The employee petitions to vacate a stipulation for settlement which was the subject of an Award on April 30, 1998.  Finding that the employee has established cause under the statute, we grant the petition and vacate the award.

Lee Wick sustained an admitted low back injury on September 7, 1995, while he was working for American General Finance.  He sought immediate medical care at Mercy Hospital where he was diagnosed with a lumbar sprain and was provided with a prescription for ibuprofen and Percocet.  The employee followed up with Dr. Jerrol Noller at Midwest Internal Medicine and was given pain medication and a prescription for physical therapy.  When he returned to Dr. Noller, Mr. Wick reported continued pain despite the medication and physical therapy.  He was referred to Dr. Gregg Dyste at Metropolitan Neurosurgery.

The employee saw Dr. Dyste for the first time on October 19, 1995.  A CT scan was read as showing herniated discs at L3-4 and L4-5 as well as a bulging disc at L5-S1.  Dr. Dyste recommended that Mr. Wick continue with physical therapy and the use of Motrin.  Mr. Wick continued to work full-time for his employer.

Mr. Wick returned to Dr. Dyste in August 1996 and reported that he had been doing more driving in his job and the increased sitting had resulted in more pain in his low back and right leg.  A CT scan at that time showed the L4 disc herniation was more prominent.  Dr. Dyste prescribed additional physical therapy.  The employee returned to Dr. Dyste in November 1996 and reported that the physical therapy had been of some benefit but that he continued to have low back and right leg pain.  After a discussion of options with the employee, Dr. Dyste recommended surgery.

On December 5, 1996, Dr. Dyste performed a right L4 hemilaminotomy and microdiscectomy along with foraminotomy and decompression.  When Mr. Wick saw Dr. Dyste again in June 1997, he reported that extensive driving for his job resulted in the same type of pain he had experienced in October 1995.  On July 30, 1997, Dr. Dyste wrote a report stating that the employee was at maximum medical improvement from the work injury and had an 11% permanent partial disability pursuant to Minn. R. 5223.0390, subp. 4.D. and 4.D.(2).  Dr. Dyste did not provide any employment restrictions in his report.  When he saw Dr. Dyste in follow-up in October 1997, Mr. Wick reported continued low back pain with sitting and lifting anything heavier than his briefcase.  The possibility of further surgery was discussed at that time.

The parties entered into a settlement in April 1998.  The stipulation noted that the employer and its insurer, Employers Insurance of Wausau, had paid medical benefits connected with the September 7, 1995, work injury.  The employee claimed 11% permanent partial disability as rated by Dr. Dyste and a consequential injury to his right foot.  The employer and insurer denied these claims.  The employer and insurer agreed to pay the employee $14,000.00 for a full, final and complete settlement for claims for wage loss, permanent partial disability, and rehabilitation services.  Medical expenses except for chiropractic care and chronic pain treatment continued to be covered.  An Award on Stipulation was issued on April 30, 1998.

The employee saw Dr. Dyste for the first time after the settlement in September 1999.  The symptoms he reported to Dr. Dyste were similar to those he had experienced previously.  Dr. Dyste’s assessment was of right sacroiliac sprain from compression due to the back injury.  Dr. Dyste referred the employee for a neurological consult.

Dr. Jane Chiasson at the Noran Neurological Clinic saw the employee on October 15, 1999.  Dr. Chiasson diagnosed somatic dysfunction of the lumbosacral spine and pelvis and recommended a physical therapy program.  Mr. Wick started the program but records indicate there was no improvement in his tolerance for sitting and he was discharged from the program in January 2000.

Mr. Wick continued to receive care with Dr. Chiasson consisting of osteopathic manipulation and pain medication.  The employee reported to Dr. Chiasson in June 2000 that he had recently lost his job, had a panic attack in January, and was now receiving mental health support.  In May 2001, Mr. Wick had a discogram which was positive from L2 through L5.  He was referred back to Dr. Dyste.

Dr. Dyste advised him that he could either live with the pain or consider additional surgery and the employee was referred for a surgical opinion to Dr. Garry Banks.  He saw Dr. Banks on a number of occasions before surgery was done in July 2003.  At that time, Dr. Banks performed right L2-3, L3-4, and L4-5 partial laminectomies with right L2-3 and L3-4 discectomies and right L4 foraminotomies with revision and decompression at right L4-5.

According to the affidavit filed with the current petition to vacate, Mr. Wick was employed full-time at the time of his settlement.  Because of the worsening of his low back condition, he stopped working in April 2002 and has been receiving social security disability benefits since 2004.

The employee was evaluated in 2003 by Dr. Mark Thomas at the request of the employer and insurer.  It was the opinion of Dr. Thomas that the employee’s injury in 1995 was not related to his current condition, which Dr. Thomas diagnosed as degenerative disc disease and chronic pain syndrome.  The employer and insurer denied liability for any continuing medical care.

The employee filed a claim petition in 2006, seeking payment of various medical expenses that he alleged were reasonable, necessary, and related to his 1995 work injury.  After a hearing, the compensation judge issued a decision in which he found that “the preponderance of the evidence demonstrated that the employee’s 9/7/95 injury caused a permanent aggravation and acceleration of his pre-existing degenerative lumbar disc disease, causing the condition to become symptomatic and substantially contributing to his need for medical treatment thereafter.”  The compensation judge also denied the employee’s claim for chronic pain treatment, determining that the claim was barred by the 1998 settlement.  There was no appeal from the compensation judge’s decision.

