WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 29, 2024
No. WC24-6549
VACATION OF AWARD – REFERRAL FOR HEARING. Where the parties have submitted conflicting expert medical opinions to this court on the issue of causation for the employee’s current worsened condition in addressing a petition to vacate an award on stipulation, and the employee has allegedly sustained a subsequent work injury to the same body part while working for a different employer which has not been litigated, the matter is referred for an evidentiary hearing on that issue.
Attorneys: Stephanie M. Balmer, Falsani, Balmer, Peterson & Balmer, Duluth, Minnesota, for the Petitioner. D. Jeffrey Pricco and Scott G. Ferriss, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, Minnesota, for the Respondents.
Referred to OAH.
OPINION
DEBORAH K. SUNDQUIST, Judge
The employee has filed a petition to vacate an Award on Stipulation that was served and filed July 30, 2003. Based on the record submitted, we refer the matter to the Office of Administrative Hearings for an evidentiary hearing.
BACKGROUND
James Lehet, the employee, worked as a carpenter for Roofers Advantage Program, the employer. On August 16, 2001, he suffered a work injury to his low back when struck by a 50,000-pound aerial lift arm. He continued working but developed pain and stiffening in his low back over the course of the day and was later seen at a local emergency room. Following an MRI scan, he was diagnosed with an L5-S1 annular tear and spondylolistheses. He returned to work with restrictions.
In 2003, the employee settled his workers’ compensation claim with the employer and its insurer[1] with the understanding that surgery was recommended to alleviate his ongoing low back symptoms. The stipulation for settlement left open future medical expenses and an award on stipulation was filed. Three years later, in 2006, the employee underwent an L5-S1 fusion surgery performed by Dr. Francis Denis. The employer and insurer paid reasonable and necessary medical expenses related to the low back surgery and treatment. The employee returned to work as a carpenter with a different employer, Lakehead Constructors, and in 2011, he began working as a millwright, which he described as less physical than his previous job.
Beginning in 2011, the employee complained of ongoing low back pain and continued to treat with Dr. Denis. Dr. Denis ordered a CT scan which was performed on September 26, 2011, and showed that the fusion surgery was solid at L5-S1, with some bulging at the L4-5 level. In February 2013, the employee complained of increasing severe pain and sought care with orthopedic surgeon, Dr. Manuel Pinto, after Dr. Denis retired. Dr. Pinto reviewed recent scans and reported no stenosis, disc bulges, or radicular symptoms associated with the employee’s low back, and recommended epidural steroid injections. In September 2013, Dr. Pinto ordered a discogram which did not demonstrate pain at the L3-4 or L4-5 levels. As of December 2013, the pain had not resolved, and Dr. Pinto explained to the employee that if his symptoms were severe, unrelenting, and unresponsive to conservative care, then removal of the surgical hardware would be an option. (Ex. P(e).)
The employee sought treatment again in February 2018, complaining of severe pain and an increase in symptoms. Over a year later, in April 2019, he left a phone message with Dr. Pinto’s office that he wanted the fusion hardware removed. The employee continued to work full time as a millwright for Lakehead Constructors.
On May 15, 2019, the employee suffered a low back injury while working for Lakehead Constructors. He testified he was injured while carrying a slippery shaft and sprocket that weighed a couple hundred pounds for several feet as he was hunched over and, as a result, experienced increased low back pain that lasted longer than in the past. He reported the injury to his supervisor and completed an injury report, but did not file a workers’ compensation claim petition. On May 30, 2019, the employee saw Dr. Pinto, who noted that the employee’s symptoms had changed in that he not only had pain with transitional movement, but also with arching and extending his back, with prolonged sitting, and in the morning. Dr. Pinto made no mention of a new injury in the medical record from that date.
Over the course of the next four years, the employee underwent three additional surgeries. On January 20, 2020, Dr. Pinto removed some of the hardware from the previous fusion. The operative report noted that the previous L5-S1 fusion was “absolutely solid.” (Ex. P(f).) On April 2, 2021, Dr. Pinto performed a posterolateral fusion at L4-5 with hardware. Two years later, Dr. Pinto removed the hardware and performed a posterolateral fusion at L4-5 with an anterior discectomy. Following each of the surgeries, the employee continued to complain of significant low back pain and suffered lower extremity pain and numbness. Dr. Pinto restricted the employee from work and the employee’s last day of work was in May 2022, after which the employee applied for and received social security disability income.
Three medical experts were asked to address the employee’s diagnosis and its cause. On February 25, 2021, Dr. Pinto noted that he was not aware of the May 15, 2019, injury. However, he opined that if the employee became more symptomatic after May 15, 2019, then the new injury caused an aggravation of a pre-existing condition.
In a letter dated October 10, 2022, Robert Wengler, M.D., who was retained by the employee, opined that the employee had a pre-existing condition of L5-S1 spondylolisthesis which was destabilized by the August 16, 2001, injury and necessitated the original fusion. Dr. Wengler noted that the incident of May 15, 2019, led to a recurrence of back pain with sciatica for which hardware was removed in 2020 without relief of symptoms. (Ex. N.) After reviewing additional records, Dr. Wengler concluded in a letter dated January 16, 2023, that the pathology at the L4-5 level and all medical, surgical, and disability ramifications are a consequence of the original August 16, 2001, injury. (Ex. O.)
