VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The employee has shown a substantial change in medical condition that was not reasonably anticipated at the time of settlement.
Compensation Judge: William Marshall
Attorneys: Steven P. Christensen, Steven P. Christensen, L.L.C., Minneapolis, Minnesota, for the Appellant. Richard W. Schmidt, Cousineau Waldhauser, Mendota Heights, Minnesota, for the Respondents.
Petition to vacate GRANTED.
GARY M. HALL, Judge
The employee has shown a substantial change in medical condition that was not anticipated at the time of settlement. We grant the petition to vacate the November 17, 2016, Partial Award on Stipulation.
On September 16, 2015, Millard J. Strand, the employee, was injured in a fall from a truck while working as a delivery driver for R & L Carriers Shared Services, L.L.C., the employer, which was insured for workers’ compensation liability by Hartford Accident & Indemnity Company, with claims administered by CCMSI. Primary liability was initially accepted and various workers’ compensation benefits were paid. The employee has a history of diabetes, severe obstructive sleep apnea, neuropathy, hypertension, obesity, and coronary artery disease.
On the day of the injury, the employee was treated at an emergency department. Lumbar and thoracic spine x-rays indicated extensive ankylosis but no fracture or malalignment was identified. The employee was treated with medication and discharged that day. The employee was off work for five days, then returned to light-duty work. The employee treated with Dr. Peter Frederixon on October 8, 2015, and was continued on light-duty status. The employee underwent physical therapy from October through December 2015. Additional thoracic spine x-rays were taken on November 30, 2015, and indicated moderate thoracic spine kyphosis[1] with moderate compression along the superior endplate of T11. Dr. Frederixon found the employee to be at maximum medical improvement (MMI) and released the employee for full-duty work without restrictions on December 21, 2015.
The employee was seen at his regular clinic in January 2016 for low back pain and was referred to the physical medicine and rehabilitation department. In March 2016, Dr. David Kurtti, noted that physical therapy had helped the employee’s low back pain, but not his thoracic pain, and recommended a thoracic MRI scan. The employee was also evaluated on March 16, 2016, by Dr. Donald Asmussen at TRIA Orthopaedics, who diagnosed the employee with ankylosing spondylitis[2] of the thoracic and lumbar spine. Dr. Asmussen limited the hours the employee could work per shift and referred him for additional physical therapy. He completed a work ability report dated March 16, 2016, listing the employee’s diagnosis as spondylitis. The employee continued to have low back pain and received chiropractic treatment with Dr. Jeffrey Schramm beginning in March 2016. Dr. Schramm also recommended a thoracic spine MRI scan.
On March 29, 2016, the employer and insurer filed a denial of primary liability, asserting that MMI had been reached on December 21, 2015, and that the employee’s March 16, 2016, work ability report listed “a diagnosis of spondylolisthesis which is not a work-related diagnosis.” (Ex. A. The report, which is part of Ex. R, indicates that the employee’s diagnosis was spondylitis, not spondylolisthesis.)
Dr. Schramm referred the employee to Mark Stock, NP-C, at the Injury Physicians of Minnesota for evaluation in April 2016. The employee reported significant pain and was prescribed medication. A thoracic spine MRI scan was performed on April 12, 2016, and indicated a subacute compression fracture deformity with anterior wedge at T11 and severe kyphosis.
In April 2016, the employee filed a claim petition for injuries to the low and mid back and rib cage, and radicular pain in both legs. The employer and insurer claimed the employee’s injury was a temporary aggravation of his pre-existing ankylosing spondylitis and osteopenia conditions.
A May 26, 2016, MRI scan and a June 13, 2016, CT scan also indicated a T11 fracture. The employee was assigned work restrictions of no lifting over 20 pounds and to avoid frequent bending, twisting, and turning in June 2016. He was also referred to a spine specialist, Dr. David Chang, at Midwest Spine & Brain Institute. The employee’s work restrictions could not be accommodated and he was laid off from work.
On June 22, 2016, the employee underwent an independent medical examination with Dr. Thomas Raih, who opined that the employee’s T11 compression fracture was likely related to the work injury but that he wanted to review the employee’s x-ray films. He opined that the employee was not at MMI, was in need of additional treatment, and was disabled from his job as a truck driver and from significant lifting. He also agreed that the employee should be assessed by Dr. Chang.
