KIMBERLY T. BROWN, Employee/Petitioner, v.  TORGERSON PROPERTIES d/b/a GREEN MILL REST. AND BAR, and TRAVELERS INDEMNITY CO. OF AM., Employer-Insurer/Respondent.

The employee, Kimberly Brown, petitions this court to vacate an award on stipulation dated August 7, 2012.  The employee alleges that her medical condition has substantially worsened and that this worsening was not anticipated and could not have been anticipated at the time of the settlement.  We grant her petition.

On September 7, 2011, the employee suffered an admitted injury while working for the employer as a waitress.  Toward the end of her shift, she was in the kitchen filling ice buckets from a large ice machine.  She was bent at the waist, scooping ice, when she felt a pop in her low back at the waistline.  By the end of the day, she had pain at her low back, traveling down her left leg.  She reported the injury to the employer and went to see her family doctor.  The doctor recommended chiropractic care, which the employee had previously tried for preexisting low back pain.  The employee treated with a chiropractor at Meridian Chiropractic from September 2011 through February 2012.

In December 2011, the employee underwent an MRI scan which showed degenerative disc disease from L3 through S1 with a small non-surgical disc herniation at L4-5.

The employee saw Dr. Ronald Tarrel of Noran Neurological Clinic on February 22, 2012, with complaints of ongoing discomfort.  Dr. Tarrel restricted the employee to very light-duty work with position changes every 30 minutes and recommended continued therapies.  Shortly thereafter, Dr. Tarrel took the employee off work so that she could recover while undergoing physical rehabilitation.  On April 23, 2012, Dr. Tarrel saw the employee again.  He continued to advise restrictions of moderate work with position changes every 60 minutes.  He opined the employee had a permanent injury, was at not at maximum medical improvement (MMI), and would need therapy for at least the next two or three months.

Dr. Tarrel wrote a report to the employee’s attorney on May 2, 2012, opining that the employee’s L4-5 disc herniation, L5-S1 disc bulge, and L3-4 disc degeneration were all causally related to the work injury.  He suggested that she work at a light-duty job which would allow more frequent position changes.  He noted that chiropractic care helped the employee and suggested physical therapy and massage therapy, along with epidural injections and medications.  In his opinion, while the employee was stabilizing, she had not yet reached MMI.

Later that year, the employee and the employer and insurer settled the case.  In the stipulation for settlement, the employee claimed that she had suffered a permanent injury, was entitled to ongoing temporary total disability (TTD) benefits, had not reached MMI, would likely be entitled to temporary partial disability (TPD) benefits once she returned to work, would likely need vocational rehabilitation to be able to return to work, and had a permanent partial disability (PPD) rating of at least 10 percent.  She stated that her condition might worsen, that someday she might need surgery, and that she potentially could become permanently and totally disabled (PTD).  She relied upon the May 2, 2012, report of Dr. Tarrel to support her claims.  The employer and insurer denied all the employee’s claims, asserting that the employee had only sustained a temporary injury from which she had fully recovered.  They relied upon the opinion of Dr. Richard Reut, who performed an examination of the employee at their request in February 2012.^[1]  The settlement called for a payment of $40,000 to the employee ($31,800 after attorney fees), with most medical benefits remaining open.  In exchange, the employee closed out all other claims on a full, final, and complete basis, and closed out certain medical claims including chiropractic care.  The employer and insurer reserved their defenses to future medical claims, including the defense that the employee’s injury was temporary in nature.  A compensation judge issued an Award on Stipulation dated August 7, 2012.^[2]

On November 12, 2012, Dr. Tarrel saw the employee again.  He reported her condition was stable with a good response to the first epidural injection.  He stated that she had ongoing low back pain but was self-managing by being careful and abiding by her restrictions.  He diagnosed a permanent soft tissue injury, disc herniation, and degenerative disc disease and opined that she would need another epidural injection.  He permanently limited her to moderate activities with occasional lifting up to 35 pounds.  The employee saw Dr. Tarrel again on March 12, 2013.  She was still symptomatic.  He recommended a second epidural injection, but he also recommended that she should hold off on having a third and final epidural injection as long as possible.  Her restrictions remained the same.

On April 10, 2013, Dr. Tarrel wrote a report to the employee’s attorney stating that the employee suffered from a chronic lumbar strain, degenerative disc disease, and a disc herniation that were all due to the September 7, 2011, work injury.

