BRUNO L. CATES, Petitioner, v. SPX SERV. SOLS., f/k/a OWATONNA TOOL CO., and, BROADSPIRE INS. CO., Respondents.

The employee filed a petition to vacate a 1999 award on stipulation, alleging a substantial unanticipated change in medical condition.  As there are disputes of material fact, the matter is referred to the Office of Administrative Hearings (OAH) for findings of fact relevant to this court’s consideration of the petition.

The employee sustained an injury on July 27, 1992, while working for the employer, Owatonna Tool Company.  He was hit in the chin by a metal rod that was attached to a hammer press.  The force lifted him off his feet and knocked him backward, where he landed on the occipital area of his head.  He lost consciousness for about 20 minutes.  He was taken to the emergency room and spent two days in the hospital.  He injured his neck, left shoulder, head, chin, and teeth.

Following the injury, the employee received his primary medical care at the Owatonna Clinic from August 13, 1992, through February 7, 1994.  He also underwent chiropractic care with Dr. Nick McGregor from July 21, 1994, through September 8, 1998, for his cervical spine injury.

On April 28, 1995, Dr. McGregor opined the employee was at maximum medical improvement (MMI) and rated his permanent partial disability (PPD) at 10.5 percent, specifically a 7 percent rating under Minn. R. 5223.0070, subp. 2(A)(3)(a), and a 3.5 percent rating under Minn. R. 5223.0070, subp. 3(A)(2).  These ratings address single-level sprain/strains of the cervical and thoracic spine, respectively.

After examining the employee at the request of the employer and insurer, Dr. David Gotley, a chiropractor, issued a report on December 18, 1998.  He concluded that the employee had normal range of motion of the cervical spine without spasm, was at MMI, and had no permanency related to the neck or left shoulder.  He suggested that the employee required no more than six months of chiropractic care following the injury, and that the additional chiropractic care provided after that was not reasonable or necessary.  Dr. Gotley suggested the employee use home exercises learned in physical therapy to manage his symptoms.

On January 20, 1999, a compensation judge served and filed an award on stipulation approving a settlement between the employee and the employer and insurer.  At the time of the settlement, the employee was alleging entitlement to temporary total and temporary partial disability benefits, at least 15.5 percent PPD of the whole body, and entitlement to chiropractic and dental benefits.  There is no evidence in the record to establish the basis for the 15.5 percent PPD claim.  The employer and insurer asserted that the employee was not entitled to any wage loss, PPD, or medical benefits as a result of his injury.  The settlement was a full, final and complete settlement of wage loss benefits.  PPD benefits were settled to 15.5 percent of the whole body.  Future medical and dental benefits remained open, although chiropractic benefits were closed out.  The employee received a lump sum of $14,000.00 ($11,000.00 after attorney fees).

At the time of the settlement, the employee was working full-time as an over-the-road truck driver, although he did not load, unload, or tie down loads on the truck.  He continued to do this work until 2012.

The majority of the employee’s care since the late 1990s has been at the Mayo Clinic.  Starting not long after 2000, he began to have increased cervical spine symptoms, including symptoms into the thoracic spine.  His principal complaints have been severe debilitating migraine headaches, neck pain, thoracic pain, and left shoulder pain.  He has undergone epidural steroid injections, facet injections, Botox injections, physical therapy, acupuncture, and a chronic pain program, and has been prescribed various pain medications.  He was provided with surgical consultations in 2006, 2008, and 2011 to see if neck surgery might be of some benefit.  Although he was found to have spondylosis, stenosis, and severe degenerative disk disease, each surgeon recommended only annual re-evaluation.  Throughout the medical records at the Mayo Clinic, the employee associated his neck pain and headaches with his 1992 injury.

The employee underwent a series of facet blocks and radiofrequency neurotomies at C3-4 and C4-5, on both the left and the right sides, in November 2011.  On May 11, 2012, the employee underwent an MRI which showed protrusions, osteophytes, severe stenosis, spondylosis and facet arthropathy at C2 through C7.  The employee underwent an EMG on August 10, 2012, showing mild but active left C5 or possibly C6 and C8 radiculopathies.  The scan also revealed active mid to low left thoracic radiculopathy.  On the same day, the employee had left shoulder x-rays which showed minimal degenerative changes and neck x-rays which showed facet arthritis at C3-5 and C2 subluxation.

