The employee has petitioned this court to vacate an Award on Stipulation served and filed September 11, 1992.  Finding that the employee has established cause pursuant to Minn. Stat. § 176.461, we grant the petition and vacate the award.

John Rodriguez was injured on September 11, 1990, while working for Peavey/ConAgra.  The employer, self-insured with claims administered by Sedgwick CMS, admitted liability for the injury, but the nature and extent of the injury has been disputed since that time.

The parties entered into a stipulation for settlement and an Award on Stipulation was served and filed on September 11, 1992.  The parties agreed the employee had injured his left knee on September 11, 1990, and the employee also claimed he had injured his back, had developed reflex sympathetic dystrophy (RSD) in the left leg, and had sustained a psychological/psychiatric injury as a consequence of the work injury.  The employer denied those claims.  The employer agreed to pay $45,000 for a full, final, and complete settlement of all claims with the exception of future medical expenses, subject to the employer’s defense that certain diagnoses were not related to the work injury.

A hearing was held before a compensation judge in August 1999 on the employee’s claims for medical expenses related to treatment for RSD, low back, neck and shoulder, and chemical dependency.  The compensation judge determined that the work injury was a substantial contributing factor in the development of RSD in the left knee and in a permanent injury to the low back.  The compensation judge also found that the employee sustained a temporary injury to his neck and left shoulder as a consequence of the 1990 work injury after he fell on some stairs in 1996.  The compensation judge denied the claim for chemical dependency treatment.  There was no appeal from the compensation judge’s decision.

At a subsequent hearing in May 2008 the employee claimed he had sustained a Gillette^[1] injury culminating on October 24, 2005, as the result of his employment at Curbside Lawn Care & Irrigation.  The compensation judge found that the employee began working for Curbside in November of 2002, primarily as a truck driver in snow plowing season, and performed various duties, including operating a stand-on mower, during the landscaping and lawn care season.  The employee alleged he had injured his low back and left lower extremity at Curbside and was entitled to wage loss benefits from that employer.  He also claimed expenses for his medical treatment from Curbside and Peavey/ConAgra.

In an unappealed decision, the compensation judge concluded the employee did not sustain any injury at Curbside.  The compensation judge also determined that “the injury of September 11, 1990, is a substantial contributing factor to the employee’s mechanical back pain and aggravation of degenerative disc disease.”  The treatment for the left lower extremity after May 2007 was found by the compensation judge not to be related to the 1990 work injury.  The treatment for chronic pain and depression provided by Dr. Matthew Monsein was determined to be reasonable, necessary, and related to the 1990 injury.

The employee has now filed a petition to vacate the 1992 award and alleges, pursuant to Minn. Stat. § 176.461, that cause in the form of a substantial and unanticipated change in his medical condition exists.  The employer has objected to the petition.

The employee has been treated for multiple medical conditions since September 1990 which have generated extensive medical records that have been provided to this court.  Based on a review of these records and a consideration of the oral arguments by the parties on the employee’s petition, the current medical conditions that the employee claims to be related to the 1990 work injury and that are relevant to his petition are his low back problems, reflex sympathetic dystrophy, and chronic pain, and depression.  The question before us is whether there has been a substantial and unanticipated change in these conditions which support a vacation of the 1992 settlement and award.

Minn. Stat. § 176.461 provides that the Workers’ Compensation Court of Appeals may set aside an award for cause.  Cause is defined in the statute and includes the clause alleged by the employee:  “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.”

In reviewing the issue of whether there has been an unanticipated and substantial change in medical condition, this court has often referred to the factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).  The Fodness factors are:  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.  Further, when evaluating whether the employee has established a substantial change in medical condition, the relevant comparison is between the employee’s present condition and the condition at the time of the award.  Battle v. Gould, Inc., 42 W.C.D. 1085 (W.C.C.A. 1990); Brun v. Red Lake Builders, No. WC12-5427 (W.C.C.A. Dec. 3, 2012).

In addition to examining these factors, this court has been reminded that in any review of a petition to set aside an award, “the statutory objective for which this discretion is invested is to assure compensation proportionate to the degree and duration of disability.”  Monson v. White Bear Mitsubishi, 633 N.W.2d 534, 539, 63 W.C.D. 337, 334 (Minn. 2003).  We turn then to a review of whether there has been a substantial and unanticipated change in the employee’s medical condition related to his work injury.

The evidence submitted to this court on the diagnoses of RSD or chronic pain syndrome/depression does not warrant a detailed review or analysis using the Fodness factors.  Dr. Matthew Monsein has been the primary physician treating these conditions and began his care of the employee in April 1991.  He has seen the employee numerous times since then and has written a number of reports and provided a deposition in February 2012.  At the request of the employee’s attorney, Dr. Monsein wrote a report dated August 13, 2012, in which he reviewed his care of the employee and responded to questions from the attorney.^[2]  After reviewing records and reports from other providers and reviewing a hypothetical set of facts, Dr. Monsein stated in his report that “in my opinion, there has not been a substantial change to his RSD or his chronic pain syndrome since September 1992.” There is no other medical opinion, report, or record in the exhibits that the employee identifies as addressing the question of a substantial change in these conditions.

