The employee petitions to vacate a stipulation for settlement which was the subject of an Award on January 29, 2008.  Finding that the employee has established cause under the statute, we grant the petition and vacate the Award.

The employee worked as a nursing assistant at the employer’s Villa Health Care Center.  On February 6, 2006, she injured her low back while transferring a patient.  She was initially diagnosed with a low back strain and was restricted from lifting greater than 10 pounds, from pushing or pulling greater than 25 pounds, and from repetitive bending, lifting, or twisting.  On December 22, 2006, the employee reported feeling much improved and her physician authorized a return to work without restrictions.

On December 29, 2006, the employee fell while walking on a slippery driveway, landing on her tailbone.  She initially had only mild discomfort, but awhile later at work her discomfort worsened with pain all over her back.  She was seen by her family physician the next day and was again assessed with a lumbar strain.

The employee sustained a second work injury to her low back at work on March 4, 2007, when a patient she was assisting grabbed onto her and twisted her.  She experienced an onset of low back pain from her waist into her buttocks, accompanied by a sensation that she described as feeling as though her legs “were on fire.”  She was taken by ambulance to the Kanabec Hospital emergency room where she was advised to follow up with her regular physicians.

The employee was treated by Dr. Peter J. Donner at the Allina Clinic in March 2007, where she was diagnosed with acute lumbar spasm.  Physical therapy was recommended and an MRI scan was ordered.  The MRI scan was performed on March 21, 2007.  It was read as showing a broad-based left posterolateral herniation of the L4-5 disc with narrowing of the left subarticular recess and neuroforamina.  Disc dessication was present at L4-5 and L5-S1.  Dr. Donner referred her for a neurosurgical consultation.

On April 16, 2007, the employee was seen by Dr. Michael M. McCue at Neurosurgical Associates.  The employee had back pain and left buttock pain and meralgia paresthetica, or numbness and burning pain in the left outer thigh.  Dr. McCue interpreted the MRI scan as showing a bulging disc at L4-5 without evidence for central or neuroforaminal compression.  He considered the employee’s reported low back and left buttock pain to have no clear correlation to the MRI findings.  He recommended an extensive physical therapy program and weight loss.  It was his opinion that surgical intervention was not indicated.

The employee was then seen by Dr. Mark J. Thibault at the Physicians Neck and Back Clinic on April 3, 2007, for consideration for an active back rehabilitation program.  Dr. Thibault diagnosed mechanical low back pain, lumbar degenerative disc changes shown by imaging, and deconditioning.  In his opinion, the employee’s leg symptoms were referred pain and not radicular in nature.  He recommended an active nine to twelve week reconditioning program.  He noted that he had explained to the employee that conservative treatment was appropriate, because the imaging finding of an L4-5 left disc protrusion was “indeterminate in terms of her current symptoms.”

By July 10, 2007, the employee had completed fourteen sessions at the Physicians Neck and Back Clinic.  Although she reported a subjective worsening of her back pain, Dr. Thibault felt she was making fair progress.  He estimated that she would require an additional six weeks of treatment.  He explained to the employee that the reason she was not feeling better was that she had not yet achieved a significant strengthening effect.  He also referred the employee for a lumbar epidural injection for pain relief to “provide a window of opportunity to improve her further with her rehab.”  He modified her restrictions to permit 30 pounds lifting, working eight hours per day and five days per week.

On August 2, 2007, Dr. Thibault noted that the employee’s subjective back pain was still unchanged and lumbar steroid injections had not helped her.  While he noted that the employee’s care had taken longer than expected, he felt that further improvement was possible.  He estimated that she would need three to six more weeks in the program.  He increased her lifting restriction to 40 pounds.

