WILLIAM MONSON, Employee/Petitioner, v. WHITE BEAR MITSUBISHI and WESTERN NAT=L INS. CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 9, 2003
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the employee=s diagnosis at the time of his award on settlement did not expressly address whether or not his spinal fusion was solid, where his diagnosis at the time of his petition to vacate, subsequent to a repair of that fusion, was little different from his diagnosis at the time of his settlement, and, especially, where it was not evident that the necessity of a repeat fusion could not reasonably have been anticipated at the time of the award on settlement, the employee did not show good cause to vacate his award on settlement on grounds that there had been a substantial change in his medical condition, notwithstanding the fact that he had been working full time at the time of the award and was not working at the time of his petition.
VACATION OF AWARD - MISTAKE. Where the employer and insurer did not concede that they were unaware of the possibility that the employee=s spinal fusion might not have been solid at the time of the settlement, and where it was evident to both parties at the time of that settlement that the employee had not had a successful result from his previous spinal fusion, the employee did not show good cause to vacate his award on settlement on grounds that there had been a mutual mistake of fact.
VACATION OF AWARD - NEWLY DISCOVERED EVIDENCE. Where neither the doctor=s report on which the employee based his petition nor the x-rays upon which that report was based were in existence at the time of the award on stipulation, the employee did not show good cause to vacate his award on stipulation on grounds that there was newly discovered evidence bearing on the dispute, notwithstanding the fact that the failure of the spinal fusion identified in the doctor=s report may have existed already at the time of the award on settlement.
Petition to vacate denied.
Determined by Pederson, J., Johnson, C.J., and Stofferahn, J.
WILLIAM R. PEDERSON, Judge
The employee petitions to vacate an Award on Stipulation served and filed December 15, 1998, on grounds of mutual mistake of fact, substantial change in medical condition, and newly discovered evidence. After review of the entire record, we conclude that the employee has failed to establish cause sufficient to set aside the Award, and, accordingly, deny the petition to vacate.
On March 28, 1991, William Monson [the employee] sustained an admitted injury to his lower back while working for White Bear Mitsubishi [the employer] as an auto technician. On that date, the employee was thirty-one years old and earning a weekly wage of $595.95. The employee was able to perform the regular duties of this job until August 5, 1991, when he was taken off work for about four weeks. This period of total disability was followed by ten weeks of modified duties at reduced hours.
Several years of conservative treatment failed to relieve the employee=s pain, and, on November 21, 1994, Dr. John Dowdle performed an anterior lumbar interbody fusion with instrumentation at L4-5 and L5-S1, using a BAK device. Following this surgery, the employee complained of persistent low back pain and was noted to have residual movement at the L4-5 level. Consequently, on June 19, 1995, Dr. Dowdle explored the employee=s fusion and placed a facet screw and a facet bone graft at the L4-5 level. Dr. Dowdle=s operative report indicated that A[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.@
The employee began receiving rehabilitation assistance from QRC Michael Hill in October 1995. Mr. Hill developed a rehabilitation plan calling for a job search to secure sedentary full-time employment within restrictions determined by Dr. Dowdle. Dr. Dowdle completed a functional capacities evaluation form on October 17, 1995, and released the employee to light duty. The doctor noted on that date that the employee=s x-rays looked good and that there appeared to be a healing fusion at the 4-5 level.
On January 2, 1996, the employee began working as a service writer at Kline Nissan-Volvo [Kline] under an on-the-job training plan prepared by his QRC. The employee returned to see Dr. Dowdle on February 12, 1996, with complaints that he was having difficulty sleeping and continuing with his activities. Dr. Dowdle noted that the service writing job was not very physical but that the employee was experiencing difficulty, especially with walking. Dr. Dowdle indicated at that time that he was ordering an MRI scan, to see if it revealed any new or different diagnosis relative to the employee=s lower back. The scan was evidently conducted the following day.