Dr. Chang evaluated the employee on July 1, 2016, and in a follow-up appointment on July 15, 2016. He diagnosed a T11 fracture and thoracic kyphosis, and proposed multiple surgical options. These options included surgical fusion in situ[3] at T11 which would not address the kyphosis condition, pedicle subtraction, placement of pedicle screws from T9 to L1 which would stabilize the fracture and straighten the spine, or an osteotomy with resection at T11-12 which would correct kyphosis. Dr. Chang recommended an osteotomy at T11-12, placement of pedicle screws at T9-L1 with correction of kyphosis, and posterior fusion. The chart note states that the employee understood and wished to proceed with surgery.
After reviewing the employee’s x-ray films from the time of the work injury, Dr. Raih opined in an August 23, 2016, report that the T11 fracture was present but not identified at the time of the x-ray because it had been obscured by wires from a prior coronary bypass. He recommended a TLSO brace for the non-healing fracture before consideration of surgical options. Dr. Raih also opined that the employee’s work injury was contributory to the T11 fracture. He stated that a fusion surgery in situ would be considered related to the work injury, but that Dr. Chang’s other proposed surgical options of pedicle subtraction, osteotomy, or placement of pedicle screws would be related to the employee’s pre-existing conditions of kyphosis and ankylosis. The employer and insurer maintained their denial of primary liability.
On October 21, 2016, the parties mediated a settlement. In his affidavit filed in support of the petition to vacate, the employee testified that the attorney representing him at that time “advised me at mediation that he did not think I needed spinal surgery; to the best of my recollection he said to me, ‘They don’t do spine surgery to the thoracic, they do lumbar surgery but not the thoracic, if you have a bad thoracic spine you just live with it.’” (Strand Aff., July 25, 2018, at paragraph 11.)
On October 28, 2016, the employee discussed a surgical option with Dr. Chang which involved a T11 corpectomy, posterior thoracic laminectomy at T11, correction of kyphosis, and thoracic pedicle screws from T4 to L2. The chart note indicates that the employee understood and wanted to proceed with surgery. The employee was evaluated by Dr. David Wengler on October 31 and November 16, 2016. Dr. Wengler recommended a TLSO brace and did not recommend surgery. The employee testified by affidavit that, based on Dr. Wengler’s opinion, he thought that his T11 fracture would heal with use of a TLSO brace and that he would not need surgery.
The parties entered into a partial stipulation for settlement, resolving the employee’s claims and closing out future medical treatment in exchange for a lump sum of $80,000.00 to the employee and $20,000.00 to his attorney. In the stipulation, the employee acknowledged that he may need further medical treatment, including possible surgery as recommended by Dr. Chang on July 1, 2016. The employer and insurer asserted that no further treatment was needed for the employee’s work injury. The stipulation did not reference Dr. Raih’s opinions. The settlement was reviewed by a compensation judge and a partial award on stipulation was served and filed on November 17, 2016. The intervention claims were resolved in a separate stipulation with an award on stipulation served and filed on April 3, 2017.
Soon after the filing of the partial award on stipulation, the employee was evaluated by Dr. Mary Dunn at HealthEast Neurosurgery. Dr. Dunn opined that the employee did need surgery and referred the employee to Dr. Kristen Jones. On November 21, 2016, Dr. Jones referred the employee to Dr. David Polly at the Fairview University of Minnesota Medical Center due to the complexity of the employee’s condition and the surgery. A November 29, 2016, chart note indicates that Dr. Polly was unavailable until March 2017.
The employee worked as an independent on-call driver from January to February 2017, but was taken off work by Dr. Dunn.
The employee was able to see Dr. Polly earlier than scheduled, on January 18, 2017. Dr. Polly recommended spinal surgery and, according to the employee, stated that the employee’s increasing kyphosis would shorten his life by making it more difficult for him to breathe. The employee claims that his thoracic kyphosis has gradually increased since the September 2015 work injury. At that time, he was able to walk with a slightly bent forward posture. By January 2017, his posture was bent forward so that he looked at the ground and had to tilt his head up to be able to look forward. In a January 27, 2017, report, Dr. Dunn explained that the employee’s ankylosing spondylitis was a pre-existing condition, but that the 2015 fall caused the fracture and was “also the proximate cause of him needing surgery and not being able to work.” (Ex. J.)
