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Monson v. White Bear Mitsubishi

June 12, 2003


Workers' Compensation Court of Appeals


Newly discovered evidence and mutual mistake of fact warrant reopening a stipulated settlement.

Reversed and remanded.

The opinion of the court was delivered by: Gilbert, Justice.

Considered and decided by the court en banc without oral argument.


The Workers' Compensation Court of Appeals denied a petition to vacate an award on settlement agreement. We reverse and remand.

On March 28, 1991, William Monson sustained a work-related low back injury while working for White Bear Mitsubishi as an auto technician. Monson was 31 years old and earning a weekly wage of $595.95 on the date of injury. White Bear Mitsubishi and its workers' compensation liability insurer, Western National Insurance Company, admitted liability and paid workers' compensation benefits.

After conservative measures failed to alleviate Monson's low back symptoms, on November 21, 1994, Monson underwent anterior lumbar interbody fusion surgery with BAK cages at the L4-5 and L5-S1. That surgery failed and on June 19, 1995, Monson underwent facet fusion and augmentation surgery. His surgeon, Dr. John Dowdle, said "[t]he 5-1 level was fused solid and there was minimal or no motion that took place at the 4-5 level. There was a mild amount of motion with distraction."

Following the second surgery, when X-rays indicated "healing fusion at the 4-5álevel," Dr. Dowdle released Monson to work with restrictions. Through rehabilitation efforts, on January 2, 1996, Monson started working for Kline Auto World (Kline) as an auto service writer.*fn1 When Monson's low back symptoms persisted, Dr.áDowdle ordered an MRI, the results of which were read as indicating that the "implants [were] in good position[;]" that there was "bridging bone anteriorly[;]" and "good bridging bone across the facet joint also." Monson was also referred to neurologist Dr. Thomas McPartlin who ordered an EMG, the results of which indicated "denervation of paraspinal muscles from the previous surgery" in 1994 but "no evidence of a radiculopathy."

Monson's back-related symptoms persisted. Dr. Dowdle restricted Monson from working and started him on a regular walking program. When additional diagnostic studies indicated "no substantial significant nerve root compression," Dr. Dowdle referred Monson to the Pain Management Program at United Hospital. Monson participated in United's Pain Management Program, under the direction of Dr. Todd Hess, from Julyá8, 1996 through August 9, 1996. At the end of the program, Dr. Hess noted that Monson described improvement in his outlook but continued to suffer fairly significant and limiting pain. Dr. Hess recommended continued psychotherapy and acupressure.

In a follow-up exam with Dr. Hess on January 2, 1997, Monson said that he was not improving; and on February 12, 1997, Monson told Dr. Hess that there had been "no improvement whatsoever" and that there was "absolutely no way" he could return to work. They discussed work-related and pain-related issues at length. Dr. Hess, believing that a return to work would be in Monson's best interest, asked Monson to reassess his "adamancy" about his total disability; and on March 14, 1997, the doctor released Monson to return to work with restrictions. The doctor also recommended continued counseling and pool therapy.

Monson returned to work as a booker, and later as a dispatcher with Kline. In follow-up visits with Dr. Hess in 1997 and 1998, Monson continued to report back pain; and Dr. Hess continued Monson on a pain regimen of medication, pool therapy and exercise. On September 15, 1998, Dr. Dowdle issued a report stating that Monson was seen in follow-up, that Monson was working fulltime, and that Monson was "tolerating it reasonably well." The report further stated that Monson was at maximum medical improvement and rated his permanent partial disability at 22.5 percent for a two-level fusion pursuant to Minn. R. 5223.0070, subp. 1.D. (1991).

On November 30, 1998, Monson's vocational consultant (VC) reported that he had contacted Monson to review his medical status and return-to-work situation. Monson told the VC that he had experienced an increase in low back and leg symptoms but was unsure why that had happened. Monson and his VC also discussed transferring Monson's pain management care from Dr. Hess to Monson's ...

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