VACATION OF AWARD – SUBSTANTIAL CHANGE IN CONDITION. The employee has established cause to vacate the 1995 and 1997 awards where the evidence demonstrates a change in his medical condition that was not and could not reasonably have been anticipated at the time of those settlements.
Attorneys: Elizabeth Chambers-Brown, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Petitioner. Michael T. Courtney, Brian M. Rosenblatt, Heacox, Hartman, Koshmrl, Cosgriff, Johnson, Lane & Feenstra, P.A., St. Paul, Minnesota, Self-Insured Employer/Respondent. Elyssa Weber, State of Minnesota Department of Administration, St. Paul, Minnesota for the Respondent.
Petition to vacate granted.
SEAN M. QUINN, Judge
The employee petitions this court to vacate an Award on Stipulation dated February 15, 1995, and a Mediation Resolution/Award dated February 5, 1997. Because he has established good cause, we grant the petition.
The employee, Phillip Muchow, was born in 1959. He began working for the self-insured employer, the Minnesota State Academy for the Blind, in 1981 as a full-time aide and part-time maintenance worker.
On November 12, 1990, the employee suffered an admitted injury while helping a client out of a wheelchair. The employee lost his balance, but continued to hold on to the client, twisting and bending his back awkwardly. He felt an immediate onset of low back pain.
The employee initially treated with Dr. Bradley Wille at the Orthopedic and Fracture Clinic and was diagnosed with a lumbar sprain/strain. He was taken off work for one week, prescribed muscle relaxers, and sent to physical therapy. At his next visit with Dr. Wille, the employee reported no improvement of his pain symptoms, which were primarily in his low back without true radicular pain, numbness, or parathesis. Dr. Wille changed the type of medication prescribed and advised the employee to work on a home exercise regimen. After no improvement at the next visit, Dr. Wille ordered an MRI.
An MRI done in January 1991 at Owatonna Hospital showed a small disc herniation at L4-5 encroaching on the left neuroforamen and causing posterior displacement of the nerve root with a similar small, herniated disc at L5-S1 on the left. An epidural steroid injection performed the next month provided no significant relief and the employee was diagnosed with contained L4-5 and L5-S1 disc herniations. The employee underwent physical rehabilitation until he was evaluated by Dr. James Ogilvie on July 19, 1991. In October 1991, Dr. Ogilvie recommended a two-level discectomy, which was performed on December 3, 1991, at the University of Minnesota Hospital.
A month following the discectomy, the employee reported complete resolution of left leg pain but continued back pain. A repeat MRI done on April 2, 1992, showed moderately severe degenerative disc disease at L4-5 and L5-S1 with full thickness annular tears but no evidence of disc herniation or nerve root impingement. The employee underwent a May 22, 1992, discogram which showed 3.5/10 non-concordant pain at L3-4 and 8/10 concordant left-sided pain at L4-5. A CT scan showed normal morphology at L3-4 and moderately severe internal derangement of the L4-5 disc.
Based on the employee’s history, the MRI, the discogram, and the CT scan, Dr. Ogilvie recommended a two-level spinal fusion from L4 to S1, which was done on August 11, 1992, at the University of Minnesota Hospital. Dr. Ogilvie’s notes indicate that while not necessary at the time, another fusion might be needed at L3-4.
Despite the fusion appearing solid six months later, the employee continued to complain of back pain worse on the left and continued with physical therapy. A myelogram done in May 1993 showed the hardware in good place with no disc herniation or nerve root impingement. A follow-up CT scan showed no hardware-related complication and no neural impingement.
The employee was seen by Dr. Timothy Garvey in June 1993. Dr. Garvey recommended a revision of the L4-S1 lumbar fusion with an anterior approach, as well as a repeat discography at L3-4 to determine the source of the employee’s pain.
The employee met with Dr. John Dowdle for a second opinion on November 20, 1993. Dr. Dowdle recommended low back support and non-steroidal anti-inflammatories. He was hesitant to recommend any additional fusion surgery given the patient’s young age, opining that patients with solid fusions tend to have a 50/50 chance of improvement with additional surgery. Dr. Dowdle felt that a morphine pump was worth consideration.