On August 13, 2012, the employee saw Dr. Jeremy Fogelson at the Mayo Clinic for a surgical consultation.  Dr. Fogelson reviewed the three previous surgical consultations, as well as the numerous other treatment modalities the employee had received at the Mayo Clinic.  He diagnosed the employee with cervical spondylosis and multiple radiculopathies.  He hesitated to recommend surgery due to the employee’s tobacco use.  He recommended the employee would have to quit smoking before any fusion surgery was considered.

The employee returned to Dr. Fogelson on November 14, 2012.  Dr. Fogelson noted that the employee had quit smoking and continued to have severe and unremitting neck pain and left arm pain.  A number of different surgical options were discussed.  To better inform his recommendation, Dr. Fogelson scheduled the employee for a CT myelogram, which was performed on November 15, 2012.  The scan showed multilevel high grade neural foraminal narrowing at the left at C3-4, bilaterally at C4-5, bilaterally at C5-6, and on the left at C6-7.

On December 5, 2012, the employee again saw Dr. Fogelson, who decided to perform a four-level fusion from C3-7 with instrumentation.  This was done on December 10, 2012.

The employee had a marked increase in the left shoulder pain for approximately two years following his cervical fusion.  On December 1, 2014, the employee had his two-year post-operative evaluation and was told that further post-operative care would be on as as-needed basis and that he had no additional restrictions relating to his neck.

On March 13, 2015, an MRI of the left shoulder showed a SLAP tear, advanced degenerative hypertrophic arthritis of the AC joint, and moderate subacromial/subdeltoid bursitis.  Another doctor reviewing the same MRI also described a small partial-thickness tear of the supraspinatus tendon and a low grade intrasubstance partial tearing of the subscapularis.  Nonetheless, by May 4, 2015, the employee told his doctor that he was using his shoulder frequently while performing block/cement type work and that it was doing well.

On July 10, 2014, the Social Security Administration (SSA) issued a decision granting the employee Social Security Disability Insurance (SSDI) benefits for a “closed period” of time from August 2012 through December 2013.  On February 8, 2018, the SSA issued a decision granting the employee SSDI benefits from July 11, 2014 and ongoing.  The 2018 award was based on diagnoses of chronic neck, thoracic and low back pain, left shoulder bicep tendinitis, rotator cuff tendinopathy, and a SLAP tear, left hip osteoarthritis, COPD, asthma, and obstructive sleep apnea.  The SSA judge found that although the employee could engage in some light-duty work, he had essentially zero range of motion of his neck and was not capable of working in substantial gainful employment.

On January 13, 2014, Dr. Robert Wengler, at the request of the employee's attorney, examined the employee and found him to have negligible range of motion of the neck.  He opined that the impaction injury from 1992 caused the need for the 2012 fusion.  Five-and-a-half years later, on September 16, 2019, Dr. Wengler issued a further report after a new examination of the employee.  He found the employee had objective findings similar to those observed in January 2014, including marked limitation of motion of the neck, with no extension and only a few degrees of flexion and rotation on lateral bending.  He rated the employee as having 27 percent PPD due to the cervical spine under Minn. R. 5223.0370, subp. 4(E) (10 percent), subp. 4(E)(4) (9 percent), subp. 4(E)(1) (3 percent), and subp. 5(B) (5 percent).  He concluded that the employee was also entitled to an 11 percent PPD rating due to the left shoulder under Minn. R. 5223.0450, subp. 4(B)(1)(d).^[1]  He opined the employee was permanently and totally disabled.  He stated the employee could not work as a commercial truck driver because of the marked limitation of motion of the neck, and would have symptoms with postural stresses with any sit-down job.  Dr. Wengler concluded that the 1992 work injury was a substantial factor in the employee’s PPD, limitations, and inability to work.  He also believed that when the employee settled his case in 1999, it was not anticipated that his symptoms would eventually lead to severe stenosis and a four-level fusion.

On September 6, 2013, Dr. Jeffrey Dick issued a report following a medical record review at the request of the employer and insurer.  He found that the employee suffered from multilevel degenerative cervical disc disease and foraminal stenosis on the left side at C4-7, and that he was status post C3-7 anterior/posterior fusion surgery in December 2012.  As to the employee’s symptoms in his thoracic spine, Dr. Dick considered this referred pain from the lower cervical region.  Dr. Dick opined that all of the medical care the employee had undergone relating to his neck since the 1999 settlement, including the four-level fusion surgery, was reasonable and necessary, but not causally related to the 1992 injury.  Instead, he stated that the aging process, exacerbated by a lifetime of nicotine use, was the cause of the employee’s neck pain and the referred pain to the thoracic spine.