On March 26, 1996, the employee was seen in consultation by neurologist Dr. Thomas McPartlin, on referral from Dr. Dowdle. Dr. McPartlin obtained a history of the employee=s 1994 fusion surgery and evidently reviewed the February 13, 1996, lumbar MRI scan. He concluded that the scan did not reveal any herniated disc or nerve root impingement. The employee complained to Dr. McPartlin that he had sharp and burning pain that radiated down both legs, left worse than right, that coughing or sneezing made that pain so severe that it would drop him to his knees, and that sitting or standing too long or twisting and bending aggravated his symptoms. Dr. McPartlin diagnosed S1 radiculopathy, status post-lumbar fusion, and low back pain. He recommended an EMG of the left lower extremity to rule out new or chronic S1 radiculopathy, and he gave the employee a prescription for a Medrol Dosepak. When he returned to Dr. McPartlin on April 8, 1996, the employee reported that his left leg pain had returned to the previous level one day after completion of his Dosepak. The doctor noted that the employee=s EMG had not shown any particular evidence of radiculopathy but had shown denervation of the paraspinal muscles from the previous surgery in November 1994. He recommended an epidural steroid injection at L4-5, and he restricted employee from working.
On April 29, 1996, the employee returned to see Dr. Dowdle, who noted that, following his epidural injection, the employee=s leg pain had improved but his back pain had worsened. The doctor also noted that the employee=s films showed that the implants were in good position. He stated that there was bridging bone anteriorly and that it also looked as though there was good bridging bone across the facet joint. Dr. Dowdle examined the employee again on June 6, 1996, evidently following a myelogram and post-myelogram CT scan. He noted that these tests had shown that the employee had no substantial significant nerve root compression. The doctor recommended an active exercise program and referred the employee to the Pain Management Program at United Hospital.
The employee was seen by Dr. Todd Hess at the United Pain Center on June 17, 1996. His chief complaint at that time was shooting pain down the back of his left leg, which caused him to fall if he did not use his cane. He indicated that his pain would be increased by activity, that he had difficulty sleeping, and that he was unable to walk more than a block without increasing his pain. Dr. Hess=s assessment at that time was that (1) the employee was status post-work-related injury now with chronic low back and left lower extremity pain, (2) the employee=s surgical procedures, including BAK and facet screw placement appeared to be in good position, (3) the employee had failed in conservative therapies, including physical therapy, and (4) the employee had a chronic pain syndrome with possible failed low back syndrome. He concluded that the employee was a candidate for the chronic pain program.
The employee participated in the United Pain Center=s chronic pain program from July 8, 1996, through August 9, 1996. In follow-up on September 13, 1996, Dr. Hess noted that the employee described improvement in his outlook and that there may have been a slight decrease in his pain but that he still continued to suffer fairly significant and limiting pain. At that time, Dr. Hess prescribed continuing psychotherapy sessions and acupressure, and shortly thereafter he prescribed MS Contin for the employee=s pain.
On January 2, 1997, the employee advised Dr. Hess that he was actually not improving at all, and on February 12, 1997, he stated that there had been Ano improvement whatsoever.@ Dr. Hess decided to wean the employee from the MS Contin and begin long-term use of Baclofen. At the February 12, 1997, visit, Dr. Hess recorded that AWilliam states there is absolutely no way he feels he can go back to work.@
About a month later, on March 14, 1997, Dr. Hess released the employee to return to work with restrictions, and on April 14, 1997, the employee returned to work as a booker/dispatcher with Kline. On August 15, 1997, the employee returned to the United Pain Center and reported that his pain was about the same. He stated that Anothing seems to help. I have just learned to live with it.@ At that time, the employee was working eight hours a day, primarily at a computer and doing phone work. He indicated that the Baclofen had stopped his right leg from Agiving out@ and that he was no longer falling down. On November 14, 1997, however, he returned to the Pain Center, stating, AMy back is still killing me.@ Despite his pain, however, the employee continued working, and he was satisfied with the medication he was taking.
The employee returned to see Dr. Hess on March 10, 1998, reporting that his pain continued and that there really were no changes. Dr. Hess recorded that on exam the employee appeared to be in moderate distress due to back pain, that he walked hunched over and with a guarded gait, but that there appeared to be no foot drop. The assessment at that time included chronic low back pain status post fusion, a continued radicular component in the left lower extremity, sustained clonus and hypereflexia, and right leg spasticity and giving out diminished with Baclofen.