The employee began treating with Dr. Brian J. Lynn at the Institute for Low Back on September 7, 2007.  She now described 50 percent back and 50 percent left leg pain, which had not resolved with multiple physical therapy sessions nor with an L3-4 epidural injection.  Dr. Lynn read the March 21, 2007, MRI as showing a disc bulge and an associated free fragment which did not appear to compress the nerve root.  He advised the employee that a majority of disc fragments of this size would not produce long standing radicular problems.  He suspected that an annular tear within the foramen, which caused the protrusion, might have incited a chronic inflammatory process which could be continually irritating her nerve root.  He recommended an L4-5 selective nerve root block for diagnostic and therapeutic processes.

Following a left L4 selective nerve block on September 18, 2007, the employee initially reported a 25-50 percent improvement of her left leg pain, but after the local anesthetic wore off she had spasms throughout the spine and needed treatment at the emergency room.  Dr. Lynn recommended a repeat MRI.

The repeat MRI on October 5, 2007, showed mild disc degeneration of L4-5 with a small left foraminal disc herniation encroaching upon but not compressing the L4 ganglion.  This herniation was similar in size to that shown in the previous MRI.  Mild facet degeneration was present on the right at L5-S1 and L4-5.  There was slight facet effusion on the left at L4-5.

On October 12, 2007, Dr. Lynn reviewed the MRI findings with the employee.  He noted that the MRI continued to show a left annular tear at L4-5 with a small protrusion without marked displacement or compression.  He considered the overall extent of degeneration to the employee’s lumbar spine to be fairly minimal.  He advised her that the majority of injuries like hers would simply improve with time and that he did not recommend excision of the L4-5 protrusion.  He recommended the employee follow up with another physician for further conservative care.

On November 5, 2007, the employee was discharged from the rehab program at Physicians Neck and Back at her request.  The telephone note taken at that time stated that she “apparently has followed up with a neurosurgeon and indicates that surgical intervention is now being planned.”

The employee began treatment with Dr. Steven R. Sabers at the Institute for Low Back on December 6, 2007, on transfer of her care from Dr. Lynn.  Straight leg raising was negative.  She was advised to continue working under restrictions, then at a sedentary level at four hours per day.  A trial of Neurontin was prescribed.  Dr. Sabers noted leg weakness on examination and recommended an EMG of the left lower extremity.

On January 22, 2008, the parties entered into a stipulation for settlement, which was approved by an Award on Stipulation served and filed on January 29, 2008.  The stipulation provided for a full, final, and complete settlement of the employee’s claims from the February 2, 2006, and March 4, 2007, injuries, except for future medical treatment expenses, exclusive of a list of proscribed treatment modalities, in return for a lump sum payment of $14,300, with $3,060 payable to the employee’s attorney for attorney fees and the remainder of $11,240 payable to the employee.

The employee returned to Dr. Sabers on January 24, 2008.  Dr. Sabers noted that the EMG showed evidence for an acute/subacute left L5 radicular process.  However, he felt that the employee’s MRI showed no evidence of an obvious compressive pathology, as the L4-5 herniation shown was not compressive in nature.  He recommended that the employee undergo a CT myelogram to determine whether there was any potentially compressive pathology or lesion.

The employee had a CT myelogram on February 18, 2008.  It again showed a mild left L4-5 foraminal disc protrusion encroaching on but not compressing the left L4 nerve root.  Disc morphology was otherwise normal with no central or foraminal impingement.  There was mild facet degeneration at L5-S1, right greater than left, and slight relative facet joint widening on the left at L4-5.  The study was read as showing no interval changes from the October 6, 2007, MRI scan.

On July 16, 2008, the employee was seen for a surgical consultation by Dr. Bryan Mason II at the Institute for Low Back.  Dr. Mason noted that multiple injections and blocks had given her minimal relief.  Straight leg raising was now positive on the left.  He recommended discography at L3-4, L4-5, and L5-S1, and suggested that fusion might be considered as a treatment option because the employee had a significant amount of axial low back pain.  He felt that fusion had a 50/50 chance of improving her back pain and a reasonable chance of relieving her radicular pain.