After an examination of the employee at the request of the employer and insurer, Dr. Dick issued a second report on May 15, 2014, which reiterated his opinions regarding the cervical spine.  He also added that the employee suffered from bilateral rotator cuff tendinitis and subacromial bursitis.  He measured the employee’s range of motion of the neck at 5 degrees in extension, flexion, and bilateral rotation, but with full range of motion of the left shoulder.  He opined that there was no causal relationship between the employee’s left shoulder diagnosis and the 1992 injury, although the left shoulder condition was temporarily aggravated by the four-level fusion surgery.  Dr. Dick rated the employee’s PPD for the neck at 23 percent under Minn. R. 5223.0370, subp. 4(E) (10 percent), subp. 4(E)(4) (9 percent), and subp. 5(B) (5 percent), with no additional rating under subp. 4(E)(1).^[2]  He also rated the employee with a zero percent PPD from his left shoulder because he had full range of motion.  Dr. Dick gave work restrictions for the employee of lifting no more than 35 pounds, and avoiding static positioning, working over shoulder height, and repetitive movement of the neck, but would allow the employee to drive a truck as long as he did not load or unload.

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:

 
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:

The employee, citing the Fodness factors and relying upon the opinion of Dr. Wengler, alleges that there has been a change in his diagnoses and ability to work, a substantial increase in medical care, and an increase in PPD rating to support his petition to vacate.  He points to Dr. Wengler’s opinion that these changes were not anticipated at the time of the 1999 settlement.^[3]

On the other hand, the employer and insurer rely upon the opinion of Dr. Dick, who found that the employee’s medical care for his neck and left shoulder, including the 2012 cervical fusion, was unrelated to his 1992 injury.  They point out that although the employee was determined eligible for SSDI benefits, the employee alleged numerous medical reasons, not just his neck and shoulder injury, to support his SSDI claim, and also note that the employee was deemed able to work with restrictions.  Finally, the employer and insurer contend the employee has provided no competent evidence that any change in medical condition, even if causally related to the work injury, was not anticipated, or reasonably capable of being anticipated, in 1999.  They argue that Dr. Wengler’s opinion on that matter lacks foundation, as he did not see the employee until 2014.

At the time the employee settled his claim, he was suffering from degenerative disk disease of the cervical and thoracic spines for which he was receiving chiropractic care.  He had some complaints of left shoulder pain but no significant diagnosis discussed in the record.  Since settlement, the employee has undergone a four-level fusion and presently suffers from ongoing neck pain and referred pain into the thoracic spine, and shows almost no range of motion of the neck.  As to the left shoulder, the employee has advanced arthritic changes of the AC joint and a SLAP tear.  The evidence clearly establishes the employee has had a substantial change in the medical diagnoses of both his neck and left shoulder compared to the time of the settlement.

At the time the employee settled, he was working full-time as a truck driver and there is little if any evidence of work restrictions.  In fact, he continued to work as a truck driver after the 1999 settlement until 2012.  Currently, the employee is not working and has been declared disabled by the SSA.  He also has substantial restrictions in his ability to work, most significantly an almost a total lack of motion of his cervical spine, substantially limiting his job opportunities.  Again, while there are disputes as to whether the employee can work, it is clear that the employee has had a substantial change in his ability to work compared to the time that he settled his case.

At the time of the settlement, the only evidence of PPD submitted was that of his chiropractor who opined that he had a 10.5 percent PPD rating, 7 percent related to his neck and 3.5 percent related to his thoracic spine.  He was alleging at least 15.5 percent PPD although the basis for that allegation is not clear in the record.  Presently, the employee has an unknown PPD rating as both Dr. Wengler and Dr. Dick used the incorrect PPD schedules.  A four-level cervical fusion would be rated under Minn. R. 5223.0070, subp. 2(D) at 26.5 percent (11.5 percent for the first level and 5 percent for each additional level).  There is not enough evidence to determine the full extent of the employee’s present PPD rating, but it certainly is higher than it was in 1999.^[4]

The employee has undergone numerous different treatments for his neck since the time of his settlement.  He has undergone a variety of injections and therapies and, most significantly, a four-level cervical fusion.  He has had significant additional treatment for his left shoulder.