On March 25, 1998, the employee addressed a letter to his QRC, the insurer, and his attorney relative to Dr. Hess=s most recent report. In that letter, the employee stated as follows:
The second paragraph suggests my pain is gone in the evening. ABSOLUTELY NOT. I stated that I am in constant pain. My pain is very bad in the morning and as the day progresses I loosen up. Usually around 10:00 am my lower back pain begins to increase again. I frequently need to sit and stretch to lessen lower back pain so that I can try to concentrate on my work. By the time I get home my pain level is very high. I am never comfortable, I am always in pain, I don=t remember what comfortable is.
Paragraph 3 states that I am walking with a guarded gait. This is due to the amount of pain caused every time I lift either leg to take a step. In the assessment it states recent weight gain. I am working hard to control my diet and to control my weight. The weight gain has been gradual since the fusion surgery and is due in part to my difficulty in movement. The new medication supplied by Dr. Hess did not help my pain level at all. I have used up all the trial packets without any improvement.
The letter also states that my foot drop symptoms are gone. This is not true. If I had been asked this question I would have stated that it was not gone. These symptoms continue to create walking difficulty. I occasionally trip over the edge of floor mats at work when my right foot does not lift high enough to clear the edge of them. Drop foot symptoms become progressively worse the longer I am on my feet.
I need to make it clear to all persons involved in my case that working eight hours a day is very hard for me. I am continuing to work because I need to be around other people to keep myself mentally straight. It is very easy to get depressed with the amount of pain that I am in and I think that working helps. The psychological treatment has helped me with my anger management, but it still flares when my pain level gets higher.
I have severe pain when first lying down at night. It usually takes me two hours to fall asleep each night. Some nights can be better and some nights are much worse for pain and sleep.
In a brief report issued September 15, 1998, Dr. Dowdle stated that the employee was at maximum medical improvement, and he rated the employee=s permanent impairment for a two-level fusion at 22.5% of the body as a whole.
On November 30, 1998, the employee=s QRC reported that he had recently contacted the employee to review his medical status and his return-to-work prospects. The employee had stated that he had experienced an increase in his low back and leg symptoms and was unsure as to why this had occurred. The employee and the QRC had also discussed transferring the employee=s care from Dr. Hess to the employee=s family physician, so that medications could be dispensed by the family physician and the employee would not need to take time off from work to meet with Dr. Hess.
On December 14, 1998, the parties entered into a stipulation for settlement in which all claims arising out of the employee=s injury of March 28, 1991, were settled, except for future medical care and treatment. Under the terms of the stipulation, the employee was paid a lump sum of $112,500.00. The agreement also provided that the sum of $13,000.00, previously withheld by the insurer, would be released to the employee=s attorney in satisfaction of his claim for fees. An Award on Stipulation was issued by a compensation judge on December 15, 1998.
About a month after the Award on Stipulation, on January 13, 1999, the employee was seen in follow-up by Dr. Hess. On that date, the employee reported that the winter had been difficult for him but that he had continued to work with the pain. On examination, Dr. Hess noted that the employee=s pain remained significant in the area of the fusion, with palpable tenderness in the paraspinous muscles from approximately L3 to S1. He noted that the employee had an antalgic gait and foot drop on the right, and he continued the employee=s medications and planned to check him again in three months.
On about February 1, 1999, the employee was apparently terminated from his position with Kline. About this same time, the employee began to experience an increase in his back pain. On March 27, 1999, the employee was admitted to United Hospital with an acute exacerbation of his low back and right hip pain. During that hospitalization, the employee received therapeutic injections as well as multiple diagnostic exams. A bone scan performed on April 1, 1999, was read to have shown some increased uptake in the right side at the L4-5 and L5-S1 levels, suggesting instability. The radiologist also noted that a pelvis x-ray taken on March 28, 1999, had shown increased sclerosis in the same region, with some lucency at the L5-S1 level indicating a possible pseudoarthrosis.
The employee=s symptoms did not improve, and on June 16, 1999, he was examined by Dr. Joseph Perra at the Twin Cities Spine Center. Dr. Perra obtained a history of the employee=s surgeries, conducted a physical examination, and obtained additional x-rays. Dr. Perra noted obvious and significant lucencies around the BAK cages at L5-S1 and very slight, mild lucency around the cages at L4-5. He diagnosed chronic back and leg pain with pseudoarthrosis at least at L5-S1 and possibly at L4-5.
