GARY SCHUMACKER, Employee/Petitioner,
v.
CRENLO, INC. And LIBERTY MUT. INS. CO., Employer-Insurer/ Respondents.
No. WC20-6353
Minnesota Workers Compensation
Workers’ Compensation Court of Appeals
October 22, 2020
VACATION
OF AWARD – SUBSTANTIAL CHANGE IN CONDITION. The
employee established good cause to vacate the award on
stipulation where his circumstances satisfied all factors
outlined in Fodness v. Standard Café, 41
W.C.D. 1054 (W.C.C.A. 1989), and where the change in his
medical condition was not and could not reasonably have been
anticipated at the time of settlement.
Charles A. Bird, Bird, Johnson & Stevens, P.C.,
Rochester, Minnesota, for the Petitioner.
Heather Rheingans, Law Offices of John C. Syverson, Golden
Valley, Minnesota, for the Respondents.
Determined by: Sean M. Quinn, Judge, Patricia J. Milun, Chief
Judge, Deborah K. Sundquist, Judge
OPINION
SEAN
M. QUINN, Judge
The
employee petitions this court to vacate an Award on
Stipulation filed on July 7, 2005, alleging good cause on the
basis of a substantial change in medical condition. We grant
the petition.
BACKGROUND
The
employee, Gary Schumacker, was born on November 19, 1964. He
has a GED and an accounting certificate, though he never
worked in bookkeeping or accounting. Instead, the
employee’s work has been in physically demanding jobs.
Prior
to the work injury at issue, the employee’s prior
medical history is significant for his long-term cigarette
smoking, a diabetic condition that has not been
well-controlled, and multiple motor vehicle accidents,
including one in which he was struck as a pedestrian by a
garbage truck in 2000.
On
August 21, 2001, the employee slipped while engaged in work
activities for the employer, Crenlo Inc., and suffered an
injury to his low back. This injury was ultimately admitted
by the employer.
After
no success with initial conservative treatment for his low
back pain in the months following the work injury, the
employee began treating primarily with Dr. Paul Huddleston of
the Mayo Clinic on June 17, 2002. Due to ongoing symptoms,
the employee underwent an anterior/posterior L4-S1 discectomy
and fusion with instrumentation performed by Dr. Huddleston
on October 2, 2002. The employee reported a good recovery
from the surgery with little to no pain. On December 19,
2002, the employee reported having returned to work as a taxi
driver, working five days a week in 10- to 12-hour shifts. He
also reported that he had resumed smoking.
At his
attorney’s request, the employee was examined by Dr.
E.W. Johnson, Jr., on May 6, 2003. Dr. Johnson reviewed x-ray
scans and noted the solid fusion from L4 through S1 and early
degenerative changes at T11 and T12. Dr. Johnson recommended
against lifting or long periods of standing. Dr. Johnson
rated the employee with a 25 percent partial permanent
impairment under the AMA guidelines, attributing 80 percent
responsibility to the August 2001 work injury. Dr. Johnson
also discussed future risks, stating that the employee could
have “damage in the remaining lumbar intervertebral
spaces due to increased length of the distal lever arm of the
lumbar spine.” (Ex. B.) He believed that the employee
“will, in the future, face further low back problems
not now describable.” Id. Nevertheless, Dr.
Johnson did not anticipate that the employee would need
further medical care.
On
October 2, 2003, the employee returned to Dr. Huddleston for
a one-year post-operative visit. The employee was driving a
taxi and doing extremely well, with only occasional low back
pain. He later reported to his doctors that he had recently
started a handyman business.
At the
request of the employer and insurer, the employee was
examined by Dr. Richard Hadley on November 5, 2003. Dr.
Hadley diagnosed the employee with degenerative disc disease
and an anterior/ posterior fusion. Dr. Hadley opined that the
August 2001 work injury resulted in a permanent aggravation
requiring the two-level fusion. He also assigned the employee
with a 20 percent permanent partial disability (PPD) rating
under Minn. R. 5223.0390, subp. 3C(2) and subp. 5B, and gave
the employee work restrictions of lifting no more than 20
pounds, no carrying, moving, or pushing heavy objects, and no
repetitive bending and twisting. Dr. Hadley, like Dr.
Johnson, stated that the next mobile segment of the
employee’s lumbar spine was subject to increased stress
because of the two-level fusion, and therefore, there was an
increased likelihood of subsequent degeneration. Dr. Hadley
anticipated no further medical care.[1]
On
April 12, 2004, the employee reported to his doctors that he
was working full-time as a taxi driver without restrictions
and without taking medications. He felt complete relief
unless he did repetitive lifting of more than 50 pounds.
On
October 8, 2004, the employee returned to Dr. Huddleston for
a two-year post-operative visit. The employee reported having
very little low back pain and using no pain medications. Dr.
Huddleston noted that the fusion was solid, and that the
employee would require a lifelong 40- to 45-pound restriction
of lifting, pushing, and pulling, with no repetitive bending,
lifting, and twisting. Medical records from late 2004 and
into 2005, however, indicate a few exacerbations of low back
pain.
In the
summer of 2005, the parties negotiated a settlement of the
employee’s indemnity claims on a full, final, and
complete basis in exchange for a lump sum of $55,000.00, less
$3,000.00 in attorney fees, to the employee. Under the
agreement, select medical benefits were left open and an
Award on Stipulation was issued on July 7, 2005.
Just
over a month after the settlement was finalized, on August
17, 2005, the employee reported an exacerbation of his low
back pain. He reported another exacerbation in November 2005.
The
employee returned to Dr. Huddleston on December 9, 2005. An
MRI showed solid fusion from L4-S1 and minimal bulging at
L3-4. Dr. Huddleston noted early degenerative changes at
T12-L1, as well as facet arthritis. He recommended against
any surgery and suggested that the employee may benefit from
facet injections and chronic pain management.
On July
27, 2006, the employee underwent L2-3 and L3-4 facet
injections, from which he reported some relief. On August 10,
2006, the employee returned to Dr. Huddleston, who
recommended stricter activity limitations, medial branch
blocks, a radiofrequency neurotomy, and a pain clinic. The
employee underwent diagnostic medial branch blocks on
September 25, 2006. The employee reported...