Schumacker v. Crenlo, Inc., 102220 MNWC, WC20-6353

Case DateOctober 22, 2020
CourtMinnesota
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...

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