On September 30, 1999, the employee underwent an anterior cage removal, repair of pseudoarthrosis, and posterior stabilization with screw/rod regrafting and decompression. Following this surgery, the employee continued to follow up with Dr. Perra and personnel at the pain clinic. On October 4, 2000, Dr. Perra reported that, while the employee had noticed some improvement from his pre-operative status, the employee continued to have severe pain requiring large amounts of both narcotic and other medications under the direction of Dr. Hess. Dr. Perra concluded that the employee had reached a plateau, stating, AHe is likely completely disabled based on his degree of chronic pain and the medications necessary for this.@ About a week later, on October 13, 2000, Dr. Hess also concluded that the employee would qualify for permanent total disability, stating, AIt just does not at this point appear that the patient is employable.@
On November 14, 2000, Dr. Perra issued a narrative report, in which he stated his opinion that, based on his June 16, 1999, examination of the employee and his September 30, 1999, surgery, the employee=s fusion at L5-S1 never solidly healed. He stated that the cages were loose at the time of surgery and that they now had a clear lucency around them. It was his opinion that these findings were characteristic not of an area that had healed and then become loosened but of one that had never healed.
On January 21, 2001, the employee received a letter from the Social Security Administration indicating that it had found him eligible for disability benefits under their rules as of February 2, 1999. The employee began receiving monthly disability benefits from the Social Security Administration retroactive to October 1999. He has not worked since February 2, 1999.
On July 3, 2002, the employee petitioned this court to vacate the Award on Stipulation issued December 15, 1998.
The law in effect on the date of settlement is controlling for purposes of a petition to vacate an award on stipulation. Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993). This court=s authority to set aside an award on stipulation is found in Minn. Stat. '' 176.461 and 176.521, subd. 3. An award may be set aside if the petitioning party makes a showing of good cause to do so. Under Minn. Stat. ' 176.461, good cause is held to exist if (1) the award was based on a mutual mistake of fact, (2) there is newly discovered evidence, (3) the award was based on fraud, or (4) there is a substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated at the time of the award. The employee here alleges that there has been a substantial change in his medical condition, a mutual mistake of fact, and newly discovered evidence.
1. Substantial Change in Medical Condition
In determining whether a substantial change in the employee=s condition has occurred, this court in the past has examined such factors as the following: (1) changes in the employee=s diagnosis; (2) changes in the employee=s ability to work; (3) additional permanent partial disability; (4) the necessity of more costly and extensive medical care than was initially anticipated; (5) the existence of a causal relationship between the injury covered by the settlement and the currently worsened condition; and (6) the contemplation of the parties at the time of settlement. Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989) (citations omitted). These factors must be applied in a manner consistent with Minn. Stat. ' 176.461, which requires that the change in the employee=s condition be one that was Aclearly not anticipated and could not be reasonably anticipated at the time of the award.@ Powell v. Abbott-Northwestern Hosp., slip op. (W.C.C.A. Aug. 17, 1995); see also Soeffner v. McGuire=s Motor Inn, 40 W.C.D. 21, 22 (W.C.C.A. 1987) (medical proof that condition was unanticipated is necessary to show substantial change in medical condition). Although this is a close case, we are not persuaded that the employee has proven a substantial change in his medical condition, and, in particular, that any change that has occurred could not have been reasonably anticipated at the time of the award.
Regarding the factor of change in diagnosis, the employee contends that at the time of settlement his diagnosis was of a solid fusion and that, because his fusion has now been found to be not solid, it cannot be credibly argued that his diagnosis remains the same. The employee asserts that Dr. Perra=s diagnosis of pseudoarthrosis on June 16, 1999, was entirely new. We believe that the employee=s analysis is too limited.
