THOMAS AEGERTER, Employee/Petitioner, v. FAIRWAY FOODS, INC. and BROADSPIRE, Employer-Insurer/Respondents.

The employee has petitioned this court to vacate an Award on Stipulation served and filed July 8, 1999.  Finding that the employee has established cause pursuant to Minn. Stat. § 176.461, we grant the petition and vacate the award.

Thomas Aegerter was working at Fairway Foods when he sustained an injury to his low back on March 23, 1992.  The employer and its insurer admitted liability and paid benefits to the employee, including $10,500 for a 14 percent whole body impairment.  While still employed at Fairway, the employee had an injury to his neck and upper back on July 7, 1996.  Benefits were paid for that injury as well.  In 1999, the employee, who was not represented by an attorney, settled all claims arising out of the 1992 and 1996 injuries, with the exception of medical expenses, on a full, final, and complete basis for a payment of $58,000.  An Award on Stipulation was served and filed July 8, 1999.

The employee began working for UPS in August 1999.  He continued to treat for ongoing low back and upper back complaints.  The employee filed a claim against Fairway for those expenses.  Fairway moved to add UPS to the claim, alleging that the employee had sustained Gillette injuries as the result of his employment there and that UPS was liable for the claimed medical expenses.  After a hearing in April 2014, the compensation judge determined there had been no injuries at UPS and ordered Fairway to pay the medical expenses at issue.  Fairway appealed to this court, and in a decision served and filed December 12, 2014, the decision of the compensation judge was affirmed.^[1]

The employee filed a petition to vacate the 1999 settlement on September 10, 2021, pursuant to Minn. Stat. § 176.461.  The employee has alleged that there has been a substantial change in medical condition since the time of the award which was clearly not anticipated and could not reasonably have been anticipated.

The employee’s 1992 low back injury was initially diagnosed as a herniated disc at L4-5.  In August 1993, the employee underwent an L5-S1 laminectomy and excision.  Additional surgery was performed in September 1993 by Dr. William Akins consisting of laminectomies at L4-5 and L5-S1 and a discectomy at L4-5.  In November 1993, Dr. Akins assessed the employee as being at maximum medical improvement with a 14 percent whole body disability.  The employee was diagnosed in 1994 with a recurrent disc herniation at L5-S1 and an anterior L4-S1 interbody fusion was performed.  Surgery was done in April 1996 to remove the fusion hardware.

After the July 1996 neck/upper back injury, the employee reported severe pain in his neck and into his left arm.  The employee was diagnosed with a herniated cervical disc.  He aggravated his low back driving a forklift and received physical therapy for both his low back and neck through May 1999.  In a chart note dated April 19, 1999, Dr. Brian Nelson indicated that the employee’s prognosis for his neck and low back pain was good, with no surgical intervention anticipated.  The May 17, 1999, discharge note from physical therapy indicated the employee’s neck pain had shown dramatic improvement and his back pain was reduced.

Following the settlement in 1999, the employee was treated for low back pain in August 2001.  He was seen for low back and cervical pain in March 2003.  A cervical spine MRI done at that time showed a small herniation at C6-7, moderate central canal stenosis at C5-6, and diffuse bulging at C3-4 and C4-5.  The employee was referred to Dr. Ensor Transfeldt at Twin Cities Spine Center who initially assessed the employee as requiring only conservative treatment for his neck condition.  Due to the level of symptoms displayed by the employee, Dr. Transfeldt performed a discectomy, foraminotomy and anterior fusion at C5-7 in December 2003.

The employee returned to work at UPS in February 2004 in a “help desk” position.  In April 2005 the employee was evaluated for upper back and neck pain and participated in a physical rehabilitation program.  In early 2008, the employee reported increasing low back and cervical pain.  A CT scan done at that time did not show any indication of the fusion that had been done at C6-7 but showed a solid fusion at C5-6 and moderate arthritis at C3-4 and C4-5.  The employee stated he had persistent neck and arm pain as well as headaches.  In April 2009, Dr. Francis Denis performed additional spine surgery, including spinal reconstruction, instrumentation removal and anterior fusion from C4 to C7.  In September 2010, Dr. Wylie Zhu performed a posterior cervical laminectomy at C7 to T1.  In December 2010, the employee underwent a decompressive laminectomy, facetectomy and posterior fusion by Dr. Zhu at L3-4.

The employee was evaluated by Dr. Robert Wengler on May 6, 2011, in connection with the litigation between Fairway and UPS. Dr. Wengler assessed the employee as having a permanent partial disability (PPD) rating of 37 percent of the whole body which was attributed to the lumbar spine and 32 percent disability for the cervical spine.  Dr. Wengler also concluded the employee was permanently and totally disabled.  The employee was also seen by QRC Ken Askew for a vocational assessment in connection with the Fairway/UPS litigation.  It was his opinion that the employee was permanently and totally disabled and had been so since 2009.

In October 2012 the employee was hospitalized for depression and suicidal ideation related to the constant pain he was experiencing from his neck and low back.  The employee saw Dr. Transfeldt again in 2018 for pain in his low back, right leg, neck and left upper extremity. Imaging showed non-union at L3-4 with fractured pedicle screws and disc herniation at L2-3.  In February 2019, the employee underwent low back surgery performed by Dr. Transfeldt to repair the broken hardware and address the observed conditions.

