The employee petitions this court to vacate an award on stipulation on grounds that the stipulation for settlement was entered into based on a mutual mistake of fact and 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, Patrick Blomme, was working for Independent School District No. 413 on May 30, 2003, when he was injured as he pulled out bleachers to set up the school graduation ceremony.  The employee suffered an injury to his low back which was initially treated conservatively.  A June 18, 2003, MRI scan showed a disc protrusion at L4-L5.  After being informed by his treating physician that he was not a good candidate for surgery, the employee consulted with physicians at Saint Mary’s Hospital in Rochester, Minnesota, and the NeuroSpine service at the Mayo Clinic.  In February 2004, the employee underwent intradiscal electrothermal therapy (IDET) which resulted in an increase in his low back pain.^[1]

On March 4, 2005, Dr. Russell Gelfman assessed the employee as being at maximum medical improvement (MMI), with 7% PPD under Minn. Rule 5223.0390, subp. 3.C.(1).^[2]  On March 10, 2005, the employee underwent an IME conducted by Dr. William Bell.  Dr. Bell opined that the employee suffered from multilevel degenerative disc disease that was exacerbated by the May 20, 2003, work injury.  Dr. Bell diagnosed the employee with chronic low back syndrome, based largely on the lack of objective symptoms.  Dr. Bell considered much of the employee’s descriptions to be symptom magnification.  Dr. Bell considered the injury to be temporary and recommended releasing the employee for medium-duty work, lifting up to 40 pounds.  Dr. Bell found the employee to have reached MMI and that there was no applicable PPD rating. ^[3]

On June 6, 2005, the employee underwent a L4-L5 to L5-S1 fusion, described as an anterior band tension system with ALIF/FRA spacer.  The surgery was performed by Dr. Huddleston at the Mayo Clinic.  After the fusion surgery, the employee returned to working full time in September 2005, as an adult foster care provider.^[4]

On December 2, 2005, Dr. Bell conducted a follow-up IME.  Dr. Bell assessed the employee as post L4-L5, L5-S1 fusion with no need of further care or treatment.  Dr. Bell indicated that, “It is not anticipated that [the employee] requires any further medical care for his condition in the foreseeable future.”  Dr. Bell considered the employee capable of working full time subject to a 40-pound lifting restriction and other carrying, pulling, and pushing restrictions for a year.  Dr. Bell rated the employee at 10% PPD under Minn. Rule 5223.0390, subp. 3.C.(2) and an additional 10% PPD under Minn. Rule 5223.0390, subp. 5.B.^[5]

In March 2006, the employee entered into a stipulation with the employer that all temporary total disability (TTD), permanent total disability (PTD), and permanent partial disability (PPD) benefit claims would be settled for a lump sum payment of $45,000.  The PPD settlement was based on a 20% rating.  Of the total settlement amount, $5,000 was identified as a close out of rehabilitation and retraining benefits.  The close out of chiropractic and other “soft” care benefits was ascribed to $7,500 of the total amount.  TPD benefits were to continue for three weeks from receipt of the stipulation independent of the amounts identified in the settlement.  The settlement was full, final, and complete, except for non-chiropractic medical treatment to the employee’s low back.  The settlement contained an acknowledgement regarding the potential for the employee’s medical situation to worsen which was initialed as read by the employee.  The settlement formed the basis for the Award on Stipulation issued on April 5, 2006.

On June 8, 2006, the employee was examined on follow-up to the fusion surgery by Dr. Huddleston at the Mayo Clinic.  The chart of that visit notes no dermatomal or radicular pain per neurologic testing.  Dr. Huddleston noted that the employee was doing well with little or no back or leg pain.  Further improvement in the employee’s condition was expected.^[6]

In September 2006, the employee experienced a sudden increase in low back and radicular pain, with no apparent cause.^[7]  On November 3, 2006, the employee was examined by Dr. Huddleston and described increasing back pain.  The employee described being exhausted at the end of a seven-hour shift working as a clerk.  X-ray imaging showed the fusion site to be well healed.  Dr. Huddleston noted that the employee’s leg pain was consistent with an L3 radiculopathy.  The employee began receiving physical therapy to address increased low back pain.  On December 28, 2006, the employee started a Medrol Dosepak to address increasing back pain symptoms.^[8]  The employee indicated that he was told that the fusion site had not healed.^[9]

The employee indicated that he last worked in late December 2006.  He was performing adult foster care services between 8 and 30 hours per week.  In January 2007, the employee filed for social security disability insurance (SSDI).^[10]

On January 10, 2007, a CT scan was performed showing a left side unilateral pars defect at L5.  Dr. Michael Yaszemski diagnosed the employee with pseudoarthritis at L4-L5 and administered a trochanteric bursa injection and selective nerve block at L4.^[11]  On October 15, 2007, the employee underwent posterolateral spinal instrumentation from L3 through S1.^[12]

