COLLEEN B. ZUFALL, Employee/Petitioner, v. STATE, CAMBRIDGE REG=L CTR., SELF-INSURED, Employer.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 5, 2005
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where there has been a change in the employee=s diagnosis, more extensive medical treatment than anticipated, entitlement to additional permanent partial disability, a change in her ability to work, and a causal relationship between the employee=s work injury and her worsened condition, the employee has experienced a substantial change in condition since a mediation resolution/award in 1993 and the employee=s petition to vacate the mediation resolution/award is granted.
Petition to vacate mediation award granted.
Determined by: Rykken, J., Wilson, J., and Stofferahn, J.
Attorneys: William H. Getts, Minneapolis, MN, for the Petitioner. Kenneth H. Chun, Minnesota Dep=t of Employee Relations, St. Paul, MN, for the Respondent.
MIRIAM P. RYKKEN, Judge
The employee petitions to vacate the mediation resolution and award served and filed August 24, 1993, on the basis of substantial change in medical condition. We grant the petition.
On December 2, 1991, Colleen Beckman Zufall, [the employee], sustained a work-related injury to her low back while working as a custodian/maintenance worker at the DHS Cambridge Regional Center, [the employer], which was self-insured for workers= compensation liability. The employee initially was treated at a chiropractic clinic. A CT scan performed on December 20, 1991, at the request of her chiropractor, showed a small lateral disc herniation at L5-S1, impinging on the left L5 ganglia, and moderate disc degeneration and diffuse anterior annular bulging at L4-5. The employee was placed on work restrictions and began working in a light-duty position as a billing officer coordinator, a clerical position with some patient care, in June 1992. The employee was paid temporary partial disability benefits based on her wage loss sustained as a result of switching from a maintenance position to clerical work.
In January 1992, the employee began treating with Dr. Richard Koeller, a neurologist. The employee reported low back pain and pain radiating into her left leg. The employee began an exercise program and in April 1992 Dr. Koeller released the employee for light duty. In November 1992, Dr. Koeller indicated that the employee had reached maximum medical improvement and advised her to avoid working as a custodian. He also rated the employee=s low back condition at 10.5% permanent partial disability of the body as a whole.
In 1993, the employee sought treatment for her low back and left leg pain with her family doctor, Dr. Anita Buckler. An MRI indicated a small central herniated disc at L3-4 and a small annular tear at L4-5. Dr. Buckler referred the employee to Dr. Alexander Lifson, an orthopedic surgeon, who examined her on June 15, 1993; he diagnosed chronic low back pain and recommended against surgery. Dr. Lifson read her recent MRI scan to show degeneration and narrowing of the L3-4 disc and mild degeneration at L4-5. Dr. Lifson also concluded that the employee had reached maximum medical improvement from her injury, and recommended against any further treatment modalities. Instead, he advised the employee to continue with a regimen of maintenance exercises. He also advised that the employee should not lift over 15 to 20 pounds and should avoid repetitive bending or stooping, and expressed his opinion that the employee would do much better if she could continue with clerical work. In July 1993, Dr. Lifson suggested to the employee that treatment in a chronic pain rehabilitation program might be beneficial.
On June 30, 1993, a mediation conference was held and the parties agreed to a $65,000 award in exchange for a full, final and complete settlement of the employee=s workers= compensation claim, except medical expenses, and in exchange for the employee=s resignation from her job with the employer. On August 24, 1993, a mediation resolution and award was served and filed by the Department of Labor and Industry.
The employee continued to experience low back and left back pain. On August 17, 1995, the employee began treating with Dr. John Stark. Dr. Stark ordered an MRI scan, which indicated partial inner annular thickness tearing without significant annular deformity at L4-5, associated with moderate dehydration, and an annular tear and focal area of annular thickening at L5-S1. Dr. Stark administered an injection, which did not alleviate the employee=s pain, and then recommended surgery. On September 14, 1995, the employee underwent a two-level lateral recess decompression at L4-5 and L5-S1, performed by Dr. Stark. The employee was released to work on February 14, 1996, with restrictions of no lifting over 10 pounds, and avoiding bending, twisting, stooping or squatting. The employee began working as a managed care specialist, a clerical position, for Cambridge Medical Center.
In 1997, the employee began seeing Dr. Mahmoud Nagib, a neurosurgeon, for worsening low back and left-sided radicular pain. An April 30, 1997, MRI scan showed the previous injury, a broad-based disc bulge at the L4-5 level. Dr. Nagib recommended acupuncture, and further testing if necessary, but did not recommend surgery. After a later myelogram, Dr. Nagib opined that the study did not indicate a surgically correctable lesion. In December 1998, the employee began treating with Dr. James Ogilvie for ongoing low back and leg pain. Dr. Ogilvie diagnosed discogenic pain at the left L4 nerve root and degenerative disc disease at L4-5. A December 6, 1998, MRI scan indicated degenerative changes at L4-5 and L5-S1. Dr. Ogilvie recommended a one-level anterior interbody fusion at L4-5, which he performed on April 12, 1999. The employee was off work after the surgery until October 19, 1999, when she returned to her regular position with a 10-pound lifting restriction. The employee continued to have symptoms, and underwent a discogram on November 12, 1999, which indicated discogenic pain at L5-S1. Dr. Ogilvie recommended a transforaminal lumbar interbody fusion at L5-S1, which he performed on January 3, 2000. The employee remained off work after the surgery until February 28, 2000.
