DONALD DALE DEGRIO, Employee/Petitioner, v. CTR. FOR ALCOHOL & DRUG TREATMENT and SFM MUT. INS. CO., Employer-Insurer/Respondents and ST. MARY’S DULUTH CLINIC HEALTH SYS. and INGENIX FOR MEDICA HEALTH PLANS, Intervenors.

The employee petitions to vacate an award on stipulation served and filed September 8, 2009, on the ground of a substantial change in the employee’s medical condition. We conclude the employee has not established cause as required by Minn. Stat. § 176.461 and the petition is denied.

The employee has had significant preexisting cervical spine problems resulting in three cervical spine surgeries (1992, 1997, and 2003) and a fusion from C4-C7. All of the injuries resulting in those surgeries were work injuries with employers other than the date of injury employer in this matter. The employee applied for Social Security disability benefits in 2006 and again in 2008. On July 3, 2008, the employee sustained a work injury to his neck when a patient grabbed the employee. The employee was off work for two weeks following the injury. The injury was reported and the employee underwent treatment for radicular symptoms running to the employee’s left fourth and fifth fingers (assessed as fitting C7 radiculopathy).

On August 23, 2008, the employee was involved in an automobile accident which exacerbated his neck and upper body pain symptoms.

On December 8, 2008, the employee underwent an independent medical examination conducted by Dr. John Dowdle. Dr. Dowdle noted that the employee was being considered for an additional cervical fusion surgery. Dr. Dowdle opined that the employee’s July 3, 2008, work injury was a temporary aggravation of the employee’s preexisting degenerative disc condition and no permanent rating was appropriately attributable to the work injury. Dr. Dowdle opined that future medical treatment, including further fusion, was reasonable and was needed to treat the employee’s symptoms, but was unrelated to the work injury.

On July 10, 2009, the employee underwent an MRI which showed new anterolisthesis at C7-T1. Dr. Mark C. Glazier examined the employee and proposed anterior cervical discectomy, interbody fusion, and plate. Dr. Skip Silvestrini assessed the employee as having nerve entrapment at the C8 level, while not clearly caused by the work injury, that was aggravated by that injury and exacerbated by ongoing work duties. After discussion with Dr. Glazier (who was described as “less than enthusiastic about considering surgery”), Dr. Silvestrini opined that further surgery would pose a significant risk and be extremely complex.

In April 2009, the employee found less strenuous work with a different employer. The employee noted that his ongoing neck pain was receding. On May 26, 2009, Dr. Silvestrini prepared a narrative report which indicated that there were issues regarding causation and that surgery should be a last resort. The parties settled on a full, final, and complete basis, including future medicals, for $2,500.00, including attorney’s fees. The parties stipulated that the July 3, 2008, work injury was a temporary aggravation which had resolved. On September 8, 2009, the employee’s settlement was approved and an award issued.

At some time in 2010, the employee went off work and has not returned to gainful employment. On July 2, 2010, the employee underwent a fusion surgery at C7-T1. On May 14, 2014, the employee underwent cervical spine surgery at C3-C4 and posterior spinal fusion at C2-T2.

On May 31, 2015, Dr. Richard K. Karr conducted a record review regarding the employee’s earlier injuries with other employers (dates of injury 2/8/92, 2/17/94, and 4/10/96). Dr. Karr attributed the July 2010 surgery at C7-T1 to normal degeneration from spondylosis and the aggravating effects of the 1992 work injury. Dr. Karr also noted a May 9, 2014, cervical MRI which noted no significant disc disease at C7-T1.

In June 2015, the employee underwent further lumbar surgery with hardware.

On January 8, 2016, Dr. Mark C. Gregerson conducted an IME of the employee. Dr. Gregerson affirmed earlier opinions reflecting that the employee experienced a permanent aggravation of his preexisting condition and new damage at the C7-T1 level, rated at 7% permanent partial disability (PPD) for the radicular symptoms and 2.5% PPD for the resulting fusion at that level. Dr. Gregerson attributed this aggravation and the resulting PPD to the July 3, 2008, work injury.

On August 4, 2016, the employee filed a Petition to Vacate the September 8, 2009, Order. The stated basis for vacating the Order is a change in medical condition which arose when the employee’s condition worsened soon after the stipulation and he underwent the C7-T1 fusion surgery.

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. Under Minn. Stat. § 176.461(b), for settlements entered into after July 1, 1992, the phrase “for cause” is limited to the following:

1.   a mutual mistake of fact;
2.   newly discovered evidence;
3.   fraud; or
4.   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.

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:

1.   a change in diagnosis;
2.   a change in the employee’s ability to work;
3.   additional permanent partial disability;
4.   the necessity for more costly and extensive medical care than previously anticipated;
5.   a causal relationship between the injury covered by the settlement and the employee’s current condition; and
6.   the contemplation of the parties at the time of settlement.

At the time of settlement, the employee’s treating physicians were plainly discussing the potential for the employee to undergo extensive additional cervical surgery. The opinion of the IME, Dr. Dowdle, was even stronger that the employee would need further surgery. While the employee argues that Dr. Silvestrini had told him that no additional care or treatment would help his condition, this is not borne out in the employee’s extensive medical record. We conclude this factor does not favor vacating the award.

At the time of settlement, the employee was working. However, the employee ceased work within one year of the settlement. Additionally, the employee had sought Social Security disability benefits in both 2006 and 2008. There is insufficient evidence to support the conclusion that the employee had any reasonable expectation of being able to continue working on any long-term basis at the time of the settlement. This factor does not favor vacating the award.

Dr. Gregerson assessed the employee as having a permanent aggravation of his preexisting condition, attributable to the July 3, 2008, work injury. This PPD assessment of 7% for radicular symptoms and 2.5% for a fusion plainly favors vacating the award.

The employee has required significant and costly medical care to his cervical spine. However, the employee’s record is clear that the specific surgeries that the employee underwent were considered by all three physicians who examined the employee. The employee was aware of the clear potential for further surgery when he entered into the settlement closing out further medical benefits. As the need for future medical care must be unanticipated, this factor does not favor vacating the award.

The employee contends that the causation of his need for surgery was demonstrated in his medical record. Close examination of the record shows that there are significant issues regarding the proof of causation, particularly in the chart notes and narrative report of Dr. Silvestrini. The relative weakness of the causal relationship is evident in the employee’s willingness to settle his workers’ compensation claim, including future medicals, on a full, final, and complete basis for a relatively modest sum, even when future cervical spine surgery has been discussed with his treating physicians. The causation factor does not favor vacating the award.

Examining the entirety of the settlement, it appears the parties contemplated that the employee would not be able to prove that his neck injury entitled him to significant benefits payable by the 2008 employer and insurer. Indeed, the parties stipulated that the employee’s injury was temporary and had resolved. There is nothing about the employee’s current situation that suggests a significant change in circumstances from the time of the settlement. This factor does not favor vacating the award.

By application of the Fodness factors, the clear weight of the evidence falls in favor of denying the employee’s petition to vacate. The employee understood that he was at risk for future surgery and proceeded to close out future medical benefits. Under the plain meaning of Minn. Stat. § 176.461(b), the employee has not shown sufficient cause under the statue and case law to vacate the award. The employee’s petition to vacate is, therefore, denied.