MIKUM KUNKEL, Employee/Petitioner, v. TARGET CORP., SELF-INSURED, adm=d by CONSTITUTION STATE SERV. CO., Respondents.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 1, 2004
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The employee=s petition to vacate is granted where, although the diagnosis of the employee=s underlying condition had not changed significantly, the employee provided evidence of a substantial change for the worse in her ability to work, an increase in her permanent partial disability, and significantly more costly and extensive medical care than was anticipated at the time of settlement. There was no dispute as to the existence of a causal relationship between the employee=s worsened condition and the injury covered by the settlement. Additionally, although the initial discectomy could have been reasonably anticipated at the time of the award, the employee=s subsequent fusion surgeries and operation to correct pruritis resulting from the first fusion surgery could not have been reasonably contemplated at the time of settlement.
Petition to vacate granted.
Determined by Johnson, C.J., Pederson, J. and Rykken, J.
Attorneys: James A. Batchelor, Batchelor Law Firm, P.A., Edina, MN, for the Petitioner. Richard C. Nelson, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee has petitioned to vacate and set aside an award on stipulation, served and filed November 28, 1997, based on a substantial change in medical condition. We conclude the petitioner has established good cause and grant the petition to vacate the award.
Mikum Kunkel, the employee, sustained a personal injury on June 3, 1995, arising out of her employment with Target Corporation, the employer, then self-insured for workers= compensation liability. The self-insured employer admitted liability for the employee=s personal injury and paid wage loss benefits, rehabilitation and medical expenses.
The employee sought treatment with Phillip M. Marty, D.C., on June 6, 1995, complaining of low back and right leg pain. The doctor diagnosed an acute lumbar disc syndrome with right sciatic neuralgia. Throughout June and July 1995, the employee treated with Dr. Marty on nearly a daily basis. The employee=s treatment at Marty Chiropractic lessened during the second half of 1995, although the employee continued to complain of ongoing low back pain. Dr. Marty reported the employee had reached maximum medical improvement on February 1, 1996, and concluded she had sustained no permanent partial disability. The employee returned to see Dr. Marty on April 2, 1996, complaining of a reoccurrence of low back and right leg pain. The doctor took the employee off work and again commenced a treatment regimen.
The employee was examined by Dr. Mark Engasser on April 22, 1996, on referral by Dr. Marty. Dr. Engasser obtained a history of pre-existing low back problems dating back to 1981 when the employee reported she injured her low back at St. Mary=s Hospital while working as a housekeeper. The doctor diagnosed a disc herniation at L5-S1 on the right, prescribed a Prednisone Pac and released the employee to return to work with a 20-pound weight lifting limit. A CT scan showed a central herniated disc at L5-S1. The employee continued to treat with Dr. Engasser who recommended the employee continue at reduced hours with a weight lifting limit. In June 1996, the doctor noted the employee=s leg pain had improved, and he released her to return to work on a full-time basis with a 25-pound lifting limit. In August 1996, the employee continued to complain of low back and right buttock pain without radiation into the leg. In September of 1996, the employee reported ongoing back pain without weakness in the leg but stated she had problems with her right leg with standing and walking. In October 1996, Dr. Engasser diagnosed a small lumbar disc herniation at L5-S1 and stated he did not believe the employee was a surgical candidate. The employee returned to see Dr. Engasser in January 1997, with complaints of back and buttock discomfort and right leg weakness. The doctor opined the employee had reached maximum medical improvement and rated a twelve (12) percent permanent partial disability. Dr. Engasser stated there Awould be the possibility that she could require surgery should she develop more significant radicular symptoms.@ (Er Ex. 4.)
The employee filed a claim petition in March 1997, seeking payment of the 12 percent permanent partial disability rated by Dr. Engasser and chiropractic expenses. In its answer, the self-insured employer admitted the employee sustained a personal injury on June 3, 1995, but denied liability for the claimed permanent partial disability benefits.
The employee was examined by Dr. Paul Cederberg on July 29, 1997, at the request of the employer. The doctor reviewed the employee=s medical records, including records of her September 3, 1981, injury, noting that on March 27, 1985, a doctor rated a 3.5 percent permanent partial disability. Dr. Cederberg diagnosed a musculoligamentous strain of the lumbar spine superimposed on pre-existing degenerative disc disease. The doctor concluded the employee demonstrated no objective neurological deficits or objective clinical findings to support any permanent partial disability as a result of the June 3, 1995, injury. The doctor opined the employee reached maximum medical improvement from that injury no later than January 20, 1997, and stated the chiropractic treatment was not reasonable or necessary.
Dr. Jeffrey Dick saw the employee on October 20, 1997, on referral from the employee=s general practitioner. The employee reported progressive symptoms in her low back and right leg worsening over the last year. On examination, the doctor noted the employee had an antalgic gait on the right and difficulty with toe and heel walking on the right side. Straight leg raising was positive on the right for pain in the S1 distribution. Dr. Dick diagnosed S1 radiculitis related to a L5-S1 disc herniation and ordered an MRI scan. The employee returned to see Dr. Dick on November 5, 1997. The doctor reported the scan showed an annular tear on the right at the L4-5 level without neural impingement and a moderate sized central disc herniation at L5-S1 also without neural impingement. The doctor prescribed an epidural steroid injection at L5-S1 and noted that if this was not effective, the employee may need to consider surgical treatment.
In November 1997, the parties entered into a settlement. The employee was then claiming a 12 percent whole body disability and medical expenses. The employer contended any permanent partial disability the employee might have resulted from prior work injuries and denied liability for the chiropractic care. In exchange for a $6,000.00 payment, the employee agreed to a full, final and complete close out of all claims for benefits with the exception of care provided by a medical doctor. The employee and her attorney signed the stipulation on November 17, 1997. An Award on Stipulation was filed on November 28, 1997.
