MARIAN A. DILLE, Employee/Petitioner, and HEALTH EAST/ST. JOSEPH=S HOSP., and COMPCOST, INC., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 21, 2006
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The employee has not established a substantial change in medical condition which would support vacating the award on stipulation.
Petition to vacate denied.
Determined by Stofferahn, J., Wilson, J., and Pederson, J.
Attorneys: Tanna B. Schwartz, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Petitioner. Edward Q. Cassidy and Karen M. Charlson, Felhaber, Larson, Fenlon & Vogt, St. Paul, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee petitions to vacate a stipulation for settlement which was the subject of an award issued on December 2, 1992. The employee alleges cause to vacate pursuant to Minn. Stat. ' 176.461, stating that there has been an unanticipated substantial change in her medical condition since the time of the award. We deny the petition.
Marian Dille sustained an injury to her low back on February 3, 1988, while working as an LPN for Health East.
The employee began treating with Dr. John Dowdle in September 1988, and had surgery done by Dr. Dowdle in March 1989. The surgery performed was a Aposterior lumbar inner transverse process fusion with facet fusion at the 5, 1 level with the right iliac crest bone graft.@ Dr. Dowdle=s discharge diagnosis was mechanical back pain. According to a subsequent IME report, a CT scan from November 1989 showed post-surgical changes with a solid-appearing fusion at L5-S1 and diffuse bulging at L3-4 and L4-5.
In July 1990, the employee was evaluated on behalf of the employer and insurer by Dr. James Allen. She advised Dr. Allen that the surgery had given her no relief and that she had constant low back pain and intermittent pain down her right leg. Dr. Allen concluded that the employee had sustained multiple Alifting type injuries@which had aggravated a pre-existing spondylosis. He recommended a pain rehabilitation program. The employee was also seen in consultation at the Mayo Clinic in September and October 1990. The recommendation there was for a pain management program. Dr. Carl Chan of the Impairment Evaluation Center at Mayo Clinic rated the employee as having 17.5 percent permanent partial disability under Minn. R. 5223.0070, subp. 1.D. At the direction of Dr. Dowdle, the employee received treatment in 1990 at the Pilling Pain Clinic but was discharged before completing the program as Dr. Pilling concluded she was Anot willing or able to put enough energy into rehabilitation to make it worthwhile.@
An MRI was done in April 1991 at the direction of her family doctor. It was read as showing multiple levels of degeneration in the lumbar spine, moderate central stenosis at both the L4-5 and L3-4 levels and as demonstrating bilateral impingement of the L5 nerve root. The employee returned to Mayo Clinic in April 1991 and saw Dr. Burton Onofrio. There were no further treatment recommendations. In December 1991, the employee was referred to Dr. Donald Erickson at the Neurosurgery Clinic at the University of Minnesota. A myelo/CT scan was considered not to be diagnostic and Dr. Erickson recommended against surgery.
In 1992, the employee and the employer and insurer entered into a settlement of her workers= compensation claims. The stipulation provided for payment of $35,000.00, less attorney fees, to the employee in return for a full, final and complete settlement of all claims with the exception of medical expenses. The stipulation stated:
that the parties agree that the lump sum payment to the employee represents future payments for permanent total disability benefits. All past, present and future disability payments are deemed to be payments for permanent total disability benefits. The employee has been permanently totally disabled since 12/30/88 and received $25,000.00 in benefits, now deemed permanent total disability benefits as of February 10, 1991.
Attached to the stipulation were a number of medical reports, including one from Dr. Dowdle dated December 18, 1990, in which he stated that in his opinion, the employee was not permanently totally disabled. The stipulation was approved by an award issued December 2, 1992.
The employee continued to experience low back pain that she described to one physician as being progressive. In October 1995, the employee had another MRI. The MRI showed a disc herniation with a free fragment at the L2-3 level, mild central stenosis at L3-4 and L4-5, and degenerative and spondolytic changes at multiple levels. There is no record of medical treatment immediately following the MRI. In December 1997, the employee returned to the Neurosurgery Clinic at the University of Minnesota with a primary complaint of low back pain. Pain in the legs was not noted. The recommendation at that time was for a conservative course of treatment using anti-inflammatory medication.