When the employee saw Dr. Tarrel on May 17, 2013, she was experiencing an increase in symptoms which were in the L5 distribution.  He suspected an L5 radiculopathy and ordered an MRI scan.  The MRI scan performed on June 24, 2013, showed a small to moderately sized disc herniation at L4-5 that had regressed (rather than progressed) since the December 2011 MRI scan.  There was degenerative disc disease at L4-5 and L5-S1, similar to that seen in December 2011.  There was also mild clumping of nerve roots of cauda equina consistent with mild arachnoiditis which had not been seen on previous MRI scans.

The employee saw Dr. Tarrel again on October 28, 2013.  She was still in pain.  Dr. Tarrel opined that the arachnoiditis seen on the December 2011 MRI scan was likely the result of a combination of changes related to her injury and her post-injury treatment.  The employee returned to Dr. Tarrel on January 7, 2014.  She reported that she was now working at a call center, which limited the amount of time she could get up and stretch as she was required to sit to take calls.  However, she was given an exercise ball as her chair and was able to stretch every two hours.  She had a reduced range of motion, was stable, and was managing her symptoms on her own.

On January 20, 2014, the employee called Dr. Tarrel’s office reporting horrible low back pain and pain going down her left leg making it very difficult for her to walk.  On January 24, 2014, the employee had her third epidural injection.

On February 9, 2014, the employee underwent another MRI scan.  It continued to show degenerative disc disease at L3-4, L4-5, and L5-S1, and clumping of the nerve roots, all as seen on the June 2013 MRI scan.  It also showed an L4-5 disc herniation effacing on the left and impinging the L5 nerve root, which was a new finding compared to the June 2013 MRI scan.  The radiologist recommended clinical correlation.

The employee returned to Dr. Tarrel’s office on April 10, 2014, seeing Stephanie Brakel, P.A.  The employee reported that the epidural injection from January was not helpful and that her pain was unbearable.  P.A. Brakel noted spasm and tenderness.  Straight leg raising was positive on the left.  She recommended a surgical consultation.

The employee met with Dr. Michael McCue of Neurosurgical Associates on April 24, 2014.  Dr. McCue reviewed the MRI scan of February 2014, noting that it showed an L4-5 disc herniation compressing upon the L5 nerve root.  He also noted the unusual appearance of cauda equina, which he attributed to an obvious fatty filum which was forming the nucleus of the nerve clumps.  Although the radiologist had interpreted this as mild arachnoiditis, Dr. McCue instead suspected an adhesion to the excess fat of the filum.  He opined that the employee’s symptoms were due to an L5 radicular syndrome from the disc herniation rather than the fatty filum.  He recommended an L4-5 microdiscectomy.

The employee saw Dr. Tarrel on April 28, 2014.  She reported that she was in too much pain even to work at home and was not able to get in any comfortable position.  Dr. Tarrel noted weakness of the left leg, a positive straight leg raise test, almost no range of motion, and that the employee was limping favoring the left leg.

The employee underwent surgery by Dr. McCue at Abbott Northwestern Hospital on June 27, 2014.  He performed a left L4-5 hemilaminectomy and microdiscectomy.  There was no treatment of the fatty filum during the surgery.

The employee saw Dr. McCue again on July 28, 2014, for a post-operative visit.  Dr. McCue noted the employee was post-one month since her L4-5 hemilaminectomy and microdiscectomy.  He noted that she was improved although had ongoing discomfort.  She found sitting difficult and requested another month off work because she had a sit-down job at the call center.  He suggested that her ability to lift would increase to 20 pounds within the next month.  He recommended physical therapy and told her to return if her symptoms worsened.

On August 4, 2014, the employee returned to Dr. Tarrel.  Since her surgery in June, she was feeling better but had some radiating pain to her left leg.  She found it difficult to stay in one position for too long.  She had marked reduction in range of motion. Dr. Tarrel suggested comprehensive physical therapy.  He released her to just two hours of work per day, four days per week.

On September 11, 2014, Dr. Tarrel modified the employee’s restrictions to four hours per day, four days per week.  On November 6, 2014, he changed the restrictions to six hours per day, five days per week.

On November 14, 2014, the employee saw Dr. Tarrel.  She was improving and was getting accustomed to her increased work hours.  She was still suffering from radiating pain into her left leg, but it was only going down to her knee, not to her foot as previously.  Staying in prolonged positions, whether sitting or standing, was her most difficult activity.  On the same date, Dr. Tarrel wrote a report to the employee’s attorney stating that the employee had a spinal strain with degenerative disc disease and a disc herniation and was now post-surgical.  He related all of this to the work injury.  A week later Dr. Tarrel increased the employee’s restrictions to six and a half hours per day, five days per week.