On November 26, 1997, the employee returned to Dr. Dick who reported the employee had no relief from the steroid injection. On December 17, 1997, Dr. Dick again offered the employee the option of surgical treatment and she decided to proceed.
The employee returned to see Dr. Engasser on January 9, 1998, and discussed Dr. Dick=s surgical recommendation. On January 22, 1998, Dr. Engasser performed a right lumbar discectomy at L5-S1. In February, the doctor noted the employee was making excellent progress and released her to part-time work on a trial basis. In April, the doctor noted the employee continued to progress fairly well and he continued her prior restrictions. In June 1998, the employee stated she felt she was doing fairly well and was continuing to work for the employer. In September 1998, the employee complained to Dr. Engasser of numbness and pain in her right leg with weakness and giving away. The doctor prescribed a Prednisone Pac. In October, Dr. Engasser diagnosed a possible small reoccurrence of the L5-S1 disc herniation but felt no additional surgery was required. In December 1998, Dr. Engasser injected an anesthetic into the right lumbar area.
The employee last saw Dr. Engasser on February 15, 1999. She reported she was able to perform her work with restrictions but had problems with long periods of standing and walking, and complained of pain radiating into her right leg down to the ankle. A prior MRI scan showed some small residue of a disc protrusion but no nerve root compression. Dr. Engasser felt the employee might benefit from a nerve block and opined the employee could continue to work with restrictions.
On March 16, 2000, Dr. Joseph Cove performed an anterior interbody fusion from L4 to S1 with translaminar screws and a bone graft. On April 11, 2000, Dr. Cove re-operated because of severe pruritis resulting from the prior surgery. On May 31, 2001, Dr. Cove stated the employee had a poor result and relatively little pain relief from the 2000 fusion surgery and performed a posterolateral fusion from L4 to the sacrum with screw instrumentation and a bone graft.
Finally, by report dated May 7, 2003, Dr. Diane Shuck, the employee=s family practitioner, stated:
She has been on permanent disability since May 30, 2001, when she had a fusion of her L4-5, L5-S1. She had a prior back surgery. She continues to have chronic low back pain. She has problems with insomnia. She has a history of incontinence, a history of asthma, hypothyroidism and depression.
(Ee Ex. H.)
The employee petitions to vacate the Award on Stipulation of November 28, 1997, contending there has been a substantial change in her medical condition since the time of the award that was not nor could have been reasonably anticipated. The self-insured employer agrees there has been a change in the employee=s ability to work and an increase in her permanent partial disability causally related to the personal injury. The respondent argues, however, that surgery was reasonably anticipated at the time of the award and that the change in the employee=s ability to work and the increased permanent partial disability are the direct result of this reasonably anticipated surgery. Accordingly, the respondent contends there is no basis to vacate the award on stipulation. We disagree.
Minn. Stat. '' 176.461 (Supp. 1993) and 176.521, subd. 3 (1992) govern this court's authority over petitions to vacate. An employee must show good cause for this court to vacate an award. Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989). "Good cause" to vacate an award includes, A(4) 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.@ Minn. Stat. ' 176.461.
In determining whether a substantial change in the employee's condition has occurred, this court in the past has examined such factors as:
(1) Change in diagnosis.
(2) Change in employee's ability to work.
(3) Additional permanent partial disability.
(4) Necessity of more costly and extensive medical care/nursing services than initially anticipated.
(5) Causal relationship between injury covered by the settlement and current worsened condition.
(6) Contemplation of parties at time of settlement.
Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989) (citations omitted). These factors must be applied in a manner consistent with Minn. Stat. ' 176.461 which requires the change be "clearly not anticipated and could not be reasonably anticipated at the time of the award." 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).
In 1996, Dr. Engasser diagnosed an L5-S1 disc herniation on the right and this was the condition for which the doctor performed surgery in 1998. The fusion surgeries performed by Dr. Cove were to treat the same condition. Accordingly, we conclude there has been no significant change in the employee=s diagnosis since the date of the award on stipulation. There has, however, been a substantial change in the employee=s ability to work. She has suffered additional permanent partial disability and has undergone more costly and extensive medical care than initially anticipated. Further, the respondents agree there exists a causal relationship between the injury covered by the settlement and the current worsened condition. We conclude, therefore, there has been a substantial change in the employee=s medical condition since the time of the award.
The decisive issue, however, is whether that substantial change was clearly not anticipated and could not reasonably been anticipated at the time of the award. In January 1997, Dr. Engasser stated surgery was a possibility if the employee developed more significant radicular symptoms. By the time the employee saw Dr. Dick in October 1997, her right leg symptoms had worsened significantly and physical therapy and chiropractic treatment provided only short-term relief. Dr. Dick diagnosed right S1 radiculitis and discussed the possibility of a discectomy with the employee. On November 5, 1997, Dr. Dick ordered an epidural steroid injection at L5-S1 and stated that if the injection was not effective surgery would need to be considered. On January 22, 1998, the employee underwent a lumbar discectomy. Under these circumstances, we agree with the respondent that this surgery could reasonably have been anticipated at the time of the award. The surgery that was initially contemplated, however, was a discectomy. The employee then went on to have two fusion surgeries together with an operation to correct severe pruritis which resulted from the first fusion surgery. Thus, while the first surgery could reasonably have been anticipated, we cannot conclude the same is true of the three later surgeries.
At the time of the award, the employee had returned to work for the employer and was able to work subject to restrictions. She now claims she is permanently and totally disabled. The employee has additional permanent partial disability secondary to the fusion surgery and has undergone much more extensive medical care than was initially anticipated. We conclude the employee has established sufficient cause to vacate the award on stipulation and the award is, accordingly, vacated.