Reel v. Loftness Specialized Farm Equip., et. al No. WC19-6257 (W.C.C.A. June 12, 2019)
Thomas Reel (“employee”) worked for Loftness Specialized Farm Equipment (“employer”) from November 1996 through September 1998 and again from May 1999 through September 2003. The employer was insured by Federated Mutual Insurance Company (“insurer”). In 2000, the employee began experiencing neck pain, arm numbness and headaches and treated with various medical doctors. The employee underwent quite a bit of treatment, including imaging of his cervical spine that showed stenosis and degeneration at multiple levels. Dr. John Mullen of Neurosurgical Associates recommended a discectomy and fusion. The case went to hearing in July 2003, and the compensation judge found that the employee suffered a Gillette injury to his neck culminating on May 18, 2001; the findings were appealed and the W.C.C.A. affirmed. The employee then underwent an anterior cervical discectomy and fusion at C5-6 and C6-7 on October 8, 2003. The employee’s fusion failed, so the employee underwent revision fusion surgery on September 9, 2004. On January 17, 2005, the employee’s surgeon, Dr. Lynn at Abbott Northwestern Hospital, determined that the employee had reached maximum medical improvement from the surgery and that he was limited to “moderate” workability. Dr. Lynn assigned a 23% permanent partial disability rating.
The employee received 83.2 weeks of temporary total disability benefits from September 26, 2003 through May 1, 2005. The employee had a QRC and received job placement services at various times; services were put on hold multiple times due to the employee’s medical conditions and inability to work. The employee worked as a bartender and short order cook part time from November 2005 through January 2006. The employee’s QRC determined in January 2006 that the job was far beyond the employee’s restrictions, so the employee could not continue in that job. The employee did not work after this.
On December 23, 2005, an award on stipulation was served and filed by a compensation judge. The terms of the stipulation included a claim for 23% PPD. On May 9, 2006 another award on stipulation was signed by a compensation judge. The employee made claims for temporary total disability benefits since December 23, 2005, and for penalties based on the alleged failure of the employer and insurer to make payment under the previous stipulation.
On June 14, 2006, a compensation judge signed another award on stipulation. This time, settlement was on a full, final, and complete basis, closing all indemnity benefits. Future medical expenses were left open. The employee’s contentions included the assertion that he was permanently and totally disabled from all employment as a result of his injury. In the alterative, he claimed that he was entitled to retraining. The employer and insurer contended that he was capable of suitable gainful employment without wage loss and that the employee did not diligently look for work.
The Social Security Administration determined that the employee became disabled on September 25, 2003 and that retroactive benefits were payable from January 2007, due to the filing of the claim on January 7, 2008.
The employee underwent another surgery on October 2, 2014 including removal of the hardware from the C5-7 fusion and a fusion at C3-4 and C4-5. The employee’s treating doctor, Dr. Thomas Jones of the Orthopedic and Fracture Clinic, noted that there had been changes at C3-4 and C4-5 since the initial surgery. Dr. Jones noted that adjacent level changes are common, occurring in 10 to 15% of patients. This matter went to hearing and on August 17, 2015, a compensation judge found that the 2001 work injury was a substantial contributing factor to the need for the C3-5 fusion surgery. This finding was not appealed. Another award on stipulation was signed on January 13, 2017. The employee’s claims in that stipulation for settlement were for various unpaid medical bills.
The unrepresented employee filed a petition to vacate the June 14, 2006 award on stipulation on February 11, 2019, alleging that he had a substantial change in medical condition since the time of the award.
Under Minn. Stat. § 176.461(b), the W.C.C.A. can set aside an award on stipulation “for cause,” which 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.
When evaluating whether a petition to vacate an award on stipulation based on an alleged change in medical condition, the W.C.C.A. applies the Fodness factors, which are:
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 treatment than initially anticipated;
5) a causal relationship between the injury covered by the settlement and the employee’s worsened condition; and
6) the contemplation of the parties at the time of settlement.
Fodness was decided prior to a statutory change in 1992 requiring the change in medical condition be clearly not anticipated and could not reasonably have been anticipated by the parties at the time of settlement.
The W.C.C.A. found that the employee’s condition had worsened to a point where he ultimately needed fusion surgery at C3-5, but that this was not necessarily a change in diagnosis as much as a progression of the diagnosis leading to more care. The W.C.C.A. also found that the employee’s ability to work had not changed since the June 2006 settlement. The employee was not working at the time of that settlement and had not worked since that time. There was also no evidence of a change in work restrictions since the time of the 2006 settlement. Further, evidence suggested that he was PTD before the stipulation; the stipulation included claims that he was PTD and he was compensated $100,000 from this settlement. The W.C.C.A. pointed out that the SSA found the employee to be disabled as of September 2003, before his first fusion surgery. The employee did not allege any additional PPD and there was no medical evidence of additional PPD. The W.C.C.A. noted the employee had an additional fusion surgery at C3-5 and had other medical treatment that was eventually found to be related to his work injury. The W.C.C.A. pointed out that more costly and extensive medical care or treatment was less significant when future medical expenses had been left open. The employer and insurer conceded that the employee had established causation between his current condition and the 2001 work injury. With regard to the contemplation of the parties, the W.C.C.A. pointed out that the employee he alleged in the stipulation that he was trying to vacate that he was PTD, or, in the alternative, he needed retraining. The W.C.C.A. determined that the employee reasonably believed in 2006 that he was PTD and the employer and insurer took the claim seriously as well. The W.C.C.A. opined that his condition was unchanged since that time. The W.C.C.A. held that the employee failed to show a substantial change in medical condition that was not reasonably anticipated by the parties at the time of settlement.
The employee sought alternative relief if his petition was denied; he specifically requested a hearing at the Office of Administrative Hearings for fact finding on the Fodness factors but the court denied this relief because the employee did not present any evidentiary disputes that would necessitate a hearing.
As with Swanson v. Kath Fuel Oil Serv., et al., No. WC18-6154 (W.C.C.A. January 10, 2019), the W.C.C.A. did not specifically adopt the framework laid out in the case of Hudson v. Trillium Staffing, 896 N.W.2d 536 (Minn. 2017). The W.C.C.A.’s finding that the employee’s condition at C3-5 was not necessarily a change in diagnosis but rather a progression of the diagnosis is helpful to employers and insurers who are confronted with a similar situation.