VACATION OF AWARD – SUBSTANTIAL CHANGE IN CONDITION. Where the employee had extensive additional medical treatment for an admitted injury, a change in diagnosis, and a change in his ability to work since the time of an award on stipulation, but had no additional PPD rating and did not show that the worsening of his condition was not and could not reasonably have been anticipated, the employee has not shown good cause to vacate the award on stipulation.
Compensation Judge: Catherine Dallner
Attorneys: Frederick E. Kaiser and Kristine Pasowicz Wobig, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., St. Paul, Minnesota, for the Petitioner. Mark A. Wagner and Brian P. Thompson, O’Meara, Leer, Wagner & Kohl, P.A., Minneapolis, Minnesota, for the Respondent.
Petition to Vacate denied
SEAN M. QUINN, Judge
The employee, Mark Gerdes, petitions this court to vacate an Award on Stipulation served and filed February 23, 1998. He alleges good cause for his petition, specifically a substantial change in his medical condition that was not anticipated and could not have been reasonably anticipated by the parties at the time of the award. Because the employee failed to show good cause, we deny the petition to vacate.
On October 26, 1993, Mark Gerdes, the employee, suffered an admitted work-related injury to his neck while pulling an 80-pound shaft through a hub of a blower wheel while working for Mammoth, the employer. At the time of the injury, the employee was 36 years old. After a few months of conservative care, he was referred to Dr. Timothy Garvey. On April 14, 1994, following a discogram showing three different levels of concordant pain, the employee underwent a three-level anterior cervical discectomy and fusion at C4-7, performed by Dr. Garvey.
In a February 3, 1995, narrative report, Dr. Garvey opined that the three-level fusion surgery was reasonable and necessary treatment because an MRI scan showed a herniated disc at C6-7, the discogram showed concordant reproducible pain at C4-7, with a normal level at C3-4 giving more validity to the results at the other three levels, and the employee had failure of improvement with non-surgical management. While Dr. Garvey had indicated the employee was a candidate for the fusion surgery, he “had a long discussion with the patient regarding the multi-level nature and the fact that this was not a desirable thing for a young man.” (Ex. E.) Dr. Garvey also stated that while the employee was not at maximum medical improvement (MMI), his permanent partial disability (PPD) rating would be 21.5 percent due to a three-level cervical fusion.
Dr. Bruce Van Dyne wrote a report dated October 27, 1995, to the attorney for the employer and insurer following an examination of the employee. Dr. Van Dyne explained that in retrospect, the fusion surgery performed by Dr. Garvey should not have been done. Although the discogram showed abnormal morphology at C4-7, in Dr. Van Dyne’s opinion, the decision to do the fusion was inappropriate because a discogram is too subjective, and the MRI scan and an EMG were normal. Dr. Van Dyne noted that the employee showed an expected reduction in extension and flexion due to the fusion and that he continued to experience intermittent aching in the back of his neck, which was aggravated when turning his neck too far. Dr. Van Dyne diagnosed the employee with post anterior cervical fusion at C4-7 with no residual neurological deficit and stated the employee was at MMI. Dr. Van Dyne opined PPD was difficult to determine because there was no specific radicular symptom prior to the fusion, but that his best estimate was 21.5 percent under Minn. R. 5223.0370, with a 9 percent rating under subpart 4D, an additional 2.5 percent rating under subpart 5A for a fusion, and an additional 5 percent each for the other two fused levels under subpart 5B.
The parties reached the first of three settlements in January 1996. This stipulation for settlement was not submitted with the petition or response, and thus the allegations and terms are unknown to this court.
On May 30, 1996, Dr. Garvey opined that the employee was capable of light-duty work with no lifting greater than 5-10 pounds with his bilateral upper extremities and no excessive flexion and rotation of the cervical spine. The employer and insurer’s claims adjuster advised the employee’s attorney that because the employee had work restrictions but was not able to return to work with the date-of-injury employer, the employee should begin a job search.
