VACATION OF AWARD – SUBSTANTIAL CHANGE IN CONDITION. The employee established good cause to vacate the award on stipulation where his circumstances satisfied all factors outlined in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), and where the change in his medical condition was not and could not reasonably have been anticipated at the time of settlement.
Attorneys: Charles A. Bird, Bird, Johnson & Stevens, P.C., Rochester, Minnesota, for the Petitioner. Heather Rheingans, Law Offices of John C. Syverson, Golden Valley, Minnesota, for the Respondents.
Petition to vacate granted.
SEAN M. QUINN, Judge
The employee petitions this court to vacate an Award on Stipulation filed on July 7, 2005, alleging good cause on the basis of a substantial change in medical condition. We grant the petition.
The employee, Gary Schumacker, was born on November 19, 1964. He has a GED and an accounting certificate, though he never worked in bookkeeping or accounting. Instead, the employee’s work has been in physically demanding jobs.
Prior to the work injury at issue, the employee’s prior medical history is significant for his long-term cigarette smoking, a diabetic condition that has not been well-controlled, and multiple motor vehicle accidents, including one in which he was struck as a pedestrian by a garbage truck in 2000.
On August 21, 2001, the employee slipped while engaged in work activities for the employer, Crenlo Inc., and suffered an injury to his low back. This injury was ultimately admitted by the employer.
After no success with initial conservative treatment for his low back pain in the months following the work injury, the employee began treating primarily with Dr. Paul Huddleston of the Mayo Clinic on June 17, 2002. Due to ongoing symptoms, the employee underwent an anterior/posterior L4-S1 discectomy and fusion with instrumentation performed by Dr. Huddleston on October 2, 2002. The employee reported a good recovery from the surgery with little to no pain. On December 19, 2002, the employee reported having returned to work as a taxi driver, working five days a week in 10- to 12-hour shifts. He also reported that he had resumed smoking.
At his attorney’s request, the employee was examined by Dr. E.W. Johnson, Jr., on May 6, 2003. Dr. Johnson reviewed x-ray scans and noted the solid fusion from L4 through S1 and early degenerative changes at T11 and T12. Dr. Johnson recommended against lifting or long periods of standing. Dr. Johnson rated the employee with a 25 percent partial permanent impairment under the AMA guidelines, attributing 80 percent responsibility to the August 2001 work injury. Dr. Johnson also discussed future risks, stating that the employee could have “damage in the remaining lumbar intervertebral spaces due to increased length of the distal lever arm of the lumbar spine.” (Ex. B.) He believed that the employee “will, in the future, face further low back problems not now describable.” Id. Nevertheless, Dr. Johnson did not anticipate that the employee would need further medical care.
On October 2, 2003, the employee returned to Dr. Huddleston for a one-year post-operative visit. The employee was driving a taxi and doing extremely well, with only occasional low back pain. He later reported to his doctors that he had recently started a handyman business.
At the request of the employer and insurer, the employee was examined by Dr. Richard Hadley on November 5, 2003. Dr. Hadley diagnosed the employee with degenerative disc disease and an anterior/posterior fusion. Dr. Hadley opined that the August 2001 work injury resulted in a permanent aggravation requiring the two-level fusion. He also assigned the employee with a 20 percent permanent partial disability (PPD) rating under Minn. R. 5223.0390, subp. 3C(2) and subp. 5B, and gave the employee work restrictions of lifting no more than 20 pounds, no carrying, moving, or pushing heavy objects, and no repetitive bending and twisting. Dr. Hadley, like Dr. Johnson, stated that the next mobile segment of the employee’s lumbar spine was subject to increased stress because of the two-level fusion, and therefore, there was an increased likelihood of subsequent degeneration. Dr. Hadley anticipated no further medical care.
On April 12, 2004, the employee reported to his doctors that he was working full-time as a taxi driver without restrictions and without taking medications. He felt complete relief unless he did repetitive lifting of more than 50 pounds.
On October 8, 2004, the employee returned to Dr. Huddleston for a two-year post-operative visit. The employee reported having very little low back pain and using no pain medications. Dr. Huddleston noted that the fusion was solid, and that the employee would require a lifelong 40- to 45-pound restriction of lifting, pushing, and pulling, with no repetitive bending, lifting, and twisting. Medical records from late 2004 and into 2005, however, indicate a few exacerbations of low back pain.
In the summer of 2005, the parties negotiated a settlement of the employee’s indemnity claims on a full, final, and complete basis in exchange for a lump sum of $55,000.00, less $3,000.00 in attorney fees, to the employee. Under the agreement, select medical benefits were left open and an Award on Stipulation was issued on July 7, 2005.