The employee has not worked since February 2009 and is receiving long-term disability benefits and Social Security disability benefits.  Mr. Aegerter was born September 14, 1956.  He is currently 65 years old.

The Workers’ Compensation Court of Appeals may vacate an award for cause.  Minn. Stat. § 176.461.  Cause as defined by the statute includes the cause alleged by the employee in this case, 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 considering what evidence establishes a “substantial change in medical condition” this court has generally referred to the factors set out in our decision in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).  The Fodness factors are: 1) a change in diagnosis; 2) a change in the employee’s ability to work; 3) additional permanent partial disability; 4) a necessity for more costly and extensive medical care than previously anticipated; 5) a causal relationship between the injury covered by the settlement and the employee’s current condition; and 6) the contemplation of the parties at the time of settlement.  Further, this court has been reminded that “the statutory objective for which this discretion is invested is to assure compensation proportionate to the degree and duration of disability.”  Monson v. White Bear Mitsubishi, 633 N.W.2d 534, 539, 63 W.C.D. 337, 344 (Minn. 2003) (citing Heath v. Airtex Indus., 297 N.W.2d 269, 272 (Minn. 1980)).

We consider first whether there has been a change in the diagnoses of the employee’s 1992 and 1996 work injuries since the settlement in 1999.  The employee’s 1992 low back injury was initially diagnosed as a herniated disc at L4-5.  A recurrent disc herniation was found in 1994.  The employee underwent a fusion surgery from L4 to S1, which was described in 1996 as “solid appearing” by x-ray.  The 1996 work injury was diagnosed as a cervical herniated disc.  After the 1999 settlement, the low back injury resulted in additional surgeries from levels L2 to L4.  The employee also was diagnosed with cervical disc herniation and bulging as well as stenosis at multiple levels, requiring extensive surgeries.  Based on our review of the medical records, we conclude there has been a change in diagnosis since the settlement that was not anticipated by the parties.

The second factor is whether there has been a change in the employee’s ability to work.  When the settlement was done in 1999, the employee continued to work for Fairway Foods with restrictions.  Upon leaving Fairway Foods, the employee continued to work full time, often with significant overtime, for UPS.  The employee has not worked since February 2009 due to the effects of the work injuries.  Ken Askew, a QRC, completed a vocational assessment in 2011 and concluded the employee was permanently and totally disabled at that time.  Dr. Wengler reached the same opinion after his evaluation of the employee in 2011.  Dr. Daniel Hanson examined the employee on April 8, 2021.  Dr. Hanson noted the employee had been using oxycodone to control his pain while working and stopped working in 2009.  Dr. Hanson stated the employee has been unable to work since then.  The employee has established that there has been an unanticipated change in the employee’s ability to work since the settlement in 1999.

As to the third factor, additional permanent partial disability, the employee was rated with 22.5 percent PPD at the time of settlement, all attributable to the low back.  The employee has provided PPD ratings from Dr. Wengler of 37 percent for the low back and 32 percent for the cervical spine and from Dr. Hanson of 35.5 percent (musculoskeletal back), 40 percent (lumbar spine), and 32 percent (cervical spine).  This evidence of an increase in PPD ratings supports vacation of the award.

The next factor is whether there has been a necessity for more costly and extensive medical care than previously anticipated.  Although the employee had undergone surgery before the settlement, there were no further surgeries contemplated at that time and the employee was treating with physical therapy.  Since the 1999 settlement, the employee has had four surgeries for his cervical spine involving levels C4 to T1 including foraminotomy, laminectomy, and posterior and anterior fusions with instrumentation and instrumentation removal.  The employee also underwent surgeries for his lumbar spine involving levels L2 to L4, including decompressive laminotomy, facetectomy, posterior fusion and surgery to repair broken pedicle screws.  This factor supports vacation of the award.

The fifth factor, the causal relationship between the work injury and employee’s current condition, is not disputed by the parties.

The sixth factor, the contemplation of the parties at the time of settlement, assesses the scope of the parties’ contentions at that time in comparison to the employee’s current situation.  See Holtslander v. Granite City Roofing, 78 W.C.D. 111 (W.C.C.A. 2017).  Consistent with the directive in Monson, the court may compare the amount paid under the settlement to what could reasonably be expected for the employee’s situation.  In this case, the amount paid does not reflect the wage loss benefit that a totally disabled employee could reasonably expect to obtain.  While the parties could contemplate that the employee would need future medical care, they do not appear to have anticipated that he would be unable to work due to the effects of the work injuries.  This factor favors vacation of the award.

Under Minn. Stat. § 176.461(b)(4), vacation of an award requires that an employee’s substantial change in medical condition was not clearly anticipated and could not reasonably have been anticipated by the parties at the time of the settlement.  The employer and insurer contend that the employee was aware that his condition could worsen and therefore vacation of the award was inappropriate.  There is no evidence that the employee or any of his doctors anticipated the extent of the employee’s cervical spine degeneration, nor is there evidence that the employee could reasonably anticipate the extensive surgeries that would be required.  Even the employee’s low back condition, while painful, was exhibiting signs of improvement at the time of settlement.  There is no evidence showing that any of the parties could reasonably expect that the employee’s conditions would worsen so significantly.  The employer and insurer have not shown that the employee could reasonably have anticipated the substantial worsening of his condition.

Taken as a whole, the record provides ample evidence to support the employee’s petition.  The petition is granted and the Award on Stipulation of July 8, 1999, is vacated.