In March 2000, the employee began experiencing neck pain and right arm pain. In April 2001, she consulted with Dr. Eric Flores, a neurosurgeon. On September 12, 2001, the employee underwent a right C5-6 and C6-7 posterior laminectomy and decompression with foraminotomy, performed by Dr. Flores. The employee was off work until October 2001, when she returned to her regular job. In May 2002, the employee again sought treatment with Dr. Ogilvie for her ongoing low back and leg pain, and surgery options were discussed. By August 2002, he advised her that she should Aonly consider surgery when reasonable levels of medication are not able to give her some quality of life.@ In April 2003, the employee was evaluated by Dr. Amir Mehbod, and in November 2003 by Dr. Daryll Dykes, who both recommended non-surgical treatment. Throughout 2002 and 2003, the employee continued to see her primary doctor, Dr. Buckler, for her low back and leg pain, which she reported was worsening. In 2003, the employee reduced her work hours due to her low back symptoms, but her condition continued to worsen.
On April 8, 2004, Dr. Buckler agreed that the employee should be off work. The employee received short term disability benefits, and has received long term disability benefits since July 2004. She also has applied for social security disability benefits. The employee is currently experiencing severe low back and bilateral leg pain, is taking high doses of narcotic medications, and is unable to work. The employee also has neck pain and some tingling in her fingers, but indicated that she could work with this condition if it were not for her low back condition.
On May 27, 2005, the employee petitioned this court to vacate the mediation resolution/award served and filed August 24, 1993, on the basis of substantial change in condition. The employer objects.
Minn. Stat. '' 176.461 and 176.521, subd. 3, govern this court=s authority over petitions to vacate awards. A party must show good cause in order for the court to grant a petition setting aside an award. For awards issued after July 1, 1992, Agood cause@ to vacate is limited to (1) a mutual mistake of fact; (2) newly discovered evidence; (3) fraud; or (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; Franke v. Fabcon, 509 N.W.2d 373, 48 W.C.D. 520 (Minn. 1993). Where a change in condition is alleged, the focus of this court=s inquiry is on whether there has been a substantial or significant worsening of the employee=s condition, and whether there is adequate evidence of a causal relationship. The employee=s condition at the time of settlement is compared with the employee=s condition at the time of the petition to vacate. Davis v. Scott Moeller Co., 524 N.W.2d 464, 466-67, 51 W.C.D. 472, 475 (Minn. 1994); Franke, 509 N.W.2d at 376-77, 49 W.C.D. at 525.
The employee asserts that her medical condition has substantially changed since the mediation award in 1993. A number of factors may be considered in determining whether a substantial change in condition has occurred, including a change in diagnosis, a change in the employee=s ability to work, additional permanent partial disability, the necessity of more costly and extensive medical care than anticipated, a causal relationship between the work injury and the worsened condition, and the contemplation of the parties at the time of the settlement. Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).
At the time of the mediation award, Dr. Lifson=s diagnosis of the employee=s condition was chronic low back pain due to internal disruption of one or more discs without evidence of compression, radiculitis or radiculopathy. Dr. Ogilvie indicates that the employee=s diagnosis in 2003 was post L4-5 LD cage fusion. There has been a change of the employee=s diagnosis.
The employer points out that in July 1993, Dr. Lifson noted that the employee was not interested in any type of surgical treatment and argues that, therefore, the need for surgery was anticipated and contemplated by the employee before the mediation award. There is no other evidence that surgery was recommended at the time of the mediation. Further, Dr. Lifson indicated in a June 1993 report that the employee Adoes not appear to be a candidate for surgical treatment@ and had reached maximum medical improvement from her injury to her low back. Dr. Lifson=s comment in a July 1993 letter that the employee was not interested in any type of surgical treatment is simply a statement of the employee=s preference and not an indication that surgery was recommended and rejected by the employee. Since 1993 when the mediation award was issued, the employee has undergone three surgeries to her low back, including a two-level lateral recessed decompression at L4-5 and L5-S1 in 1995, a one-level fusion at L4-5 in 1999, and another fusion at L5-S1 in 2000. The employee has undergone more extensive medical treatment than anticipated at the time of the mediation award.
Before the mediation award, the employee had been assigned a rating of 10.5% permanent partial disability to the body as a whole. While the employee apparently has not yet been rated for her additional surgeries, as a result of these surgeries she would be entitled to a higher rating of permanency under the permanent partial disability schedules.
There has also been a change in the employee=s ability to work since the 1993 award. At the time of the mediation award, the employee was restricted from custodial work but could perform sedentary jobs. Except for time off after her surgeries, the employee worked from February 1993 through 2003, when she reduced her hours. By April 2004, the employee was off work completely as a result of her disability. Further, there is evidence that there is a causal relationship between the employee=s 1991 work injury and the employee=s current worsened condition in that the employee=s doctor, Dr. Buckler, opined that the employee=s 1991 work injury substantially contributed to the employee=s need for the additional surgeries.
Given the change in the employee=s diagnosis, the more extensive medical treatment than anticipated at the time of the award, her entitlement to additional permanent partial disability, the change in her ability to work, and the causal relationship between the employee=s work injury and her worsened condition, the employee has experienced a substantial change in condition. Therefore, we grant the employee=s petition to vacate the mediation resolution and award served and filed August 24, 1993.