The employee sought payment for the low back surgery performed by Dr. McCue from the employer and insurer.  They denied liability, asserting that the employee's injury was temporary and had resolved, that she did not need surgery, or even if the surgery itself was necessary, that it was unrelated to her work injury.  The matter came on for hearing before a compensation judge who issued a Findings and Order dated June 15, 2015.  At the hearing, the employer and insurer relied upon the opinions of Dr. Reut and Dr. Abbott Meric, who both opined that the employee’s work injury had resolved, and further, that she did not need surgery, regardless of causation.^[3]  The compensation judge did not find these opinions persuasive.  The compensation judge instead adopted the opinion of Dr. Tarrel, who believed that the employee suffered a permanent work injury and that her need for surgery was due to the work injury.  The compensation judge concluded that the employee suffered a permanent aggravation of her preexisting low back condition as a result of the work injury, and that the disc herniation seen on the February 2014 MRI and the surgery to treat the disc herniation were causally related to this aggravation.  He ordered the employer and insurer to pay for the surgery.  No appeal was taken from this decision.

On August 5, 2015, the employee saw Dr. Tarrel.  She reported being in a motor vehicle collision on May 26, 2015, with headaches and neck pain.  He diagnosed a mild concussion, situational post-traumatic stress disorder, a cervical strain, and radiating upper extremity symptoms.  He ordered another MRI scan which was taken on August 8, 2015.  It showed minimal disc bulging at C3-4, 4-5, and 6-7.

The employee saw P.A. Brakel on October 14, 2015, for cervical trigger point injections.  She saw Dr. Tarrel on December 12, 2015, complaining of neck pain and dizziness.  She reported similar symptoms when she saw Dr. Tarrel again on January 27, 2016.  On March 18, 2016, Dr. Tarrel diagnosed chronic headaches and neck pain as a result of the motor vehicle collision.

On April 29, 2019, Dr. Sanjee V. Arora, a physical medicine and rehabilitation and pain medicine doctor, sent a report to the employee’s attorney.  He stated that the employee had been his patient since September 2016.^[4]  He noted that she suffered from low back pain, which was axial and non-radicular, but with pain and tingling in an L5 distribution.  He suspected that her SI joints were the pain generators.  He had provided SI joint injections to the employee in October 2016 and bilateral medial branch blocks to her low back in May 2017.  In August 2017, he performed a lumbar radiofrequency neurotomy (RFN) on the left, followed by another on the right approximately a week later.  Bilateral SI joint injections were done again in June 2018 and March 2019, and an additional bilateral medial branch block was completed in November 2019.  He stated that another RFN was going to be necessary.

Dr. Arora opined that the employee’s medical condition had substantially changed since August 2012.  He stated that before August 2012, the employee had suffered only from a non-surgical L4-5 disc herniation, but presently suffered from a progressive herniation that compressed the L5 nerve root and required surgery.  He also noted the employee suffered from mild arachnoiditis.  Dr. Arora felt that this could not have been anticipated because there was no mention of an L5 nerve compression or arachnoiditis before August 2012, no surgery had then been recommended, and because the employee’s condition then appeared stable and she was only receiving conservative care in the form of chiropractic care and epidural injections at the time of her settlement.  He stated that while degenerative disc disease can worsen, it is not expected to worsen to the point of nerve root compression and arachnoiditis.  He attributed causation for her worsening condition to the original work injury.  He noted that the employee required light-duty work restrictions with frequent changes of positions.  Finally, he rated the employee with a 27 percent PPD pursuant to Minn. R. 5223.0390, subp. 4(E) 1, 2, and 4.

The employee was awarded social security disability benefits following a hearing before a social security judge.  In the judge’s decision dated July 11, 2019, she found that the employee was limited to light-duty restrictions, with additional restrictions that required being able to change positions from sitting and standing at will.  Based upon those restrictions, together with the employee’s age, education, and past work experience, the judge found that no jobs existed in significant numbers in the national economy that the employee could sustain and that she was disabled, as defined by the Social Security Act, as of April 30, 2015, her last date of work.^[5]

On July 10, 2020, Rebecca Cummins, a rehabilitation consultant, issued a rehabilitation opinion at the request of the employee’s attorney.  She stated that at the time of the settlement the employee had been limited to light-duty restrictions, and was stable although symptomatic, with no recommendation for surgery.  She opined that the employee was now permanently and totally disabled and that the work injury was a substantial contributing factor to the employee’s inability to work.

