The employee petitions this court to vacate and set aside a December 10, 2015, Award on Stipulation pursuant to Minn. Stat. § 176.461, based on a substantial and unanticipated change in his medical condition that was clearly not and could not reasonably have been anticipated at the time of settlement and that the settlement amount does not adequately reflect the degree of his disability.  We grant the petition.

At the time of his petition to this court, the employee, Mark Melius, was 57 years old.  He graduated from high school in 1983.  He moved to the Twin Cities in 1998 and joined a labor union.  In May 2011, he began working as a laborer for the self-insured employer, Acme Tuckpointing & Restoration Company, Inc.

The employee sustained two admitted work injuries while working for the self-insured employer.  Because his employer elected to be part of the Union Construction Workers’ Compensation Program, the employee’s work injuries were processed through that system.  On July 21, 2011, the employee suffered an injury to his left shoulder and left elbow when he struck the side of a building while nearly falling from scaffolding.  He underwent tendon surgery in 2011, developed complex regional pain syndrome, and experienced ongoing pain symptoms thereafter.^[1]

On July 28, 2011, while on the jobsite, the employee was struck on the head by a piece of sheetrock that had fallen from several stories above.  He was rendered unconscious and subsequently was diagnosed with a concussion and brain injury.  The employee underwent extensive treatment for his head, neck, and upper back.  Under the care of Dr. James Schwender of Twin Cities Spine Center, the employee underwent a corpectomy at C5, an anterior cervical discectomy at C6-7, and a fusion at C4-7 on January 26, 2015.^[2]  In the months that followed, the employee indicated improved pain symptoms and Dr. Schwender noted that the employee was doing well.^[3]  The employee was released to work with restrictions.

In late 2015, the employee reached a settlement agreement with the self-insured employer.  The stipulation for settlement resolved the employee’s claims on a full, final, and complete basis in exchange for $175,000.00, with the exception of future medical expenses.  An award on stipulation was issued on December 10, 2015.

At the time of settlement, the employee was 50 years old.  He had been working on a part-time basis for a new employer until December 2015 when that employer changed ownership and could no longer accommodate his restrictions.  The self-insured employer had paid 120 weeks of temporary total disability benefits, approximately 98 weeks of temporary partial disability benefits, and permanent partial disability benefits, as well as vocational rehabilitation benefits and medical expenses.^[4]

According to the employee, his pain symptoms worsened following the 2015 settlement.^[5]  Records indicate that the employee continued to use opioid medication in an effort to manage persistent neck and upper left extremity pain from 2017 through 2021.^[6]

On January 6, 2022, the employee presented at Twin Cities Spine Center with complaints of increasing neck, bilateral shoulder, and upper extremity pain over the last year.^[7]  An October 14, 2021, cervical MRI had revealed adjacent segment degeneration at C3-4 causing severe bilateral foraminal stenosis and central stenosis.^[8]  Treatment options were discussed and the employee elected to proceed with surgery.^[9]

On February 16, 2022, Dr. Schwender performed a discectomy, decompression and fusion at C3-4, and plate removal from the 2015 procedure at C4-7.^[10]  The employee experienced significant pain and weakness, specifically quadriparesis, following the procedure such that he delayed his post-operative visit with Dr. Schwender.^[11]  He was seen by Dr. Schwender on May 5, 2022, following a cervical and lumbar MRI.  The employee’s pain and weakness in the left upper extremity and bilateral lower extremities were not improving.  No cord compression was seen on scans and Dr. Schwender noted that no lesion was seen to explain the employee’s quadriparesis.  The employee was unable to ambulate independently and had begun using a motorized wheelchair.^[12]

The employee was seen again by Dr. Schwender on August 4, 2022.  The employee reported doing better, though he was still not able to ambulate independently.  Dr. Schwender noted that the employee’s condition was stable and he recommended another follow-up in six months.^[13]

On March 10, 2023, the employee was seen for a repeat dispute resolution examination by Dr. Mark Larkins.^[14]  In his May 16, 2023, report, Dr. Larkins diagnosed the employee with quadriplegia/quadriparesis and found that the objective findings substantiated the employee’s subjective complaints.  He opined that the July 28, 2011, work injury was a substantial contributing factor to the employee’s condition, and that the employee’s need for a wheelchair was permanent.