After the compensation judge’s decision, the employee continued to treat conservatively for his low back pain.  He also treated for non-work related conditions, including bilateral hip replacement surgeries in January 2009 and August 2010.

At the request of his attorney, Mr. Wick was seen for an independent psychological examination on July 1, 2014, by Dr. Bryan Schwieters.  Dr. Schwieters reviewed the employee’s voluminous medical records, administered screening questionnaires, interviewed the employee, and prepared a report setting out his conclusions.  Dr. Schwieters diagnosed major depression, recurrent and severe, generalized anxiety disorder, alcohol dependence, chronic pain, and an eating disorder.  Dr. Schwieters opined that the employee’s 1995 work injury was a “substantial contributing cause to his current psychological status.”  As to the question of employability, Dr. Schwieters stated that “currently, his depression and anxiety are severe enough that it limits his functioning in any vocational capacity.”  Dr. Schwieters also rated the employee as having a 30% permanent partial disability pursuant to Minn. R. 5223.0060, subp. 8. D., category 2.

The employee was evaluated by Dr. Robert Wengler on August 6, 2014.  After his examination and review of background information, Dr. Wengler concluded “Mr. Wick is permanently and totally disabled from sustained gainful employment at the present time.  The cascade of the disc problems which occurred after 1995 are the result of altered spine mechanics to adjacent discs precipitated by the original herniations.”  He also rated the employee as having a 25% permanent partial disability of the whole body pursuant to Minn. R. 5223.0390, subp. 4.D.(4), D.(2), D.(3), and D.(1).  Finally, Dr. Wengler stated “there has been a substantial change in his back condition that was not anticipated at the time of his April 1998 workers’ compensation settlement.”

The employee filed his petition to vacate with this court on May 11, 2015.  The employer and insurer objected to the petition.  Oral argument was held on October 12, 2015.

The Workers’ Compensation Court of Appeals may set aside an award on stipulation for cause.  Minn. Stat. § 176.461.  Cause is defined in the statute and includes “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.”  “The Workers’ Compensation Court of Appeals has broad though not unlimited discretion in determining whether to vacate an award.”  Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 48 W.C.D. 648, 649 (Minn. 1989)  “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, 663 N.W.2d 534, 539, 63 W.C.D. 337, 344 (Minn. 2003).

In considering whether there has been an unanticipated and substantial change in the employee’s medical condition, this court has generally referred to the factors set out 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.
5.   A causal relationship between the injury covered by the settlement and the current medical condition.

At the time of the settlement, Dr. Dyste had concluded the employee was at maximum medical improvement.  His diagnosis was lumbar back pain, status post right L4 laminectomy and discectomy.  Dr. Wengler’s assessment in 2014 was a “failed lumbar spine surgery syndrome” with decompression and discectomies at L2-3, L3-4 and L4-5.  Dr. Schwieters has diagnosed major depressive disorder, generalized anxiety disorder, and chronic pain syndrome.  Dr. Schwieters related those diagnoses to the 1995 work injury.  Those diagnoses are not found in any pre-existing medical records.

At the time of the settlement, the employee was employed full-time and he made no claim for wage loss benefits.  Mr. Wick stopped working in 2002 because of his work injury and he began receiving social security disability benefits in 2004.  In his 2003 IME report, Dr. Thomas stated, “his physical activity level is probably at no more than the sedentary level.  However, his medical condition of chronic pain, anxiety, and depression have a significant impact on his ability to maintain gainful employment.”  Richard Van Wagner saw the employee in November 2006 “for an evaluation of his employability” at the request of the employer and insurer.  In his 23-page report, Mr. Van Wagner identified no employment options for Mr. Wick.  Both Dr. Schwieters and Dr. Wengler concluded that the employee was unable to work in their 2014 evaluations.

The employee’s permanent partial disability rating at the time of the settlement was provided by Dr. Dyste who evaluated the employee as having an 11% permanent partial disability.  As noted earlier, Dr. Schwieters rated the employee as having 30% permanent partial disability for his psychological condition and Dr. Wengler rated the permanent partial disability for the low back condition as being at 25%.

At the time of the settlement, no further significant treatment for the low back was contemplated, although Dr. Dyste had discussed the possibility of fusion surgery with the employee.  Mr. Wick had revision surgeries in 2003 with additional discectomies and decompression.  The compensation judge’s decision in 2007 determined the additional surgeries were related to the 1995 work injury.

The employee began treating in 2000 for chronic pain related to his work injury.  The claim made by the employee in 2006 for the cost of that treatment was found by the compensation judge in his 2007 Findings and Order to be barred by the terms of the settlement.  Dr. Schwieters has recommended additional treatment for the employee’s psychological conditions related to his work injury.

Dr. Thomas evaluated Mr. Wick in 2003 and opined that the ongoing low back condition was due to degenerative disc disease unrelated to the work injury.  The compensation judge in 2007 rejected that opinion and his decision was unappealed.  Dr. Wengler and Dr. Schwieters have both stated that the 1995 work injury is a substantial contributing factor in the conditions they have diagnosed.

The employee has a history of physical and emotional issues which are not related to his work injury and for which he has received treatment both before and after the 1998 settlement.  Dr. Wengler and Dr. Schwieters were aware of these problems, had reviewed records of the employee’s treatment for these non-work related issues, and did not consider them to be intervening conditions which would break any causal relationship between their diagnoses and the work injury.

Based on the record before us, we find the employee has established cause to vacate the award on stipulation.  The petition is granted.