GERGORY A. DELINE, Employee/Petitioner, v. FLARE HEATING & AIR CONDITIONING, INC., and W. NAT’L INS. GRP., Employer-Insurer/Respondent.

The employee petitions to vacate a January 2009 award on stipulation on grounds that he sustained a substantial change in medical condition that was clearly not anticipated and could not reasonably have been anticipated at the time of settlement.  We refer this matter to the Office of Administrative Hearings for an evidentiary hearing on whether the employee’s medical condition at the time of the petition to vacate is causally related to his 2003 work injury. 

On October 31, 2003, Gregory Deline, the employee, fell as he was carrying an 85-pound furnace down a staircase while working as an installer for Flare Heating and Air Conditioning, the employer.  He struck the right side of his head on a concrete floor and the furnace landed on top of him.  After the fall, he was unconscious for 30 to 45 minutes and sustained a bump and a bleeding cut on his head.  The employee did not seek medical care at that time but later experienced weakness and other symptoms with his left leg and foot.  On May 4, 2004, he sought treatment from Dr. Paul Sanders, who referred the employee for an MRI scan to rule out chronic subdural hematoma.  The May 20, 2004, MRI scan showed no intracranial hemorrhage and indicated a “[p]attern of white matter signal abnormality . . . suggestive of demyelinating disease.”  (Ex. 12.)  Given this indication of a demyelinating process, Dr. Sanders referred the employee for a neurological consultation with Dr. Kenneth Hoj, who indicated a possible diagnosis of multiple sclerosis, a demyelinating disease, but also noted that the employee’s history did not suggest multiple sclerosis.

The employee was evaluated by several physicians for progressively worsening symptoms in his left foot and leg, including foot drop.^[1]  He was examined by another neurologist, Dr. David Webster, on referral from Dr. Sanders.  Dr. Webster did not find a cause for the employee’s left-sided weakness but noted that the employee’s symptoms appeared after the accident, suggesting a reasonable cause and effect relationship.  Dr. Steven Lebow evaluated the employee in June 2005 and concluded that the employee had multiple sclerosis.  In January 2006, the employee was seen by Dr. David Kraker, who indicated that the employee may have had an ischemic event in his spinal cord from his fall.  Dr. Jane Achenbach, another neurologist, indicated that the employee had injured his spinal cord in the fall and that he did not exhibit features that she would expect with multiple sclerosis.  Dr. Mark Gordon evaluated the employee in March 2007 and opined that the employee’s history was consistent with a traumatic brain injury and an associated small focal intracranial bleed, which led to left hemiparesis, associated spasticity, and equinovarus foot deformity.  He also stated that the employee’s condition was not likely explained by multiple sclerosis.  In June 2007, the employee was evaluated by Dr. Gilbert Westreich, who diagnosed a neurological disease, most likely multiple sclerosis, and opined that it was unlikely that trauma had caused the employee’s condition.

The parties litigated the issue of whether the employee’s symptoms were the result of a traumatic brain injury on October 31, 2003, or of a demyelinating disease.  In Findings and Order served and filed September 13, 2007, a compensation judge concluded that the employee’s left-sided weakness and altered gait resulted from a focal area brain injury substantially caused by the employee’s October 31, 2003, fall.  The employer and insurer appealed, and this court affirmed in Deline v. Flare Heating & Air Conditioning, No. WC07-246 (W.C.C.A. Mar. 24, 2008).  The employee began receiving SSDI benefits in 2008.  In 2009, the parties settled the employee’s claims that he was permanently and totally disabled and had 53 percent permanent partial disability (PPD) for $150,000, less $13,000 for attorney fees, with medical expenses remaining open except for chiropractic, household remodeling, and nursing expenses.  An Award on Stipulation was served and filed January 22, 2009.  The employee asserts he was able to work part time for a realty company from 2007 to approximately 2010 without any penalty on his SSDI benefits.

On April 23, 2009, Dr. Khalafalla Bushara conducted an independent medical examination of the employee and opined that the employee’s medical condition was related to multiple sclerosis, not to his 2003 work injury.  The employee’s medical condition continued to deteriorate.  He treated with Dr. Achenbach in November 2009, reporting more left leg weakness and spasm as well as left arm stiffness.  Dr. Achenbach diagnosed a spinal cord injury and left hemiparesis.  In May 2010, the employee treated with Dr. Shelly Svoboda at the Noran Neurological Clinic and reported left leg pain, weakness, and spasms.  Dr. Svoboda diagnosed the employee’s condition as likely being multiple sclerosis and referred the employee to Dr. Chad Evans for ongoing treatment.

