APRIL 2, 2019

No. WC18-6207

VACATION OF AWARD – SUBSTANTIAL CHANGE IN CONDITION. The court concludes that the employee’s petition has failed to demonstrate a substantial change in medical condition sufficient to warrant vacation of two successive awards on stipulation.

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

Attorneys: Kerry O. Atkinson, Atkinson Law Office, Arden Hills, Minnesota, for the Petitioner. Timothy J. Manahan, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Respondents.

Petition to Vacate Denied.



The employee has petitioned this court to vacate Awards on Stipulation served and filed on April 2, 1990, and April 3, 1997. We conclude the employee has failed to establish cause pursuant to Minn. Stat. § 176.461 and deny his petition.


Rodney Wolters, the employee, sustained an admitted low back injury on July 9, 1987, while working as a garbage hauler for Curry Sanitation, Inc., the employer, at a weekly wage of $385.00. The injury resulted in back pain and pain shooting down the left leg. A CT scan on September 15, 1987, showed mild degenerative facet joint disease at multiple levels, a mild annular bulge at L4-5 which was not thought to be of clinical significance, and no evidence of nerve compression. Following unsuccessful conservative treatment the employee was referred to Dr. Charles Burton who initially saw him on January 15, 1988, and diagnosed chronic mechanical low back pain, lumbar degenerative disc disease, lumbar facet joint arthropathy at multiple levels, and an early chronic pain syndrome. Dr. Burton noted that the employee was 100 pounds overweight and recommended a monitored weight reduction program and a pain program. He also recommended that the employee discontinue smoking.

The employee was then treated by Dr. Thomas Hennessey at Abbott Northwestern Hospital through epidural steroid injections and facet nerve blocks. A September 1988 discography performed by Dr. Burton indicated abnormal morphology at L4-5 and L5-S1 and suggested that the employee’s primary painful disc was at L5-S1. Based on the discography, Dr. Burton recommended lumbar fusion surgery at the L5-S1 level. The employee was then seen by an orthopedic surgeon, Dr. Jerry Reese, who diagnosed chronic low back strain with degenerative disc disease at L5-S1. Dr. Reese stated that he would be reluctant to perform a lumbar fusion based solely on a discogram, which he deemed subjective.

The employee then saw Dr. Robert Wengler, another orthopedic surgeon, on October 6, 1988. Dr. Wengler diagnosed a lumbar disc herniation at L5-S1 for which he rated the employee with a 14 percent permanent partial disability (PPD). He recommended surgery in the form of an open exploration of the L5-S1 disc with the decision whether to fuse the disc to be based on the degree of instability noted at the disc during the surgery.

The employee eventually underwent surgery performed by Dr. Wengler on December 12, 1988. Dr. Wengler concluded during the surgery that fusion was not necessary and instead performed a laminectomy and discectomy.

Following surgery, the employee had an initial reduction in back pain, but within a year of the operation he experienced a recurrence of back pain and thereafter continued to experience significant low back and left leg pain. He was treated for chronic pain and then released to work with restrictions limiting him to semi-sedentary work. In January 1990, he began working in a light duty job as a counselor at a group home for developmentally/cognitively impaired adults at $5.00 per hour.

On March 27, 1990, the employee entered into a stipulation for settlement with the employer and insurer and an Award on Stipulation was served and filed on April 2, 1990. The stipulation recited that the parties disputed the extent of the employee’s entitlement to PPD, with the employee claiming 14 percent PPD payable as economic recovery compensation and the employer and insurer claiming that the employee was instead entitled to nine percent PPD payable as impairment compensation. The settlement was a full, final, and complete close-out of the employee’s claims with the exception of future reasonable and necessary medical expenses in return for the immediate payment of the sum of $31,500.00 and four future lump sum payments to be paid on specified dates through February 15, 2001, totaling an additional $27,500.00. Prior to the stipulation, the employee had been paid more than 130 weeks of temporary total disability compensation and about three months of temporary partial disability compensation.

Following the settlement, the employee continued to work in his group home job for about one more year, but after his wife was diagnosed with medical problems, he stayed home to care for their children and manage the household.

The employee had continued intermittent treatment with Dr. Wengler. In 1994, the employee was examined by Dr. Michael Davis who noted that the employee had a normal neurologic examination except for some decreased sensation in the left calf. Dr. Davis felt that the employee had improved somewhat following his laminectomy, but continued to have residual low back difficulty.