On July 6, 1994, Dr. R. Wynn Kearney Jr. examined the employee at the request of his attorney at that time. Dr. Kearney concluded the employee had a solid L4-S1 fusion with subjective complaints greater than those shown on objective examination. Dr. Kearney recommended against any additional surgery, including an L3-4 fusion. He found the employee had little radicular symptomology and that most of his pain was in the back. He recommended conservative management and did not endorse the morphine pump suggested by Dr. Dowdle. Dr. Kearney felt that the employee could work in a light office-type setting with the ability to change from sitting to standing on a regular basis.
On August 31, 1995, Dr. Mark Thomas, an orthopedic surgeon, examined the employee at the request of the employer. He agreed with Dr. Dowdle and Dr. Kearney that further surgery was not likely to be helpful to the employee. He felt that the employee was capable of doing light-duty work lifting up to 20 to 25 pounds occasionally and 5 to 10 pounds frequently and avoiding repetitive bending, stooping, and twisting. He recommended the employee change position from sitting to standing as needed. He felt the employee could continue to do his job and slowly work his way up from two hours per day to four, six, and ultimately eight hours per day.
Dr. Ogilvie rated the employee with 22.5 percent permanent partial disability (PPD) rating due to the two-disc fusion surgery under Minn. R. 5223.0070, subp. 1(D), with an additional 7 percent PPD rating due to the L3-4 disc space above the fusion, under Minn. R. 5223.0070, subp. 1(A)(3)(a). The employer admitted and paid 14 percent PPD benefits. In 1995, the parties reached a settlement regarding the disputed remaining PPD rating. The employee was paid $8,409.25 before attorney fees and the PPD claims were closed out to 29.5 percent. An Award on Stipulation was issued on February 15, 1995.
The employee was able to work as a security guard for the employer on a part-time basis within his light-duty restrictions of occasional lifting of 20 to 25 pounds and frequent lifting of 5 to 10 pounds. He was also advised to avoid repetitive bending, stooping, and twisting. The employee recalled working approximately 20 hours per week in this position. The evidence in the record, however, demonstrates that the employee was most likely working no more than 10 hours per week. In fact, in February 1995, Dr. Ogilvie restricted the employee to working two hours per day. During his deposition, the employee admitted he may have been only working 10 hours per week in 1997.
The parties agreed to mediation at the Department of Labor and Industry and entered into a settlement memorialized in a Mediation Resolution/Award dated February 5, 1997. The employer paid the employee $87,400 related to injuries occurring on January 29, 1986, November 12, 1990, and October 22, 1991, and the employee agreed to close out claims for non-medical benefits including supplementary benefits. In the agreement, the employee acknowledged that he would receive no more wage loss benefits, including permanent total disability benefits, and that his back condition could get worse. He also resigned his position with the employer.
At the time of the 1997 settlement, the employee was 38 years old. He could walk without difficulty, although he did have a limp. He had back pain and some sciatic nerve pain down one leg. He was aware that he could later require additional surgery, including an L3-4 fusion.
Following the settlement, the employee did not work for approximately three years. The employee met with Dr. Ogilvie on April 20, 2000. Dr. Ogilvie found the employee had a stable fusion and that he could continue with light-duty activities. The employee reported some tolerable back pain and no leg pain. He had a limp and complaints of posterior calf pain. In 2001, the employee began working as a full-time car salesman. He could walk around the sales room and the parking lot. He could get in and out of vehicles on a regular basis, which he found to be the most difficult physical requirement of this job.
On April 12, 2001, the employee reported to Dr. Ogilvie that he was working 40 hours a week as a car salesman but required two days off, spent lying in bed to recover. His pain had increased the previous year. He still walked with a limp and had residual back pain with left S1 nerve root hypesthesia.
In October 2003, the employee told Dr. Ogilvie that he continued to work full-time as a car salesman, but that he had considerable symptoms. X-rays showed that the fusion continued to be stable. Dr. Ogilvie recommended that the employee seek workers’ compensation approval for an L2-3 and L3-4 discogram.
In 2006, the employee obtained a job working as an ice rink manager where he drove a Zamboni, sharpened skates, and worked the counter. The heaviest thing he lifted was a 30-pound propane tank. He could sit and stand as needed. He earned approximately $30,000 per year, plus benefits, and planned to work at this job for approximately 20 years. He described this as his “dream job.”
The employee continued to follow up with Dr. Ogilvie. His low back condition was described as stable. An MRI in February 2009 showed that the fusion was solid although there was some subluxation at L3-4 above the two-level fusion. The employee underwent an epidural steroid injection in April 2009.
