THOMAS REEL, Employee/Petitioner, v. LOFTNESS SPECIALIZED FARM EQUIP. and W. NAT’L INS. GROUP, Employer-Insurer/Respondents.

Thomas Reel, the pro se employee, petitions this court to vacate an award on stipulation served and filed June 14, 2006. 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 evidence fails to support the employee’s claims, we deny the petition.

From November 1996 through September 1998, and again from May 1999 through approximately September 2003, the employee worked for the employer, Loftness Specialized Farm Equipment. His work duties involved welding, operating heavy machinery, heavy lifting, and other activities. In 2000, he started treatment with various medical providers, complaining of neck pain, arm numbness, and headaches.

On May 29, 2001, the employee underwent an MRI of the cervical spine, which showed early disc degeneration at C3-4 without stenosis, early disc degeneration at C4-5 with some early canal stenosis, a small disc herniation with stenosis at C5-6, a small to moderate disc herniation with mild to moderate stenosis at C6-7, and mild disc degeneration at C7-T1. On October 23, 2001, the employee met with Dr. John Mullan of Neurosurgical Associates, who recommended a C6-7 discectomy and fusion which he felt would be most beneficial to the employee’s symptoms, particularly his right arm radiculopathy. Because Dr. Mullan advised the employee that such a fusion would be unlikely to resolve the employee’s primary complaints of neck pain and headaches, the employee declined the surgery. Dr. Mullan told the employee that fusion surgery could actually exacerbate the neck symptoms by placing stress on additional levels and that fusion was not the recommended treatment for neck pain only.

The employee underwent another MRI of his cervical spine on July 2, 2002. This scan showed degenerative changes from C3 through C7, stenosis at C4-5 and C5-6, and slight neural foramina impingement at C5-6. Upon reviewing the MRI, Dr. James Schwartz of Fairmont Orthopedics & Sports Medicine, opined that due to the many compromised levels without any significant neural foramina encroachment, the employee’s condition would be treated non-operatively. On November 22, 2002, the employee underwent a discogram of the cervical spine at Medical Advanced Pain Specialists. The results of the discogram showed the employee had seven out of ten non-concordant pain at C3-4, five out of ten non-concordant pain at C4-5, eight out of ten concordant pain at C5-6, and nine out of ten concordant pain at C6-7.

In July 2003, a compensation judge found that the employee suffered a Gillette^[1] injury to his neck culminating on May 18, 2001. This court affirmed. Reel v. Loftness Specialized Farm Equip., slip op. (W.C.C.A. Feb. 3, 2004). The employee notes that this court’s decision included the following language, “The employee has missed little or no work as a result of his condition and testified that he has continued to perform his usual job for financial reasons, despite medical advice to find another line of work to avoid aggravating his neck.” Id.

The employee underwent an anterior cervical discectomy and fusion at C5-6 and C6-7 performed by Dr. Schwartz at Fairmont Medical Center on October 8, 2003. Following surgery, Dr. Schwartz released the employee to light duty work. The employer was not able to accommodate those light duty restrictions.

On June 16, 2004, a CT of the cervical spine showed that there was a non-union of the employee’s fusion at C6-7 and that one of the C6 screws appeared to be loose. The CT also showed mild to moderate stenosis at C5-6. The employee saw Dr. Brian Lynn at the Institute for Low Back and Neck Care on July 12, 2004. Dr. Lynn noted degeneration from C3 through C7 and failed fusion surgery with pseudoarthritis at C6-7. Dr. Lynn suggested the employee would need additional surgery to repair the failed fusion. On July 21, 2004, the employee underwent an EMG study, which showed ulnar neuropathy and carpal tunnel, as well as chronic right C7 radicular changes. On August 18, 2004, Dr. Lynn recommended repair of the C6-7 level and possibly the C5-6 level. He advised the employee that although this surgery was designed to repair the failed fusion, because many of his radicular symptoms were coming from cubital tunnel syndrome, this fusion repair would not affect the discomfort in the employee’s arms.

The employee underwent revision fusion surgery of C5-6 and C6-7 performed by Dr. Lynn at Abbott Northwestern Hospital on September 9, 2004. During surgery, the C5-6 disc space was found to be worse than Dr. Lynn expected, necessitating re-fusion at that level as well as C6-7.

On January 17, 2005, Dr. Lynn determined the employee had reached maximum medical improvement (MMI) from the revision fusion surgery and that he would be limited to “moderate” workability.^[2] He assessed the employee with a 23 percent permanent partial disability (PPD) rating.

