Muchow v. State of Minnesota, et. al. No. WC21-6445 (W.C.C.A. August 8, 2022).
Phillip Muchow, “employee,” begin working for the self-inured employer, the Minnesota State Academy for the Blind, as a full-time aide and part-time maintenance worker in 1981. He suffered an admitted low back injury on November 12, 1990 while helping a client out of a wheelchair. He lost his balance but continued to hold on to the client, twisting and bending his back awkwardly. Initially he was diagnosed with a lumbar sprain/strain. He continued to experience pain so he underwent an MRI in January 1991, which 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. He underwent a two-level discectomy on December 3, 1991. A month after that, he reported complete resolution of his left leg pain but he still experienced low back pain. A repeat MRI showed degenerative disc disease at multiple levels of the lumbar spine so he had a discogram. He then underwent a two-level spinal fusion from L4-S1 on August 11, 1992. The treating doctor’s notes from that time state that while not necessary at that time, he may need another fusion at L3-4.
Despite the fact that his fusion was solid, he continued to complain of pain. Dr. Timothy Garvy recommended a revision of the fusion as well as a repeat discography at L3-4 in June 1993. The employee saw Dr. John Dowdle for a second opinion on November 20, 1993 and Dr. Dowdle was hesitant to recommend additional fusion surgery; he felt that a morphine pump was worth consideration. Dr. R Wynn Kearney Jr. examined the employee at the request of his attorney and he also did not recommend another surgery; he recommended conservative management.
Dr. Mark Thomas performed an examination on August 31, 1995 at the request of the employer and insurer. He agreed with Dr. Dowdle and Dr. Kearny that further surgery would not be beneficial. He assigned the employee work restrictions.
The employee’s treating doctor assigned a 22.5% permanent partial disability rating due to the two-disc fusion surgery with an additional seven percent rating. The employer admitted and paid 14% permanent partial disability rating.
In 1995, the parties reached a settlement regarding the disputed remaining permanent partial disability rating. Permanent partial disability ratings were closed out up to 29.5%. An Award on Stipulation was issued on February 15, 1995.
The employee was able to work as a security guard within his restrictions. However, the number of hours that he worked decreased.
The parties then entered into a settlement memorialized in a Mediation Resolution/Award dated February 5, 1997. The employee agreed to close out claims for non-medical benefits including supplementary benefits. The employee acknowledged that he would not receive any more wage loss benefits, including permanent total disability benefits, and that his back condition could get worse. He resigned his position with the employer. At the time of settlement, the employee had a limp but otherwise walked without difficulty; he had back pain and some sciatic pain down one leg. He was also aware that he may need surgery in the future, including a fusion at the L3-4 level.
Following the settlement, the employee worked for a number of years as a car salesman and then as an ice rink manager. He began having neck symptoms in 2010. He met with Dr. Amir Mehbod at Twin Cities Spine Center, who recommended a two-level neck fusion. The employee underwent this procedure on August 31, 2010 at Abbott Northwestern Hospital. He had a good result from this procedure, so he started treating with Dr. Mehbod for his low back issues.
Dr. Mehbod recommended a fusion at L3-4 and removal of the hardware at L4-S1. This was performed on November 5, 2010. During the procedure, Dr. Mehbod nicked the dura in the employee’s spinal cord causing a tear that resulted in hematomas. He underwent emergency surgeries to relieve the hematomas, including an L1-2 laminectomy and decompression. Following this procedure, he could not move his legs, walk, feel below the waist and he lost all function and sensation below the waist. He was told that he likely would never walk again. In July 2011, he was granted Social Security disability benefits. He underwent an FCE in December 2011 that resulted in much more restrictive work restrictions that indicated that he could do sedentary or light work two hours per day two to three times per week with a day off in-between. A spinal cord stimulator was attempted but that was unsuccessful. Dr. Mehbod gave the employee an additional 21% permanent partial disability rating, and PA-C Jeffrey Estrin gave him a 15% rating for bladder dysfunction and a 10% permanent partial disability rating for sexual dysfunction.
Many treatment modalities were tried following this, and his home was extensively remodeled to accommodate his physical limitations. He continued to struggle with pain to the point that he began to abuse methamphetamines which lead to legal difficulties. He uses a catheter to urinate, suffers from erectile dysfunction, walks with a severe limp, and undergoes Botox injections every three months 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 cold and swollen daily. He is on medications. He uses braces and a cane to walk.
The W.C.C.A. used the Fodness factors and determined that the employee had submitted enough evidence to show that his medical condition had substantially worsened and that this worsening was not clearly anticipated nor reasonably capable of being anticipated at the time of the 1995 and 1997 settlements. The W.C.C.A. noted that his restrictions were much more restrictive than they had been, he had significant bowel and bladder dysfunction, sexual dysfunction, and difficulty standing and walking. He did not have any of these issues at the time of the settlements that were reached. Additionally, at the time that the case settled, the insurer had paid $66,000.00 but by the time the case had reached the W.C.C.A. medical expenses had likely exceeded $1,000,000.00. There was nothing in the record to show that the parties anticipated the number of treatment modalities and enormity of the cost since the 2010 surgery. Further, the employee had been given significantly higher permanent partial disability ratings. The W.C.C.A. noted that while surgeries carry risks, nothing in the record before the W.C.C.A. indicated that the employee clearly anticipated or was capable of anticipating that he would be subject to a surgical error significant enough to render massive neurological compromise from his waist down. And, there was nothing to suggest that the surgeries in the 1990s were such failures suggesting that the last surgery performed would have life changing results. The Stipulation for Settlement was vacated.
Where the employee can show substantial change in medical condition that was not anticipated and clearly could not have been anticipated at the time of settlement, the Stipulation for Settlement can be vacated. An employee can show that a substantial change in condition occurred when they have new or worsening physical symptoms, decreased ability to work, additional permanency and greater medical expense than the parties anticipated.