BRUNO L. CATES, Petitioner,
v.
SPX SERV. SOLS., f/k/a OWATONNA TOOL CO., and, BROADSPIRE INS. CO., Respondents.
No. WC19-6329
Minnesota Workers Compensation
Workers’ Compensation Court of Appeals
August 5, 2020
VACATION
OF AWARD – REFERRAL FOR HEARING. In view of the
conflicting evidence submitted by the parties, the
employee's petition to vacate an award on stipulation is
referred to the Office of Administrative Hearings for
findings regarding medical causation for the employee's
conditions, the applicable work restrictions and permanency
ratings both now and at the time of the settlement, and
whether the employee is permanently and totally disabled.
Charles M. Cochrane, Cochrane Law Office, P.A., Roseville,
Minnesota, for the Employee.
David
J. Klaiman, Aafedt, Forde, Gray, Monson & Hager, P.A.,
Minneapolis, Minnesota, for the Employer and Insurer.
Determined by: Sean M. Quinn, Judge, Patricia J. Milun, Chief
Judge, David A. Stofferahn, Judge
Referred
to OAH for factual findings.
OPINION
SEAN
M. QUINN, Judge
The
employee filed a petition to vacate a 1999 award on
stipulation, alleging a substantial unanticipated change in
medical condition. As there are disputes of material fact,
the matter is referred to the Office of Administrative
Hearings (OAH) for findings of fact relevant to this
court’s consideration of the petition.
BACKGROUND
The
employee sustained an injury on July 27, 1992, while working
for the employer, Owatonna Tool Company. He was hit in the
chin by a metal rod that was attached to a hammer press. The
force lifted him off his feet and knocked him backward, where
he landed on the occipital area of his head. He lost
consciousness for about 20 minutes. He was taken to the
emergency room and spent two days in the hospital. He injured
his neck, left shoulder, head, chin, and teeth.
Following
the injury, the employee received his primary medical care at
the Owatonna Clinic from August 13, 1992, through February 7,
1994. He also underwent chiropractic care with Dr. Nick
McGregor from July 21, 1994, through September 8, 1998, for
his cervical spine injury.
On
April 28, 1995, Dr. McGregor opined the employee was at
maximum medical improvement (MMI) and rated his permanent
partial disability (PPD) at 10.5 percent, specifically a 7
percent rating under Minn. R. 5223.0070, subp. 2(A)(3)(a),
and a 3.5 percent rating under Minn. R. 5223.0070, subp. 3(A)
(2). These ratings address single-level sprain/strains of the
cervical and thoracic spine, respectively.
After
examining the employee at the request of the employer and
insurer, Dr. David Gotley, a chiropractor, issued a report on
December 18, 1998. He concluded that the employee had normal
range of motion of the cervical spine without spasm, was at
MMI, and had no permanency related to the neck or left
shoulder. He suggested that the employee required no more
than six months of chiropractic care following the injury,
and that the additional chiropractic care provided after that
was not reasonable or necessary. Dr. Gotley suggested the
employee use home exercises learned in physical therapy to
manage his symptoms.
On
January 20, 1999, a compensation judge served and filed an
award on stipulation approving a settlement between the
employee and the employer and insurer. At the time of the
settlement, the employee was alleging entitlement to
temporary total and temporary partial disability benefits, at
least 15.5 percent PPD of the whole body, and entitlement to
chiropractic and dental benefits. There is no evidence in the
record to establish the basis for the 15.5 percent PPD claim.
The employer and insurer asserted that the employee was not
entitled to any wage loss, PPD, or medical benefits as a
result of his injury. The settlement was a full, final and
complete settlement of wage loss benefits. PPD benefits were
settled to 15.5 percent of the whole body. Future medical and
dental benefits remained open, although chiropractic benefits
were closed out. The employee received a lump sum of
$14,000.00 ($11,000.00 after attorney fees).
At the
time of the settlement, the employee was working full-time as
an over-the-road truck driver, although he did not load,
unload, or tie down loads on the truck. He continued to do
this work until 2012.
The
majority of the employee’s care since the late 1990s
has been at the Mayo Clinic. Starting not long after 2000, he
began to have increased cervical spine symptoms, including
symptoms into the thoracic spine. His principal complaints
have been severe debilitating migraine headaches, neck pain,
thoracic pain, and left shoulder pain. He has undergone
epidural steroid injections, facet injections, Botox
injections, physical therapy, acupuncture, and a chronic pain
program, and has been prescribed various pain medications. He
was provided with surgical consultations in 2006, 2008, and
2011 to see if neck surgery might be of some benefit.
Although he was found to have spondylosis, stenosis, and
severe degenerative disk disease, each surgeon recommended
only annual re-evaluation. Throughout the medical records at
the Mayo Clinic, the employee associated his neck pain and
headaches with his 1992 injury.
The
employee underwent a series of facet blocks and
radiofrequency neurotomies at C3-4 and C4-5, on both the left
and the right sides, in November 2011. On May 11, 2012, the
employee underwent an MRI which showed protrusions...