Just over a month after the settlement was finalized, on August 17, 2005, the employee reported an exacerbation of his low back pain. He reported another exacerbation in November 2005.
The employee returned to Dr. Huddleston on December 9, 2005. An MRI showed solid fusion from L4-S1 and minimal bulging at L3-4. Dr. Huddleston noted early degenerative changes at T12-L1, as well as facet arthritis. He recommended against any surgery and suggested that the employee may benefit from facet injections and chronic pain management.
On July 27, 2006, the employee underwent L2-3 and L3-4 facet injections, from which he reported some relief. On August 10, 2006, the employee returned to Dr. Huddleston, who recommended stricter activity limitations, medial branch blocks, a radiofrequency neurotomy, and a pain clinic. The employee underwent diagnostic medial branch blocks on September 25, 2006. The employee reported increased pain upon receiving the blocks. Conservative treatments including physical therapy and an epidural injection were suggested but declined by the employee.
On March 12, 2007, Dr. Huddleston performed an anterior/posterior L3-4 discectomy and fusion, with removal of the hardware at L4-S1. A few months later, the employee was experiencing back and leg pain and weakness in his legs and was taking pain medication. By October 29, 2007, the employee reported that he was doing well.
The employee returned to Dr. Huddleston on March 17, 2008, for a one-year post-operative examination and reported ongoing low back pain. A CT scan showed that the L3-4 fusion was not solidly healing, and the employee had pseudoarthrosis which was unlikely to heal on its own and needed surgical repair. On July 8, 2008, the employee underwent a revision L3-4 fusion with instrumentation. By the end of 2008, the employee’s pain was still significant and was impacting his ability to do physical activities, including yardwork, housework, gainful employment, socializing, and hobbies. He remained on pain medications and declined supervised physical therapy and pain rehabilitation.
Into 2009, the employee continued to present with ongoing complaints and his treating physicians continued to recommend conservative measures, including exercise and weight loss. His doctors also continued to prescribe pain medications. At that time, the employee’s fusion was solid with no obvious weakness at L2-3, but moderately severe arthritis was noted at T11-L2. Through 2010 and into 2011, the employee reported some weight loss.
In August 2011, the employee reported severe low back pain and difficulty sleeping, made worse with all types of activities including sitting too long, standing, walking, lying down, and getting up from a chair. There was no relief with heat, ice, or rest. Conservative care was again suggested and it was noted that a spinal cord stimulator might be of some benefit. An August 29, 2011, MRI showed a prominent disc bulge at T12-L1.
The employer and insurer disputed the reasonableness and necessity of the spinal cord stimulator and had the employee examined by Dr. Paul Biewen, who issued his report on January 30, 2012. Dr. Biewen noted the employee’s markedly limited range of motion of the thoracolumbar spine. He found that the employee was not using narcotics at the time and had no history of misuse of narcotics. It was Dr. Biewen’s opinion that the employee had subjective complaints of pain greater than what the objective medical evidence would support. Dr. Biewen believed that the risks of the spinal cord stimulator outweighed the likelihood of success.
The spinal cord stimulator issue was heard by a compensation judge, who awarded the treatment. The judge noted that the employee had not worked since 2007 due to his low back pain, had undergone other medical treatment without long term success, and had no psychological comorbidities. The judge also stated that “the stimulator trial is reasonable, given the employee’s chronic and severe symptoms, the fact that there are no further surgical options, the employee is not a candidate for further physical therapy or a pain clinic, and the recommendations that the employee reduce the amount of pain medications.” (Ex. B.)
On November 29, 2012, a spinal cord stimulator trial was undertaken. The employee reported that his pain was unchanged and that he had no desire for a permanent implant. The trial was deemed unsuccessful.
The employee returned to the Mayo Clinic on February 6, 2015, due to a sudden worsening beginning the previous September. The doctor noted significant dysesthesias of the lumbar region, the buttocks, and the posterior thighs, as well as testicular pain. X-rays showed wearing of the adjacent vertebral levels up to the lower thoracic spine and even into the cervical spine, with severe stenosis at L1-2 and L2-3. At a follow-up with Dr. Huddleston, a CT myelogram was recommended. The CT scan demonstrated an almost complete myelographic block at L2-3 and a solid fusion at L3-S1. At that time, Dr. Huddleston felt that additional fusion surgery was the only reasonable and medically necessary option. In October, however, Dr. Huddleston did note hesitation with another fusion surgery due to the employee’s poorly controlled diabetes, and the employee’s high risk of pseudoarthrosis having already suffered that condition. Dr. Huddleston suggested delaying the fusion surgery until the employee ceased smoking and got his diabetes under control.