We examine then whether there has been an unanticipated change in the employee’s low back condition.

Mr. Rodriguez had low back complaints immediately after the work injury.  A myelogram done in December 1990 was negative except for a finding of a conjoined nerve root at L5-S1.  An MRI done in January 1991 showed narrowing at L5-S1 with impingement of the nerve root.  The employee was then referred for a neurosurgical consultation, but surgery was not recommended.  There are no records establishing any treatment specifically directed at the low back.  Dr. Larry Stern, an orthopedist, evaluated the employee on behalf of the employer in May 1991.  His assessment was that the employee had not sustained a low back injury in September 1990 and that the employee was not in need of any restrictions from an orthopedics standpoint.

In the 1999 findings and order, the compensation judge determined that the employee had sustained a permanent low back injury as a result of the 1990 work injury.  In the 2008 findings and order, the compensation judge found that the injury of September 11, 1990, was a substantial contributing factor to the employee’s mechanical low back pain and degenerative disc disease.

In December 2011, Mr. Rodriguez was referred to Twin Cities Spine Center where he saw Dr. Manuel Pinto.  An MRI scan was performed which showed, in Dr. Pinto’s opinion, “fairly significant foraminal stenosis which was more predominant on the left side and is impinging on the left L5 root.”  Dr. Pinto recommended a surgical decompression at the L4-5 and L5-S1 levels to address the neural impingement.  This procedure was done by Dr. Pinto on April 2, 2012, and the employer paid for the surgery.

Dr. Robert Wengler examined Mr. Rodriguez at the request of the employee’s attorney on July 13, 2012.  Dr. Wengler had also seen the employee in February 2007.  Dr. Wengler concluded the 1990 work injury was a substantial contributing factor in the treatment for the low back and the need for the April 2012 surgery.  He rated permanent partial disability of 23 percent pursuant to Minn. R. 5223.0070, subp. 1.C.(2) and also stated that, in his opinion, the employee was permanently and totally disabled.

1.  Change in diagnosis.  No specific diagnosis for the low back condition prior to the settlement is provided in the medical records.  The records refer to a general description of low back pain and the MRI done in 1991 was normal except for the finding of a conjoined nerve root at L5-S1.  At present, or at least as of August 2012, the employee has been diagnosed by Dr. Wengler with “chronic discogenic back pain and left lower extremity sciatica.”  There has been a change in the employee’s diagnosis.

2.  Change in ability to work.  At the time of the settlement, the employee was claiming an entitlement to temporary partial disability, indicating an ability to work.  The restrictions limiting his employability to work at that time were primarily due to his RSD.  According to Dr. Monsein, there has been no change in those conditions since the time of the settlement.  Regarding the low back, there were no specific restrictions limiting employability.  Indeed, Dr. Stern, in his initial IME in 1991, discussed the employee’s claimed RSD, chronic pain, and low back complaints, and specifically stated no work restrictions were necessary.  Based on his review of the records, the history he took from the employee, and his examination, Dr. Wengler concluded in July 2012 that the employee is permanently and totally disabled.  There is no opinion to the contrary.

3.  Change in permanent partial disability.  No rating of permanent partial disability for the low back was provided at any time before the 1992 settlement.  Dr. Wengler rated the employee’s permanent partial disability after the April 2012 surgery as being 23 percent for “severe spinal stenosis requiring surgical decompression at 2 levels.”

4.  Necessity for more extensive medical care.  The medical care the employee received before the settlement was aimed primarily at his left lower extremity and associated RSD and the chronic pain and depression.  No specific treatment was provided for the low back.  While a surgical consultation for the low back was considered appropriate in 1991, Dr. Seymour concluded at that time that surgery was not necessary.  By April 2012, surgical decompression at L4-5 and L5-S1 to treat the employee’s severe stenosis was deemed necessary by Dr. Pinto.

5.  Causal relationship.  In her findings and order after the 1999 hearing, the compensation judge determined that the employee’s low back condition was related to the 1990 injury and ordered the employer to pay the medical expenses related to treatment for the low back.  In his 2008 findings, the compensation judge found that “the preponderance of the evidence is that the injury of September 11, 1990, is a substantial contributing factor to the employee’s mechanical back pain and aggravation of degenerative disc disease.”

As part of a Fodness analysis, we also examine whether the change of condition was anticipated.  Dr. Wengler stated in his July 2012 report that “the devastating consequences of the injury were not anticipated at the time of the September 1992 settlement.”  We find no evidence from the time of the settlement that anticipated worsening of the employee’s low back condition which would eventually lead to surgery.

The employee has established a substantial and unanticipated change in his medical condition sufficient to constitute cause to vacate the Award on Stipulation issued September 11, 1992.