On April 11, 2005, Dr. Lynn assessed the employee’s repair fusion as healing well. An MRI performed on April 26, 2005, showed a solid fusion at C5 through C7 as well as a disc bulge at C4-5, without significant central or foraminal stenosis. On April 28, 2005, Dr. Mario Desouza of New Ulm Medical Center evaluated the employee for his bilateral arm complaints which were diagnosed as bilateral ulnar neuropathy. He recommended a diagnostic injection to the right shoulder and indicated anterior transposition surgery of the ulnar nerve might be considered in the future. On April 29, 2005, the employee saw Dr. Lynn, who determined that the employee had reached “the end of healing” of his revision fusion surgery. The employee did not wish to undergo another EMG study, although it was recommended he do so if his arm symptoms increased in the future. He was put on permanent work restrictions of a “moderate” level by Dr. Lynn. Based upon the permanent restrictions, it was determined that the employee would not be able to return to work with the employer.

The employee received 83.2 weeks of temporary total disability (TTD) benefits from September 26, 2003, through May 1, 2005.

On July 22, 2005, the employee saw his family doctor, Dr. Roger Lindholm of New Ulm Medical Center. Dr. Lindholm agreed that an EMG should be done given the employee’s ongoing radicular symptoms, particularly into his right arm. In July 2005, the employee’s qualified rehabilitation consultant (QRC) and job placement specialist suspended placement services due to the employee’s medical conditions.

The employee underwent an EMG study on September 19, 2005. The EMG showed bilateral radiculopathies due to pinched nerves in the employee’s neck from C5 through C8. Dr. Desouza determined that although he originally thought that the symptoms were coming from the employee’s ulnar nerves, they in fact were coming from the employee’s neck and the employee should return to his neurosurgeon. On October 4, 2005, the employee’s QRC was of the opinion that any return to work by the employee was guarded at that time given his medical conditions, including pain behaviors. On November 4, 2005, Dr. Lynn saw the employee, who was reporting posterior cervical discomfort, and recommended a CT scan and myelogram.

The employee’s QRC reported in November 2005 that the employee had started working part-time as a bartender and short order cook and that placement services would continue until the employee found suitable full-time employment. The QRC reviewed the job in January 2006, determined the job to be far beyond the employee’s work restrictions, and removed the employee from this position.

On December 23, 2005, an award on stipulation was signed by a compensation judge. The terms of the stipulation included an agreement that the employee was making a claim for 23 percent PPD, which the employer and insurer would pay without admitting the extent of the PPD claim.

The employee underwent a CT myelogram of his cervical spine on January 20, 2006. This study showed a small disc herniation at C3-4 without spinal cord or nerve root compression, a broad-based disc herniation at C4-5 with slight compression of the spinal cord, and a solid fusion at C5 through C7. He then saw Dr. Lynn and reported that he was no longer working at his part-time job due to lifting more than he should have been. Dr. Lynn assessed the employee as having a solid fusion at C5 through C7 and mild to moderate disc degeneration at C4-5. Dr. Lynn recommended that work restrictions be established through a functional capacity evaluation (FCE).

On May 9, 2006, an award on stipulation was signed by a compensation judge. The dispute that led to that settlement included the employee’s claims to temporary partial disability (TPD) benefits due to sporadic employment since December 23, 2005, and the alleged failure of the employer and insurer to make payment on the December 2005 stipulation for settlement in a timely fashion. The terms of the settlement called for, among other things, a payment to satisfy the employee’s TTD and/or TPD claims through the date of that settlement. The parties continued to negotiate a full, final, and complete settlement, which was agreed to shortly thereafter. When advised that the employee had reached a full, final and complete settlement with the employer and insurer, the QRC closed rehabilitation services on June 9, 2006. The QRC noted that the FCE recommended by Dr. Lynn had not been completed.

On June 14, 2006, a compensation judge signed another award on stipulation. The employee’s contentions included his assertion that he was permanently and totally disabled (PTD) from all employment as a result of his admitted injury. Alternatively, the employee asserted that if he was not PTD, then he needed retraining to restore him to an economic status as close as possible to that which he would have enjoyed but for his work injury. The employer and insurer contended the employee was capable of gainful employment without wage loss and that he had simply failed to diligently look for work. The terms of the settlement called for a payment of $101,800.00 to the employee. After attorney fees, the employee received $88,800.00. This settlement closed out all indemnity benefits to the employee, leaving only medical benefits open for the injury.

The employee was seen by Dr. Lindholm on January 30, 2007. The employee was complaining of ongoing chronic neck pain with radiculopathy down the right arm. He was not working at that time. On January 30, 2007, the employee was restricted from work by Dr. Lindholm, pending a neurosurgical consult.

