Titchenal v. Prairie River Home Care, WCCA No. WC16-6015 (May 18, 2017).
On July 4, 2004, the Employee sustained a work-related injury to her shoulders and neck. The Employer and Insurer admitted liability and paid benefits. A MRI scan showed a C5-6 disc herniation and she subsequently underwent an anterior cervical discectomy and fusion at C5-6 on February 11, 2005. She continued to have pain and received an epidural injection in November 2005. On December 13, 2005, she reached MMI and was given restrictions of lifting up to 50 pounds occasionally and pushing/pulling up to 50 pounds.
A $10,000 full, final, and complete settlement with future medical treatment left open was agreed on March 22, 2006. The Employee was rated at an 11.5% PPD. By May 2008, she was complaining of neck and shoulder pain and physical therapy was recommended. By January 2011, she had worsening symptoms and could not return to work for a period of time. A MRI scan showed forminal stenosis. On May 2, 2011, the employee underwent a C6-7 anterior cervical discectomy with anterior interbody arthrodesis and fixation with hardware. The old hardware was removed. The Employer and Insurer’s IME doctor opined this surgery was reasonable, necessary, and related to her work injury. The Employee returned to work part time, but was still experiencing pain. By March 2012, her permanent restrictions included working four hours per day at own pace, up to three breaks an hour, and no lifting over 10 pounds. She eventually was unable to work since August 2012 and never returned to work.
On May 15, 2015, the Employee underwent a posterior spinal fusion surgery from C4 to T2 levels and bilateral C7-T1 foraminotomies. The Employer and Insurer’s IME doctor opined that the surgery was reasonable, necessary, and causally related. The Employee was rated at a 39.5% PPD. The Employee filed a Petition to Vacate the 2006 Award on Stipulation based on a substantial change in medical condition.
The WCCA noted that an Award on Stipulation can be set aside upon a showing of cause, which entails “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 Court noted the Fodness factors and then analyzed each in turn:
- Change In Diagnosis
Additional surgeries may be considered in determining whether there has been a change in diagnosis. The Employee had undergone two additional surgeries and the increased level of involvement to five levels of her spine showed a change in diagnosis.
- Change In Ability To Work
The Employee being assigned increased restrictions and then not being able to work since August 2012 established a change in her ability to work.
- Additional permanent partial disability
The Employee’s increase from 11.5% PPD to 39.5% PPD was evidence that she was entitled to additional PPD.
- Need for more costly and extensive medical care
Even where medical expenses remain open, however, the need for additional medical care remains useful evidence on whether there has been a substantial change in the Employee’s condition. At the time of the 2006 settlement, approximately $47,000 in medical expenses had been paid. Since the settlement, $165,000 had been paid. This was a showing that the future medical treatment was more extensive than the parties anticipated and the Employee satisfied this factor.
- Causal relationship
The parties did not dispute this factor.
- Contemplation of the parties
Even though the Employee signed the Stipulation indicating she understood her condition could change and become substantially worse and left future medical treatment open, the WCCA concluded that the parties did not anticipate the extent of the Employee’s post-settlement surgical treatment.
The Petition to Vacate the Award on Stipulation was granted.