The employee has petitioned this court to vacate the 2012 award on stipulation. In support of her petition, the employee submitted an affidavit stating that at the time of the August 2012 settlement, she had expected her low back injury to improve, had been informed that she did not require surgery, and did not then expect to need surgery.  She had anticipated that she would be able to work.  She stated that her doctors never told her that her back might get worse.  The employer and insurer object to the petition to vacate.

Pursuant to Minn. Stat. § 176.461, this court may set aside an award on stipulation “for cause.”  The term “for cause” is limited to:

1.   a mutual mistake of fact;
2.   newly discovered evidence;
3.   fraud; or
4.   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.

The employee argues that this court should vacate the 2012 award on stipulation because her medical condition has substantially worsened, and that this substantial worsening was not anticipated and could not have been anticipated at the time of the settlement.  The employer and insurer respond that the employee's medical condition has naturally progressed from an L4-5 disc herniation to one that eventually needed surgery, which either was or could reasonably have been anticipated.  They further argue that the employee’s inability to work is not due to her low back condition but to the motor vehicle collision which coincided with the beginning of her inability to work.

In Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989), this court set out the following factors which we generally consider when evaluating a petition to vacate an award on stipulation based upon an alleged substantial change in medical condition:

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 initially anticipated;
5.   a causal relationship between the injury covered by the settlement and the employee’s current worsened condition; and
6.   the contemplation of the parties at the time of the settlement.

Here, we find that the employee has presented the court with a sufficient showing that her medical condition due to the work injury has substantially worsened and that this worsening was not anticipated nor capable of being anticipated at the time of settlement.  The evidence before the court shows that at the time of the settlement, the employee had only a non-surgical disc herniation and degenerative disc disease, with no evidence of a PPD rating.  Although under work restrictions and not working at the time, she was capable of full-time work within those restrictions.  She was seeing Dr. Tarrel for management of her pain symptoms, but was not receiving any other care, taking medications, nor was she scheduled for any additional treatment.  After the settlement, her condition worsened such that her low back required injections, surgery, post-surgical injections, and RFNs. The causal connection between the work injury and the employee’s surgery is the law of the case, having been established by an unappealed finding following a hearing before a compensation judge in 2015.  The employee’s worsened condition has been rated by her physician with a 27 percent PPD related to her work injury.  She has additional work restrictions, also related to her work injury, which support the basis for her award of social security disability benefits and the opinion of Ms. Cummings that the employee is permanently and totally disabled.  There is nothing to suggest that at the time of the settlement the employee’s condition would worsen so as to warrant a PPD rating of 27 percent, she would go on to require injections or surgery, or that she would require her current level of work restrictions.

The employer and insurer point out that the employee claimed in the stipulation for settlement that she had “at least” a 10 percent PPD rating, might need surgery, and might become permanently and totally disabled, and thus, her worsening was clearly anticipated at the time of the settlement.  We note, however, that there is no evidence from the time of the settlement that would support a 10 percent PPD rating, a need for surgery, or the prospect of eventual PTD.  While we acknowledge the averments contained in a stipulation for settlement, those averments were devoid of factual support at the time of the settlement and are not persuasive..

The employer and insurer further argue that at the time of the settlement, they admitted only a temporary injury and that they paid $40,000 to settle, a sum that not only exceeded the value of the case if their position had been proven accurate, but one that reflected some of the averred claims of the employee, including her claims of alleged PPD and wage loss benefits.  On the other hand, the employee states in her affidavit that she would not have accepted $40,000 if she had known her back condition would worsen to the extent that it did.  While these assertions regarding how the settlement was negotiated may be relevant to what the parties reasonably anticipated at the time of the settlement, the assertions do not clearly demonstrate that the parties reasonably anticipated a substantial change in the employee’s medical condition, particularly one involving multiple injections and surgery, and where the change in the employee’s medical condition may have rendered her permanently and totally disabled.

The employer and insurer also argue that the employee’s claimed inability to work is primarily due to the injuries sustained to her head and neck in the 2015 non-work-related motor vehicle collision.  They also argue the employee does not have arachnoiditis, a conclusion shared by her treating surgeon.  Yet, our review of a petition to vacate is limited.  The sole question before us is whether, considering the record before us and arguments presented by the parties, the employee has made a showing of facts sufficient to justify vacating the parties’ settlement.^[6]  We conclude that the employee has done so and therefore grant the employee’s petition to vacate the 2012 Award on Stipulation.