The employee returned to the University=s Neurosurgery Clinic in March 2002, where she saw Dr. Robert Maxwell. Dr. Maxwell=s impression was that the employee had Afairly severe lumbar stenosis and is suffering a neurogenic claudication syndrome.@ He recommended a decompressive lumbar laminectomy. Surgery was performed June 5, 2002, by Dr. Maxwell. The surgery was described in the discharge summary as A1. L2-L5 decompressive laminectomies. 3. (sic) Bilateral L2-L3, L3-4, L4-5 foraminotomies.@ On follow-up on July 15, 2002, the employee reported to Dr. Maxwell that she was doing very well and that her back and leg pain were completely resolved.
The employer and insurer disputed the causal relationship between the employee=s work injury and her treatment in 2002. The employee was evaluated by Dr. Daniel Randa on August 21, 2003. In his report of that date, Dr. Randa concluded that the 2002 surgery was appropriate but that Athe surgery, however, reflects degenerative lumbar spondylosis. The surgical procedure of June 2002 is not plausibly related to previous work related injury dating back to 1985 and/or 1987.@
The dispute between the employee and the employer and insurer was considered at an administrative conference before a compensation judge on August 27, 2003. In the decision and order, the employer and insurer were ordered to make payment of the surgery and other disputed treatment. There was no appeal from that decision.
An additional MRI was done of the lumbar spine in September 2005. The scan demonstrated Asevere right lateral recess stenosis at both the L3-4 and L2-3 levels with possible compromise of the existing nerve roots.@ The MRI was done at the request of Dr. David Polly at the Twin Cities Spine Center. Dr. Polly saw the employee on November 17, 2005, when she reported constant pain, primarily in her low back, rather than the legs. Dr. Polly diagnosed back pain, post laminectomy and ataxia of unclear etiology. Dr. Polly indicated he would refer her to a neurologist for further consideration of the ataxia and concluded that surgery would not be appropriate in the employee=s case. No subsequent medical records are in the record provided to this court.
On May 15, 2006, the employee filed a petition to vacate the award from 1992. The employee has claimed that there has been a substantial change in her medical condition which could not have been anticipated at the time of the settlement. The affidavit filed by the employee with the petition indicates that she has never returned to work since the 1992 agreement.
This court has authority to vacate an award for cause under Minn. Stat. ' 176.461. Cause is defined in the statute as including 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.@ The employee claims that there has been a substantial unanticipated change in her medical condition which supports her petition.
In considering whether there has been a substantial change in medical condition, this court has generally applied the factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989):
1. A change in diagnosis;
2. A change in the employee=s ability to work;
3. Additional permanent partial disability;
4. A necessity for more costly and extensive medical care than previously anticipated; and
5. A causal relationship between the injury covered by the settlement and the covered condition.
While these factors may be useful, the primary purpose of allowing a vacation of an award is to assure compensation proportionate to the degree and duration of disability. Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 63 W.C.D. 337 (Minn. 2003). We conclude that the employee has not established good cause in this case.
Contrary to the employee=s assertion in her brief that it was the belief of all parties at the time of the settlement that the employee would be able to return to work, the parties specifically agreed in the stipulation that the employee was permanently and totally disabled and had been so since December 30, 1988. We are aware that this type of language is often inserted into a stipulation so that receipt of the settlement proceeds does not reduce Social Security benefits. However, the fact remains that the employee asserted to the court in 1992 that she was incapable of employment. Further, we note that the employee had rejected a light duty job offer from the employer in 1991, because she believed she was not physically able to perform the job. The employee has not returned to work since the time of the award. We do not find a change in her ability to work.
We conclude also that the employee has not established a change in the extent of her permanent partial disability. At the time of the settlement, the employee had been paid 17.5 percent of the whole body as the result of her fusion surgery. In her brief the employee provides a calculation of the additional permanent partial disability which would follow from the 2002 surgery but there is no medical opinion on that issue. We are not convinced that the difference between permanent partial disability for surgery involving multiple laminectomies and permanent partial disability for fusion surgery constitutes evidence of a substantial change in medical condition given the evidence in the case.
The employee also claims that there has been a change in her diagnosis which would support a conclusion that there has been a substantial change in her medical condition. Before the stipulation, the employee had fusion surgery and had a diagnosis from her treating surgeon of mechanical back pain. She had an MRI in 1991, which showed multiple level degeneration and mild to moderate stenosis at two levels with nerve root impingement. While there has been surgery since the stipulation, the employee=s symptoms are essentially the same as before the settlement, the findings are consistent with the records before the settlement and the current treatment recommendations are essentially the same as before the stipulation.
After considering the record as a whole, we conclude that the employee has failed to establish cause to vacate the award. The petition to vacate is denied.