A June 28, 2010, MRI scan of the brain indicated white matter lesions consistent with demyelinating disease.  A cervical spine scan on the same day indicated an area of signal abnormality on the spinal cord that was consistent with demyelinating disease.  Dr. Evans evaluated the employee on July 1, 2010, and noted that the employee had worsening left leg, low back, and left arm pain, left paresis, and difficulty rising from a chair, and that he walked with a spastic circumducting gait on the left.  He opined that the employee had relapsing/remitting multiple sclerosis and stated that the employee also had increased edema near the motor strip of the right parietal lobe that could be a post-traumatic lesion, which correlated with the onset of left hemiparesis after the work injury.  Dr. Evans also stated that it was difficult to separate what was related to the cortical injury or to the demyelinating plaques in the spinal cord.

The employee underwent a physical rehabilitation consultation with Dr. Joy McIver at Sister Kenny on November 1, 2010.  At that time, the employee used a brace on his left ankle, a quad cane for walking outside the house, and a walker in the house.  Dr. McIver diagnosed multiple sclerosis and a traumatic brain injury in 2003 with a history of spastic hemiparesis.

In 2011, the employee reported increasing low back pain and left leg weakness.  Dr. Evans noted that the employee had the imaging of relapsing/remitting multiple sclerosis, but did not have the clinical features to support the diagnosis and that the brain injury with left hemiparesis after the fall of 2003 was the only incident that caused neurologic symptoms.  The employee also had increasing difficulty with mobility and getting up from chairs.  By December 2011, Dr. Evans diagnosed the employee with primary progressive multiple sclerosis which had a slow progressive course over eight years.  He also noted the employee’s work-related traumatic brain injury caused left-side hemiparesis, which may have caused age-related attrition of muscle strength stemming back to the work injury.  Dr. Evans recommended a rehabilitation consultation and stated that the employee may need an electric scooter.

The employee returned to Dr. Evans in July 2014, reporting that he was having difficulty walking, had multiple falls, and that a motorized scooter had been ordered.  Dr. Evans again diagnosed a work-related traumatic brain injury, primary progressive multiple sclerosis without evidence of radiographic progression, and worsening low back pain and left leg weakness.  In April 2015, the employee reported he was using a scooter for mobility, and in July 2015, he reported right leg pain which was diagnosed by Dr. Robert Patten as L5-S1 radiculopathy.  The parties settled the employee’s claim for a vehicle with a lift for $10,000 in 2015.  In November 2017, the employee reported that he could not move his left leg, stand, or walk, and was evaluated for an electric wheelchair.

By June 2019, the employee was using a motorized wheelchair and needed home modifications for the wheelchair.  Dr. Evans noted that the employee has had a slow progressive worsening of his left leg and left arm weakness to the point where he was unable to use his left leg and had minimal function of his left hand, which could be expected based on age-related attrition due to the underlying traumatic brain injury.  In a letter dated April 1, 2020, Dr. Evans opined that the employee’s left-sided hemiparesis had substantially changed and progressed since the 2009 settlement, that the employee’s work-related traumatic brain injury was a substantial contributing factor to his loss of function, that he had a 75 percent PPD rating under Minn. R. 5223.0360, subp. 7.E(3)(d) because he was unable to walk without a wheelchair, and that the change in his condition could not reasonably have been anticipated.

On May 17, 2021, Dr. Bushara examined the employee again and reviewed new medical records.  He diagnosed the employee with multiple sclerosis and opined that the employee’s progression of left-sided hemiplegia and the lesions shown on the MRI scans were consistent with multiple sclerosis.  He also stated that the employee’s multiple sclerosis was undiagnosed for many years, that his 2003 work injury had resolved, and that any change in his condition was not related to the work injury but to the progression of multiple sclerosis.

The employee petitions to vacate the January 2009 award on stipulation on grounds that he has sustained a substantial change in medical condition that was clearly not anticipated and could not reasonably have been anticipated at the time of settlement.