The employee’s condition continued to deteriorate, and on April 17, 2017, he underwent surgery performed by Dr. Polly and Dr. Jones. The surgery included a posterior spinal fusion from T4 to S1, segmental spinal instrumentation from T4 to S1, pelvic fixation, and osteotomies from T12 to L3, with complications of presumed positional femoral nerve neurapraxia.[4] He was hospitalized until April 27, 2017, when he was transferred to an acute rehabilitation unit. The employee’s diagnoses after surgery included paraplegia, bilateral leg weakness, impaired mobility, generalized weakness, impaired activities of daily living, and impaired cognition. During rehabilitation, he had some improvement in ambulation and could use a walker with assistance. On May 23, 2017, he was sent to a transitional care unit, and was discharged on July 23, 2017.
The employee continued to have gait and balance problems in August 2018 and needed to use a wheeled walker with a seat or cane. When using the cane to walk, someone would follow behind him with the walker. Dr. Polly rated the employee as having at least a 26 percent permanent partial disability (PPD) rating in June 2018. In November 2018, the employee was assessed by Dr. Michael Floberg with bilateral leg weakness and probable bilateral femoral neuropathy with superimposed polyradiculopathy at L4-S1. Dr. Floberg opined that the employee likely had bilateral femoral neuropathy after the 2017 surgery and that etiology of the polyradiculopathy had not been determined, but that diabetes could be a factor. The employee stated in his affidavit that he cannot walk far with the cane, his legs are weak, and that if he were to fall he would not be able to get up without assistance. Dr. Polly has ordered the employee off work until early 2019.
The employee petitions to vacate the November 17, 2016, Partial Award on Stipulation, asserting that he has sustained a substantial change in medical condition that was not anticipated at the time of settlement. The employer and insurer object.
Pursuant to Minn. Stat. § 176.461, this court may set aside an award on stipulation “for cause,” which is defined as a mutual mistake of fact, newly discovered evidence, fraud, or 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 this case, the employee petitions to vacate based upon a substantial change in medical condition that was clearly not anticipated and could not reasonably have been anticipated. When evaluating a petition to vacate an award on stipulation on this basis, this court considers factors including a change in diagnosis, a change in the employee’s ability to work, additional permanent partial disability, necessity of more costly and extensive medical care than initially anticipated, causal relationship between the injury covered by the settlement and the employee’s current worsened condition, and contemplation of the parties at the time of the settlement. Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).
Before the settlement, the employee was diagnosed with a T11 fracture and thoracic kyphosis. His diagnoses after the post-settlement surgery included paraplegia, bilateral leg weakness, impaired mobility, generalized weakness, impaired activities of daily living, and impaired cognition. The employee’s diagnosis has changed due to complications from the surgery.
At the time of the settlement, the employee was not working but thought he would be able to return to work. He worked as a driver from January to February 2017, then was taken off work, and he has not returned to work since the surgery. Dr. Polly has taken the employee off work through early 2019.
The employee had not been rated for PPD at the time of the settlement. After the extensive post-settlement surgery, Dr. Dunn assigned a PPD rating of at least 26 percent. The employer and insurer assert that the surgery and any additional PPD from the surgery were anticipated given the October 2016 surgical recommendation. At the time of the settlement, there were conflicting opinions on whether the employee needed surgery as recommended by Dr. Chang. The employee acknowledges Dr. Chang’s recommendation of the surgery before the settlement, but thought he would heal with the use of the TLSO brace as opined by Dr. Wengler. The brace had also been recommended by Dr. Raih.
