VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the petitioner had essentially satisfied all of the factors identified in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), the absence of a recommended MRI does not render the employee’s subsequent multiple fusions to be foreseeable. The employee’s petition to vacate is properly granted on the ground that she has experienced a substantial change in her medical condition.
Attorneys: James T. Hansing, Minneapolis, Minnesota, for the Petitioner. Brian P. Thompson, O’Meara, Leer, Wagner, & Kohl, P.A., Minneapolis, Minnesota, for the Respondent.
Petition to Vacate Granted
GARY M. HALL, Judge
The employee petitions this court to vacate an award on stipulation served and filed on April 1, 2004, based on a change in medical condition. Concluding that the employee has shown good cause to vacate the award at issue, we grant the employee’s petition.
The employee, Denise Gelhar, suffered a work injury on June 3, 2002, when she lifted products to a shelf as part of reorganization of a storage area for the employer, Universal Hospital Services. The employee experienced low back pain and was taken off work. She underwent five weeks of conservative treatment. MRI and CT scans performed at that time both showed bulging discs without herniation or nerve compression at L2 through L5. She attempted to return to work and completed one full day, but could not continue due to her aggravated low back pain.
The employee underwent further physical therapy but reported that the treatment worsened her ongoing low back pain. By September 2002, the employee noted the onset of radicular symptoms into her left leg. The employee’s treating physicians did not consider her a good candidate for surgery. On October 30, 2002, the employee was released to work with restrictions and urged to resume her usual level of functioning.
On December 3, 2002, the employee underwent an independent medical examination (IME) conducted by Joseph Tambornino, M.D., on behalf of the employer and insurer. Dr. Tambornino diagnosed the employee’s condition as resolved low back strain caused by the June 3, 2002, work injury, resulting in no ongoing restrictions and zero percent rating for permanent partial disability (PPD).
Relying on Dr. Tambornino’s opinion, the employer and insurer filed a notice of intent to discontinue benefits (NOID) for the employee’s temporary total disability (TTD) benefits. The dispute was heard by a compensation judge on January 17, 2003. The compensation judge denied the proposed discontinuance, finding that the employee had not completely recovered from the work injury, that she was not released to work without restrictions, and that the employee was not yet at maximum medical improvement (MMI).
On February 5, 2003, the employee was examined by Thomas A. Bergman, M.D., on surgical referral. Dr. Bergman determined that the employee was not a candidate for surgery as the pain generator in her low back had not been identified and noted that he “would have no idea what to operate on.” (Employee’s Ex. G.) Dr. Bergman proposed that the employee continue with conservative treatment.
On August 26, 2003, the employee underwent an IME conducted by Mark Larkins, M.D., on behalf of the employer and insurer. Dr. Larkins indicated that the employee was capable of working from the time of her injury. Dr. Larkins later clarified that the employee is properly limited to four hours per day, pending the results of her return to work on a part-time basis with lifting restrictions. Dr. Larkins also suggested another MRI to aid in assessment of the employee’s condition.
The parties settled on a full, final, and complete basis in March 2004, with an award on stipulation served and filed on April 1, 2004. The employee received $35,000 (from which $5,000 was paid as attorney fees). Future medical treatment to the low back was reserved. The payout amount was identified as being comprised of permanent total and permanent partial disability benefits. (Employee’s Ex. H.) At the time of settlement, the employee was not restricted from all work, but she did continue to experience pain in her low back.
From October 2005 to May 2006, the employee worked part-time as a cashier for County Markets.
On March 14, 2006, the employee underwent an MRI which showed a mild disc herniation at L4-L5. On May 12, 2006, the employee underwent a L4-L5 microdissection. The herniation of the disc was described as “large” and the L4 nerve root was under compression from a disc fragment. On July 10, 2007, the employee underwent revision decompression and stabilization surgery to address continued instability at L4-L5. On February 29, 2008, the employee underwent another revision surgery to remove hardware that had become painful. The operative notes indicated the fusion mass was solid. On September 4, 2008, the employee underwent left SI fusion with installation of hardware. On April 10, 2009, the employee underwent an L3-L4 fusion. On March 1, 2010, the employer and insurer stipulated to payment for the foregoing medical care, while reserving defenses, including causation.
The employee filed a medical request seeking approval of more surgery. The employer and insurer refused payment based on an IME conducted by Dr. Larkins. The dispute was heard by a compensation judge. In a findings and order served and filed on August 19, 2010, the compensation judge approved additional fusion surgery at L3-L2 and L1-L2, finding that the June 3, 2002, work injury was a substantial contributing cause of the need for the surgery. The findings and order was not appealed. The employee underwent the awarded surgery on September 24, 2010, followed by revision surgery on December 14, 2012, to remove hardware. The employee underwent additional nonsurgical care for her back pain from January 2013 to September 2017.
