JOANN COUNTRYMAN f/k/a JOANN LOKKEN, Employee, v. FIREFLY CREEK CASINO, and MINNESOTA WORKERS= COMP. ASSIGNED RISK PLAN adm=d by BERKLEY RISK ADM=RS, Employer-Insurer/Respondents.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 6, 2004
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The employee did not establish good cause to vacate the mediation award pursuant to the factors specified in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).
Petition to vacate denied.
Determined by: Wilson, J., Stofferahn, J., and Rykken, J.
Attorneys: Stephen Torvik, Nelson, Oyen, Torvick, Montevideo, MN, for the Petitioner. Troy A. Bachmann, Brown & Carlson, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee petitions to vacate a 1996 mediation award, based on a substantial change in medical condition. Finding no basis to vacate the mediation award, we deny the petition.
On October 17, 1992, the employee sustained injuries to her head and left knee when she was assaulted by a coworker in the break room at Firefly Creek Casino [the employer]. Following the injury, on June 2, 1993, the employee was seen for an independent medical examination by Dr. Robert E. Heeter, who opined that the employee had a slightly unstable left knee with anterior cruciate ligament disruption and probable meniscus cartilage tear. It was his opinion that arthroscopic surgery should be performed for diagnosis and debridement of the knee. Eventually, on November 11, 1994, the employee transferred her care to Dr. Heeter.
On December 15, 1994, a diagnostic arthroscopy with debridement and ligament repair of the anterior cruciate was performed by Dr. Heeter. When the employee was seen by Dr. Heeter on September 29, 1995, she had regained full range of motion of the knee. Because she had slight anterior knee tenderness and aching soreness with stair climbing, consistent with chondromalacia, Dr. Heeter opined that the employee should be restricted from squatting or kneeling at work and should avoid climbing stairs. Dr. Heeter also stated that the employee had reached maximum medical improvement [MMI] from her injury and Amay be seen and assessed on a prn basis.@
On January 17, 1996, during a mediation session, the parties agreed that the insurer would pay the employee $5,000 in full, final, and complete settlement of all past, present, and future claims for workers= compensation benefit related to the October 17, 1992, injury, with the exception of medical expense claims. A mediation award was filed on February 14, 1996.
There is no record indicating that the employee received further medical treatment for her left knee until July 30, 2002, when she was seen at the Renville County Hospital. At that time, she indicated that her knee had done fairly well until the previous week, when she stepped in a hole at home. Her knee was swollen, and she was limping. An MRI scan confirmed a tear in the posterior horn of the medial meniscus and revealed that the ACL repair appeared to be holding. On September 11, 2002, Dr. Heeter performed a Adiagnostic arthroscopy, knee synovectomy for visualization and water flow, chondroplasty femoral trochlear groove, chondroplasty medial femoral condyle, excision of torn portion.@ The operative report confirmed that the ACL was stable but that there was a new medial meniscus tear of the left knee and Achondral surface fracturing of femoral trochlear groove and weight bearing portion medial femoral condyle.@ Dr. Heeter=s diagnosis thereafter was chondromalacia and early arthritis of the left knee. On December 10, 2002, Dr. Heeter issued a report stating that the chondral fracturing and early arthritis in the employee=s knee were related to her previous injury and the ACL reparative surgery that she had undergone. He further stated that her surgery was Aaccomplished for both issues involving the failing cartilage as well as the meniscus tear.@
When the employee=s knee remained sore and swollen, Dr. Heeter recommended implant arthroplasty, knee replacement surgery. A total knee replacement was performed on May 21, 2003. The diagnosis at that time was osteoarthritis of the left knee. By August 19, 2003, Dr. Heeter had released the employee to return to full activity. He rated the employee as having a 13% whole body disability for the total joint replacement.
In a letter dated November 28, 2003, Dr. Heeter stated that the employee
has had progression of knee arthritis, which was not anticipated at the time of her ACL reparative surgery. Nonetheless, I think that the initial insult to her knee, which resulted in her ACL disruption and subsequent develop[ment] of chondrolysis and delaminating chondromalacia have occurred as a consequence of that disruption of the ACL and the altered mechanics of her knee, despite ACL reparative surgery.
He further stated, AI would feel that the development of sufficient arthritis necessitating total joint replacement could not have been predicted in 1992, with reasonable medical certainty.@
On May 14, 2004, the employee filed a petition to vacate award based on a substantial change in condition. The employer and insurer subsequently had the employee examined by Dr. Thomas J. Raih. In his report of August 25, 2004, Dr. Raih opined that there had been a change in the employee=s diagnosis since 1996, that the employee could return to work without restrictions, that the employee had an 8% whole body impairment as a result of her total knee replacement, and that the total knee arthroplasty was more costly and extensive treatment than initially anticipated. Dr. Raih further noted, Athere is an increased incidence of degenerative change and oseoarthritis following anterior cruciate reconstruction.@ On September 13, 2004, the employer and insurer filed a memorandum in opposition to the employee=s petition to vacate.
