Swanson v. Kath Fuel Oil Serv., et. al

Swanson v. Kath Fuel Oil Serv., et. al No. WC18-6154 (W.C.C.A. January 10, 2019).

Bradley Swanson (“Employee”) sustained an admitted injury to his low back on October 16, 1991 while working for Cenex Farmers Union (“Cenex”).  The Employee sustained an admitted injury on February 13, 1997 to his neck while working for Kath Fuel Oil Service (“Kath”).  Kath was insured by Federated Mutual Insurance Company (“Federated”).

Employee’s Medical Treatment

Following the neck injury, the Employee treated with Dr. Paul Chlebeck, who diagnosed him with neck and shoulder pain consistent with cervical radiculopathy secondary to the work injury.  He then saw Dr. Richard Foreman, who diagnosed him with left cervical radiculopathy likely emanating from C6 or C7.  After undergoing conservative care, the Employee saw Dr. Daniel Tynan who recommended a C5-6 cervical fusion.  Dr. Tynan diagnosed him with intractable debilitating neck and left arm pain, a C5-6 disc herniation and degenerative disc disease of the cervical spine.

The Employee underwent a C5-6 anterior cervical fusion with anterior plating on November 27, 1999.  Following surgery he continued to experience pain in his neck and left arm.  The Employee underwent epidural injections at the C6 level.  The Employee underwent discograms on March 22, 2006 and May 25, 2006 which showed abnormal morphology at C2-5 and C6-7, above and below the Employee’s fusion.  The Employee followed up with Dr. John Dowdle on June 1, 2006 who concluded the Employee was not a good candidate for surgical treatment.

On June 10, 2008 the Employee underwent a revision anterior decompression and fusion at C4-5 performed by Dr. Phudhiphorn Thienprasit.  Dr. Theinprasit diagnosed the Employee with cervical spondylosis at C4-5.  The Employee underwent medical branch blocks in November 2009, and went on to have many more injections, branch blocks and rhizotomies over a number of years.  During this time, the Employee also treated for chronic pain and depression.

Dr. Paul Wicklund performed an independent medical examination and issued a report dated June 9, 2010 at the request of Cenex and its insurer.  He opined that the Employee was suffering from the effects of his cervical fusion at C4-5 and C5-6 with persistent neck pain.  Dr. Wicklund did not recommend further treatment for the Employee’s neck symptoms and assigned a 14% permanent partial disability rating.

The Employee continued to treat and underwent several types of diagnostic imaging.  Dr. Leland Scott diagnosed the Employee with probably left C6 radiculopathy and probable contributions from the C7 nerve root and recommended a surgical evaluation.  Dr. Nicholas Wills evaluated the Employee on October 3, 2013.  He stated that surgery would not help the Employee’s neck pain but could relieve the left arm pain.  Dr. Wills performed a left-sided laminoforaminotomy and decompression of the left C6 nerve root on October 30, 2013.

Dr. Mark Engasser performed an independent medical examination of the Employee at the request of Kath and Federated on May 8, 2018.  He diagnosed the Employee with a disc herniation at C5-6 with fusion in 1999, disc degeneration at C4-5 with fusion in 2008, left cervical lateral stenosis at C5-6 with laminoforaminotomy and decompression of the left C6 nerve root in 2013, and chronic pain syndrome.  Dr. Engasser opined that the C5-6 disc herniation was a result of the 1997 work injury but the C6 radiculopathy and bilateral stenosis findings were consistent with the degenerative process and not specifically due to the 1997 work injury.  He also opined that additional permanent partial disability was not related to the work injury.

Procedural Posture

The Employee, Kath and Federated settled the Employee’s claim after he received the surgical recommendation in 1999 but before he underwent the surgery.  The parties settled on a full, final, and complete basis with the exception of future medical expenses causally related to his neck injury with an Award on Stipulation served and filed on November 17, 1999.  Kath and Federated agreed to pay for the proposed surgery.  In the Stipulation for Settlement, the Employee contended that he may be permanently and totally disabled.