The employee had another MRI of the lumbar spine on November 12, 2008.  Mild L4-5 disc dessication was present without loss of disc height.  There was a left posterolateral and foraminal high intensity circumferential annular fissure associated with mild broad-based protrusion of the disc margin.  The radiologist noted that these findings did not cause any central or subarticular nerve root impingement and that the foraminal component did not cause any exiting ganglion compression.  Overall, the findings appeared unchanged when compared to the October 5, 2007, study.

The employee returned to the Institute for Low Back on November 26, 2008, where she was seen by Dr. Jeffrey S. Pinto.  Straight leg raising caused irritability but the rest of the employee’s exam findings were essentially normal.  Intradiscal injections at L4-5 and L5-S1 gave complete relief of the employee’s back pain and diminished much of the employee’s leg pain.  Dr. Pinto advised surgery.  The employee noted that several members of her family had undergone lumbar fusions, so that she understood the risks, but wished to go forward.  Dr. Pinto cautioned her not expect to be able to return to full activity and that she might continue to need narcotic pain medications.

The employee underwent a posterior spinal fusion and laminectomy at L4-5 and L5-S1 on April 27, 2009.  As of April 21, 2010, the employee’s x-rays were showing a solid fusion with good alignment and no change in the position of screws or rods.

However, in mid July 2010 the employee had sharp pain down her left leg after getting out of bed, followed by a worsening of her leg pain.  The pain went to the lateral thigh and calf in an L5 distribution.  Dr. Pinto suspected that the employee’s pain could be coming from a new herniation at a level above her fusion.

A repeat CT of the lumbar spine on January 6, 2011, was read by Dr. Pinto as showing a full fusion at both L5-S1 and L4-5.  There was some facet arthrosis and bulging at L3-4 and mild facet arthrosis at L2-3.  Dr. Pinto suggested facet injections.

The facet injections, performed on January 25, 2011, failed to provide any benefit.  A CT myelogram was done which showed a solid fusion at L5-S1 and L4-5; however, at L3-4 there was a broad-based left foraminal and far lateral herniation with left foraminal stenosis and mid ganglionic impingement.  Dr. Pinto recommended a left L3 transforaminal steroid injection.

The injection made the employee’s pain worse.  Dr. Pinto recommended removal of the fusion hardware, assessment of the prior fusion, and a transforaminal lumbar interbody fusion at L3-4.

Dr. Mark C. Engasser evaluated the employee on August 18, 2012, on behalf of the employer and insurer.  As the employee did have evidence of additional radiculopathy, and her pain pattern was consistent with L4 involvement, he felt that the recommended surgery was reasonable and necessary.  He further opined that the employee’s treatment to date had been reasonable and necessary and causally related to the work injury of March 4. 2007.

The hardware removal and additional L3-4 fusion surgery was performed on January 8, 2013.  Although the L3-4 fusion became solid by 2014, the employee continued to have pain flares.  A spine stimulator was recommended.

The employee was seen by Dr. Engasser on May 8, 2014, for another examination at the request of the employer and insurer.  She described her pain at a level of 5 on a scale of ten.  She reported difficulty with sitting for more than 20 minutes at a time, with standing in one spot, and with bending.  Dr. Engasser concluded that the employee had not done well following her surgery in January 2013 and was not able to work.  He again opined that her low back surgeries were reasonable and necessary.  He opined that the medical treatment after the date of the settlement did not constitute a change in her medical condition, and that her current condition could reasonably have been anticipated at the time of the award on stipulation, in that the transfer of stress from the fusion levels at L4-5 and L5-S1 to L3-4 could have been reasonably anticipated.  Dr. Engasser felt that the employee was able to perform part-time sedentary work under a 10 pound lifting limit with frequent changes of position.  He agreed that an evaluation for a spine stimulator could be worthwhile.

Between August 29 and November 18, 2014, the employer and insurer had surveillance performed on the employee’s activities.  A videotape made during the surveillance shows the employee engaging in various activities, such as standing at a school bus stop, sitting on a curb at a school bus stop, walking, carrying bags from vehicles into her home, carrying a 12-pack of beer from a liquor store to her car, shopping for groceries, and sitting on a patio outside a bar.