This court must compare the employee=s condition at the time of the petition with the employee=s condition at the time of settlement, see Franke at 376-77, 49 W.C.D. at 525, and the employee in his brief makes no effort to compare the employee=s complete diagnosis at the time of his 2002 petition with his complete diagnosis at the time of his December 1998 settlement. Even if the employee=s working diagnosis at the time of his December 1998 settlement may still have carried with it the implication of a possibly solid fusionBand we are not certain that it did--it was certainly more than that. The diagnoses offered by the treating physicians around the time of the settlement do not specifically refer to the status of the employee=s fusion. What those diagnoses do document, however, is the fact that the employee was suffering from chronic low back pain status post fusion, that he continued to experience a radicular component to pain in both his left and his right lower extremities, and that he had sustained clonus and hypereflexia. With the addition of some depression and anxiety, the employee=s diagnosis at the time of his petition in 2002 is essentially the same: the employee continues to suffer from chronic low back pain status post two-level lumbar fusion with bilateral neuropathy. We cannot conclude that there has been a substantial change in the employee=s diagnosis.
With regard to his ability to work, the employee was employed full time at the time of his settlement, and he had been so employed since about July 1, 1997. He has now not returned to work since his termination from Kline on about February 1, 1999. Drs. Perra and Hess have both opined that the employee is disabled from work. The record supports the employee=s contention that there has been a change in his ability to work.
Prior to the settlement, Dr. Dowdle rated the employee=s permanent partial disability at 22.5% of the whole body under Minn. R. 5223.0070, subp. 1D. The employee makes no claim that there has been any increase in his permanent partial disability.
There is no question that the employee has undergone some very costly and extensive medical treatment since the date of settlement. However, where a stipulation for settlement leaves future medical expenses open and the employer and insurer have paid such expenses, the factor of increased necessity of medical care carries less weight in determining whether a substantial change in condition has occurred since the settlement. Burke v. F-M Asphalt, 54 W.C.D. 363, 368 (W.C.C.A. 1996). In the present case, the employer and insurer have paid for all of the employee=s post-settlement medical treatment.
Ongoing causation is an essential factor under Fodness. The employer and insurer agree that the employee=s current low back complaints are causally related to the injury of March 28, 1991, but they deny that the employee has established a substantial change in condition.
Finally, the employee argues that the parties did not contemplate that his fusion was not solid or that he would be permanently and totally disabled within three months of the settlement. As such, he contends, vacation is warranted based upon the employee=s unanticipated substantial change in medical condition. We are not persuaded.
As we have noted, the records of the employee=s treating physicians do not specifically refer to the status of the employee=s fusion around the time of the December 1998 settlement. When Dr. Dowdle performed the second fusion surgery on June 19, 1995, he did note in his operative report that the L5-S1 level was fused solid, and in April and June of 1996 he did report that the employee=s films showed that the implants were in good position. However, despite the inferences that may be drawn from these reports, it is clear from the record that, at the time the parties settled the case over two years later, all were aware that the employee had not obtained a good result from his surgeries and that his condition remained serious and only marginally stable. On June 17, 1996, Dr. Hess diagnosed possible failed low back syndrome. Although the employee worked full time between July 1, 1997, and the date of settlement, he worked with restrictions and medications regularly prescribed by United Pain Center. The employee=s own assessment of how he was functioning, as outlined in his letter of March 25, 1998, almost three years after his second surgery, does not suggest that the employee was medically stable. This instability is further underscored by his report to his QRC in November 1998, that he had recently experienced an increase in back and leg symptoms without apparent cause.
We again acknowledge that this is a close case, particularly in light of the employee=s additional fusion surgery and his apparent inability to return to work at this time. However, as this court held in Sondrol v. Del Hayes & Sons, Inc., 43 W.C.D. 367, 368 (W.C.C.A. 1990), A[t]he need for additional surgery does not, in and of itself, necessarily compel the conclusion that there has been a substantial change in [an] employee=s medical condition.@ We cannot conclude that the employee=s current condition is substantially different from what it was at the time of settlement. More importantly, after a careful review of the record, we cannot conclude that the course of the employee=s medical condition could not reasonably have been anticipated at the time of the award.
We therefore conclude under the facts presented here that the employee has not demonstrated a substantial change in his medical condition since the time of the award that was not clearly anticipated and could not reasonably have been anticipated at the time of the award.
2. Mutual Mistake of Fact
The employee also argues that the Award on Stipulation should be vacated on the basis of a mutual mistake of fact. He claims that the parties believed that the employee=s November 21, 1994, fusion was solid when they entered into the December 14, 1998, settlement. We are not persuaded.
