SUE E. BUSKE, Employee/Petitioner, v. STATE, DEP=T OF HUMAN SERVS., SELF-INSURED, and MAYO FOUND., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 5, 2002
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Considering the factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), the employee adequately established good cause to vacate the award on stipulation. In this particular case, consideration of the employee=s post-settlement consequential injuries was necessary to properly evaluate whether a substantial change in condition had been established.
Petition to vacate award granted.
Determined by Wilson, J., Johnson, C.J., and Stofferahn, J.
DEBRA A. WILSON, Judge
The employee petitions to vacate a 1992 award on stipulation based on substantial change in condition. Finding an adequate basis for vacation, we grant the petition.
The employee sustained a significant work-related injury to her left hand and wrist on November 10, 1975, while working for the Minnesota Department of Human Services [the employer]. The employee has had thirteen surgeries to her left hand and wrist since 1975. Her treating doctor for the left hand and wrist has been Dr. William Cooney.
On March 2, 1991, the employee injured her left knee and ribs in an automobile accident after receiving treatment from Dr. Cooney. The knee injury necessitated several surgeries. The employee filed a claim petition as a result of the automobile accident, and, in May of 1992, the parties entered into a stipulation for settlement, wherein the employee agreed to accept $75,000 in full, final, and complete settlement of any and all claims Aarising out of Employee=s accidents of [November] 10, 1975, and March 2, 1991,@ with the exception of claims for ongoing medical care and treatment of the left hand and wrist.
The employee eventually developed right hand pain and soreness. On October 21, 1998, she filed a medical request, seeking, in part, payment of medical expenses incurred in treatment of her right hand and wrist. The employer denied liability. The matter eventually proceeded to hearing before a compensation judge at the Office of Administrative Hearings, and, in findings filed on May 4, 1999, the judge found, in part, that the employee=s claim for a consequential injury to the right hand and wrist was foreclosed by the stipulation for settlement and that the employee did not prove that she had sustained a consequential injury to her right hand and wrist. The employee appealed to this court and also petitioned to vacate the 1992 award on stipulation based on a substantial change in condition.
In a decision filed on November 5, 1999, this court reversed the judge=s determination that the 1992 stipulation for settlement closed out the claimed consequential right hand and wrist injury, vacated the judge=s decision as to the claimed consequential injury, and remanded the matter for reconsideration and additional findings on the issue. This court also denied the petition to vacate at that time, noting that the employee did not discuss the Fodness factors in her petition to vacate and did not include medical records from 1992, or earlier, which would have provided evidence of the employee=s diagnosis at the time of the stipulation for settlement.
The matter went back to the Office of Administrative Hearings, and, in findings and order filed on June 27, 2000, a compensation judge determined that the employee had sustained a Gillette-type injury to her right hand and wrist as a result of overuse and that the overuse had occurred because of the admitted injury to the employee=s left upper extremity. In a decision filed on December 5, 2000, this court affirmed the judge=s findings.
By 1998, the employee had also developed left elbow problems, which were eventually diagnosed as ulnar neuropathy. On November 6, 2000, the employee filed a medical request seeking, in part, payment of medical expenses related to her left elbow condition. The employer denied liability. The matter eventually proceeded to hearing, and, in a findings and order filed on January 18, 2002, a compensation judge found that the left ulnar nerve problem was Acaused by the increased use and twisting of the elbow that was a consequence of the work-related injuries to her left and right upper extremities@ and that the proposed ulnar nerve transposition surgery, the proposed tendon release surgery, and the proposed pain management program were reasonable and necessary to treat the employee=s work-related condition. No appeal was taken from that decision.
On March 26, 2002, the employee again filed a petition to vacate the 1992 award on stipulation, based on a substantial change in condition. The employer objects to the petition.
A number of factors may be considered in determining whether an award should be vacated based on a substantial change in condition, including:
(1) a change in diagnosis;
(2) a change in the employee=s ability to work;
(3) additional permanent partial disability;
(d) necessity of more costly and extensive medical care/nursing services than initially anticipated;
(e) causal relationship between the injury covered by the settlement and the employee=s current worsened condition.
Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).
