JANUARY 10, 2019

No. WC18-6154

VACATION OF AWARD. Where there is no showing that the employee’s worsening of his medical condition was clearly not anticipated and could not reasonably have been anticipated, his petition to vacate is denied.

    Determined by:
  1. Sean M. Quinn, Judge
  2. David A. Stofferahn, Judge
  3. Deborah K. Sundquist, Judge

Attorneys: David W. Blaeser, Woodbury, Minnesota, for the Petitioner. Ryan J. Courtney and Abigail A. Lindekugel, Fitch, Johnson, Larson & Held, P.A., Minneapolis, Minnesota, for the Respondents.

Petition to vacate denied.



The employee petitions this court to vacate two awards on stipulation related to a 1997 work injury to his neck. Because the employee has failed to present enough evidence to show a clearly unanticipated worsening of his medical condition, we deny the petition.


On October 16, 1991, the employee, Bradley Swanson, injured his low back while working for Cenex Farmers Union (Cenex). On February 13, 1997, the employee injured his neck while working for Kath Fuel Oil Service (Kath).

On April 23, 1997, the employee first saw Dr. Paul Chlebeck for his neck injury. Dr. Chlebeck diagnosed the employee with neck and shoulder pain consistent with cervical radiculopathy secondary to the work injury. On May 21, 1997, the employee saw Dr. Richard Foreman. Dr. Foreman diagnosed left cervical radiculopathy likely emanating from C7 or C6. The employee continued to treat with Dr. Chlebeck over the next two years, receiving conservative care and undergoing diagnostic tests such as an EMG and an MRI.

On September 29, 1999, the employee saw Dr. Daniel Tynan. The employee expressed frustration that conservative care was not helping him and that he wished to pursue surgery. Dr. Tynan recommended a C5-6 cervical fusion to treat what he diagnosed as intractable debilitating neck and left arm pain, a C5-6 disc herniation, and degenerative disc disease of the cervical spine.

After receiving this surgical recommendation, but before undergoing the surgery, the employee settled his case. On November 17, 1999, an award approving a stipulation between the employee and Kath regarding the 1997 neck injury was filed. The stipulation called for a $50,000 lump sum payable to the employee, $40,000 after attorney fees, in exchange for a full, final, and complete settlement of all workers’ compensation benefits except medical expenses causally related to his neck injury. Kath and its insurer agreed to pay for the surgery recommended by Dr. Tynan. In the stipulation, the employee contended he might be permanently and totally disabled depending on the outcome of the proposed surgery.

On November 27, 1999, the employee underwent a C5-6 anterior cervical fusion with anterior plating, performed by Dr. Tynan. Less than a year later, on November 7, 2000, the employee saw Dr. Chlebeck with worsening neck and left arm pain. Dr. Chlebeck diagnosed chronic neck and left arm pain secondary to the 1997 work injury.

On July 8, 2005, the employee treated with Dr. Richard Foreman, who assessed a solid C5-6 fusion from the 1999 surgery, a small disc protrusion at C4-5, and trace decrease of the left bicep reflex consistent with the old C6 radiculopathy. On August 10, 2005, the employee reported to Dr. Lon Lutz with severe intractable neck and shoulder pain which Dr. Lutz described as secondary to the 1997 work injury. The employee reported continued pain since the injury with no long-term relief from the surgery. On November 2, 2005, the employee underwent a left C6 epidural injection performed by Dr. Lutz.

Discograms performed on March 22 and May 25, 2006, indicated abnormal morphology at C2-5 and C6-7, above and below the employee’s fusion, and concordant pain of at least 7 out of 10. The employee saw Dr. John Dowdle on June 1, 2006, who concluded the employee was not a good candidate for surgical treatment due to the diffuse nature of his degenerative disc changes.

On April 11, 2008, the employee underwent an MRI, which showed a solid fusion at C5-6, adjacent disc degeneration at C4-5, a small disc bulge at C3-4. On May 14, 2008, the employee underwent another cervical discogram with Dr. Lutz. The discogram showed strong concordant reproduction of symptoms at C4-5 and a negative response at C3-4 with non-concordant pressure, but with morphology still thought to be abnormal at C3-4. On June 10, 2008, the employee underwent a revision anterior decompression and fusion at C4-5 performed by Dr. Phudhiphorn Thienprasit, who had diagnosed the employee with cervical spondylosis at C4-5, as well as status post cervical fusion and instrumentation at C5-6.