The employee, who was 70 years old at the time the petition to vacate was filed, claims he has sustained a substantial change in medical condition since the 2009 settlement that was clearly not anticipated and could not reasonably have been anticipated and that his 2003 work injury is a substantial contributing cause of the change.  This court may set aside an award on stipulation and grant a new hearing on petition by either party.  Minn. Stat. § 176.521, subd. 3; see also Minn. Stat. § 176.461(a).  The petitioner must show good cause for this court to vacate an award.  Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989).  “Cause” includes “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.”  Minn. Stat. § 176.461(b); see also Ryan v. Potlatch Corp., 882 N.W.2d 220, 224-25, 76 W.C.D. 491, 496 (Minn. 2016); Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).

The employer and insurer contend that the employee should be required to show that any change in medical condition occurred after the 2015 settlement because that stipulation incorporated the earlier stipulation by reference and affirmed the previous close-out of benefits.  When evaluating whether a substantial change of medical condition has been shown, this court compares the employee’s condition at the time of the settlement award to the condition at the time the petition was filed.  See Davis v. Scott Moeller Co., 524 N.W.2d 464, 467, 51 W.C.D. 472, 475 (Minn. 1994); Battle v. Gould, Inc., 42 W.C.D. 1085, 1086 (W.C.C.A. 1990), summarily aff’d (Minn. May 24, 1990); Virnig v. Carley Foundry, Inc., slip op. (W.C.C.A. Nov. 14, 2000).  In this case, the employee is petitioning to vacate the 2009 award on stipulation which was a full, final, and complete settlement with the exception of medical expenses.  The 2015 award on stipulation only settled the employee’s claim for a vehicle with a lift.  In considering the employee’s petition to vacate, we will compare his condition at the time of the 2009 settlement with his condition at the time the petition to vacate was filed.

A substantial change in an employee’s medical condition may be demonstrated by several factors, including: a change in diagnosis, a change in the employee’s ability to work, additional permanent partial disability, the necessity of more costly and extensive medical care than initially anticipated, a causal relationship between the work injury covered by the settlement and the employee’s current worsened condition, and the contemplation of the parties at the time of the settlement.  Fodness v. Standard Cafe, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).  “[T]he basic concern in determining whether sufficient cause exists to set aside an award is to assure a compensation proportionate to the degree and duration of disability.”  Krebsbach v. Lake Lillian Coop. Creamery Ass'n, 350 N.W.2d 349, 353-54, 36 W.C.D. 796, 801 (Minn. 1984).  The employee asserts that his change in medical condition is causally related to his 2003 work injury, that he now has 75 percent permanent partial disability and is permanently and totally disabled, and that the settlement amount is not commensurate with the degree of disability he has experienced.  The employer and insurer contend that the employee’s current condition is not related to the 2003 work injury, noting that the employee has been diagnosed with multiple sclerosis and that Dr. Bushara and other doctors have opined that the employee’s condition is related to that diagnosis.

The employee’s medical condition has significantly deteriorated since the 2009 settlement, but the evidence submitted to the court in this matter presents a complex medical causation issue.  The Workers’ Compensation Court of Appeals is not a fact-finding court.  Jacobson v. Hennepin Faculty Assocs., No. WC04-210 (W.C.C.A. Nov. 24, 2004).  Minn. Stat. § 176.521, subd. 3, provides that this court may refer a matter to a compensation judge for an evidentiary hearing before determining whether to set aside an award.  Referral may be appropriate where conflicting evidence raises issues of fact, including disputes between medical experts.  See Cates v. SPX Serv. Sols., No. WC19-6329 (W.C.C.A. Aug. 5, 2020); 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).  In this case, there are conflicting medical opinions.  Among these opinions, Dr. Evans opined that the employee’s left-sided hemiparesis had substantially changed and progressed since the 2009 settlement and that his work-related traumatic brain injury was a substantial contributing factor to his loss of function.  In contrast, Dr. Bushara diagnosed the employee with multiple sclerosis and opined that the employee’s progression of left-sided hemiplegia and the lesions shown on the MRI scans were consistent with multiple sclerosis, that his 2003 work injury had resolved, and that any change in his medical condition was related to the progression of multiple sclerosis.

Accordingly, we refer this matter to the Office of Administrative Hearings for assignment to a compensation judge to make findings regarding whether the employee’s medical condition at the time of the petition to vacate is causally related to the employee’s 2003 work injury.  After these findings are returned, this court will consider the employee's petition to vacate the 2009 award on stipulation.