On August 22, 1996, the employee had an x-ray showing anterior spinal fusion at C4-7, with a C5 and C6 corpectomy. There were minimal degenerative changes shown at C7-T1, which were seen on previous study in 1994. On September 27, 1996, Dr. Garvey indicated the employee had reached MMI and again rated the employee with 21.5 percent PPD attributable to cervical fusion under Minn. R. 5223.0070, subp. 2D.
Another x-ray taken on January 23, 1997, showed status post anterior fusion at C4-7, with a lucent line through C6-7 which could demonstrate pseudoarthrosis. On the same date, a work ability form was completed related to a vocational assessment which stated the employee was capable of engaging in light to medium work, with occasional bending and twisting of the neck and reaching with his arms.
A compensation judge signed an Award on Stipulation on March 25, 1997, approving the second settlement between the parties. The settlement agreement resolved the employee’s claims to-date in exchange for full payment of PPD benefits, out-of-pocket expenses, and a large percentage of the employee’s wage loss claim.
On June 17, 1997, after an examination of the employee, Dr. Mark Engasser completed a medical report at the request of the employer and insurer. Dr. Engasser noted the employee’s complaints of cervical, bilateral shoulder, and arm pain, as well as limitation of physical activity, including problems reaching overhead and rotating his neck. He also described definite reduction in range of motion of the neck. Dr. Engasser concluded that the employee should have no limitations in sitting, standing, or walking, but would have difficulty performing activities involving extensive rotation of the neck or holding his neck in maximally flexed or extended positions for long periods of time. Dr. Engasser advised the employee not to do overhead work, but that he could perform work up to the chest level.
A compensation judge signed an award on stipulation on February 23, 1998, approving a third settlement. In the stipulation for settlement, the employee contended that he was “entitled to to-date and future periods of temporary total, temporary partial, and/or permanent total disability benefits.” (Ex. R.) The employer and insurer estimated the value of the to-date claim to be about $28,000.00. The employee also claimed he was or might be precluded from returning to suitable gainful employment and therefore was entitled to rehabilitation benefits. The settlement included a lump sum of $72,500.00 payable to the employee ($67,000.00 after attorney fees), in exchange for a full, final and complete settlement of all past, present, and future indemnity benefits. Only future medical benefits related to his neck, bilateral thoracic outlet regions, and bilateral shoulders remained open.
According to the employee, at the time of the 1998 settlement, he had been released to work with restrictions and was actively retraining for a career change in computer hardware, networking, software installation, and repair. He further stated that he became self-employed in the year 2000, running a company involved in building, repairing, and installing computer hardware and software. At the time he settled his claim in 1998, he noted that neither he nor his physicians contemplated any potential future need for additional surgeries to his neck. He also stated that he and his physicians anticipated he would be able to work indefinitely with restrictions related to his work injury.
The employee treated with Dr. Garvey on September 21, 2000, for increased neck pain. X-rays showed two millimeters of retrolisthesis of C3 on C4 with neck extension, which was not present on an x-ray taken in January 1997. The remainder of the fusion from C4-7 was unremarkable and unchanged. Dr. Garvey wrote a letter to the employee’s family doctor, Dr. Roger Hallgren. Dr. Garvey described the employee’s increasing cervicothoracic pain, suggested the next treatment might involve surgery at levels above or below the prior fusion, and recommended an MRI scan. Dr. Garvey also wrote directly to the employee indicating there was no obvious instability at the levels above and below the fusion and that the employee should avoid prolonged flexion and rotation activities, minimize vibration, and continue active exercise. The recommended MRI scan was not performed.
On September 26, 2002, the employee returned to Dr. Garvey, who stated that the employee’s diagnosis was most likely disc degeneration below the level of the previous fusion. They discussed the recommended MRI scan and a possible nerve block injection. Dr. Garvey stated that given the C4-7 fusion, the C7-T1 level was at greater risk, and consequently, this was a work-related condition. He ordered an MRI scan which was performed on September 30, 2002, and showed the fusion at C4-7 with no residual stenosis or compression, mild right-sided foraminal narrowing at C3-4, and an unremarkable finding at the transitional level C7-T1. On October 24, 2002, after reviewing the MRI scan, Dr. Garvey did not see pathology necessitating surgical decompression and instead recommended an epidural steroid injection.
