WILLIAM A. NATION, Employee/Petitioner, v. V.G.B. GREETING CARDS and MINNESOTA WORKERS' COMP. ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 19, 2002
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where there was no medical basis on which to compare the employee=s condition on the date of the petition with his condition on the date of the mediation award and so no basis for the court=s application of the factors outlined in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), and where there remained a significant dispute regarding causation of the employee=s current worsened condition, no doctor having opined that the employee=s alleged work injury was a substantial contributing cause of that condition and its consequences, the court denied the employee=s petition to set aside the mediation award at issue.
Petition to vacate award denied.
Determined by Pederson, J., Rykken, J., and Wilson, J.
WILLIAM R. PEDERSON, Judge
The employee petitions this court to set aside a mediation award served and filed November 12, 1991, on grounds that his medical condition has substantially changed since the issuance of the award. We deny the petition.
On December 8, 1990, William Nation [the employee] was employed as a sales representative by V.G.B. Greeting Cards [the employer]. On that date, the employee alleged that he injured his low back in the course of his employment. The employee contended that, about five hours after unloading a trailer, he experienced a sudden and sharp pain in his low back near his waistline. The employer and its insurer denied liability for the claimed injury.
Two days later, on December 10, 1990, the employee apparently received treatment from chiropractor Dr. Joel Janssen. On December 17, 1990, the employee was admitted to the hospital because of severe low back pain. Treatment at that time included pelvic traction, hot packs, muscle relaxants, and physical therapy. When discharged on December 20, 1990, the employee was able to walk with minimal symptoms, but he was asked to continue his physical therapy as an outpatient and to continue his prescriptions of Flexeril and ibuprofen.
On January 30, 1991, the employee was seen in consultation by Dr. Jitu Kothari, who found Ano objective neurological findings@ and recommended flexion exercises. The employee was released to return to work with a back brace on February 4, 1991, but he was apparently discharged by the employer a week later, on February 11, 1991. About six months after his discharge, the employee obtained employment with another greeting card company, Heritage Greetings, evidently remaining with this company until about June of 1994.
On October 10, 1991, the employee, a representative from the insurer, and a staff member of the Department of Labor and Industry participated in a mediation session. As a result of the mediation session, the insurer agreed to pay the employee=s outstanding medical bills and to pay for future medical expenses related to the employee=s alleged injury in an amount not to exceed $1,500.00. The insurer also agreed to pay to the employee a lump sum of $1,500.00 in full, final, and complete settlement of all claims for workers= compensation benefits related to the alleged injury of December 8, 1990. The employer and insurer maintained their denial of primary liability and reserved all rights and defenses. A mediation award incorporating the agreement of the parties was issued on November 12, 1991.
On February 14, 1992, the employee was seen in neurosurgical consultation by Dr. HoSung Chung. The employee reported increasing low back pain and numbness on the anterior aspect of both thighs associated with daily activities such as driving a car and prolonged sitting. According to Dr. Chung=s report of that date, the employee had undergone an MRI of the lumbar spine on February 5, 1992, which revealed a midline disc herniation at L4-5. Dr. Chung diagnosed low back pain without neurological deficit and recommended continued conservative treatment, although a surgical option was discussed.
On January 23, 1996, the employee was examined by Dr. Patrick Sterrett. Dr. Sterrett noted that the employee had had low back pain since 1990 and that, although he complained of worsening radicular pain, Athe position of his radicular pain is mostly in L2 which doesn=t fit his herniated disk which is at L4-L5.@ Because the employee had no neurological deficit, Dr. Sterrett recommended that the employee try epidural steroid injections and that, if he obtained no relief by them, a surgical opinion be obtained.
In a decision issued by an administrative law judge on April 25, 1996, the employee was found eligible for social security disability insurance benefits as of June 30, 1994.