The employee also began having neck symptoms and met with Dr. Amir Mehbod of Twin Cities Spine. Dr. Mehbod recommended a two-level neck fusion, which was performed on August 31, 2010, at Abbott Northwestern Hospital. The employee had a good result from that surgery. The employee also decided to seek care with Dr. Mehbod for his ongoing low back problems. An MRI showed the two-level spinal fusion in place, with moderate stenosis at L3-4, retrolisthesis, hypertrophic facet arthropathy, and degenerative spondylolisthesis. There was also degenerative disc disease with bulging, but no herniation, at L2-3. Dr. Mehbod recommended L3-4 fusion surgery, similar to that first discussed by Dr. Ogilvie with the employee in 1991. Dr. Mehbod also told the employee that this surgery would entail removal of the hardware at L4-S1.
Dr. Mehbod performed the recommended surgery at Abbott Northwestern Hospital on November 5, 2010. Unfortunately, during the procedure, Dr. Mehbod nicked the dura in the employee’s spinal cord, causing a tear which resulted in hematomas that were discovered the next day. The employee underwent two emergency surgeries to relieve the hematomas, including an L1-2 laminectomy and decompression. Despite the emergency surgeries, the employee had significant neurological compromise. He was unable to move his legs, could not walk, could not feel below the waist, and lost all function and sensation below the waist. He was told that he would likely never walk again.
The employee spent the next several months both in-patient and out-patient at Sister Kenny Rehabilitation undergoing intense exercise, and physical therapy, being fitted for braces and crutches, and learning how to walk without a wheelchair. He was trained to drive a vehicle using hand controls.
In July 2011, the Social Security Administration granted the employee’s claim for disability benefits.
In December 2011, the employee underwent a three-day functional capacity evaluation. The evaluator noted the employee’s kinesiophysical signs of difficulty with lifting, sitting, standing, and walking through the pain, and an inability to sustain standing or sitting for a full 8-hour workday, all despite the employee’s willingness to try to work through his symptoms. The evaluator concluded that the employee was unable to work a full-time job, but that he could work a sedentary/light job working two hours per day, two to three times per week, with a day off in-between, as well as being allowed to change positions as needed.
On June 6, 2012, an MRI showed a solid fusion from L3 to S1, but multilevel degenerative lumbar spondylosis with an unusual collection of fluid at L3-4, most likely representing fluid in the subdural/extra-arachnoid space which asymmetrically indented the subarachnoid space. There was a localized tear and herniation at L2-3, as well as moderate degeneration of the L2-3 facet joints bilaterally.
The employee underwent an EMG evaluation in June 2013 showing chronic denervation on the left at L4-S1 and on the right at L5-S1. A spinal cord stimulator was attempted, but was unsuccessful. Dr. Mehbod rated the employee with an additional 21 percent for the lumbar spine under Minn. R. 5223.0390, subp. 4(D), 4(D)(1), 4(D)(2), 4(D)(3), and 5(A). The employee also has been rated at 15 percent PPD for bladder dysfunction and at 10 percent PPD for sexual dysfunction under Minn. R. 5223.0600, subp 3(B) and 6(A), respectively, by PA-C Jeffrey Isaac Estrin.
A variety of other treatment modalities have been attempted to relieve the employee’s symptoms and to increase his functioning, including narcotic and other medications, Botox and epidural steroid injections, penis injections, vacuum erection devices, nerve blocks, and ankle braces. He has also gone through pain clinic treatments, pain psychotherapy, physical therapy, aquatic therapy, chiropractic care, acupuncture, and psychological counseling. The employee also used medical marijuana, which abled him to discontinue use of fentanyl patches, lorazepam, and hydrocodone. In 2018, the parties reached a settlement whereby the employer agreed to pay for the medical marijuana. The settlement agreement indicated that the employer had paid $883,509.63 in medical expenses as of that point.
The employee continued to struggle with this pain to the point that he began to abuse methamphetamines, which led to some legal difficulties. In 2021, the employee was placed on probation for three to five years due to possession of methamphetamines. His treating mental health provider, Joyce Southers, a psychiatric nurse practitioner specializing in addictions at Range Mental Health, stated, “Medical marijuana has not effectively treated his pain (only leg neuropathy) and he started to abuse methamphetamine to perform basic tasks for himself, like getting out of bed and ADLs.” (Ex. 2.)