An MRI of the employee’s lumbar spine done on November 28, 2014, showed progression of disc degeneration and a new disc bulge at L2-3 since the prior scan done on February 19, 2014.

In a letter report dated January 27, 2015, Dr. Pinto disagreed with Dr. Engasser’s view that there had been no change in condition since the settlement, noting that the L3-4 problems were not yet present when the employee settled her case.  Dr. Pinto considered the degeneration at L3-4 to have been caused by increased stress and strain above the levels of the first fusion, and opined that this constituted a change in diagnosis.  He also disagreed with Dr. Engasser’s opinion that a second operation could have been anticipated, pointing out that if he could have anticipated that result at the time he performed the initial fusion, he would have also have fused the L3-4 level during the initial surgery.  Finally, he pointed out that, at the time of the settlement agreement, even the need for the initial fusion surgery was not yet fully anticipated.

The employer and insurer provided Dr. Engasser with the surveillance videos and updated medical records, and he prepared a further report on April 27, 2015.  He concluded that the video surveillance showed that the employee remained fairly physically active, and raised a question whether she had honestly described her pain and limitations.  Based on video surveillance, he saw no reason why the employee could not perform full time light duty work lifting up to 25 pounds.

The employee filed a petition to vacate the Award on Stipulation on June 12, 2015.  The respondents object to the petition.

The Workers’ Compensation Court of Appeals may set aside an award on stipulation for cause.  Minn. Stat. § 176.461.  Cause, as defined in the statute, 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.”

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:

Prior to the stipulation, imaging studies showed a small left foraminal disc herniation encroaching on but not compressing the L4 ganglion, along with mild facet degeneration on the right at L5-S1 and L4-5 and slight facet effusion on the left at L4-5.  The employee was being treated with physical therapy and her physicians had advised her that it was likely that she would recover from the effects of her injury without surgery.  Subsequent to the stipulation, the employee underwent a two-level fusion at L4-5 and L5-S1 in 2009.  Several years later, in 2013, the employee needed further fusion surgery at the L3-4 level, which had been essentially normal in imaging done before the date of the stipulation for settlement.  The employee has demonstrated a significant change in diagnosis.  The employer and insurer argue that the employee could reasonably have anticipated that she might eventually require fusion surgery in light of the imaging studies showing an L4 disc herniation.  We conclude, however, that even if the initial fusion surgery in 2009 might have been anticipated, the employee could not reasonably have anticipated the 2013 surgery to treat an additional lumbar level which appeared essentially normal at the time of the stipulation.

The employee is currently on social security disability and claims to be unable to secure substantial and gainful employment due to her medical conditions.  At the time of the stipulation for settlement, the employee was medically authorized to work for four hours per day, under sedentary restrictions.  She was not, however, working at that time, and had not worked for the employer for several months.   The employer and insurer point to their recent surveillance video, and to the opinion of Dr. Engasser, as indicating that she is currently capable of full time work in a light duty job.  Thus, they argue, there has been no substantial change in her ability to work.  We conclude that the evidence is mixed as to whether the employee has sustained a significant change in her ability to work.

The employee was not rated for permanency prior to the stipulation for settlement.  However, we note that the employee did not have a ratable condition at L3-4 prior to the stipulation for settlement, so that any rating for that condition would add to whatever rating might have been applicable for her L4-5 condition that was present at the time of the stipulation.  In addition, the employee’s fusion surgeries alone, all performed after the stipulation, would add at least an additional 10 percent to the employee’s permanent partial disability rating.

The employee has incurred substantial medical costs since the award on stipulation, including two fusion surgeries and multiple diagnostic procedures.  However, as the settlement left open the employee’s claims for future medical expenses, we have placed less emphasis on this factor.  See, e.g., Burke v. F&M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996).

The work injury was admitted.  Causation between the injury and the employee’s present condition is not here in dispute.

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