The employee was treated with exercise and a health club membership was prescribed. A dispute eventually arose between the parties over the necessity of pool therapy. In April 1997, the employee entered into a second stipulation for settlement in which he agreed to close out pool therapy, hydrotherapy, health club memberships, exercise equipment, chiropractic treatment and associated mileage for $6,321.68. The employer and insurer remained liable for reasonable and necessary medical treatment.

At some point prior to January 2010, the employee again returned to work at his group home job.

In 2010, the employee asked Jeffrey J. Kotulski, D.O., if technology had advanced in recent years such that something further might be done for his ongoing chronic low back and left leg pain. Dr. Kotulski prescribed an orthotic brace and began seeing the employee on a monthly basis. When the employee’s condition failed to improve, Dr. Kotulski prescribed Oxycontin and restricted the employee from work. The employee apparently has not worked since June 4, 2010. An updated MRI scan was performed on July 6, 2010, and showed dehydration and stenosis along with facet changes at L4-5. Evidence of the prior surgery could be identified at L5-S1, along with bilateral foraminal narrowing.

Dr. Kotulski eventually referred the employee to Dr. Thomas Rieser of the Midwest Spine Institute, who saw the employee on July 30, 2010. Dr. Rieser diagnosed multilevel degenerative disc disease and eventually recommended a two-level lumbar fusion at L4-5 and L5-S1, with decompression at the L4-5 level. He opined that the employee had been medically unable to work since that time, and related his current medical condition to the 1987 work injury. Dr. Rieser initially recommended epidural steroid injections, and noted that fusion surgery at L4-5 and L5-S1 could be a possibility if the employee failed to make progress. When the employee was again seen by Dr. Rieser on September 7, 2010, he continued to report lower back pain and left leg pain; he was noted to walk with a cane. The doctor’s diagnosis was degenerative disc disease at L4-5 and L5-S1. The doctor was now recommending decompression and fusion at those levels.

On November 19, 2010, the employee filed a medical request seeking authorization for the surgery proposed by Dr. Rieser. The employee was examined by Dr. Charles Burton on December 27, 2010, on behalf of the employer and insurer. Dr. Burton did not consider a multi-level fusion reasonable or necessary treatment, in part because of the employee’s smoking history and use of opioid medications. As an alternative to surgery, he recommended implantation of a spinal cord stimulator. He disagreed that the employee’s then current condition was causally related to the work injury, attributing that condition to the effects of longstanding multilevel degenerative disc disease which preceded the work injury, together with the effects of the employee’s heavy smoking history. Dr. Burton opined that the employee had reached maximum medical improvement from the 1987 work injury as of July 30, 1990.

This issue was heard before a compensation judge on March 16, 2011. Following the hearing, the judge found that the employee’s then current back condition was causally related to the work injury and that the proposed surgery was reasonable and necessary. However, she also stated that the evidence further demonstrated that the surgery should not be performed until an EMG test was performed and until the employee was nicotine free. She conditionally authorized the surgery depending on the results of an EMG test and on the employee testing negative for nicotine breakdown products.

The employee did not undergo an EMG test and did not meet the smoking cessation condition. However, on September 9, 2011, Dr. Stefano M. Sinicropi performed a transforaminal lumbar interbody fusion at L4-5 and L5-S1. The fusion failed and resulted in no appreciable relief, and the employee then sought the insurer’s approval for a revision of the fusion. The employee was seen again by Dr. Burton for an examination for the employer and insurer. Dr. Burton attributed the employee’s symptoms primarily to pseudoarthoses at L4-5 and L5-S1. He opined that the proposed revision surgery was not reasonable and necessary. The proposed surgery was denied by the insurer.

Dr. Sinicropi continued to seek authorization for revision surgery until sometime in 2015. He subsequently withdrew the request for revision surgery after noting in 2017 that the employee’s fusion showed an improved appearance on an updated MRI scan. In chart notes dated February 2, 2017, Dr. Sinicropi suggested that the employee might be a better candidate for a spinal cord stimulator than for additional surgery.

The employee has been receiving social security disability benefits since December 2010. On September 12, 2018, the employee filed a petition with this court to vacate the 1990 and 1997 awards on stipulation, alleging a substantial change in his medical condition. The employer and insurer have responded opposing the employee’s petition.


