PATRICIA AKKANEN, Employee/Petitioner, v. VIRATEC THIN FILMS, INC., and NATIONAL UNION FIRE INS. CO., adm=d by CRAWFORD & CO., Employer-Insurer, and VIRATEC THIN FILMS, INC., and INSURANCE CO. OF THE STATE OF PA, adm=d by SEDGWICK CLAIMS MGMT. SERVS., Employer-Insurer, and MEDICA by HEALTHCARE RECOVERIES, INC., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 5, 2007
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the record did not contain adequate information to establish either change in ability to work or causation between the current worsened condition and the employee=s work injuries, and where the claimed increase in permanent partial disability was minimal, the employee had not established good cause to vacate the award.
Petition to vacate award denied.
Determined by Wilson, J., Rykken, J., and Johnson, C.J.
Attorneys: Eric W. Beyer and Andrew Pierce, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Petitioner. Richard C. Nelson and Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Respondents Viratec/National Union. Thomas V. Maguire, Brown & Carlson, Minneapolis, MN, for the Respondents Viratec/Insurance Co. of the State of Pa.
DEBRA A. WILSON, Judge
The employee petitions to vacate an award on stipulation filed on July 20, 2000, based on a substantial change in condition. Finding no basis to vacate the award, we deny the petition.
The employee sustained an admitted work-related injury to her low back on April 27, 1996, while working for Viratec Thin Films, Inc., [the employer], which was then insured for workers= compensation liability by National Union Fire Insurance Company. The employee=s initial diagnosis was a low back strain/sciatica. Ultimately, the employee was diagnosed with L5-S1 spondylolisthesis, and surgery was performed on February 19, 1997, consisting of removal of the posterior element of L5, with pedicle screw/plate instrumentation and fusion. The employee was released to return to work on August 5, 1997, with restrictions against repetitive bending and standing/walking more than six to eight hours per day.
The employee first sought medical treatment for pain in her neck and intrascapular area in October of 1999, when she was seen by Dr. Steven Curtis. The employee was still working for the employer at the time. X-rays taken on October 12, 1999, revealed osteophyte formation in the lower cervical spine with some narrowing of the disc spaces. Dr. Curtis noted that the degenerative change was Aslightly more than I would anticipate based on age-related changes only.@ On November 9, 1999, the employee reported additional symptoms of weakness and loss of power in her shoulders, neck, and interscapular area. Dr. Curtis eventually opined that the employee=s neck and shoulder symptoms were the result of a Gillette-type injury culminating in early October of 1999. The employee filed a first report of injury with the employer on November 12, 1999. The employer=s workers= compensation insurer at that time was Insurance Company of the State of Pennsylvania.
On January 13, 2000, the employee called Dr. Curtis= office, reporting a lot of pain. She had apparently missed two days from work and was requesting a trial of Vioxx.
Sometime in March of 2000, the employee filed a claim petition seeking temporary total disability benefits continuing from January 26, 2000, as a result of work injuries sustained on April 27, 1996, and October 9, 1999. She apparently later amended her claim petition to include alternative Gillette dates of injury of January 1, 2000, and January 26, 2000.
In June of 2000, the parties entered into a stipulation for settlement wherein the employee alleged, in part, that she was entitled to temporary total disability benefits from January 26, 2000, to March 19, 2000, temporary partial disability benefits continuing from March 20, 2000, and benefits for a 7% permanent partial disability of the body as a whole, related to ongoing symptoms in her neck. Under the terms of the stipulation, the employee was paid $44,750.00 in full, final, and complete settlement of her claims arising out of the four alleged injury dates, with the exception of medical expenses relating to her low back. An award on stipulation was filed on July 20, 2000.
On November 2, 2000, the employee was seen in the emergency room for complaints of neck pain and numbness in her arms. She stated that she had had problems with her neck since 1997 and that her Adiscs are shot.@ She was prescribed Tylenol #3 and discharged home, but she returned to the emergency room on November 21, 2000, complaining of ongoing problems with her neck and numbness down both arms to her fingers. X-rays taken at that time revealed advanced degenerative changes of the cervical spine.
The employee underwent an MRI on January 24, 2001, which showed asymmetrical disc protrusion at C6-7 on the left compressing the left side of the cervical cord and the left C7 nerve root, broad-based annular bulging at C4-5 and C5-6, flattening the ventral aspect of the cervical cord, and C5-6 mild compression of both C6 nerve roots.
On January 30, 2001, the employee was taken by ambulance to the emergency room, complaining of upper back and neck pain with numbness and pain in the entire left side. She stated that she had a history of degenerative bone disease.
The employee was seen by neurosurgeon Dr. Robert Donley on March 15, 2001. At that time, she reported having had a three plus year history of neck pain into her shoulder, stating that she had started going to the emergency room for pain control in the fall of 2000. Dr. Donley opined that the employee might eventually require neck surgery but encouraged her to stay active and take anti-inflammatories. The employee received some physical therapy in April of 2001.
On October 23, 2001, the employee began treating with Dr. Lorelee Stock, for complaints of neck and left shoulder pain. She gave a history of neck pain for three years with increasing pain in the left shoulder. Dr. Stock=s assessment was neck pain with degenerative changes of the cervical spine.
The employee returned to Dr. Stock on August 20, 2002, stating that her neck pain was returning. She also complained of tingling and numbness in both arms. Dr. Stock continued the employee on Celebrex and instructed her to continue her stretching exercises.