The fact that an employee undergoes a post-settlement surgery, in and of itself, does not necessarily justify vacating an award on stipulation.  Miedma v. Brown Group, Inc., slip op. (W.C.C.A. Apr. 22, 1996).  Moreover, this factor is less important when, as in this case, 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, however, there is no evidence as to who paid for the additional medical care the employee has had to his neck and left shoulder since the time of the settlement.^[5]  There is also little evidence of what future medical care, if any, the parties anticipated at the time of the settlement.

Dr. Wengler opines that the employee’s current neck and left shoulder conditions are causally related to the 1992 work injury.  On the other hand, Dr. Dick opines that the employee’s neck pain and consequential thoracic pain, as well as his left shoulder pain, are due to the natural aging process and have no causal relationship to the 1992 work injury.  This is a significant unresolved factual dispute.

The only evidence speaking to the contemplation of the parties at the time of the settlement comes from the Stipulation for Settlement itself.  The employee was working as an over-the-road truck driver and was alleging entitlement to undefined wage loss benefits as well as an unexplained 15.5 percent PPD benefit.  He claimed entitlement to additional chiropractic and dental benefits.  The employer and insurer denied those claims.  There is nothing in the allegations of the parties at the time of the settlement that clearly establishes what either party contemplated.

It is fairly clear that neither party anticipated or could have reasonably anticipated, at the time of the settlement, that the employee would have a four-level cervical fusion approximately 15 years later, work restrictions due to essentially zero range of motion of the neck, an increase in his PPD rating, and declared disabled by the SSA.

In summary, compared to the time of the 1999 settlement, the employee has had a clear worsening of his medical condition.  He had some degenerative disc disease of the cervical and thoracic spines, some left shoulder pain, was able to work, and had a poorly defined PPD rating.  Presently, he has a four-level cervical fusion, at least 26.5 percent PPD of the neck, AC joint arthritis and a SLAP tear of the left shoulder, perhaps PPD for the left shoulder, and may be permanently and totally disabled.  He has significant symptoms in his neck, and referred symptoms into the thoracic spine, as well symptoms into his left shoulder.  He underwent substantial medical care from approximately 2005 up until the time of his fusion surgery to try to treat the symptoms before the fusion surgery.  Furthermore, it is fairly clear that neither of the parties anticipated this substantial change at the time the case was settled.

On the other hand, there is a clear dispute as to whether the employee’s present condition regarding his neck, referred pain to his thoracic spine, and left shoulder is causally related to the 1992 work injury.  Any change in an employee’s ability to work must be related to the settled work injury.  Schueler v. William Miller Scrap Iron & Metal, slip op. (W.C.C.A. Mar. 3, 2000).  The employee has presented opinion evidence from Dr. Wengler supporting medical causation.  The employer and insurer have submitted opinion evidence from Dr. Dick disputing medical causation.  Likewise, there is uncertainty regarding the correct PPD rating at the time of the settlement and presently, and whether the employee is currently capable of working.  There is no evidence regarding who paid for the employee’s medical care after the 1999 settlement.

Minn. Stat. § 176.521, subd. 3, provides that this court may, before determining whether to set aside an award, refer the matter to a compensation judge for factual findings to better inform this court in its decision.  Referral may be appropriate when there is conflicting evidence, including disputes between medical experts, or where the evidence submitted raises issues of fact, including credibility determinations.  Jacobson v. Hennepin Faculty Assocs., No. WC04-210 (W.C.C.A. Nov. 24, 2004); Fealy v. Am. Lutheran Church, slip op. (W.C.C.A. June 27, 2000); Martinson v. USX Corp., slip op. (W.C.C.A. July 22, 1999).

For these reasons, this court refers this matter to OAH for assignment to a compensation judge to make findings regarding: (1) medical causation, (2) PPD ratings both now and at the time of the settlement, (3) the employee’s work restrictions both now and at the time of the settlement, and (4) whether he is, as he alleges, presently permanently and totally disabled.  The compensation judge should also make findings on whether the employer and insurer have paid some or all of the medical care related to the employee’s neck and left shoulder since the 1999 settlement.  After these findings are returned, this court will consider the employee's petition to vacate the 1999 award on stipulation.