Due to the employee’s severe functional losses following the 2010 surgery, his home was extensively remodeled with ramps and a handicapped bathroom. He was prescribed a specialized hospital bed, uses a catheter to urinate, and suffers from erectile dysfunction that has somewhat improved with medication. He walks with a severe limp, far worse than that which he had at the time of the 1997 settlement. Every three months he undergoes a Botox injection into his right foot to keep his toes from curling. He currently suffers from back pain, pain in his buttocks, numbness and shooting pains, and weakness. His feet get very cold and swollen daily. He takes baclofen and gabapentin for his back pain, as well as Prozac. He uses braces and a cane to walk. He still tries to fish for recreation, but not very often and he cannot get his boat in or out of the water.
The employee submitted an affidavit indicating that at the time of the 1997 settlement he was able to work as a security guard within restrictions on a part-time basis, could freely walk without a cane, walker, or wheelchair, get in and out of cars, go up and down stairs, lift 20 to 30 pounds from floor to table, as well as overhead, twist his back, bend at the waist, and engage in any number of other activities he wished to do although limited by his pain. He was able to mow grass using a riding lawnmower and he was able to shovel light snow. He did not have any issues with incontinence or erectile dysfunction and did not require a catheter. He was aware that he needed additional back surgery but never anticipated experiencing a surgical error, undergoing emergency surgeries to correct the error, being left disabled, needing months of rehabilitation to be able to walk, years of physical therapy and pain medication, and suffering weakness in his legs, poor sleep, loss of sexual function, and incontinence. Presently, he describes having excruciating pain in his back down both legs to the tips of his toes.
Pursuant to Minn. Stat. § 176.461(a), 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. Minn. Stat. § 176.461(b).
The employee argues that this court should vacate the 1995 and 1997 awards because his medical condition has substantially worsened, and that this substantial worsening was clearly not anticipated and could not have been reasonably anticipated at the time of the settlements. The employer responds that while the employee’s medical condition is certainly worse now than it was at the time of the two settlements, the worsening could have been reasonably anticipated at the time of settlements, and further, that the employee’s vocational status is essentially no worse now than it was at the time of the settlements.
In Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), this court described the following factors for consideration when evaluating a petition to vacate an award and 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 PPD; (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 conditions; and (6) the contemplation of the parties at the time of the settlement. Strict application of these factors is not required. Rather, the factors assist the court in evaluating whether there has been a substantial change in the employee's medical condition. In addition, Fodness was decided in 1989, prior to the 1992 statutory change to Minn. Stat. § 176.461, subd. (b)(4), requiring this court to consider whether the change in medical condition was anticipated or reasonably capable of being anticipated at the time of the settlement.
Here, we find that the employee has presented the court with a sufficient showing that his medical condition due to the work injury has substantially worsened and that this worsening was clearly not anticipated nor reasonably capable of being anticipated at the time of the 1995 and 1997 settlements.
At the time of the settlements, the employee was under substantial work restrictions, was working approximately 10 hours per week, and was receiving wage loss benefits. He would later return to full-time work that was less physical in nature as a car salesman and ice rink manager. Presently, the employee suffers from not only his lumbar spine condition, but a different and very severe neurological condition resulting from the medical error that took place during the L3-4 fusion surgery in 2010. He has significant bowel and bladder dysfunction, sexual dysfunction, and difficulty walking and standing. At the time of the settlements, he had limits on his ability to bend and to lift in excess of 25 pounds. Presently, he is limited to changing position from standing to sitting to walking at will, and he must have at least one day off work following a day of work. His work restrictions are far more significant now than they were at the time of the settlements in 1995 and 1997. The vocational expert hired by the employee’s attorney opined that the employee is permanently and totally disabled. He is considered permanently disabled by the Social Security Administration, MSRS, and his LTD carrier. He has taken several types of narcotics, medical marijuana, and methamphetamines to relieve his pain and to have a functional life.
At the time of the 1997 settlement, the medical expense claim was approximately $66,000. This court has been advised that the employer has paid all medical bills related to the employee’s low back including the medical bills associated with the 2010 surgery, all subsequent medical expenses related to the low back and resulting neurological condition following that surgery, as well as the required home remodeling expenses. Counsel for the employer estimated that the total medical expense has likely exceeded $1,000,000. When evaluating whether to grant a petition to vacate, this court tends to give less weight to the amount of post-settlement medical care when the medical benefits remain payable. Burke v. F-M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996), summarily aff’d (Minn. May 30, 1996). On the other hand, nothing in the record suggests that in 1997, the parties reasonably anticipated the vast number of treatment modalities and the enormity of the cost of the employee’s medical care since 2010. The scope of the employee’s medical care and expense, even though paid for by the employer, suggests a substantial change in the employee’s medical condition. See Hughes v. Medcor, Inc., 69 W.C.D. 258, 269 (W.C.C.A. 2009).
