Holding: The employee established good cause to vacate the award on stipulation where his circumstances satisfied all factors outlined in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), and where the change in his medical condition was not and could not reasonably have been anticipated at the time of settlement. Every case must be determined on its own facts and from the perspective of the functional losses or a level of disability of the employee at the time of the petition compared to the time of the settlement
On August 21, 2001, the employee slipped while engaged in work activities for the employer, Crenlo Inc., and suffered an admitted injury to his low back. After no success with initial conservative treatment for his low back, the employee began treating primarily at the Mayo Clinic on June 17, 2002. Due to ongoing symptoms, the employee underwent an anterior/posterior L4-S1 discectomy and fusion with instrumentation performed by Dr. Huddleston on October 2, 2002. The Employee continued to follow-up over the course of the next 2-3 years and it is noted that his progress was improving, with the exception of a few flare-ups.
The Employee entered into a Stipulation for Settlement in 2005 on a full, final, and complete basis, which left certain future medicals open.
In the following years, the Employee underwent substantial treatment including three surgeries, a spinal cord stimulator trial, injections, and other conservative treatment. His condition led to a stricter increase in his work restricitons. There were also medical opinions that his PPD rating has increased by over 20% since the Stipulation was entered into due the various treatment and his new diagnosis.
The Employer and Employee also both obtained IME reports supporting their position regarding the Employee’s changed diagnosis and whether the work injury was a substantial contributing factor to the ongoing condition. An HCPR was completed by the treating doctor which supported the Employee.
Ultimately, the Employee filed a petition to vacate the Stipulation for Settlement on the basis that that there was a substantial change in his medical condition that was not reasonably anticipated at the time the Stipulation was entered into.
Pursuant to Minn. Stat. § 176.461, this court may set aside an award on stipulation “for cause.” The term “for cause” is limited to:
- 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.
The employee alleged that he has had a substantial change in his medical condition since the time of the July 7, 2005, Award on Stipulation. Generally, when evaluating a petition to vacate an award on stipulation based upon an alleged substantial change in medical condition, this court considers various factors:
- a change in diagnosis;
- a change in the employee’s ability to work;
- additional permanent partial disability (PPD);
- 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.
Change in Diagnosis
Here, the employee progressed from a two-level fusion to an eight-level fusion over the course of many years and many surgeries. As further indication of a change in diagnosis, the employee’s fused spine now includes levels of the thoracic spine. This factor weighs in favor of granting the petition to vacate.
Change in Ability to Work
At the time of the settlement, the employee was able to work with a permanent 40- to 45-pound lifting restriction given to him by Dr. Huddleston. The employee was working as a taxi driver and operating his own handyman business. The employee was subsequently working part time with substantially greater limitations, including lifting no more than ten pounds (only at the waist), alternating between sitting and standing, and not working on consecutive days. Since the time of settlement, there was also a ten-year period during which the employee did not work at all due to his low back condition. Because the employee’s ability to work has reduced, this factor favors granting the petition to vacate.
At the time of the 2005 settlement, the employee had been given a 20 percent PPD rating. Presently, the employee has been assigned a PPD rating of 43.5 percent to account for the additional fused levels. This factor weighs in favor of granting the petition to vacate.
More Costly and Extensive Medical Care
The Employee had undergone numerous surgeries since his 2005 settlement. The significant amount of medical care the employee has required since the time of settlement weighs in favor of granting the petition to vacate.
The employer and insurer argued that the causal connection between the employee’s condition at the time of settlement and his current condition has become too attenuated. They pointed to other causative factors, including his uncontrolled diabetes, obesity, coronary heart disease, a long-term history of smoking, high blood pressure, high cholesterol, depression, and several other mental health disorders. They also relied upon the opinion of Dr. O’Brien that there was no causation at all between the work injury and any of the employee’s low back complaints. They further pointed to the employee’s failure to follow through with various recommended treatments for his low back pain, including getting his diabetes under control with medication, proper diet, weight loss, quitting smoking, and following through with recommended physical therapy and exercise. Finally, they asserted that the employee’s current low back condition was not substantially changed, but rather, has naturally progressed given his low back diagnosis.
Despite the concerns raised by the employer and insurer, the record before the court supported a causal link between the admitted work injury and the employee’s current medical condition. Dr. O’Brien’s opinion does not dispute that causal link. Rather he opined that there was no work injury at all. Likewise, while there are other co-morbidities, the record made it clear that the admitted work injury still represented a significant contributing factor to the employee’s current worsened condition. A work injury need not be the sole cause nor the most significant cause of a medical condition and need for care, but instead a significant contributing factor. Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989). This factor favors the granting of the petition to vacate.
Contemplation of the Parties
The court stated that there was little, if any, evidence of what the parties contemplated at the time of the settlement. As noted, the employer and insurer admitted the work injury. All medical benefits to the date of the settlement had been paid by the employer and insurer. The employee was working at a wage loss. He claimed entitlement to ongoing temporary partial disability benefits, which the employer and insurer disputed. There was nothing in the settlement agreement or elsewhere in the record to suggest what the parties anticipated regarding the employee’s long-term physical and vocational abilities. The only claims or contentions of the parties outlined in the Stipulation for Settlement were those regarding the employee’s claims of temporary partial disability benefits and penalties, and the employer and insurer’s denial of those claims.
While Dr. Johnson and Dr. Hadley advised the employee that he had some indeterminate future risk of deterioration to the levels adjacent to his fusion, they also opined that they did not expect future medical care. There is nothing to suggest that the parties contemplated in 2005 that the employee would later have four additional surgeries, six additional levels of fusion, a reduction in his ability to work, and an increase in PPD from a 20 percent rating to a 43.5 percent rating. This factor also weighs in favor of granting the petition.
Minn. Stat. § 176.461(b)(4) requires that a substantial change in medical condition must have been clearly not anticipated and not reasonably capable of being anticipated by the parties at the time of the settlement. Here, while there is evidence that at least two doctors suggested that there could be future adjacent level degeneration, there was nothing to suggest that any of the parties anticipated or could have anticipated the nature and extent of the worsening of the employee’s condition when they settled this matter in 2005. In fact, those same two doctors also suggested the employee would not need future medical care. The co-morbidities outlined in the medical evidence and highlighted by the employer and insurer were not mentioned in the medical records as potential significant factors in the worsening of the employee’s condition until after the 2005 settlement, and thus cannot be something the parties considered as potentially influencing the future when they settled. The employee stated in his affidavit that he did not anticipate the significant worsening. Moreover, as Dr. Kearney laid out in his current report, according to the state of medical knowledge in 2005, it could not have been anticipated at that time that the employee would require six additional levels fused. There was no other evidence in this record regarding what was or could have been reasonably anticipated by the parties in 2005. This case differs from the facts in Gerdes, where the treating surgeon admitted that he discussed with the employee, before settlement, adjacent level degeneration and additional worsening of the nearby levels possibly leading to more fusions. Here, the degeneration in Mr. Schumacker’s circumstances went far beyond the adjacent levels and the court determined that there is no medical evidence that the parties could have reasonably anticipated that a two-level fusion would lead to an eight-level fusion. In 2005, the parties did not and could not reasonably anticipate the extreme worsening of the employee’s medical condition that occurred over the ensuing 15 years.
The Court granted the Petition to Vacate as they felt that the factors outlined above supported the Employee’s position.