The employee filed a petition to vacate and set aside the December 10, 2015, Award on Stipulation on June 27, 2023.  The self-insured employer objects to the petition.

In determining whether to vacate and set aside an award on stipulation, this court follows Minn. Stat. § 176.461,^[15] and in cases alleging a substantial change in medical condition, considers several factors.^[16]

In the case before us, the employee contends that there has been a material change in his medical condition that was not anticipated by the parties at the time of settlement.  The employee also contends that the benefits paid pursuant to the settlement are not commensurate with the degree of disability from which he now suffers.  In essence, the employee claims he did not anticipate a second surgery resulting in quadriplegia/quadriparesis to such a degree of disability that he is now permanently wheelchair bound.

By contrast, the self-insured employer contends that the employee has been properly compensated and that the amounts paid adequately reflect the degree of disability the employee is experiencing.^[17]  The self-insured employer argues that the employee could reasonably have anticipated this material change in his condition at the time of settlement.  The self-insured employer also points to the employee’s employment status at the time of settlement through the date of the petition and argues that there has been no change.  The self-insured employer contends that the parties contemplated a potential permanent total disability exposure and incorporated the value of that exposure into the equation for settlement.  The self-insured employer also argues that the fusion surgery was so complex and serious such that the employee would have reasonably known the risk and points out that the employee had given informed consent before undergoing the operation.

The self-insured employer acknowledges that the employee has met three of the six Fodness factors – a change in diagnosis, additional permanent partial disability, and the existence of a causal connection between the work injury and the employee’s current condition.^[18]  The self-insured employer further admits that the employee has incurred costly and extensive medical care since the time of settlement, though noting that this factor should not be weighed heavily because the settlement agreement left medical costs open and because the self-insured employer has paid nearly all claimed medical costs.^[19]  Nevertheless, the factor still weighs in favor of the petition, particularly given the enormity of the medical expenses, $763,968.78, since the settlement.  As such, we will address only whether the employee has demonstrated the remaining two factors in dispute.

The parties dispute whether there has been a change in the employee’s ability to work since the time of settlement.  The evidence submitted before this court shows that the employee was employed in a part-time position within his work restrictions prior to the filing of the award on stipulation on December 10, 2015.^[20]  For reasons beyond his control, that employment ended, and temporary partial disability benefits were paid through December 12, 2015.^[21]  No rehabilitation records were submitted with the petition; however, the employee testified by affidavit that he was working with a QRC to find new employment at the time of the settlement.^[22]  Because the employee was able to maintain part-time employment at the time of settlement, but is currently unable to perform many activities of daily living, we conclude that his ability to work has changed.  This factor thus weighs in favor of granting the petition.

The self-insured employer contends that the employee, at the time of settlement, could have reasonably anticipated the subsequent worsening of his condition.  At that time, the employee continued to experience ongoing effects of his injuries, required medical care and pain management, and earned minimal income in a part-time position.  It is not clear from the records submitted whether and when the employee was released from the care of Dr. Schwender in the years prior to resuming treatment in 2021.  While additional medical care could reasonably have been anticipated at the time of settlement, we conclude that the worsening of the employee’s condition is so substantial that it would not have been reasonably anticipated.^[23]  The employee had undergone a cervical fusion prior to settlement.  Arguably, degeneration of the adjacent segment was or could reasonably have been anticipated.  However, following the February 2022 surgery, the employee’s condition has worsened to such an extent that he has been diagnosed with quadriplegia/quadriparesis and requires the use of a hospital bed and wheelchair.  The parties did not and could not reasonably have anticipated that the employee’s condition would substantially worsen to such an extent back in 2015.  The fact that the employee had given informed consent to the surgery, which included his acknowledgement that an outcome such as the one he experienced could occur, does not mean that the outcome was reasonably anticipated.  If catastrophic surgical outcomes were reasonably anticipated, it is debatable whether anyone would ever undergo any type of surgical procedure, whether due to a work injury or otherwise.

Lastly, the settlement amount while significant, does not rise to such a level as to negate the analysis of the Fodness factors by this court.

Here, when we analyze the Fodness factors and consider whether the compensation is proportionate to the degree and duration of the employee’s disabilities, ^[24] we find that the employee has met his burden to set aside and vacate the award on stipulation.  We grant his petition.