The employee contends that there has been a change in diagnosis, in that, at the time of the award on stipulation, she had been diagnosed with median and radial nerve injuries to the left hand and wrist, whereas since the settlement she has been diagnosed with chronic regional pain disorder of the right upper extremity and ulnar neuropathy in the left arm. The medical record most contemporaneous with the 1992 award on stipulation is Dr. Cooney=s office note of September 5, 1991, wherein he stated, with regard to the left hand and wrist, A[i]f there is any problem remaining, it is chronic hypersensitivity of the median nerve, that might be improved with some transcutaneous nerve stimulation.@ The employee did not treat with Dr. Cooney again until August 13, 1992. In a letter written on August 19, 1992, Dr. Cooney indicated that the employee had been treated for Achronic pain related to peripheral nerve injuries of her left wrist and hand.@
While there has been no real change in diagnosis of the employee=s left hand and wrist condition since the time of the award on stipulation, she has now been diagnosed as having, in addition, chronic regional pain disorder of the right upper extremity and ulnar neuropathy of the left upper extremity. To the extent that Connell-Wandrick v. Golden Age Health Care Ctr., slip op. (W.C.C.A. Jan. 2, 2001), might be interpreted as holding that consequential injuries not covered by a stipulation are not relevant to the question of whether to vacate the award on stipulation, we are persuaded that Connell-Wandrick should not apply here. In this particular case, at least, it is clearly necessary to consider the whole person in determining whether the employee has sustained a substantial change in condition.
The employee also contends that there has been a change in her ability to work. Specifically, she contends that she was pursuing a degree at the time of the award on stipulation and was able to use her left hand and wrist to do lab work, including the carrying of five-gallon buckets of water, but that she is unable to engage in such activities at this time. The employee further contends that Dr. Cooney has now changed her restrictions such that her left arm may only be used to assist the right arm. The employer responds that, since the employee was not working at the time of the award on stipulation, there has been no change in her ability to work. We find the employee=s arguments on this issue more persuasive.
The employee=s affidavit outlines the ways in which she used her left hand in her school work in 1992, and she alleges that the left hand is now Auseless@ and that her right hand swells up with any repetitive use. The employee also outlined activities that she can no longer do, including keyboarding, driving more than 15 minutes, opening a door with her left hand, and lifting pots and pans, etc. Dr. Cooney testified that in 1992 the employee had grip strength on the left of 36 pounds but that grip strength was only 10 pounds by December of 2001. In addition, Dr. Cooney testified that he now restricts the employee=s use of the left upper extremity to serving as an assisting limb for light, sedentary activities. Dr. Cooney also testified that the employee had no restriction on the use of her right hand and wrist in 1992 but that she is now restricted to light to sedentary work with no repetitive activities.
The affidavit of QRC John Peterson confirms that the employee=s ability to work has changed since 1992. Specifically, Mr. Peterson opined that the employee is presently limited to non-repetitive sedentary work with bilateral hand restrictions and that this represents Aa significant decrease in vocational status from 1992.@ He further indicated that, in 1992, the employee was training for a degree in marine biology but that such work is now precluded because of her physical restrictions.
The employee also maintains that her permanent partial disability has increased. In this regard, she relies on the opinions of Dr. Cooney that she now has a 78% permanent partial disability of the left upper extremity (he had previously rated 48%) and that she has a 20% permanent partial disability of the right upper extremity. While the employer contends that Dr. Cooney=s ratings are Apremature and entirely speculative,@ the employer submitted no evidence to contradict Dr. Cooney=s ratings. Additional permanency has been adequately established for purposes of the current petition.
The employee further contends that she Ais now facing the need for costly pain management treatment and two surgical procedures, neither of which was anticipated in 1992.@ While less emphasis is placed on this factor where, as here, medical expenses have not been closed out by the award on stipulation, Burke v. F&M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996), we note that contemporaneous medical records at the time of the award on stipulation indicate that surgery was not indicated or contemplated in 1992. The employee, however, had a fusion surgery on her left wrist performed in March of 1998.
With regard to the issue of causal relationship, there is no dispute that the employee=s ongoing complaints are causally related to the 1975 injury.
The employer argues that this court should also consider the factor of the contemplation of the parties at the time of the award on stipulation. This court has said, however, that contemplation of the parties is irrelevant with regard to awards on stipulation filed prior to July 1, 1992. Ray v. Ryan Constr. Co., slip op. (W.C.C.A. July 7, 2000).
At oral argument, counsel for the employer contended that there has been Ano change in life circumstances@ since the time of the award on stipulation and that the employee recognized in 1992, as evidenced by express language in the stipulation, that she would eventually be permanently totally disabled. We acknowledge that this is a very close case, but, based on all the evidence submitted in connection with the employee=s petition, we find that the employee has adequately established sufficient cause to vacate the award on stipulation filed on May 14, 1992. The petition to vacate is therefore granted.