As the employer and insurer have argued, as early as 1996 Dr. Hess specifically listed as one of his diagnoses Achronic pain syndrome with possible failed low back syndrome.@ Moreover, as they have also argued, just one month prior to the settlement, the employee advised his QRC that he had experienced an increase in low back pain and leg symptoms and was unsure as to why this had occurred.
AA mutual mistake of fact occurs when opposing parties to the stipulation both misapprehend some fact material to their intended settlement of a claim or claims.@ Shelton v. Schwan=s Sales Enters., 53 W.C.D. 110, 113 (W.C.C.A. 1995). In a mutual mistake case, the inquiry focuses on what the situation was and what was known at the time of settlement. Franke at 377, 49 W.C.D. at 525. In this case, the employer and insurer do not concede that they misapprehended any fact material to their intended settlement. In fact, there is no evidence that at the time of settlement either side gave any consideration to whether the fusion was solid or not. What is clear is that the parties were aware that the employee did not have a successful result from his previous surgeries and that he had recently experienced an increase in his low back pain and leg symptoms. Although the employee had been working full time since July 1, 1997, the record is clear that he was working with great difficulty. We conclude that, even if there was a mistake in this case, we see no clear evidence that it was a material mistake. Both sides understood the seriousness and complexity of the employee=s condition, and there is no evidence that the employee entered into the settlement unwittingly or without proper legal advice.
3. Newly Discovered Evidence
In order for relief to be granted on grounds of newly discovered evidence, the evidence must satisfy the following requirements: (1) it must be relevant and admissible; (2) it must have been in existence at the time of the award but not discoverable with the exercise of reasonable and due diligence; (3) it must not be merely collateral, impeaching, cumulative, or duplicative; and (4) it must be such as would have had a probable effect upon the outcome of the litigation. Gruenhagen v. Larson, 310 Minn. 454, 459, 246 N.W.2d 565, 569 (Minn. 1976). See also Brown v. Bertrand, 254 Minn. 175, 94 N.W.2d 543 (Minn. 1959); Regents of the University of Minnesota v. Medical Inc., 405 N.W.2d 474, 478 (Minn. Ct. App. 1987), pet. for rev. denied (Minn. July 15, 1987).
The employee contends that evidence that his fusion was not solid was unknown to him at the time of his settlement and could not have been discovered with the exercise of reasonable diligence. He asserts that Dr. Perra reached his conclusion regarding the status of the fusion only after seeing the condition of the employee=s back during surgery. Given the employee=s stable condition at the time of settlement, he argues, it would have been unreasonable to require him to undergo surgery to see if the fusion was solid. Therefore, he argues, the fact that the fusion was not solid constitutes newly discovered evidence and grounds for vacating the settlement. We disagree.
Contrary to the employee=s assertion that surgery was required in order to diagnose whether or not the employee=s fusion was solid, Dr. Perra was able to diagnose the employee=s pseudoarthrosis after merely reviewing x-rays on June 16, 1999, based on their revealing Aobvious and significant lucencies, completely circumferential around the cages at L5-S1.@ Dr. Perra=s report to this effect and his later post-surgery report are the evidence on which the employee bases his claim of newly discovered evidence, and these reports were not issued until following the doctor=s initial exam on June 16, 1999, and so were not in existence at the time of settlement. Nor were the x-rays upon which Dr. Perra based his reports in existence at the time of the settlement. Evidence not in existence at the time of settlement may not constitute newly discovered evidence for purposes of vacation.
Concluding that the employee has not made a showing of a substantial change in his medical condition since his award on stipulation, that he has not made a showing that that stipulation was based on a mutual mistake of fact, and that he has not made a showing of legally applicable newly discovered evidence material to that stipulation, we deny the employee=s petition to vacate his December 15, 1998, award on stipulation in this matter.
 It is unclear from the record whether Dr. Dowdle actually examined the employee on this date. Dr. Dowdle noted in his report that the employee had been seen and followed by Dr. Hess. Prior to September 15, 1998, the last office note from Dr. Dowdle is dated June 16, 1997. See Exhibit C, attached to the employee=s July 3, 2002, Petition.