The employee now petitions this court to vacate the April 1, 2004, award on stipulation.
The employee contends that she has experienced a substantial change in her medical condition since the time of the stipulation and award that was not and could not have been anticipated. The employer and insurer maintain that the employee’s worsening back condition was not unforeseen and therefore the petition to vacate should be denied.
Under Minn. Stat. § 176.461, this court can vacate an award and grant a new hearing “for cause,” which is limited by the statute to four circumstances: “(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.’” Hudson v. Trillium Staffing, 896 N.W.2d 536, 539, 77 W.C.D. 437, 441 (Minn. 2017). For a substantial change in medical condition, the employee’s condition at the time of the award is compared with that at the time vacation of the settlement is sought. See Davis v. Scott Moeller Co., 524 N.W.2d 464, 466-67, 51 W.C.D. 472, 475 (Minn. 1994). In assessing whether a substantial change in medical condition has occurred, this court applies the factors set out in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), which 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 covered condition.
6. The contemplation of the parties at the time of the settlement.
In this matter, the employee’s diagnosis at the time of settlement was low back pain with an unspecified source. At present, the employee is post-fusion at L2-L3 and L1-L2, and post- decompression and stabilization surgery at L4-L5. A low back condition that was not considered appropriate for surgery at the time of settlement, which subsequently results in fusion surgery, is a worsened diagnosis for purposes of vacating a settlement. Zufall v. State, Cambridge Reg’l Ctr., No. WC05-193 (W.C.C.A. Dec. 5, 2005); see also Tudahl v. Beverly Enters., 70 W.C.D. 30 (W.C.C.A. 2010); Betcher v. Modern Tool, Inc., 72 W.C.D. 373 (W.C.C.A. 2012); Larson v. Hutchinson Pub. Utils., No. WC10-5213 (W.C.C.A. Apr. 29, 2011).
The employer notes that the employee had not resumed working at the time of the settlement. While this is correct, the employee was approved to return to work with limitations and she did find and hold employment soon after the settlement until her low back condition worsened and she underwent the first of many surgeries. This court can consider the circumstances surrounding the time of settlement in assessing the employee’s ability to work. Corradi v. Mesabi Reg’l Med. Ctr., No. WC13-5598 (W.C.C.A. May 13, 2014). Under the facts of this case, the employee has shown a decrease in her ability to work that supports vacating the award on stipulation.
The employer concedes that the employee’s fusion surgery would result in additional PPD. The necessity of additional extensive medical care is also well-demonstrated. Additional surgery is typically given less weight where medical expenses are left open under the terms of the stipulation. Burke v. F & M Asphalt, 54 W.C.D. 363, 368-69 (W.C.C.A. 1996).
In this case, the employer and insurer reserved defenses, including causation. The causation issue was litigated and determined in favor of the employee in the unappealed findings and order served and filed on August 19, 2010. The PPD, additional medical care, and causation factors all support vacating the award on stipulation.
The employer contends that the potential for worsening of the employee’s low back condition was foreseeable by the employee at the time of settlement and therefore, vacation of the award on stipulation is improper. At the time of settlement, the employee had low back pain that was, in the opinion of the consulting surgeon, inoperable. The employer contends that the IME physician, in recommending a further MRI, demonstrated that the employee’s medical condition worsening was foreseeable. Both her treating physician and the IME physician indicated that the employee could resume work. For the employee to have foreseen the worsening of her condition, she would necessarily have to know more about her condition than any of the physicians who examined her. This is an unreasonable standard to impose on an employee. Fenstermaker v. Thermoform Plastic, Inc., No. WC06-239 (W.C.C.A. Jun. 19, 2007) (neck condition deemed inoperable at time of settlement resulted in unforeseeable change in diagnosis when three-level fusion conducted post settlement); Novistsky v. Apache Moving & Storage, slip op. (W.C.C.A. Jun. 16, 1993); see also Bruce v. Courier Dispatch Group, Inc., slip op. (W.C.C.A. Apr. 30, 1993) (symptoms without specific diagnosis later determined to be specific condition did not show worsened condition was anticipated).
While the IME physician recommended a further MRI, suggesting that this imaging would have determined that the employee’s condition was operable is mere speculation. The employee could not have reasonably anticipated the worsening of her medical condition under these circumstances.
The employee has provided sufficient evidence to establish a significant change in her underlying diagnoses since the settlement in 2004, a change in her ability to work, additional permanent partial disability, extensive additional medical care, and a causal relationship between the injury covered by the settlement and her current condition. The evidence supports a conclusion that the employee’s current condition could not have been reasonably anticipated at the time of the 2004 settlement. Therefore, the employee’s petition to vacate the award on stipulation served and filed on April 1, 2004, is granted.