The employee claims the April 2017 surgery was more extensive than the surgery recommended at the time of settlement. The surgery performed by Dr. Polly was more extensive since it included four more levels than contemplated at the time of settlement, pelvic fixation, and pedicle screws at more levels. On October 28, 2016, before the stipulation was signed, Dr. Chang recommended a surgery which involved a T11 corpectomy, posterior thoracic laminectomy at T11, correction of kyphosis, and thoracic pedicle screws from T4 to L2 and stated that the employee appeared to understand and wanted the surgery. The surgery performed in April 2017 by Dr. Polly included a posterior spinal fusion from T4 to S1, segmental spinal instrumentation from T4 to S1, pelvic fixation, and osteotomies from T12-L3, with complications of presumed positional femoral nerve neurapraxia.
As to causation, Dr. Dunn noted that the employee’s ankylosing spondylitis was a pre-existing condition, but opined that the 2015 fall caused the fracture and was the proximate cause of the employee needing surgery and not working. Dr. Raih also opined that the employee’s work injury was contributory to the T11 fracture. While he agreed that a fusion surgery in situ would be considered related to the work injury, he opined that Dr. Chang’s other proposed surgical options of pedicle subtraction, osteotomy, or placement of pedicle screws would be related to the employee’s pre-existing conditions of kyphosis and ankylosis.
The employer and insurer assert that given the surgical recommendations, the employee’s condition after the surgery was reasonably anticipated at the time of the settlement. There were conflicting medical opinions regarding whether the employee needed surgery. The employee testified by affidavit that, based on Dr. Wengler’s opinion, he thought that his T11 fracture would heal with use of a TLSO brace and that he would not need surgery. Further, his attorney had told him that he did not need spinal surgery and that surgery was not done to the thoracic spine. In addition, while the employee was warned of the possible complications of the complex recommended surgery, including nerve injury and spinal cord injury, the employee’s complications during his post-surgery recovery period have been unusually extensive. Before the surgery, the employee was able to walk. After the surgery, he was assessed with paraplegia, bilateral leg weakness, impaired mobility, generalized weakness, impaired activities of daily living, and impaired cognition. He was hospitalized and in rehabilitation units for three months. He continued to have gait and balance problems in August 2018 and could only walk with a wheeled walker or a cane with assistance.
Recently, this court denied a petition to vacate under somewhat similar circumstances in Swanson v. Kath Fuel Oil Service, No. WC18-6154 (W.C.C.A. Jan. 9, 2019). In that case, at the time of settlement, the employee was scheduled to have neck surgery, for which the employer and insurer agreed to pay, only ten days after the award on stipulation was filed. Shortly after surgery, the employee developed serious neck symptoms, underwent numerous additional procedures, and had significant additional disability related to his neck. We denied the petition to vacate under those circumstances because the employee was unable to show that the change in medical condition could not reasonably have been anticipated at the time of his settlement. When a surgery is proposed contemporaneous to a settlement, a poor surgical outcome may be reasonably anticipated.
Here, the employer and insurer argue that before the stipulation was signed, significant surgery was recommended and the employee wished to proceed with one of the surgical options. While the employee was considering conflicting treatment recommendations at the time of the settlement, he had not yet decided whether to undergo the surgery or attempt bracing. After the settlement, the employee’s condition worsened in the ensuing months post-award, and the surgery performed was more extensive than the surgery suggested before settlement, involving four additional levels of fusion, and resulting in severe complications and functional impairment. Unlike Swanson, these significant and extraordinary circumstances were not, and could not reasonably have been, anticipated at the time of settlement.
Given the employee’s more extensive surgery involving an additional four levels than discussed before the settlement, the resulting complications, and the development of significant functional impairment, as well as his inability to work, increased PPD, and Dr. Dunn’s opinion regarding causation, we conclude the employee has shown a substantial change in medical condition that was not anticipated, and could not reasonably have been anticipated, at the time of settlement. Accordingly, we grant the employee’s petition to vacate the November 17, 2016, Partial Award on Stipulation.
[1] Kyphosis is a condition involving abnormally increased convexity in the curvature of the thoracic spine as viewed from the side. Dorland’s Illustrated Medical Dictionary 992 (32nd ed. 2012).
[2] Ankylosing spondylitis is a condition involving inflammation, pain, and stiffness of the vertebral joints. Id. at 1754.
[3] In situ is defined as confined to site of origin. Id. at 944.
[4] Neurapraxia is the failure of conduction in a nerve in the absence of structural changes. Id. at 1262.