On April 23, 2008, the employee described almost 100% recovery in a follow-up with Dr. Huddleston.  The employee noted that he had been using a TENS unit and walking.  The employee also indicated that he had been looking into getting an office job that would allow him to move around during the day.^[13]

The employee underwent work conditioning in May 2008, but did not progress.^[14]  The employee underwent a functional capacity evaluation in June 2008.  The FCE noted a number of self-limiting behaviors that were inconsistent with physical impairments and objective observations.  Even with the limitations, the employee’s performance was assessed at the sedentary/light categories of work.^[15]

On January 14, 2009, the employee underwent a discogram which noted morphologic changes at the L3-L4 level.  After an examination by Dr. Manuel Pinto, a TLSO brace was employed.^[16]  On April 2, 2009, the employee underwent fusion surgery at the L3-L4 level.^[17]

On August 18, 2009, the employee was examined by Jeffrey Kearney, Ph.D., L.P.  Dr. Kearney performed a neuropsychological examination in which he concluded that the employee was somatically focused.  While the employee’s scores reflected a potential learning disorder, Dr. Kearney noted that the employee did not appear to be putting effort into the memory testing.  The testing also showed a possible learning disorder in the reading and reading comprehension areas.^[18]  In March 2010, the employee was approved for SSDI.^[19]

On May 19, 2011, the employee underwent a revision surgery by Dr. Carlson to remove hardware from the L4-L5 level due to nonunion with the L3-L4 fusion.^[20]

On November 22, 2013, the employee underwent an independent psychological examination conducted by Leesa Scott-Morrow, Ph.D., J.D., L.P.  Dr. Scott-Morrow identified a personality-based psychopathology that complicates the employee’s response to treatment.  The employee was described as “somatically preoccupied” and engaging in symptom magnification.  Dr. Scott-Morrow opined that the employee was likely to respond to spinal cord stimulator implantation with an initial description of reduced pain, followed by treatment failure.^[21]

James T. Brunz, M.D. provided a narrative report dated April 8, 2014, regarding the employee’s condition.  Dr. Brunz noted the employee’s multiple fusions and indicated that the employee suffered from sacroiliitis which arose from the fusions.  Dr. Brunz opined that the employee may need occasional intra-articular sacroiliac joint injections to address symptoms of the condition.^[22]

On December 2, 2015, the employee was observed shoveling snow outside of a rental property owned by the employee.  A former supervisor recorded less than two minutes of video of the employee engaged in this activity, which included some bending.  The record was held open after the hearing on the petition to vacate for the employee to submit a response.  The employee provided an affidavit and exhibits describing the situation, why he was shoveling, and the physical effects that he experienced afterward.^[23]

The petitioner seeks to vacate the April 5, 2006, award on stipulation on two grounds. First, that there was a mutual mistake of fact concerning the employee’s medical condition at the time the stipulation was entered into.  Second, that there has been a substantial change in his medical condition since the date of the award through the fusion surgery and extension of surgical intervention at different levels of the lumbar spine 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:

Mutual Mistake of Fact

The employee contends that the parties’ perception of a solid lumbar spinal fusion at the time of settlement was an unfortunate mutual mistake of fact which supports vacation of the award in this matter.  The employer and insurer contend that the later diagnosis of pseudoarthritis at the site of the L4-L5 fusion is characteristic of an area that had healed and then become loosened but does not constitute a mutual mistake of fact.  The employer relies on the June 8, 2006, expert medical opinion from Dr. Huddleston and imaging of the lumbar spine on November 3, 2006, to conclude that there was no evidence that the fusion had never healed at the time of settlement.

Both parties cite Monson v. White Bear Mitsubishi, 663 N.W.2d 534; 63 W.C.D. 337 (Minn. 2003), in support of their positions.  In Monson, the Minnesota Supreme Court held that where there was cotemporaneous evidence of a failed fusion, but the parties to the settlement believed that the fusion surgery was successful, a mutual mistake of fact had occurred that supported vacating an award on settlement.  This court has indicated that a mutual mistake of fact occurs “when both parties to a stipulation misapprehend some material fact relating to the settlement.”^[25]  Based on the documents submitted with the petition, we conclude that the medical findings at the time of settlement were characteristic of an area that had healed, but post settlement are inconclusive.  There is no indication by medical findings to support a mutual mistake of fact at the time of settlement.  We conclude that the employee has not established good cause under the statute to vacate the award on stipulation on a mistake of fact.

Change in Medical Condition

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

Change in Diagnosis

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 maintains that the employee’s worsened condition was reasonably anticipated at the time of settlement, particularly in light of the employee’s somatic behavior, and therefore not sufficient to meet the change in diagnosis factor.