The Employee claimed that his chronic pain and depression were consequential to his 1991 low back injury and 1997 neck injury.  Kath and Federated denied causation, and alleged in the alternative that even if the chronic pain and depression were causally related to the neck injury, the low back was a more significant factor.  The Employee settled his claims against Kath and Federated on a full, final, and complete basis including all future medical care related to psychological treatment with an Award on Stipulation served and filed on April 6, 2009.  This Stipulation for Settlement also reaffirmed the closeouts under the 1999 Stipulation for Settlement.  Cenex and its insurer were not a party to this settlement.

February 14, 2018 Petition to Vacate

On February 14, 2018, the Employee filed a petition to vacate the awards on stipulation involving Kath and Federated that were served and filed on November 17, 1999 and April 6, 2009 based on an alleged substantial change in medical condition.

The Court may set aside an Award on Stipulation “for cause.”  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 not clearly anticipated and could not have reasonably been anticipated at the time of the award.  The Court applies the Fodness factors when evaluating a petition to vacate based on a substantial change in medical condition.  The Fodness factors are as follows:

  1. A change in diagnosis;
  2. A change in the Employee’s ability to work;
  3. Additional permanent partial disability;
  4. Necessity of more costly and expensive medical care than initially anticipated;
  5. Causal relationship between the injury covered by the settlement and the Employee’s current worsened condition; and
  6. Contemplation of the parties at the time of the settlement.

See Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).

The Employee argued that his medical condition was substantially worse at the time of the petition to vacate than it was at the time of the 1999 settlement.  He also argued that the 2009 settlement was not the proper comparison date.  Kath and Federated argued that Dr. Engasser’s report establishes no causal relationship between the Employee’s current cervical condition and the work injury.  Further, Kath and Federated argued that the proper date to determine worsening is from the 2009 settlement.  When the Employee entered into the 2009 Stipulation for Settlement he reaffirmed that he understood that his condition may change and become worse, potentially resulting in permanent total disability.  By entering into a new Stipulation for Settlement in 2009, he acknowledged that he was entering into the settlement with his condition as it was in 2009.  Kath and Federated argued that under Hudson v. Trillium Staffing, 896 N.W.2d 536 (Minn. 2017) citing Ryan v. Potlach Corp., 882 N.W.2d 220, 224-25 (Minn. 2016), a petitioner must prove the following to vacate for a substantial change in condition:

  1. A substantial change in medical condition;
  2. That the change was clearly not anticipated; and
  3. That the change could not have reasonably been anticipated.

Further, under the Hudson standard, the Employee must prove that the alleged change in condition is causally related to the claimed workers’ compensation injury before the Court will further analyze the Petition to Vacate.  See Hartzell v. State of Minn., Dep’t of Trial Courts, W.C.C.A. No. WC17-6037 (August 4, 2017) (Employee failed to demonstrate inability to work was causally related to the date of injury and Court did not analyze the other five Fodness factors).

The W.C.C.A. held that the Employee established that his cervical condition had worsened since the time of both the 1999 and 2009 settlements.  The W.C.C.A. noted that he had multiple surgeries since the 1999 settlement and one since the 2009 settlement.  The W.C.C.A. also noted that he had additional permanent partial disability and needed substantial and expensive medical care.  However, the W.C.C.A. concluded that the Employee failed to establish any change in his medical condition that was not clearly anticipated or could not have reasonably been anticipated at the time of either settlement.  As mentioned earlier, the Employee knew that he was going to undergo one cervical fusion surgery after the 1999 Stipulation for Settlement and this surgery was contemplated in the Stipulation for Settlement.  Further, the Employee alleged that he might be permanently and totally disabled depending on the outcome of the surgery in the Stipulation for Settlement.  The Employee did not put fourth any evidence in the form of medical reports or opinions, to prove that the worsening of his neck was not anticipated or could not have been reasonably anticipated after the cervical spine fusion.  He failed to establish that his medical condition was not clearly anticipated and could not reasonably have been anticipated; therefore the W.C.C.A. denied the Employee’s petition to vacate.  The W.C.C.A. did not specifically cite the Hudson case in its decision.  The W.C.C.A. also did not reach the issue of which Stipulation for Settlement was the appropriate Stipulation to evaluate the change of the Employee’s condition upon.