Wendroth v. Madsen & Sons, 071519 MNWC, WC18-6226

Case DateJuly 15, 2019
CourtMinnesota
ARTHUR H. WENDROTH, Employee/ Respondent,
v.
MADSEN & SONS and AUTO-OWNERS INS. GROUP, Employer-Insurer/ Appellants,
and
SPECIAL COMP. FUND.
No. WC18-6226
Minnesota Workers Compensation
Workers’ Compensation Court Of Appeals
July 15, 2019
         SETTLEMENTS – INTERPRETATION. Substantial evidence in the record supports the compensation judge’s finding that a consequential injury was not reasonably contemplated by the parties when they entered into the settlement agreement and that the compensation judge did not err by finding that the employee’s claims related to the consequential injury are not closed out by the earlier settlement.          PERMANENT TOTAL DISABILITY – SUBSTANTIAL EVIDENCE. Substantial evidence, including expert vocational opinion, supports the compensation judge’s finding regarding the onset of the employee’s permanent total disability.          PERMANENT PARTIAL DISABILITY. Under the circumstances of this case, which involved a prior settlement, the employee was entitled to an award of compensation for only that portion of his permanency that is attributable to a consequential condition diagnosed after the settlement. The PPD award is vacated and remanded for reconsideration on the issue of what permanency, if any, is attributable solely to the consequential condition using the law in effect on the date of injury.           Attorneys: James M. Sherburne, Sherburne Law Offices, P.A., St. Louis Park, Minnesota, for the Respondent.           Jason L. Schmickle, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, Minnesota, for the Appellants.           Determined by: Patricia J. Milun, Chief Judge, Gary M. Hall, Judge, Sean M. Quinn, Judge.           Compensation Judge: William J. Marshall          Affirmed in part and vacated and remanded in part.           OPINION           PATRICIA J. MILUN, Chief Judge.          The employer and insurer appeal from the compensation judge’s determination that a 1983 stipulation for settlement closing out the employee’s 1977 work injury on a full, final and complete basis does not bar the employee’s claims for permanent total disability (PTD) and permanent partial disability (PPD) compensation related to a chemical meningitis condition which developed as a consequence of treatment the employee received for that 1977 work injury. They also argue substantial evidence does not support the award of PTD benefits, and further appeal from the specific PPD rating awarded by the compensation judge. We affirm, in part, and vacate and remand, in part, consistent with this opinion.          BACKGROUND          The employee, Arthur Wendroth, is seventy-four years of age. In 1976, he began working as a general laborer for the employer, Madsen & Sons. On September 29, 1977, the employee sustained a work-related injury to his low back and left leg while felling trees to clear a drainage ditch. Following the injury, the employee began conservative treatment which included physical therapy, chiropractic manipulations, and prescription pain medication.          Medical Treatment Following Injury          On December 19, 1977, the employee was evaluated by Dr. Joseph Engel, for low back pain and cramping of his left leg from his buttock to his calf, which had been present since his work-related injury. Dr. Engel diagnosed lumbar radiculitis which he thought was due to recurring disc bulging. Treatment recommendations included physical therapy, a caudal epidural block, and a brace.          The employee was admitted to St. Gabriel’s Hospital on January 9, 1978, following a poor response to outpatient therapy. A Pantopaque myelogram was performed on January 17, 1978.[1] The myelogram was read as consistent with disc herniation at L3 and possibly at L4.          The employee was hospitalized for persistent pain in his low back and down his left leg in August 1978. Straight leg raising was positive and he was diagnosed with chronic back pain with persistent recurring irritation of the left lumbosacral nerve root. The employee reported pain at the back of his neck, left side, and into his arm, severe enough to restrict the turning of his head while resting. Reevaluation by a neurosurgeon was recommended and he was taken off work for six weeks. By December, Dr. Engel had opined that the employee was not yet ready to resume work, and that when he did resume work, restrictions would be necessary.          On January 5, 1979, the employee reported sharp pain from the low back into the left leg, and pain in the ankle and foot with sudden movement or change of position. Dr. Engel noted weakness in the left lower extremity on examination. He recommended conservative care and advised the employee that he might need disc decompression surgery should he experience a progression of his left lower extremity weakness. Six months later, the employee was still limping as a result of pain in his left buttock. He was not performing physical work, though he reported walking up to 5-6 miles a day and swimming three times a week. Dr. Engel had recommended vocational testing and believed the employee would have difficulty returning to hard physical work.          Prior Litigation and 1983 Settlement          Based on a medical report of Dr. Donovan McCain, the employer and insurer filed a notice of intention to discontinue benefits (NOID) in October 1979. Dr. McCain opined that the employee had fully recovered from his 1977 work injury and could return to heavy, sustained manual labor, although he should avoid repetitive bending.          On June 10, 1980, the employee was evaluated by Dr. Robert Wengler, who noted limited range of motion in the back, trigger tenderness at L4-5 in the midline, positive straight leg raising, and reproduction of the employee’s leg pain upon extension. Dr. Wengler diagnosed a possible L4-5 disc prolapse and considered the employee temporarily and totally disabled. He recommended the employee not return to any work that involved driving a truck or doing physical labor. He rated the employee with 25 percent permanency of the spine.          In early 1980, the employee continued to treat with Dr. Engel, who assessed the employee with a lumbar spine strain with probable intervertebral disc injury and nerve root irritation. He stated that the employee was still unable to do heavy lifting or multiple bodily movements as required in his last job, but that he could return to lighter work with limited stooping, an ability to switch back and forth between sitting and standing, and with no climbing or repetitive use of stairs or ladders.          The employee objected to the NOID and a hearing was held before a compensation judge on August 28, 1980. The judge found that the employee sustained an injury to his lumbar spine on September 29, 1977, and was temporarily and totally disabled through August 20, 1980. The judge rated the employee’s PPD of the spine at a minimum of 15 percent and deferred opinion on the full extent of the employee’s permanency. The judge also noted that the employee was in need of further medical treatment, had physical restrictions that prevented a return to his former job, had started a rehabilitation program, was looking for work, and was attending school at the time of the hearing.[2]          Following the 1980 hearing, the employee's condition continued to decline. He testified that by 1983, the pain and weakness in his neck, back, arms, and legs caused difficulties with sleeping, sitting, standing, or walking for extended periods of time. He gave up many duties around his hobby farm.          In August 1983, the parties entered into a full, final and complete settlement of the employee’s workers' compensation claims. The agreement closed out any and all claims relating to the neck and low back injuries of September 29, 1977, including future claims for permanent total disability and permanent partial disability benefits. The stipulation was approved by a compensation judge and an award on stipulation was issued on September 12, 1983.[3]          Following the settlement, the employee did not return to work in any meaningful...

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