On March 7, 2007, Dr. Michael McCue of Neurosurgical Associates wrote a letter to Dr. Lindholm after the employee underwent a cervical myelogram. Dr. McCue reported that the myelogram had no evidence of stenosis in the cervical spine and that the fusion was complete. Dr. McCue did not believe the employee had any significant ongoing spinal cord compression but was concerned about new myelopathy that had developed sometime after 2004. Dr. McCue recommended further evaluation to determine whether the myelopathy was related to an underlining physiological abnormality, or perhaps a demyelinating disorder. Dr. McCue did not think that the myelopathy was due to any spinal cord trauma.

The employee saw Dr. Lisa Davidson at New Ulm Medical Center on June 3, 2008, for a neurological consultation. He was ultimately determined to suffer from complex partial epilepsy.

On June 20, 2010, the Social Security Administration (SSA) notified the employee that his claim for disability benefits was approved. The SSA determined that the employee became disabled on September 25, 2003, and that retroactive benefits were payable from January 2007, due to the filing of the claim on January 7, 2008.^[3]

On October 2, 2014, the employee underwent surgery at the Mankato Hospital, performed by Dr. Thomas Jones of the Orthopedic and Fracture Clinic, to address bilateral C4 radiculopathies and stenosis. The surgery entailed removal of hardware from the C5-7 fusion, as well as a discectomy and fusion at C3-4 and C4-5.

On May 28, 2015, Dr. Jones reported that he had reviewed the employee’s “extensive past medical records.” Dr. Jones noted the previous C5-6 and C6-7 fusions and that significant changes were observed at the C4-5 segment at the time of the original fusion surgeries. Dr. Jones observed that at first the employee had not displayed any symptoms related to those changes at C4-5. Dr. Jones opined that presently the employee was displaying symptoms of cervical myelopathy and radiculopathy emanating from the C3-4 and C4-5 segments and that he was developing progressive foraminal stenosis at those levels. Dr. Jones noted that given the preexisting changes that had already existed at C4-5 at the time of the original C5-7 fusion surgeries, there was no doubt that the progressive stenosis and ongoing segmental disease at C4-5 was initiated by the C5-7 fusions and that the C3-4 changes would actually progress from the C4-5 changes. Dr. Jones was of the opinion that the need for surgery at C3-4 and C4-5 was substantially caused by the earlier surgeries at C5-6 and C6-7. He opined that these adjacent level changes were fairly common, with about 10 to 15 percent of patients within 10 to 15 years after surgery developing adjacent level difficulties necessitating additional surgery.

On August 17, 2015, a compensation judge issued a findings and order following a hearing on whether the employee’s fusions at C3-4 and C4-5 were causally related to the May 18, 2001, injury and the C5-7 fusions. The compensation judge made various findings, including that the employee’s May 2001 MRI scan showed multilevel degenerative disc disease in the cervical spine including early degeneration at C3-4 and C4-5, as well as mild central stenosis at C4-5. The compensation judge further found that the employee’s diagnostic scans from 2005-2014 showed progressive changes at C3-4 and C4-5. The compensation judge found that although the employee continued to smoke cigarettes from 2005 and ongoing, the greater weight of the evidence, including the opinion of Dr. Jones, who the compensation judge found to be more persuasive than the employer and insurer’s medical expert, was that the employee’s 2001 work injury and C5-7 fusion surgeries were substantial contributing factors to the employee’s need for the C3-5 fusion surgeries. No appeal was taken from the August 17, 2015, findings and order.

A compensation judge signed an award on stipulation on January 13, 2017. The disputes at that time were the employee’s claims for various unpaid medical bills, asserted to be related to his work injury.

Due to his ongoing cervical symptoms, the employee sought approval of a referral to a pain management program. The primary dispute seemed to be not whether the employee should have treatment at a pain clinic, but rather the location of the clinic. On May 21, 2018, the Department of Labor and Industry issued a medical request determination approving a choice of clinic for the program. This decision by the Department of Labor and Industry was not appealed.

On May 28, 2018, Dr. Jones observed that the employee was having frequent flare ups of discomfort related to the C4-5 segments and had developed changes, evidenced on EMG, of the C5 nerve roots.

On February 11, 2019, the employee filed a petition to vacate the June 14, 2006, award.

Pursuant to Minn. Stat. § 176.461(b), this court may set aside an award on stipulation “for cause.” The term “for cause” is limited to:

The employee alleges that he has had a substantial change in his medical condition since the time of the June 14, 2006, 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 applies the Fodness factors:

The employee alleges that at the time of his settlement, his only diagnosis was that of a C5-7 solid fusion without significant spinal cord compression. The evidence, however, shows that his diagnosis was far more than just that. Degenerative changes were seen as early as 2001 at C3-4 and C4-5. Early canal stenosis was also seen at C4-5, as early as 2001. An MRI from 2002 also showed disc degeneration from C3 all the way through C7 and stenosis at C4-5. Further, an EMG study done in 2005 showed bilateral radiculopathies coming from the employee’s neck. A myelogram in early 2006 showed a small disc herniation at C3-4 and a broad-based disc herniation at C4-5 with a slight compression of the spinal cord.