On April 6, 2009, a second award on stipulation was filed, approving a settlement between the employee and Kath. The employee claimed chronic pain and depression consequential to his 1997 neck injury and his 1991 low back injury. Cenex, the employer at the time of the 1991 low back injury, was not a party to this settlement. Kath and its insurer denied causation, and alternatively asserted that even if the neck injury was a factor, the low back injury was a more significant factor in the employee’s chronic pain/psychological claims. The employee accepted a lump sum of $10,000 in exchange for a close out of all future medical care related to psychological treatment.

In November 2009, the employee underwent medial branch blocks on the left at C6, C7, and T1, performed by Dr. Lutz, who diagnosed persistent intractable axial neck pain and headaches secondary to a previous fusion and degenerative changes below the fusion.

On June 9, 2010, Dr. Paul Wicklund issued a report after examining the employee at the request of Cenex and its insurer. Dr. Wicklund indicated that the employee was suffering from the effects of his cervical fusion at C4-5 and C5-6 with persistent neck pain. He opined that the employee had restrictions including no repetitive rotation, prolonged extension, or repetitive flexion of the neck. He recommended no further medical treatment for the employee’s neck symptoms and rated the employee with a 14 percent permanent partial disability relative to his cervical spine. Dr. Wicklund further opined that the employee’s neck problems related to his 1997 injury, and that there were no other causes contributing to the employee’s neck symptoms.

On October 25, 2010, the employee returned to Dr. Lutz for cervical medial branch blocks and follow-up on medical management. Dr. Lutz diagnosed cervical degenerative disc disease following two fusion surgeries, as well as depression secondary to chronic pain relating to the employee’s 1997 work injury.

In 2010, the employee claimed permanent total disability benefits against Cenex, the employer for his 1991 low back injury. Kath, the employer for the 1997 neck injury, was not a party to that litigation. The matter was heard by a compensation judge who found that the employee’s psychological condition was not a result of his low back injury in 1991, and that while the employee was permanently and totally disabled since February 15, 2000, it was not due to his 1991 low back injury. Although she recited the causation opinions of various experts, the compensation judge did not make findings as to whether the 1997 neck injury was a substantial contributing factor to the employee’s psychological condition or his permanent total disability status. This decision was not appealed.

The employee returned to Dr. Lutz in December 2011. Dr. Lutz performed a left C7, T1, and T2 medial branch rhizotomy and diagnosed a history of multilevel cervical degenerative disc disease secondary to a cervical fusion. On February 10, 2012, the employee underwent an MRI of the cervical spine which showed a solid fusion at C4-5 and C5-6, and a central disc protrusion at C3-4. He continued treating with Dr. Lutz through October 2012.

On January 30, 2013, the employee was evaluated by Dr. Leland Scott for chronic neck and headache pain from the 1997 work injury. Dr. Scott noted the fusion surgeries in 1999 and 2008, the employee’s persistent pain arising from the C6 and C7 nerve roots, and a hyper-reflexive left tricep reflex. A March 11, 2013, EMG showed median nerve entrapment of the left wrist which appeared to be predominantly demyelinating with no clear evidence of axonal damage, consistent with carpal tunnel syndrome. The changes on EMG were thought to be most compatible with chronic denervation in the setting of left C6 radiculopathy. On April 3, 2013, the employee saw Dr. Scott who diagnosed persisting pain over the C6 and C7 nerve roots, with the left C6 nerve root responsible for at least 50 percent of the neck pain.

On July 16, 2013, the employee saw Dr. Scott following a CT myelogram which showed an annular disc bulge at C3-4 without cord impingement, solid fusion from C4 to C6, bilateral degenerative facet arthropathy at C7-T1, and moderate left-sided lateral stenosis at C5-6 impinging the left C6 nerve root. Because the myelogram showed evidence of C6 nerve root impingement, Dr. Scott recommended repeat injections of the C6 nerve root. On August 13, 2013, the employee underwent a left C6 transforaminal injection performed by Dr. Lutz.

On September 10, 2013, Dr. Scott diagnosed probable left C6 radiculopathy and probable contributions from the C7 nerve root. Dr. Scott recommended a surgical evaluation to investigate the C6 nerve root with the goal of surgically decompressing that nerve root. On October 3, 2013, the employee saw Dr. Nicholas Wills for a surgical consultation, who advised the employee that surgery would not help with his neck pain but could potentially relieve the left arm pain. Dr. Wills performed a left-sided C5-6 laminoforaminotomy and decompression of the left C6 nerve root on October 30, 2013.