Because of the employee’s reports of pain and because the employee’s critical stenosis could only be treated with surgery, Dr. Huddleston agreed to the fusion. On October 23, 2015, the employee underwent removal of hardware at L3-4 and a decompression and fusion at L2-3 and L3-4. Four months later, the employee reported ongoing pain. One year following the fusion, on October 17, 2016, the employee reported bilateral leg pain to his knees and low back pain at a level of 10/10. The fusion appeared solid.
On behalf of the employer and insurer, Dr. Thomas O’Brien examined the employee and issued a report on January 10, 2017. Dr. O’Brien diagnosed the employee with multilevel degenerative disc disease with failed back syndrome and five failed surgeries. He cited the employee’s weight and history of heavy smoking as primary causative factors, stating that low back pain typically starts at the L4-5 and L5-S1 region and progressively works its way up the lumbar spine in patients presenting with those factors. Dr. O’Brien opined that more surgery was contraindicated. He assessed the employee with a 45 percent PPD rating but did not provide further citation or explanation. Dr. O’Brien stated that the degeneration and progression of the employee’s low back condition would have occurred exactly the same way, with or without the August 2001 work injury, which Dr. O’Brien described as a minor muscle strain that had quickly resolved. He acknowledged that his “no causation” opinion was contrary to the admissions of the employer and insurer.
The employee continued to report significant pain in his low back and in October 2016, severe stenosis with nerve compression was noted at adjacent levels on scans. Under the continued care of Dr. Huddleston, the employee underwent a fusion from T10-L3 on September 10, 2017. By January 2018, the fusion was solid.
On September 24, 2018, Dr. Huddleston completed a Health Care Provider Report. He indicated the employee had reached maximum medical improvement. Using the PPD schedule in existence for injuries pre-dating July 1, 1993, Dr. Huddleston rated the employee’s additional fusions from T10-L3 at 47.5 percent PPD under Minn. R. 5223.0070, subp. D.
The employee’s attorney arranged for the employee to be examined by Dr. R. Wynn Kearney, Jr., who issued a report on October 22, 2019. Dr. Kearney noted the employee suffered from low back pain with severe limitations with motion, bending, prolonged standing, and lifting, except relatively lightweight objects at the waist level, and that he had radicular symptoms into his left leg. The employee described to Dr. Kearney pain reduction of about 40 percent following the 2017 surgery, but no increase in activity. The employee rated his pain level at 8-9/10 with easy fatigue. On examination, Dr. Kearney observed that the employee’s lumbar spine was rigid with flexion of the hips but only to 40 degrees.
Dr. Kearney reviewed the employee’s voluminous medical record as part of his examination. He described the 2002 surgery as conventional which stabilized the employee’s degenerative disc disease with a favorable long-term prognosis. The employee then experienced a progressive worsening that Dr. Kearney believed was not and could not have been reasonably anticipated by the time of the 2005 settlement. This worsening led to the 2007 surgery, after which the employee again had a favorable prognosis. Because the employee developed pseudoarthrosis, a revision of the 2007 surgery was necessary. Ultimately, this led to more progressive and extensive degeneration which necessitated the 2015 surgery, and the “extensive heroic procedure” in 2017. (Ex. H.) Dr. Kearney believed all of the subsequent surgeries were causally related to the August 2001 work injury and the first surgery in 2002.
Dr. Kearney also considered the employee’s current condition and level of functioning. He recommended a ten-pound lifting restriction (only at waist height) and that the employee alternate between sitting and standing. Dr. Kearney rated the employee under Minn. R. 5223.0380, subp. 3B (2.5 percent), 5223.0390, subp. 3C (10 percent), subp. 4D (9 percent), subp. 4D(1) (3 percent), subp. 4D(4) (9 percent), and subp. 5D (10 percent) for a total of 43.5 percent PPD.
Dr. Kearney opined that the employee’s “additional surgical procedures and the diagnoses associated with these procedures would not reasonably have been anticipated at the time of his settlement in 2005.” He also stated that the subsequent surgeries could not have been anticipated in 2005, “because full understanding of adjacent segment disease and the implications of same and the consequences of same were not well understood in 2005.” Further, “the extent of [the employee’s] degenerative adjacent segment disease was not anticipated based on medical knowledge at that time,” and “the extent of medical knowledge at that time did not auger for this type of deterioration and necessity of treatment.” (Ex. H.)