On February 11, 1997, the employee was examined by Dr. David Field. Dr. Field noted that the employee complained of low back pain and occasional numbness across the left iliac crest after sitting for awhile, but no constant degree of any significant leg pain. The doctor concluded that the employee had a large central disc herniation at the L4-5 level with no radicular symptoms and no neurological problems overall. He concluded that a conservative treatment program would be reasonable, but he also discussed surgical options with the employee. The doctor stated that they did Anot certainly push for any surgical intervention at this time and he will get back to us if he has any further change in symptoms or would like to discuss this further.@
On August 5, 2002, the employee filed a petition to set aside his mediation award, alleging a substantial change in his medical condition since the 1991 settlement. The employer and insurer object to the petition.
This court may set aside an award on stipulation Afor cause,@ pursuant to Minn. Stat. ' 176.461 and Minn. Stat. ' 176.521, subd. 3. Our authority to vacate an award is governed by statutory provisions in effect at the time of the stipulation at issue. See Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993). Under statutory provisions applicable in the present case, good Acause@ to vacate the award at issue includes a substantial change in condition. See Krebsbach v. Lake Lillian Coop Creamery Ass=n, 350 N.W.2d 349, 36 W.C.D. 796 (Minn. 1984). Where a change in condition is alleged, the focus of this court=s inquiry is on whether there has been a substantial or significant change and whether there is adequate evidence of a causal relationship between that change and the work injury, based on a comparison between the employee=s condition at the time of the petition and the employee=s condition at the time of settlement. See Franke, 509 N.W.2d at 376-77, 49 W.C.D. at 525. This court has delineated a number of factors that may be considered in determining whether a substantial change in condition has occurred. These factors include the following: a change in diagnosis; a change in the employee=s ability to work; an increase in permanent partial disability; the necessity of more costly and extensive medical care or nursing services than was initially anticipated; the causal relationship between the injury covered by the settlement and the employee=s current worsened condition; and the contemplation of the parties at the time of settlement. Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).
The employee in this case alleges that, following his injury of December 8, 1990, and at all times up through the date of the mediation session on October 10, 1991, he was informed by his treating physicians and believed that he had a low back strain that would gradually resolve. He now contends, however, that he has a large herniated disc with restrictions so significant that he has been found eligible for social security disability benefits. He contends that he was working at the time of the mediation but has not been able to work in any substantial gainful employment since 1994. He contends further that his large herniated disc would support a finding of permanent partial disability, that he is contemplating a surgical procedure that will have a cost far in excess of the dollars provided in the mediation award, and that there is no dispute that his worsened condition is causally related to the claimed work injury. Although the employee has presented evidence of a history of chronic low back pain, we are not persuaded, on the record submitted, that the employee has shown good Acause@ to vacate the award.
First of all, on the record submitted, we have no basis on which to compare the employee=s condition on the date of the petition, August 5, 2002, with his condition on the date of the settlement, November 12, 1991. The most recent medical record attached to the employee=s petition is Dr. Field=s report of February 11, 1997. The employee has submitted no medical basis for this court=s application of the Fodness factors.
Secondly, ongoing causation is an essential factor under Fodness, and, contrary to the employee=s assertion, there is a significant dispute regarding causation in this case. In their objection to the employee=s petition, the employer and insurer assert that the employee=s symptoms had already resolved by the time he entered into the mediation agreement. In his affidavit, which accompanies his petition, the employee asserts that his low back condition did not interfere with his ability to perform his work as a greeting card salesman during August, September, and October of 1991. He states that during that time he experienced only mild low back pain, no symptoms in either leg, and no swelling in his back. Although the employee has presented a history to his doctors of low back pain since 1990, no doctor has expressed an opinion that the employee=s alleged work injury in 1990 is a substantial cause of the employee=s current diagnosis, inability to work, or need for medical treatment.
On the basis of the records submitted, we cannot conclude that there has been a substantial deterioration or change in the employee=s condition since the award here at issue or that, even if a change has occurred, there exists a causal relationship between the alleged injury at work and the current worsened condition. Concluding that the employee has failed to present evidence of good cause to vacate his award on settlement, we deny the petition.