On May 8, 2018, Dr. Mark Engasser evaluated the employee at the request of Kath and its insurer. Dr. Engasser diagnosed the employee with a disc herniation at C5-6 with fusion in 1999, disc degeneration at C4-5 with fusion in 2008, left cervical lateral stenosis at C5-6 with laminoforaminotomy and decompression of the left C6 nerve root in 2013, and chronic pain syndrome. Dr. Engasser opined that the left C5-6 disc herniation was as a result of the 1997 work injury, but that the development of C6 radiculopathy on the left side and the bilateral stenosis findings were entirely consistent with degenerative process, “and not specifically due to the injury of February 13, 1997.” (Exhibit 70, emphasis added.) He further opined that additional permanent partial disability was not related to the work injury.

On February 14, 2018, the employee filed a petition to vacate the awards on stipulation served and filed November 17, 1999, and April 6, 2009.


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:

  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.

In this case, the employee petitions to vacate based upon a substantial change in medical condition. Generally, when evaluating a petition to vacate an award on stipulation based upon a substantial change in medical condition, this court applies the Fodness factors:

  1. a change in diagnosis;
  2. a change in the employee’s ability to work;
  3. additional permanent partial disability;
  4. necessity of more costly and extensive medical care than initially anticipated;
  5. causal relationship between the injury covered by the settlement and the employee’s current worsened condition; and
  6. contemplation of the parties at the time of the settlement.

Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989). Fodness was decided in 1989, prior to the 1992 statutory change requiring the change in medical condition be clearly not anticipated and not reasonably anticipated by the parties at the time of settlement.

Here, the employee asserts his medical condition, as it relates to his neck, is substantially worse now as compared to the time of his 1999 settlement. He argues that the 2009 settlement is not the proper comparison date. Kath and its insurer assert that the proper date to determine worsening is from the 2009 settlement, not the 1999 settlement. Moreover, they assert that Dr. Engasser’s report establishes no causal relationship between the employee’s current worsened cervical condition and the 1997 injury.

The employee has established that his cervical condition has worsened since the time of the 1999 settlement and the time of the 2009 settlement. He has had multiple surgeries since the 1999 settlement, including one since the 2009 settlement. He has additional permanent partial disability and has needed substantial and expensive medical care.[1] Moreover, there are more levels of the cervical spine causing the employee’s symptoms and need for care than at the time of the 1999 settlement and the 2009 settlement. Further, while Dr. Engasser opined that there is no “specific” causal link between the employee’s current cervical condition and his 1997 work injury, other medical doctors, including Dr. Wicklund, did find a causal link.

We conclude, however, the employee has failed to establish that any change in his medical condition was not clearly anticipated or it could not have been reasonably anticipated at the time of either settlement. See Powell v. Abbott Northwestern Hosp., slip op. (W.C.C.A. Aug. 17, 1995).

In 1999, the employee, while represented by counsel, settled his case just 10 days before undergoing C5-6 fusion surgery. The fusion surgery was contemplated by the parties at the time of the settlement. The employee specifically alleged in the stipulation for settlement that he might be permanently and totally disabled depending upon the outcome of the surgery. Many medical records indicate that the 1999 fusion surgery provided less than one year of relief. The employee has put forth no evidence, whether in the form of medical reports or medical opinions, to suggest the worsening of his neck was clearly not anticipated or could not have been reasonably anticipated after the recommended cervical spine fusion.

Although there is no question that the employee’s cervical spine condition is far worse now than it was at the time of his 1999 settlement, as well as his 2009 settlement,[2] and although there is evidence supporting a causal relationship, the employee has failed to establish the worsening of his medical condition was clearly not anticipated and could not reasonably have been anticipated. The employee’s petition to vacate is denied.

[1] This particular factor generally carries less weight when medical benefits are left open. See Burke v. F-M Asphalt, 54 W.C.D. 363, 368 (W.C.C.A. 1996), summarily aff’d (Minn. May 30, 1996). Here, medical expenses to treat the cervical spine were left open by the 1999 stipulation and remained open in the 2009 stipulation. Moreover, Kath and its insurer have continued to pay for medical expenses, at least up until Dr. Engasser’s report.

[2] As to whether this court will evaluate any change in the employee’s condition relative to the 1999 stipulation or instead to the 2009 stipulation, we need not reach that issue under the facts of this case.