In support of his petition to vacate, the employee submitted the report of Dr. Kearney, as well as an affidavit. In his affidavit, the employee described his condition and quality of life before the settlement, at the time of settlement, and at the time of his petition. He stated that after his initial surgery in 2002 and around the time of settlement, he felt nearly 100 percent and could perform most activities, including driving and handyman work, chores at home, and recreational activities. After his surgery in 2007, he was awarded Social Security Disability Insurance benefits with the support of Dr. Huddleston, and he did not work until after his surgery in 2017.
The employee states that the 2017 surgery provided relief though he has constant low back pain and pain and numbness into his legs. He is able to perform part-time work with physical restrictions, including limited standing and sitting, though he would not be able to do so without the use of pain medication. In his current condition, the employee has significant difficulty getting to and from the floor and has difficulty with balancing, walking, and climbing stairs. He is able to perform only limited household chores. He is no longer able to participate in a bowling league, has difficulty picking up his grandchildren, and his ability to fish and hunt is limited, as well. He works at a convenience store and is able to stand for his shift, but cannot work two days in a row. In his affidavit, the employee stated that he did not expect his condition to deteriorate as soon or as quickly as it did.
The employee petitions this court to vacate the July 7, 2005, Award on Stipulation. Relying on Dr. Kearney’s opinion and his own affidavit, the employee alleges a substantial change in his medical condition since 2005 that was not and could not have been reasonably anticipated. The employer and insurer object.
Pursuant to Minn. Stat. § 176.461, this court may set aside an award on stipulation “for cause.” The term “for cause” is limited to:
Minn. Stat. § 176.461(b).
The employee alleges that he has had a substantial change in his medical condition since the time of the July 7, 2005, 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 considers various factors:
Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989). The Fodness factors serve as a guide to our decision making, and must be applied in conjunction with the 1992 statutory change requiring that the change in medical condition be clearly not anticipated and not capable of being reasonably anticipated by the parties at the time of the settlement. See Powell v. Abbott Nw. Hosp., slip op. (W.C.C.A. Aug 17, 1995).
At the time that he settled his case, the employee suffered from degenerative disc disease of the lumbar spine and had undergone a two-level fusion from L4-S1 with additional instrumentation down to S2. There was some suggestion of early degenerative changes in the lower thoracic spine but none of those changes were attributed to his work injury. Presently, the employee has an eight-level fusion from T10-S1, with additional instrumentation down to S3. Additional levels of fusion surgery can constitute a change in diagnosis. See Holtslander v. Granite City Roofing, Inc., 78 W.C.D. 111, 118 (W.C.C.A. 2017), summarily aff’d (Minn. Feb. 13, 2018). In other cases, however, adjacent level fusions were instead considered a worsening of a diagnosed condition. See Gerdes v. Mammoth/Nortek, 79 W.C.D. 773 (W.C.C.A. 2019).
Here, the employee progressed from a two-level fusion to an eight-level fusion over the course of many years and many surgeries. As further indication of a change in diagnosis, the employee’s fused spine now includes levels of the thoracic spine. This factor weighs in favor of granting the petition to vacate.
At the time of the settlement, the employee was able to work with a permanent 40- to 45-pound lifting restriction given to him by Dr. Huddleston. The employee was working as a taxi driver and operating his own handyman business. At present, the employee is working part time with substantially greater limitations, including lifting no more than ten pounds (only at the waist), alternating between sitting and standing, and not working on consecutive days. Since the time of settlement, there was also a ten-year period during which the employee did not work at all due to his low back condition. Because the employee’s ability to work has reduced, this factor favors granting the petition to vacate.
At the time of the 2005 settlement, the employee had been given a 20 percent PPD rating. Presently, the employee has been assigned a PPD rating of 43.5 percent to account for the additional fused levels. This factor weighs in favor of granting the petition to vacate.
Certainly, the employee has undergone more costly and more extensive medical care since the time of settlement. He has undergone numerous surgeries since his 2005 settlement. We acknowledge that the employer and insurer have paid a substantial sum for this care, and that this factor is considered to be less significant when medical benefits are left open as part of the settlement. See Burke v. F-M Asphalt, 54 W.C.D. 363, 368 (W.C.C.A. 1996), summarily aff’d (Minn. May 30, 1996). The significant amount of medical care the employee has required since the time of settlement weighs in favor of granting the petition to vacate.
