THOMAS REEL, Employee/Petitioner,
v.
LOFTNESS SPECIALIZED FARM EQUIP, and W. NATL INS. GROUP, Employer-Insurer/Respondents.
No. WC19-6257
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
June 12, 2019
VACATION
OF AWARD - SUBSTANTIAL CHANGE IN MEDICAL CONDITION. Where the
employee has not shown an increase in permanent partial
disability rating, an impairment in work ability, or other
aspect outside of the contemplation of the parties at the
time of settlement, the employee has not met his burden to
have the award on stipulation vacated.
VACATION
OF AWARD - REFERRAL FOR HEARING. Where there is minimal
indication that any facts are in dispute regarding the
employee’s ability to work at the time of the
settlement now sought to be vacated, or any other issue,
there is no basis for referring the matter to the Office of
Administrative Hearings for an evidentiary hearing and
factual findings.
Pro Se
Petitioner.
Ryan
J. Courtney and Abigail A. Lindekugel, Fitch, Johnson, Larson
& Held, P.A., Minneapolis, Minnesota, for the
Respondents.
Determined by: Sean M. Quinn, Judge, Patricia J. Milun, Chief
Judge, David A. Stofferahn, Judge.
Petition
to Vacate Denied.
OPINION
SEAN
M. QUINN, Judge.
Thomas
Reel, the pro se employee, petitions this court to vacate an
award on stipulation served and filed June 14, 2006. He
alleges good cause for his petition, specifically a
substantial change in his medical condition that was not
anticipated and could not have been reasonably anticipated by
the parties at the time of the award. Because the evidence
fails to support the employee’s claims, we deny the
petition.
BACKGROUND
From
November 1996 through September 1998, and again from May 1999
through approximately September 2003, the employee worked for
the employer, Loftness Specialized Farm Equipment. His work
duties involved welding, operating heavy machinery, heavy
lifting, and other activities. In 2000, he started treatment
with various medical providers, complaining of neck pain, arm
numbness, and headaches.
On May
29, 2001, the employee underwent an MRI of the cervical
spine, which showed early disc degeneration at C3-4 without
stenosis, early disc degeneration at C4-5 with some early
canal stenosis, a small disc herniation with stenosis at
C5-6, a small to moderate disc herniation with mild to
moderate stenosis at C6-7, and mild disc degeneration at
C7-T1. On October 23, 2001, the employee met with Dr. John
Mullan of Neurosurgical Associates, who recommended a C6-7
discectomy and fusion which he felt would be most beneficial
to the employee’s symptoms, particularly his right arm
radiculopathy. Because Dr. Mullan advised the employee that
such a fusion would be unlikely to resolve the
employee’s primary complaints of neck pain and
headaches, the employee declined the surgery. Dr. Mullan told
the employee that fusion surgery could actually exacerbate
the neck symptoms by placing stress on additional levels and
that fusion was not the recommended treatment for neck pain
only.
The
employee underwent another MRI of his cervical spine on July
2, 2002. This scan showed degenerative changes from C3
through C7, stenosis at C4-5 and C5-6, and slight neural
foramina impingement at C5-6. Upon reviewing the MRI, Dr.
James Schwartz of Fairmont Orthopedics & Sports Medicine,
opined that due to the many compromised levels without any
significant neural foramina encroachment, the
employee’s condition would be treated non-operatively.
On November 22, 2002, the employee underwent a discogram of
the cervical spine at Medical Advanced Pain Specialists. The
results of the discogram showed the employee had seven out of
ten non-concordant pain at C3-4, five out of ten
non-concordant pain at C4-5, eight out of ten concordant pain
at C5-6, and nine out of ten concordant pain at C6-7.
In July
2003, a compensation judge found that the employee suffered a
Gillette1 injury to his neck culminating on May
18, 2001. This court affirmed. Reel v. Loftness
Specialized Farm Equip., slip op. (W.C.C.A. Feb. 3,
2004). The employee notes that this court’s decision
included the following language, “The employee has
missed little or no work as a result of his condition and
testified that he has continued to perform his usual job for
financial reasons, despite medical advice to find another
line of work to avoid aggravating his neck.”
Id.
The
employee underwent an anterior cervical discectomy and fusion
at C5-6 and C6-7 performed by Dr. Schwartz at Fairmont
Medical Center on October 8, 2003. Following surgery, Dr.
Schwartz released the employee to light duty work. The
employer was not able to accommodate those light duty
restrictions.
On June
16, 2004, a CT of the cervical spine showed that there was a
non-union of the employee’s fusion at C6-7 and that one
of the C6 screws appeared to be loose. The CT also showed
mild to moderate stenosis at C5-6. The employee saw Dr. Brian
Lynn at the Institute for Low Back and Neck Care on July 12,
2004. Dr. Lynn noted degeneration from C3 through C7 and
failed fusion surgery with pseudoarthritis at C6-7. Dr. Lynn
suggested the employee would need additional surgery to
repair the failed fusion. On July 21, 2004, the employee
underwent an EMG study, which showed ulnar neuropathy and
carpal tunnel, as well as chronic right C7 radicular changes.
On August 18, 2004, Dr. Lynn recommended repair of the C6-7
level and possibly the C5-6 level. He advised the employee
that although this surgery was designed to repair the failed
fusion, because many of his radicular symptoms were coming
from cubital tunnel syndrome, this fusion repair would not
affect the discomfort in the employee’s arms.
The
employee underwent revision fusion surgery of C5-6 and C6-7
performed by Dr. Lynn at Abbott Northwestern Hospital on
September 9, 2004. During surgery, the C5-6 disc space was
found to be worse than Dr. Lynn expected, necessitating
re-fusion at that level as well as C6-7.
On
January 17, 2005, Dr. Lynn determined the employee had
reached maximum medical improvement (MMI) from the revision
fusion surgery and that he would be limited to “
moderate” workability.2 He assessed the employee
with a 23...