It is true that since the settlement, the employee’s condition at C3-5 worsened to the point where he ultimately had fusion surgery at those levels. This is not necessarily a change in diagnosis, however, so much as a progression of the diagnosis leading to more care.

This factor favors denial of the petition to vacate.

The employee alleges that prior to his June 2006 settlement, he was able to work and in fact was working as a part-time cook and bartender. He further alleges that he was not declared disabled by the SSA until January 2007. The employee’s recitation of the facts, however, is incomplete, and somewhat out of context.

As far as social security disability benefits are concerned, the employee did not apply for benefits until January 2008, and a decision was not made by the SSA until 2010. The SSA found the employee disabled as of September 2003, just before the employee’s first fusion surgery.

Indeed, there is little, if any, evidence of the employee working any significant amount from and after September 2003. While the employee did have a brief period of part-time work in late 2005 into early 2006, there is no evidence in the record as to the nature and extent of the employee’s work or earnings, other than the QRC’s assessment that the employee was working beyond his limitations and the medical assessment that because the employee was working beyond his limitations he needed to discontinue that work, which the employee did. The employee was not working at the time of the award on stipulation that he seeks to vacate.

Moreover, while the employee was released to work with restrictions and had those restrictions in place at the time of the settlement, there is no evidence of any change in the employee’s work restrictions whatsoever, from and after that date.^[4]

There was no evidence to suggest that the employee became PTD after the award on stipulation. If anything, the evidence suggests that he was PTD long before the award on stipulation. In fact, the employee claimed that he was PTD at the time of his settlement and received a lump sum in excess of $100,000.00 from the settlement.

As set out above, the employee points to this court’s earlier decision noting that the employee had missed little or no time from work because of his neck condition. While this was true when this court issued the decision in February 2004, this was based upon evidence before a compensation judge prior to his July 2003 decision.^[5] This sentence is not evidence of the employee’s ability to work at the time of his June 2006 settlement.

This factor favors denial of the petition to vacate.

The employee does not allege any additional PPD, and there is no medical evidence offered of any additional PPD. The employee argues, however, that he has had two additional levels of his neck fused since the time of the settlement, and the only reason that he does not have additional PPD is because the PPD schedules allow a single rating for multiple levels of fusion, whether two levels or four levels. In essence, he argues that the lack of additional PPD is a mere technicality.

We are sympathetic to the employee’s frustration that a two-level fusion has the same rating as a four-level fusion. Nevertheless, additional PPD is a factor in assessing a petition to vacate. This factor favors denial of the petition to vacate.

Since the award on stipulation, the employee has had an additional fusion surgery at C3-5, has had other medical treatment which was subject to dispute but was ultimately determined to be related to his work injury, and was approved for a chronic pain program.

More costly and extensive medical care has less significance 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 (W.C.C.A. 1996). That being said, this factor favors granting the petition to vacate

The employer and insurer concede that the employee has established causation between his current cervical spine condition and his 2001 work injury. This was further evidenced by a compensation judge’s findings and the Department of Labor and Industry’s decision establishing causation of the employee’s ongoing medical treatment for his symptoms as being related to his 2001 work injury.

This factor favors granting the petition to vacate.

At the time of the settlement, the employee alleged that he was PTD. In the alternative, he maintained that retraining was needed to establish a new vocation.^[6] The amount of the settlement suggests that the employer and insurer, having already paid substantial TTD, TPD, and 23% PPD, took the employee’s PTD claim seriously. It is evident, from the record before us, that the employee reasonably believed that he was permanently and totally disabled in 2006. His condition is unchanged from that time.

This factor favors denial of the petition to vacate.

While the employee has had substantial additional medical treatment since his 2006 settlement, and this treatment is causally related to his 2001 work injury, he has failed to show any significant change in diagnosis, change in ability to work, additional PPD, or that the settlement did not contemplate the employee’s continued inability to resume employment. The court notes that the employee had already received substantial TTD, TPD, and PPD before later receiving over $100,000.00 in his 2006 settlement. Moreover, the employee left his medical benefits, the one benefit that certainly could have been reasonably anticipated to be needed into the future, open and has in fact had the advantage of those benefits, albeit with occasional disputes in which he has prevailed. The employee has failed to show a substantial change in medical condition that was not reasonably anticipated by the parties at the time of the settlement.

The employee seeks alternative relief from this court, specifically a hearing before a compensation judge at the Office of Administrative Hearings for fact finding on the Fodness factors. Because the employee has not presented sufficient evidence or raised evidentiary disputes that would necessitate such a hearing, we decline to do so.

For these reasons, we deny the employee’s petition to vacate.