Pursuant to Minn. Stat. § 176.461 and Minn. Stat. § 176.521, subd. 3, this court has authority to vacate an award "for cause." Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989). Cause has been defined to include a substantial change in medical condition. Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989). The employee asserts that he has sustained a substantial change in condition sufficient to constitute cause for this court to vacate the 1990 and 1997 Awards on Stipulation.[1]

In determining whether a substantial change in the employee’s condition has occurred, various factors may be considered including: (1) a change in diagnosis; (2) a change in the employee’s ability to work; (3) additional permanent partial disability; (4) the necessity of more costly and extensive medical care than anticipated; and (5) a causal relationship between the injury covered by the settlement and the employee’s current condition. Id.

In the present case, the employee’s current diagnosis is primarily one of multilevel degenerative disc disease (and of the effects of surgery performed in response to that condition). We note that the employee has been consistently diagnosed with degenerative disc disease since the date of the work injury. Although we presume that some additional PPD would be ratable based on the employee’s most recent surgery, the employee has submitted no updated permanency rating and has not argued the specifics of any further PPD in his petition to vacate. As to the employee’s ability to work, it is true that the employee had recently started performing light duty work at a group home counselor at the time he entered into the settlement, but that job appears very sedentary in nature and of highly limited availability in the labor market generally. In addition, he apparently continued in that job for less than a year following the settlement, and apparently has worked for only two of the almost 20 years since the stipulation for settlement. He has provided only minimal evidence about the dates, hours, and duties of that employment and this minimal evidence does not allow us to draw any clear conclusion of whether and how the employee’s ability to work has significantly changed from the time of the 1990 stipulation.

In arguing for vacation of the stipulations, the employee’s brief relies most heavily on the additional surgery the employee underwent in 2011, its failure, and the recommendations for a surgical revision. The employee argues that his situation is factually similar to that in Holtslander v. Granite City Roofing, 78 W.C.D. 111 (W.C.C.A. 2017), in which a petition to vacate was granted, and that this court should similarly grant the employee’s petition in this case. We are not persuaded. We note, first, that each petition to vacate must be decided entirely on its own unique facts. The facts in other cases are rarely, if ever, the same in all material aspects, and thus our earlier cases rarely provide a definitive argument for or against vacation in a later case.

In any event, we note that, although there some similarities in various aspects of the cases, the crucial facts of Holtslander are quite different from those in the present case. In Holtslander, the employee sustained a variety of injuries in multiple incidents, affecting many distinct body parts – his right shoulder, right knee, cervical spine, lumbar spine and left shoulder. He also sustained burn injuries. However, we found that the employee’s low back condition alone had changed sufficiently to warrant vacation of the settlement. Subsequent to the settlement, Mr. Holtslander underwent four surgeries to his low back, two of which were additional fusions that brought the number of fused levels to four. In the instant case, we have an arguably unsuccessful laminectomy and discectomy prior to the stipulation for settlement, and a subsequent arguably unsuccessful fusion which addressed the same level and also extended to one additional adjacent level.

Thus, we must consider the employee’s case not as controlled by Holtslander, but as a matter which will rise and fall on its own merits. Again, the employee relies principally on the additional surgery. We note that although surgical treatment as of the date of the 1990 stipulation for settlement had been provided only at the L5-S1 level, and has now been extended to the adjacent L4-5 level, the employee was noted as early as the CT scan of September 1987 to have abnormal morphology at L4-5. The medical records suggest that treatment at that level was considered a possibility in 1988, before the 1990 settlement, as testing was performed to determine whether the abnormal morphology at L5-S1 or at L4-5 was the primary source of the employee’s pain at that time.

We note, in addition, where medical benefits are left open by a stipulation, as is the case here, this court considers the extent of additional costly medical care to be a factor afforded somewhat less weight in determining whether to vacate an award on stipulation. See, e.g., Burke v. F & M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996).

Overall, it is unclear from the evidence submitted by the employee whether the additional surgery merely represents a different approach to the treatment of the same underlying problems rather than treatment for a substantial change in condition. Nor is there clear evidence that the employee’s ability to function has substantially changed from that which he showed as of the date of the 1990 stipulation. We conclude that the employee’s petition has failed to clearly demonstrate a substantial change in medical condition sufficient to warrant vacation of the awards on stipulation in this matter. We therefore deny the petition to vacate.

[1] Minn. Stat. § 176.461 was amended in 1992 to add that the change in medical condition be unanticipated. Because the 1990 award on stipulation is dated before the amendment, we consider the petition to vacate under the pre-1992 statute. Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993). We will not address the 1997 Award on Stipulation separately since that stipulation, a derivative of the first stipulation, simply closed out a portion of the remaining medical benefits and, if the amendment were applicable, the petitioner would be required to meet an additional element in order to establish cause.