Finally, the employer and insurer sought the opinion of Dr. Mary Dunn, who reviewed medical records, conducted a physical examination of the employee on March 12, 2024, and took a medical history. Dr. Dunn disagreed with Dr. Wengler, stating that she was “not sure that he even received all the records. If he had, he would have noticed that [the employee] had a failed back syndrome and that he had been well managed for almost 18 years with medications that are frequently used in the management of chronic low back pain” which escalated with the May 2019 injury. (Ex. 2.) Dr. Dunn noted that the employee had a substantial increase in symptomology after the injury on May 15, 2019, which led to multiple surgeries, and concluded that the employee sustained a significant new injury on May 15, 2019, which led to all treatment thereafter through 2024.
The employee has petitioned to vacate the 2003 award on stipulation claiming that he has sustained a substantial change in medical condition. We refer the matter to the Office of Administrative Hearings for an evidentiary hearing.
Pursuant to Minn. Stat. § 176.461, this court has authority to vacate an award on stipulation for cause. “Cause” is defined as a mutual mistake of fact, newly discovered evidence, fraud, or 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 petitions this court to vacate the 2003 award on stipulation based on a substantial change in medical condition since the time of the award that was not anticipated and could not reasonably have been anticipated at the time of the award. Citing Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989),[2] the employee asserts that he has experienced a change in diagnosis, a change in his ability to work, additional permanent partial disability, and the necessity of costly and more extensive medical care than was initially anticipated. He also asserts that his 2001 work injury caused his current worsened condition.
The employee’s diagnosis has changed since the time of the 2003 award. At that time, the employee’s diagnosis was limited to an L5-S1 annular tear and disc degeneration with spondylolysis and spondylolistheses. (Ex. P(k).) Since 2021, the employee’s diagnosis has included severe facet arthritis at the L4-5 level, impingement of the inferior L4-5 facet into the pars defect at L5, persistent severe low back pain, and failure of extensive conservative care. (Ex. P(e).) The employer and insurer argue that the change in diagnosis is related either to a progression of the employee’s previous diagnosis that led to more care or to his subsequent May 15, 2019, work injury. They also argue the employee’s change in ability to work, additional permanent partial disability, and need for more extensive medical treatment are unrelated to the original 2001 work injury and are due to the 2019 work injury. While the employer and insurer continued to pay for the employee’s medical treatment through 2023, they were not aware of the employee’s 2019 injury until the employee filed the petition to vacate at issue on January 19, 2024.
The employee claims that his 2001 injury continues to be the cause of his worsened condition. The record shows that the employee complained of intermittent pain beginning in 2011 and that he phoned his surgeon’s office in April 2019 to request that the original fusion hardware be removed before he suffered the new low back injury in May 2019. The employer and insurer maintain that the May 2019 work injury was a superseding intervening cause of the employee’s worsened condition because the employee underwent significant diagnostic testing and three additional surgeries, and was disabled from working, after that injury.
The parties have submitted conflicting expert medical opinions regarding the causation of the employee’s condition. The employee’s surgeon, Dr. Pinto, was not aware of the May 2019 injury for several years and when asked if this injury was a substantial contributing factor to the employee’s condition, he opined that if the employee’s symptoms worsened after the 2019 injury, the condition would be related to the 2019 injury. Dr. Wengler provided a contrary expert narrative opinion indicating that “the burden of responsibility for the pathology which has been demonstrated at the L4-5 level and all the medical, surgical, and disability ramifications are consequential to the August 16, 2001, incident.” (Ex. O.) Finally, Dr. Dunn determined that all of the employee’s low back treatment after 2019 was related to the 2019 injury. The issue of whether the 2019 injury is causally related to the employee’s current condition is a significant factual issue in this matter.
Before determining whether to set aside an award, this court may refer the matter to a compensation judge for factual findings to better inform this court in its decision. See Minn. Stat. § 176.521, subd. 3. Referral is appropriate to resolve significant factual disputes when there is conflicting evidence, including opposing medical expert opinions. Cates v. SPX Serv. Sols., No. WC19-6329 (W.C.C.A. Aug. 5, 2020) (citing Jacobson v. Hennepin Faculty Assocs., No. WC04-210 (W.C.C.A. Nov. 24, 2004); 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)). Given that the employee has sustained a subsequent work injury to the same body part while working for a different employer which has not been litigated, and given that there is conflicting medical evidence, we require findings on the issue of whether the employee’s condition is causally related to the 2019 work-related injury in order to obtain a full and fair resolution of the petition to vacate the 2003 award on stipulation. We therefore refer this matter to the Office of Administrative Hearings for assignment to a compensation judge who shall conduct an evidentiary hearing on the issue of causation.[3]
The hearing shall address whether the employee suffered a new work injury in May 2019, whether the 2019 injury was a superseding, intervening cause[4] of, or a substantial contributing factor to, the employee’s disability since 2019, whether the 2001 work injury remains a substantial contributing factor to the employee’s condition, whether apportionment of liability between the two dates of injury is appropriate, and whether MIGA bears responsibility for ongoing payment. We retain original jurisdiction and will consider vacation of the award after a compensation judge makes the requested factual findings.
[1] The employer’s insurer is insolvent and is now represented by the Minnesota Insurance Guaranty Association (MIGA).
[2] The Fodness factors considered in addressing a claim of a substantial change of medical condition include: 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 injury covered by the settlement and the employee’s current worsened condition, and the contemplation of the parties at the time of the settlement.
[3] At oral argument, the parties agreed that referral for an evidentiary hearing before a compensation judge was appropriate.
[4] “A superseding intervening cause is one which severs the causal link between the original personal injury and the resultant disability such that the original personal injury is no longer a substantial and contributing cause of the resultant disability.” Buford v. Ford Motor Co., 52 W.C.D. 723, 728 (W.C.C.A. 1995), summarily aff’d (Minn. June 30, 1995).