This court has indicated that expanded levels of spinal surgery and different conditions meet this factor in the context of a petition to vacate.^[27]  At the time of the settlement, the employee had undergone fusion surgery which appeared successful.  There was no medical opinion, including that of the employer’s independent medical examiner, that indicated that additional fusion surgery would be needed.  The subsequent need for an additional fusion surgery and the development of pseudoarthritis constitutes a separate diagnosis from the employee’s condition at the time of settlement.  The employee has met the change in diagnosis factor for vacating the award on settlement.

Change in Ability to Work

The employee asserts that his change in ability to work is demonstrated as he was employed following the time of settlement.  The employer maintains that the future inability to work was foreseeable due to the employee’s history of back problems and the resulting impact on the employee’s work history.  The employer also maintains that the employee’s desire to receive SSDI benefits has created a disincentive for the employee to seek work.

There is no dispute that the employee was released to full time work following his June 6, 2005, fusion surgery and there is no dispute that the employee engaged in full time work as an adult care provider.  The employee noted in November 2006 that he had been working a seven-hour shift as a clerk.  The employee had reasonably demonstrated that he was working to his capacity within his physical limitations.  The employee’s receipt of SSDI under these circumstances is irrelevant to the issue here, as he applied for SSDI benefits after he had been working full time following the settlement and after the onset of symptoms which precluded him from continuing with that employment.  The employer also asserted that the offered video evidence was relevant to the employee’s ability to work being self-limited.  Ability to work is an issue left to the finder of fact at the hearing.  We cannot conclude there is sufficient evidence from the extremely brief video surveillance to demonstrate that the employee was capable of performing a job that was more than sporadic activity.  Based on the documents submitted by all parties to this petition, the change in ability to work factor supports the employee’s petition to vacate.

Additional Permanent Disability

No opinion from a medical professional has been provided to support the contention that the employee has suffered additional permanent disability.  The employee argues that additional permanent partial disability is a “forgone conclusion” due to the additional levels of the lumbar spine affected and the surgeries performed.

The employer noted the absence of a medical opinion supporting additional permanent partial disability.  The employer indicated that the independent medical examiner’s report from Dr. Bell relied, in part, on Minn. Rule 5223.0390, subp. 5.B.  That subpart adds 10% to the whole body rating for lumbar fusion at multiple levels.  The employer maintains that the employee’s claim of additional PPD being a “foregone conclusion” is unsupported.

In the absence of a medical opinion to support additional permanent partial disability, this court looks to the whole evidence in the petition to determine whether an increase in permanency is reasonably supported in the record.  At the time of the settlement, the employer maintained that the employee “sustained, at most, 20% whole body disability due to his work injury.”  By contrast, the employee claimed that 20% to be the minimum.  The basis for the PPD rating in the settlement included multiple level lumbar fusion, without any specific number of levels playing any role.  While we decline to determine the extent of additional permanent partial disability, we recognize the present case may require the application of ratings under more than one category of the lumbar spine section in order to fully compensate the employee for the disability caused by the work injury.  This role is given to the compensation judge, not the Workers’ Compensation Court of Appeals.  Historically, the application of the Fodness factors demonstrates the flexibility inherent in Minn. Stat. § 176.461.^[28]  Although the employee did not submit direct evidence of additional PPD in this particular case, the failure to do so does not defeat the petition to vacate the stipulation for settlement.

More Costly Medical Care

The issue of medical expense is not particularly significant in this case since the stipulation does not close out payment for such treatment.^[29]  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.”^[30]  The employer argues that the critical aspect of this factor is that the medical procedures be unanticipated. We agree, and point to the medical report from Dr. Bell.  Dr. Bell was clear in his opinion, provided immediately prior to the settlement, that the employee would not require “any further medical care for his condition in the foreseeable future.” ^[31]  The number and scope of the employee’s post-award surgeries demonstrate a change in medical condition to support vacation of the stipulation.

Causal Relationship

The employee contended that the causal relationship between the employee’s need for fusion surgery was clearly demonstrated by the employer’s payment for the additional medical care received by the employee.  The employer did not raise an explicit issue of causation, although the employer’s contention that the employee engages in somatic behavior could be taken as a position against this factor.  For that reason, we determine that the employee’s medical records reasonably support the conclusion that the change in the employee’s medical condition arose out of the work injury.  The causal relationship factor supports granting the petition to vacate.

Contemplation of the Parties

The employee maintained that the parties clearly anticipated that the employee’s condition would remain stable.  The overall amount of the settlement was cited in support of this contention.  The employer did not make any specific argument regarding this factor.  Where a limited amount is paid as a settlement award and both parties reasonably believe the employee would continue working, subsequent total disability supports vacation of the award.^[32]

For the reasons stated above, this court grants the petition and vacates the April 5, 2006, award on stipulation.