On January 30, 2003, the employee saw Dr. Garvey and complained of neck pain and migraine-type headaches in the front of his head with light and hearing sensitivity. The employee described the epidural steroid injection at C7-T1 as providing little to no pain relief. Dr. Garvey indicated that it was possible the symptoms were related to early degenerative changes below the C4-7 fusion, although there was no MRI evidence of this. On March 13, 2003, the employee underwent a cervical discogram showing normal morphology, but pain, at C7-T1. There was also pain at C2-3 and 10 out of 10 concordant pain at C3-4. Dr. Garvey told the employee that extending the fusion to C3-4 was a reasonable option.
Dr. Eric Flores examined the employee at the request of the employee’s family doctor on January 26, 2004. Dr. Flores described the employee as having increasing pain in his neck, which was constant and aggravated by standing, walking, and increased physical activity. Dr. Flores noted that the prior three-level fusion suggested that there was likely degenerative changes at the levels above. He noted an MRI scan confirmed degenerative changes at C2-3 and C7-T1, but that a discogram was concordant only at C3-4. Dr. Flores wrote:
We had an extensive discussion of this problem. This is a complicated problem, because it may require a fusion at C3-4. This would make four levels of his cervical spine fused. This may increase the limitation of motion of his neck. It may also produce future degenerative change at C2-3 and may have the symptoms all over again several years from now. In the long-term, even if we could [solve] his current problem, he may have future problems with his neck of similar type. If disc replacements are available and are tried, I am uncertain how successful this would be, considering that this is a junctional level above three levels of fused vertebrae.
The employee underwent x-rays on April 29, 2004, which showed stable fusion at C4-7, with minimal anterolisthesis of C2 on C3. On May 4, 2004, the employee underwent a cervical myelogram which showed a solid-appearing fusion at C4-7, with a small but sharply defined foraminal defect at C3-4, which was suspicious of a foraminal disc herniation. The myelogram also showed the left-sided screw at C7 had reached the inferior plate at C7, but did not appear to protrude into the disc. On May 18, 2004, the employee underwent a transforaminal cervical nerve root infiltration/blockade, which resulted in the employee reporting a 30 percent decrease in his typical symptoms.
The employee was unable to continue his self-employment work as of January 2005.
On April 19, 2005, the employee underwent a cervical discogram which showed 5 out of 10 non-concordant pain at C7-T1, 9.5 out of 10 concordant pain at C3-4, and 9 out of 10 concordant pain at C2-3. All three of those levels were considered to be abnormal with the C7-T1 level assessed as mildly abnormal. On May 26, 2005, the employee saw Dr. Andrew Arthur, a resident working under Dr. Garvey. Dr. Arthur stated that the employee had a fusion at C4-7 and was now being seen for adjacent level disease, “which was a well known phenomena that was previously discussed with the patient.” He added, “We had a long discussion with the patient in regards to the etiology of the adjacent level disease which he is aware of, as well as the treatment options for the patient.” Dr. Garvey agreed with Dr. Arthur’s assessment.
On July 6, 2005, the employee underwent an anterior cervical discectomy and fusion at C2-4, as well as removal of instrumentation from the prior fusion at C4-7.
On September 21, 2005, a social security judge found the employee disabled under social security law as of March 10, 2003.
The employee underwent additional surgery with Dr. Garvey on June 23, 2006. Due to delayed union/pseudoarthrosis of C2-3 and C3-4, as well as C7-T1 spondylosis and mechanical instability, the employee underwent posterior spinal fusion at C7-T1, with instrumentation, and posterior spinal refusion at C2-4, with instrumentation.
