L4 arthrodesis; L3-L4 laminotomy, foraminotomy, and decompression; L4-L5 decompression, and L5-S1 arthrodesis with installation of hardware.^[21]  That surgery had been approved as reasonable, necessary, and causally related to the employee’s October 21, 1988, work injury in an unappealed findings and order of a compensation judge.^[22]  On August 15, 2012, the employee underwent revision surgery to remove some of the hardware from the L5-S1 level, due to ongoing complaints of pain.^[23]

On September 28, 2014, the employee was involved in an automobile accident.  Imaging was performed and no acute abnormality was observed.^[24]

On May 7, 2015, the employee underwent an MRI due to ongoing back pain.  The MRI revealed evidence of a mass affecting the left S1 nerve root, and bilateral foraminal narrowing.  Potential mass effect on the right L5 nerve root was observed.^[25]

The petitioner seeks to vacate the July 26, 1993, award on stipulation, on the basis that he has experienced a substantial change in his medical condition through the fusion surgery and extension of surgical intervention to different levels resulting in an impairment in his condition that 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.  For settlements entered into after July 1, 1992, the phrase “for cause” is limited to the following:

When considering a petition to vacate an award that is filed on the basis of change in condition, this court has generally applied factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).  The Fodness factors are:

The employee contends that the change in diagnosis factor supports vacation as the employee has, since the settlement, undergone fusion surgeries that have extended to an additional level.  The employer and insurer maintain that the employee was diagnosed with failed back syndrome after his first back surgery and this diagnosis has not changed.

This court has held that expanded levels of spinal surgery and different conditions meet this factor in the context of a petition to vacate.^[28]  At the time of the settlement, the employee had undergone back surgery, but not fusion surgery.  Fusion surgery constitutes a separate diagnosis from other back conditions.^[29]  Further, the employee’s condition has expanded from L4-L5 to L3-S1.  The employee has met the change in diagnosis factor for vacating the award on settlement.

The employee asserts that his change in ability to work is clearly demonstrated as he maintained employment from the time of settlement and continuously held a number of jobs over a period of 13 years.  The employer and insurer argued that the employee’s part-time work does not support vacating the settlement, relying on the recent decision of this court in Antolak v. Marigold Foods, No. WC10-5044 (W.C.C.A. May 27, 2010).  In Antolak, this court denied a petition to vacate on the basis of an employee’s failure to meet the change in ability to work factor, along with other Fodness factors.

In Antolak, the period of work post-settlement was occasional, part-time, and ended within two years of the entry of the award sought to be vacated.  By contrast, the employee in this matter worked for 13 years in positions that were more than half-time, and for periods performed work that fully engaged the employee within his physical limitations.  Additionally, the employee in Antolak applied for SSDI within two months of the stipulation in that proceeding, suggesting that the employee knew at the time of the stipulation that he was no longer able to work.  In this matter, the employee applied for SSDI once he was no longer able to continue working, 13 years after the award.  The change in ability to work factor clearly supports the employee’s petition to vacate.

No opinion from a medical professional has been provided to support a demonstration that the employee has suffered additional permanent disability.  The employee contended that this court could read and apply the rules regarding disability to arrive at a conclusion regarding this factor.  This is not a favored approach to the employee meeting his burden to show that a petition to vacate should be granted.

The employee’s PPD rating at the time of the award was for his back condition, but did not include any award for fusion surgery.  Applying Minn. Rule 5223.0070, subp. 1.D. (due to the employee’s post-stipulation fusion surgeries), the employee could be eligible for ratings of 17.5 percent (L4-L5 fusion) and 5 percent (L5-S1 fusion).  Depending on the characterization of the surgery at the L3-L4 level, the employee could be eligible for an additional 5 percent rating.^[30]  Even in the absence of a rating, the information offered regarding the employee’s possible PPD rating weighs in favor of vacating the stipulation on this factor.

The need for additional treatment is less important where, as here, medical expenses are not closed out by the award.^[31]  However, changes in the extent of treatment since the stipulation have been considered “useful evidence bearing on whether there has been a substantial change in the employee’s medical condition.”^[32]  The number and scope of the employee’s post-award surgeries demonstrate a change in medical condition supporting vacation of the stipulation.

At the hearing on the employee’s Petition to Vacate, the employer and insurer raised issues regarding the causal relationship between the employee’s need for fusion surgery.  While the existence of an assault and an automobile accident were noted by the employer, there was no evidence provided that either event was a superseding, intervening cause that would break the chain of causation from the October 21, 1988, work injury to the employee’s current condition.  In fact, the assault predated the unappealed findings and order of the compensation judge that determined the October 21, 1988, work injury to be a substantial contributing cause of the need for fusion surgery.

Based on a review of the employee’s medical records there appears to have been a difference between the fusion surgery awarded by the compensation judge and the surgery as performed, specifically whether the L3-L4 arthrodesis was carried out.  The employer and insurer argued that the difference in the surgery broke the chain of causation and supported denying the Petition to Vacate.  We are not persuaded by this argument.  The doctrine of res judicata applies when an issue was specifically decided in the prior proceeding.^[33]  The compensation judge’s finding that there was causation to support an award of surgery has no relationship to the actual provision of the surgery.  Where the surgery actually carried out differs in some significant respect from what was awarded, an argument may exist as to whether the obligation to pay for the surgery is governed by res judicata, but not the issue of causation.^[34]  The finding of a causal relationship between a work injury and the employee’s condition is unaffected where the surgeon determines that a particular procedure should not be performed based on the employee’s observed condition.  Further, any contention that the difference in the surgery as performed broke the chain of causation for subsequent medical treatment must be supported by competent medical opinion and none has been provided.^[35]  The causal relationship factor supports granting the petition to vacate.

The employer and insurer noted that the employee affirmed that his condition could worsen in express language in the 1993 Stipulation.  The employee indicated that he had been working throughout the negotiation of the settlement and that he had no expectation that his vocational capacity would end in 2006.  The employee indicated that the settlement amount ($40,000) was agreed to largely to obtain full payment of the TPD benefits claimed.^[36]

Where there is a limited amount in way of a settlement award and both parties assumed that the employee would continue working, subsequent total disability supports vacation of the award.^[37]  This factor supports vacation of the award.

The petitioner has shown that all of the Fodness factors support vacation of the July 26, 1993, award on stipulation.  While the petitioner failed to provide a medical rating on the possible change in PPD, the record in this instance is sufficient to show that some change has occurred.  The demonstration of the other factors is strong and would support vacation of the award regardless of the PPD factor.  For these reasons, this court grants the petition and vacates the July 26, 1993, award on stipulation.