The employer and insurer argue that the causal connection between the employee’s condition at the time of settlement and his current condition has become too attenuated. They point to other causative factors, including his uncontrolled diabetes, obesity, coronary heart disease, a long-term history of smoking, high blood pressure, high cholesterol, depression, and several other mental health disorders. They also rely upon the opinion of Dr. O’Brien that there is no causation at all between the work injury and any of the employee’s low back complaints. They further point to the employee’s failure to follow through with various recommended treatments for his low back pain, including getting his diabetes under control with medication, proper diet, weight loss, quitting smoking, and following through with recommended physical therapy and exercise. Finally, they assert that the employee’s current low back condition is not substantially changed, but rather, has naturally progressed given his low back diagnosis.
Despite the concerns raised by the employer and insurer, the record before us overwhelmingly supports a causal link between the admitted work injury and the employee’s current medical condition. Dr. O’Brien’s opinion does not dispute that causal link. Rather he opines that there was no work injury at all. Likewise, while there are other co-morbidities, the record makes it clear that the admitted work injury still represents a significant contributing factor to the employee’s current worsened condition. A work injury need not be the sole cause nor the most significant cause of a medical condition and need for care, but instead a significant contributing factor. Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989). This factor favors the granting of the petition to vacate.
There is little, if any, evidence of what the parties contemplated at the time of the settlement. As noted, the employer and insurer admitted the work injury. All medical benefits to the date of the settlement had been paid by the employer and insurer. The employee was working at a wage loss. He claimed entitlement to ongoing temporary partial disability benefits, which the employer and insurer disputed. There is nothing in the settlement agreement or elsewhere in the record to suggest what the parties anticipated regarding the employee’s long-term physical and vocational abilities. The only claims or contentions of the parties outlined in the Stipulation for Settlement are those regarding the employee’s claims of temporary partial disability benefits and penalties, and the employer and insurer’s denial of those claims.
While Dr. Johnson and Dr. Hadley advised the employee that he had some indeterminate future risk of deterioration to the levels adjacent to his fusion, they also opined that they did not expect future medical care. There is nothing to suggest that the parties contemplated in 2005 that the employee would later have four additional surgeries, six additional levels of fusion, a reduction in his ability to work, and an increase in PPD from a 20 percent rating to a 43.5 percent rating. This factor also weighs in favor of granting the petition.
Minn. Stat. § 176.461(b)(4) requires that a substantial change in medical condition must have been clearly not anticipated and not reasonably capable of being anticipated by the parties at the time of the settlement. Here, while there is evidence that at least two doctors suggested that there could be future adjacent level degeneration, there is nothing to suggest that any of the parties anticipated or could have anticipated the nature and extent of the worsening of the employee’s condition when they settled this matter in 2005. In fact, those same two doctors also suggested the employee would not need future medical care. The co-morbidities outlined in the medical evidence and highlighted by the employer and insurer were not mentioned in the medical records as potential significant factors in the worsening of the employee’s condition until after the 2005 settlement, and thus cannot be something the parties considered as potentially influencing the future when they settled. The employee states in his affidavit that he did not anticipate the significant worsening. Moreover, as Dr. Kearney lays out in his current report, according to the state of medical knowledge in 2005, it could not have been anticipated at that time that the employee would require six additional levels fused. There is no other evidence in this record regarding what was or could have been reasonably anticipated by the parties in 2005. This case differs from the facts in Gerdes, where the treating surgeon admitted that he discussed with the employee, before settlement, adjacent level degeneration and additional worsening of the nearby levels possibly leading to more fusions. Here, the degeneration in Mr. Schumacker’s circumstances went far beyond the adjacent levels and there is no medical evidence that the parties could have reasonably anticipated that a two-level fusion would lead to an eight-level fusion. In 2005, the parties did not and could not reasonably anticipate the extreme worsening of the employee’s medical condition that occurred over the ensuing 15 years.
We point out that any petition to vacate after additional fusion surgeries should not be viewed from a strict basis of how many additional levels of fusion have occurred above or below a previous fusion, but rather, from the overall perspective of the change in the employee’s condition and what the parties could have reasonably anticipated. Every case must be determined on its own facts and from the perspective of the functional losses or a level of disability of the employee at the time of the petition compared to the time of the settlement. See Krebsbach v. Lake Lillian Coop. Creamery Ass’n, 350 N.W.2d 349, 353, 36 W.C.D. 796, 802 (Minn. 1984) (the W.C.C.A. has wide, though not unlimited, discretion in evaluating petitions to vacate).
This record demonstrates a substantial change in the employee’s medical condition since the time of the settlement, a change that was not and could not reasonably have been anticipated by the parties. The employee’s petition is granted.