On February 14, 2007, the employee saw Dr. Jeffrey Dick, who opined it was too early to declare the C7-T1 level as pseudoarthrosis. If the employee continued to be symptomatic a year after surgery, a repeat CT scan would be done and if non-union was shown, an anterior re fusion at C7-T1 would be considered. Dr. Dick opined that because of the employee’s chronic pain, he was not capable of gainful employment.
On July 10, 2007, the employee underwent a post myelogram CT scan of the cervical spine, which showed solid fusion from C2 through C7, some levels still in the early stages of arthrodesis, and no arthrodesis showing at C7-T1.
Due to C7-T1 pseudoarthrosis, the employee underwent a revision arthrodesis at C7-T1 performed by Dr. Garvey on November 14, 2007. A few weeks later, Dr. Garvey made an incision at the site of the surgery to allow for drainage in order to address issues of delayed healing and possible infection.
On January 16, 2008, Dr. Garvey recounted that he saw the employee in January 2005, with recurrent neck pain that led to the revision interventions. Dr. Garvey found the employee was not capable of working in 2005 and his opinion remained unchanged. He further opined it was not realistic that the employee would work within the next twelve months and that his prognosis for future employment was guarded.
By December 2008, Dr. Garvey concluded that the employee’s recent x-rays showed that the fusion at C2-4 and C7-T1 appeared to be successful and he recommended that the employee work with his family doctors to deal with his symptomology, not take additional narcotics, and have additional imaging done to ensure the arthrodesis was solid. Dr. Garvey completed a health care provider report on March 7, 2009, rating the employee with 36.5 percent PPD under Minn. R. 5223.0070, subp. 2D.
On November 5, 2014, and again on April 4, 2017, the employee saw Alfred Anderson, M.D., D.C., for medication management. Dr. Anderson noted significant loss of motion in the cervical spine consistent with the fusion and markedly abnormal muscle strength secondary to deconditioning. Dr. Anderson concluded that the employee was unable to engage in competitive employment.
In January 2019, Dr. Garvey wrote a report to the employee’s current attorney. Dr. Garvey opined that at the time of the 1998 stipulation for settlement, the employee had cervical spondylosis and degenerative disc changes at C4-7, and that currently he has degenerative changes at C2-4 and C7-T1 with chronic pain. Dr. Garvey stated that at the time of the settlement, the employee had the ability to work in the light-duty activity level but has not been capable of working since January 2005. He further opined that the employee’s additional surgical treatment was causally related to the employee’s work injury. Dr. Garvey opined that the employee’s PPD rating would be 15 percent higher due to three additional levels of surgery performed.
On May 29, 2019, the employee filed a petition to vacate the February 23, 1998, Award on Stipulation.
Pursuant to Minn. Stat. § 176.461, this court may set aside an award on stipulation “for cause.” The term “for cause” is limited to:
Minn. Stat. § 176.461(b).
The employee alleges that he has had a substantial change in his medical condition since the time of the February 23, 1998, Award on Stipulation. Generally, when evaluating a petition to vacate an award on stipulation based upon an alleged substantial change in medical condition, this court considers various factors:
Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989). Fodness was decided in 1989, prior to the 1992 statutory change requiring that the change in medical condition be clearly not anticipated and not capable of being reasonably anticipated by the parties at the time of the settlement.
At the time of the settlement, the employee had significant cervical spine disease that resulted in a fusion from C4-7. Presently, the employee continues to have significant cervical spine disease, but now with fusion from C2 extending through T1. This court has stated that additional levels of fusion surgery constitute a change in diagnosis. See Holtslander v. Granite City Roofing, Inc., 78 W.C.D. 111, 118 (W.C.C.A. 2017), summarily aff’d (Minn. Feb. 13, 2018). Thus, while the employee has a change in diagnosis, in this case it appears to be more of a worsening of the diagnosed condition leading to additional fusion surgeries. Still, this factor favors weighs in favor of the petition to vacate.
At the time of the settlement, the employee was not working but was actively engaged in seeking to retrain himself. He began self-employment work in the computer field in 2000 and continued until 2005. Presently, the employee is not capable of working and receives social security disability benefits. Thus, while the employee was not working at the time of the settlement and is not working now, his ability to work has certainly changed from being able to engage in sedentary to light activities, to being unable to engage in work activities.