For awards issued on or after July 1, 1992, Acause@ to vacate includes Aa 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.@ Minn. Stat. '176.461. This court generally analyzes substantial change in medical condition claims in light of the Fodness factors:
(a) a change in diagnosis;
(b) a change in the employee=s ability to work;
(c) additional permanent partial disability;
(d) necessity of more costly and extensive medical care/nursing services than initially anticipated; and
(e) causal relationship between the injury covered by the [mediation] and the employee=s current worsened condition.
Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).
The parties agree that there has been a change in the employee=s diagnosis; however, the employer and insurer contend that the change has been for the better. The employee=s diagnosis on September 29, 1995, the date of her last visit to Dr. Heeter prior to the mediation, was post ACL reconstruction with aching soreness with stair climbing consistent with chondromalacia. The employee=s diagnosis on August 19, 2003, the date of her last visit to Dr. Heeter prior to the petition to vacate, was post-left total knee implant arthroplasty with excellent function and no pain complaint.
At oral argument, employee=s counsel was uncertain as to whether the employee had been working at the time of the mediation award, but he indicated that he thought that the employee had been. He went on to indicate that the doctors say that the employee is now better than new and that Dr. Heeter has released the employee to return to work without restrictions. Clearly there has in fact been an improvement in the employee=s ability to work since the mediation award, as the employee had restrictions on squatting, kneeling, and stair climbing at the time of the award and has no restrictions now.
With regard to permanent partial disability, the employee had been rated as having a 10% whole body impairment prior to the mediation award and has been rated as having a 13% whole body impairment since the mediation award for a total knee arthroplasty pursuant to Minn. R. 5223.0170, subp. 5B (17). While the employee contends that she is entitled to payment for an additional 13% rating, the employer and insurer contend that the employee has sustained only an additional 3% impairment, because the previous 10% rating constitutes a lesser included category. Whatever the answer to this question, it is undisputed that the employee has additional permanency over and above the 10% rated before the mediation award.
The employee has also undergone more costly medical treatment than initially anticipated. Even the independent medical examiner, Dr. Raih, admitted as much in his report of August 25, 2004. However, medicals were left open in the mediation agreement, and, when medical expenses are not closed out, this court will put less emphasis on this factor. Burke v. F & M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996).
As for the last Fodness factor, the parties are in agreement that the employee=s current condition is causally related to her work injury.
The final consideration is whether the change in condition was not anticipated and could not have been anticipated at the time of the award. The employee agrees that Dr. Heeter did not provide an opinion as to what was anticipated at the time of the award. After a review of the medical records and reports, we are not convinced that those records clearly establish that the change in the employee=s condition could not have been anticipated.
This court has wide discretion in determining whether to vacate an award. Kresbach v. Lake Lillian Coop. Creamery Ass=n., 36 W.C.D. 796, 350 N.W.2d 349, (Minn. 1984). In the present case, the employee argues that the artificial knee will ultimately break down and that she will likely have problems in the future. However, she admits that these claims are speculative, and prospective or anticipated problems do not provide a basis for vacation. The relevant comparison is between the employee=s present medical condition and the employee=s condition at the time of the award. Battle v. Gould, Inc., 42 W.C.D. 1085 (W.C.C.A. 1990). Under the particular circumstances of this case, and especially in light of counsel=s admission at oral argument that the employee=s knee is now Abetter than new,@ we conclude that good cause to vacate has not been established. We therefore deny the petition.
 The employee filed a claim petition on January 19, 1993, seeking temporary total disability benefits, undetermined permanent partial disability benefits, and various medical benefits as a result of that injury. The employer and insurer denied liability, and the matter proceeded to hearing before a compensation judge on stipulated facts. On January 21, 1994, the judge issued a findings and order, wherein he found that the employee=s injuries arose out of and in the course of her employment, and he awarded various benefits. The employer and insurer appealed from that decision to this court. In Lokken v. Firefly Creek Casino, slip op. (W.C.C.A. May 24, 1994), this court affirmed the findings and order of the compensation judge. The employer and insurer then appealed from that decision to the Minnesota Supreme Court, which subsequently summarily affirmed this court=s decision.
 A notice of benefit payment, attached as an exhibit to the employer and insurer=s memorandum, indicates that the employer and insurer had previously paid temporary total disability benefits from December 15, 1994, through August 7, 1995, temporary partial disability benefits from August 8, 1995, through December 31, 1995, and impairment compensation for a 7% whole body impairment.
 We note that, according to Dr. Heeter=s office note of September 29, 1995, the employee had returned to sedentary work.
 3% for surgical removal of meniscal cartilage pursuant to Minn. R. 5223.0170, subp. 5. B. (1), and 7% for repaired ruptured cruciate ligament with moderate laxity pursuant to Minn. R. 5223.0170, subp. 5B (4)(b).