The employee petitioned the court to vacate Awards on Stipulation from April 2, 1990, and April 3, 1997. The court concluded the employee failed to establish cause pursuant to Minn. Stat. § 176.461 and denied his petition.
Rodney Wolters, the employee, sustained an admitted low back injury on July 9, 1987, while working for Curry Sanitation, Inc. The injury resulted in back pain and pain down the left leg.
On March 27, 1990, the employee entered into a stipulation for settlement. The settlement was a full, final, and complete close-out of the employee’s claims with the exception of future reasonable and necessary medical expenses. A dispute eventually arose between the parties over the necessity of pool therapy. In April 1997, the employee entered into a second stipulation for settlement that closed out certain soft medicals but left open reasonable and necessary medical treatment.
On November 19, 2010, the employee filed a medical request seeking authorization for the two-level lumbar fusion at L4-5 and L5-S1, with decompression at the L4-5 level. Insurer denied. On March 16, 2011, at hearing, the judge found the employee’s back condition was causally related to the work injury and that the proposed surgery was reasonable and necessary. However, she also stated that the evidence further demonstrated that the surgery should not be performed until an EMG test was performed and until the employee was nicotine free. She conditionally authorized the surgery depending on the results of an EMG test and on the employee testing negative for nicotine breakdown products. The employee did not undergo an EMG test and did not meet the smoking cessation condition. However, on September 9, 2011, he underwent the fusion anyway. The fusion failed, and the employee sought approval for a revision. Insurer denied.
On September 12, 2018, the employee filed a petition with this court to vacate the 1990 and 1997 awards on stipulation, alleging a substantial change in his medical condition. The employer and insurer have responded opposing the employee’s petition.
Pursuant to Minn. Stat. § 176.461 and Minn. Stat. § 176.521, subd. 3, the court has authority to vacate an award “for cause.” Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989). Cause has been defined to include a substantial change in medical condition. Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).
In determining whether a substantial change in the employee’s condition has occurred, various factors may be considered including: (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 care than anticipated; and (5) a causal relationship between the injury covered by the settlement and the employee’s current condition. Id.
As to diagnosis, the court found that the employee had been consistently diagnosed with degenerative disc disease since the date of the work injury. The employee argued that his condition had advanced to additional levels of the spine. The court found that as of the 1990 stipulation, surgical treatment had been provided only at the L5-S1 level, but abnormal morphology had been noted at L4-5.
As to work ability, the court found that the employee provided only minimal evidence about the dates, hours, and duties of his employment and minimal evidence does not allow conclusions on how the employee’s ability to work has significantly changed from the time of the 1990 stipulation.
As to the PPD, the employee submitted no updated permanency rating and did not argue additional PPD. Although the court did assume he could have.
The employee relied heavily on the additional surgery he underwent in 2011, its failure, and the recommendations for a surgical revision.
The employee also argued that his situation is factually similar to Holtslander v. Granite City Roofing, 78 W.C.D. 111 (W.C.C.A. 2017). However, each petition to vacate must be decided entirely on its own unique facts. The facts in other cases are rarely, if ever, the same in all material aspects, and thus earlier cases rarely provide a definitive argument. The court found Holtslander to be a different and distinct case factually.
The court also cited the fact that the medical benefits were left open by the stipulations. In these cases, the court considers the extent of additional costly medical care with less weight. See, e.g., Burke v. F & M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996).
Overall, the court determined it was unclear from the evidence submitted whether the additional surgery was a different approach to treatment of the same condition or a substantial change. The court also found it unclear whether the employee’s ability to function had substantially changed from 1990. Because of this, the employee’s petition failed to show cause to vacate and the petition to vacate was denied.
Takeaway: The analysis used in considering this petition to vacate was based on substantial change in condition only. No Hudson analysis was used.