It is difficult to determine the correct PPD rating for the employee both at the time of the settlement and presently. Dr. Garvey gave PPD ratings before and after the settlement but used the incorrect PPD schedules. He relied upon the schedules that were in existence for injuries through July 1993. While it is possible that the employee has a higher PPD rating now than at the time of the settlement, we note that under Minn. R. 5223.0370, subp. 5B, multi-level fusions of the cervical spine add an additional 5 percent to the underlying PPD rating. The employee had multiple levels fused before the settlement and multiple levels fused after the settlement. Regardless of the number of levels fused, only 5 percent can be added to the underlying cervical condition. This would have occurred before settlement. Consequently, at least for the three additional fused cervical levels, there would be no additional PPD rating.
The employer and insurer concede the employee has undergone more costly and extensive medical procedures. Yet, more costly and extensive medical care is a less significant factor when medical benefits are left open as part of the settlement sought to be vacated. Burke v. F-M Asphalt, 54 W.C.D. 363, 368 (W.C.C.A. 1996), summarily aff’d (Minn. May 30, 1996). This factor weighs in favor of the petition to vacate, but less so.
The employer and insurer have paid for the employee’s additional medical treatment and concede this factor favors the petition to vacate. The medical evidence demonstrates the fusion surgeries for the additional levels of the cervical spine were causally related to the original fusion.
At the time of the stipulation for settlement, the employee had already received substantial benefits paid by the employer and insurer. His claim at the time of the 1998 stipulation included claims of potential future wage loss benefits including permanent total disability benefits. The employer and insurer denied the employee’s claims. The to-date monetary value of the employee’s claims at the time of the settlement amounted to about $28,000.00, but he received in excess of $70,000.00 as part of the settlement. While the parties certainly disputed the severity of the employee’s medical and vocational condition at the time of the settlement, the overall impression from the terms of the stipulation, including the allegations and the amount of the lump sum settlement, was that the parties anticipated the potential value of future wage loss and/or PPD benefits.
Under Minn. Stat. § 176.461(b)(4), a substantial change in medical condition must have been clearly not anticipated and could not reasonably have been anticipated by the parties at the time of the settlement. Here, as the treating surgeon admitted, it was reasonable to expect that once the employee had a fusion, the vertebral levels adjacent to the fusion faced more stress, strain, and advanced degeneration. The worsening of the adjacent non-fused levels of the cervical spine after the fusion surgery was, or reasonably could have been, anticipated by the parties.
While the employee has met some of the Fodness factors, he has failed to demonstrate that the worsening of his cervical spine was not and could not have been reasonably anticipated. He had undergone a three-level cervical fusion prior to the settlement and the degeneration of the adjacent levels that led to additional fusion surgeries was not only capable of being reasonably anticipated, but according to the employee’s own doctor, was in fact anticipated. The employee has failed to show good cause to vacate the 1998 award on stipulation, and therefore, the petition to vacate is denied.
 Dr. Garvey does not reference a rule, but presumably he was referring to Minn. R. 5223.0070, subp. 2D, which calls for 11.5 percent for a single level cervical fusion with 5 percent for each additional level of fusion. This rule, however, applies to injuries occurring before July 1, 1993.
 Although Dr. Van Dyne rated each fused level, Minn. R. 5223.0370, subp. 5A, is used for a single-level fusion while subp. 5B is used for a multi-level fusion. Unlike its predecessor rule, this rule does not call for a rating of the first fused level and additional ratings for each additional fused level.
 Dr. Garvey also rated the employee’s thoracic outlet syndrome, which is not subject to this petition to vacate.
 Ex. 10. The nature, extent, and timing of these discussions are not explained further.
 Essentially, Dr. Garvey rated the employee with 11.5 percent for the first cervical fusion and an additional 5 percent each for five other cervical fusion levels.