Swanson v. Kath Fuel Oil Serv., 011019 MNWC, WC18-6154

Docket Nº:WC18-6154
Case Date:January 10, 2019
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...

To continue reading