BRADLEY H. SWANSON, Petitioner,
v.
KATH FUEL OIL SERV. and FEDERATED INS. CO., Respondents.
No. WC18-6154
Minnesota Workers Compensation
Workers’ Compensation Court of Appeals
January 10, 2019
VACATION
OF AWARD. Where there is no showing that the employee’s
worsening of his medical condition was clearly not
anticipated and could not reasonably have been anticipated,
his petition to vacate is denied.
David
W. Blaeser, Woodbury, Minnesota, for the 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, David A. Stofferahn,
Judge, Deborah K. Sundquist, Judge
Petition
to vacate denied.
OPINION
SEAN
M. QUINN, JUDGE.
The
employee petitions this court to vacate two awards on
stipulation related to a 1997 work injury to his neck.
Because the employee has failed to present enough evidence to
show a clearly unanticipated worsening of his medical
condition, we deny the petition.
BACKGROUND
On
October 16, 1991, the employee, Bradley Swanson, injured his
low back while working for Cenex Farmers Union (Cenex). On
February 13, 1997, the employee injured his neck while
working for Kath Fuel Oil Service (Kath).
On
April 23, 1997, the employee first saw Dr. Paul Chlebeck for
his neck injury. Dr. Chlebeck diagnosed the employee with
neck and shoulder pain consistent with cervical radiculopathy
secondary to the work injury. On May 21, 1997, the employee
saw Dr. Richard Foreman. Dr. Foreman diagnosed left cervical
radiculopathy likely emanating from C7 or C6. The employee
continued to treat with Dr. Chlebeck over the next two years,
receiving conservative care and undergoing diagnostic tests
such as an EMG and an MRI.
On
September 29, 1999, the employee saw Dr. Daniel Tynan. The
employee expressed frustration that conservative care was not
helping him and that he wished to pursue surgery. Dr. Tynan
recommended a C5-6 cervical fusion to treat what he diagnosed
as intractable debilitating neck and left arm pain, a C5-6
disc herniation, and degenerative disc disease of the
cervical spine.
After
receiving this surgical recommendation, but before undergoing
the surgery, the employee settled his case. On November 17,
1999, an award approving a stipulation between the employee
and Kath regarding the 1997 neck injury was filed. The
stipulation called for a $50,000 lump sum payable to the
employee, $40,000 after attorney fees, in exchange for a
full, final, and complete settlement of all workers’
compensation benefits except medical expenses causally
related to his neck injury. Kath and its insurer agreed to
pay for the surgery recommended by Dr. Tynan. In the
stipulation, the employee contended he might be permanently
and totally disabled depending on the outcome of the proposed
surgery.
On
November 27, 1999, the employee underwent a C5-6 anterior
cervical fusion with anterior plating, performed by Dr.
Tynan. Less than a year later, on November 7, 2000, the
employee saw Dr. Chlebeck with worsening neck and left arm
pain. Dr. Chlebeck diagnosed chronic neck and left arm pain
secondary to the 1997 work injury.
On July
8, 2005, the employee treated with Dr. Richard Foreman, who
assessed a solid C5-6 fusion from the 1999 surgery, a small
disc protrusion at C4-5, and trace decrease of the left bicep
reflex consistent with the old C6 radiculopathy. On August
10, 2005, the employee reported to Dr. Lon Lutz with severe
intractable neck and shoulder pain...
