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...