The extent of the employee’s PPD was disputed at the time of the settlement, but was at least 14 percent. The employee alleged at that time that his PPD rating was 29.5 percent, and given the expected future surgery, arguably additional PPD was capable of being anticipated. The employee’s present PPD, however, has been rated above 29.5 percent for his ongoing low back condition, additional surgery, and the conditions caused by the November 2010 surgical error, with an additional 21 percent for the lumbar spine, 15 percent for bladder dysfunction, and 10 percent for sexual dysfunction. We note that all of these new PPD ratings use the rules in effect for injuries occurring after July 1, 1993, and therefore may not be the correct ratings, but with the employee’s additional level of fusion and significant neurological compromise, the appropriate rating is assuredly higher than the 29.5 percent rating assessed in 1995.
The employer argues that at the time of the settlements, the employee could have claimed permanent total disability benefits given the extent of his limitations at that time, and thus, the employee’s vocational function is no different now than it was at the time of the 1997 settlement. The employer further argues that the employee had undergone two previous fusion surgeries that had “failed” because he continued to have ongoing symptomology and physical limitations after those surgeries and that he was aware of the risks inherent in surgery, including paralysis and/or death. The employer contends that combined, this knowledge of risk associated with surgery and the knowledge of the “failure” of the previous surgeries, shows that the employee reasonably could have anticipated that any subsequent surgery could result in the type of outcome experienced by the employee after the 2010 surgery. We do not agree.
The record does not support the notion that the employee, any other party, doctor, or vocational expert had considered the employee permanently and totally disabled in 1997. While surgeries, including fusion surgeries, do carry risks, nothing in the record before this court indicates that the employee clearly anticipated or was capable of reasonably anticipating that he would be subject to a surgical error significant enough to render massive neurological compromise from his waist down. Further, while the employee did not have complete relief of symptoms after his surgeries in the 1990s, that hardly suggests the surgeries were such failures suggesting that the next surgery would have life-changing results.
“[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). While this policy does not require vacation of every settlement, it likewise does not compel that an employee must be bound by what was, at the time, a reasonable settlement. This is particularly true when, as here, a catastrophic situation that could not have been reasonably anticipated occurs.
This court has wide discretion, “instinct with considerable latitude,” in considering petitions to vacate. See Krebsbach, 350 N.W.2d at 354, 36 W.C.D. at 802 (citations omitted); see also Hudson v. Trillium Staffing Sols., 896 N.W.2d 536, 540, 77 W.C.D. 437, 441-42 (Minn. 2017) (this court has considerable latitude, but not unlimited discretion, in reviewing petitions to vacate). The evidence before this court demonstrates that the employee’s medical condition has substantially changed beyond that which was anticipated or clearly could have been reasonably anticipated. Because the employee has shown cause under the statute, we grant the petition to vacate.
 There is scant evidence regarding the nature of the 1986 and 1991 injuries in the record. Those injuries do not appear to be material to the petition currently before the court.
 The Special Compensation Fund was not a party to the settlement.
 Whether this recommended discogram was performed is not in the record before the court.
 The surgical reports for the three surgeries performed on November 5 and 6, 2010, were not provided to the court. We were able to discern the results of the surgeries from the other medical records and the briefs of the parties. The nature and results of these surgeries do not appear to be in dispute.
 The employee settled a medical malpractice claim against Dr. Mehbod for $1.5 million dollars. The employer participated in the settlement. The exact manner of the distribution of those funds is not in the record before the court.
 There are references in the record that both the Minnesota State Retirement System (MSRS) and Unum, a long-term disability (LTD) insurer, found the employee eligible for benefits under their respective definitions of “permanent disability.”
 The settlement agreement stated that should medical marijuana be determined to not be a covered benefit under the Workers’ Compensation Act (WCA), the stipulation was null and void. The Minnesota Supreme Court held in Musta v. Mendota Heights Dental Ctr., 965 N.W.2d 312 (Minn. 2021), cert. denied (U.S. June 21, 2022) that employers and insurers are not legally obligated to pay for medical marijuana under the WCA. This particular settlement agreement, however, is not part of the employee’s current petition.