The employee was seen in the emergency room on September 9, 2002, with complaints of neck pain and suicidal ideation. Injection therapy was apparently prescribed, and, when the employee returned to Dr. Stock on November 14, 2002, she had only minimal pain in her back and neck. She was instructed to continue with her home exercises. However, by January 2003, the employee had returned to Dr. Stock=s office complaining of increased pain and tingling in her left hand. A repeat MRI performed on January 16, 2003, showed no significant changes compared to the prior scan. On January 20, 2003, Dr. Stock recommended an epidural injection at C6-7 to see if it would decrease the tingling and numbness in the arm. The employee reported on February 6, 2003, that the epidural had actually worsened her pain. The employee was continued on Celebrex for her pain, with Xanax as needed, and instructed to exercise and avoid heavy lifting.
On April 17, 2003, the employee reported that she was experiencing the same pain that she usually had, stating also that she had gone off all of her medications and had taken her last Xanax and OxyContin the night before. Dr. Stock instructed the employee to continue her anti-inflammatories but stated that she did not want to keep renewing pain medications. Dr. Stock also recommended that the employee look for work.
When the employee returned to Dr. Stock on May 15, 2003, complaining that her whole body hurt, Dr. Stock gave her OxyContin, Xanax, and Bextra, as well as Lortab. On August 4, 2003, Dr. Stock noted that the employee was complaining of pain in the right side of her body, including her right knee and right ankle. She reported that the employee had tried Lidocaine patches given to her by Dr. Molly Urban and that she was taking OxyContin in the morning and evening, with hydrocodone in between. Dr. Stock continued her on OxyContin.
The employee continued to treat with Dr. Stock through July of 2004. Her complaints typically consisted of hand and arm numbness, tightness and pain in the neck, and weakness and giving out of her left leg. Dr. Stock most often treated her with OxyContin, Xanax, and Lortab. On August 10, 2004, the employee complained of right shoulder pain, which Dr. Stock treated with a cortisone injection. When seen by Dr. Stock on October 12, 2004, the employee complained of chronic low back and neck pain. Dr. Stock prescribed physical therapy and referred the employee to Dr. Timothy Seidelmann.
On December 16, 2004, the employee was seen by Dr. Seidelmann, who recorded a history of fibromyalgia and Aa long history of neck and back pain.@ He noted that Athis is felt to be work related.@ His diagnosis was osteoarthritis with degenerative changes in the cervical and lumbar spine. Dr. Seidelmann discontinued OxyContin.
The employee underwent epidural steroid injections to the cervical spine, performed by Dr. Urban, in January of 2005. On January 26, 2005, the employee returned to Dr. Seidelmann, complaining of intractable pain. Dr. Seidelmann advised the employee that she must adhere to a signed opioid agreement, and, with that agreement, prescribed OxyContin.
On April 27, 2005, Dr. Seidelmann noted that he had received a letter from psychiatrist Dr. Timothy Magee about the employee=s use of cannabis and alcohol in addition to her opioid use. Dr. Seidelmann discussed with the employee that, given her history of substance abuse, it was difficult to treat her from a pain management standpoint. The employee denied that she misused medications. At that time, the doctor discontinued the employee=s hydrocodone usage and encouraged her to attend a chronic pain management program.
On November 16, 2005, Dr. Seidelmann wrote a letter opining that the employee was at maximum medical improvement with respect to her cervical spine and had sustained a 10% whole body disability.
In April and May of 2006, the employee underwent diagnostic and confirmatory blocks of the right C4, C5, and C6 medial branch nerves, with radiofrequency neuroablation at those areas.
On November 2, 2006, the employee filed a petition to vacate the July 2000 award on stipulation based on a substantial change in condition.
Minn. Stat. ' 176.461 (2006) governs this petition to vacate. Pursuant to that statute, cause to vacate includes a substantial change in medical condition, since the time of the award, that was clearly not anticipated. In his memorandum of law in support of the petition to vacate, the employee=s attorney contended that the Fodness  factors should be applied to the facts of this case and that, given those factors, the petition should be granted. A different attorney from the same law firm appeared on the employee=s behalf at oral argument, arguing that, while the Fodness factors are Aguideposts@ for determining whether an award should be vacated, the award here should be vacated because of the Adisproportionality@ between the settlement payment and the employee=s current disability. In support of that position, counsel cited Dille v. Healtheast/St. Joseph=s Hospital, WC06-171 (W.C.C.A. Nov. 21, 2006). However, in Dille, this court addressed each of the Fodness factors and ultimately denied the petition to vacate even though the employee in that case received only $35,000.00 in full, final, and complete settlement of all claims, with the exception of medical expenses.
This court has generally applied the Fodness factors in determining whether there has been a substantial change in medical condition. Those factors include:
1. A change in diagnosis;
2. A change in the employee=s ability to work;
3. Additional permanent partial disability;
4. The 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 employee=s current worsened condition.
In the present case, the employee contends that there has been a change in diagnosis, arguing that at the time of the settlement she had only been diagnosed with a vague overuse syndrome, whereas she has now been diagnosed with bulging discs at multiple levels, myalgia of the bilateral trapezius muscles, and fibromyalgia. However, medical records reveal that the employee had been diagnosed with degenerative changes of the cervical spine by 1999. In 2004, Dr. Siedelmann diagnosed osteoarthritis and degenerative changes of the cervical spine.
With respect to change in ability to work, the memorandum attached to the petition to vacate states that the employee was working as a group home supervisor at the time of the settlement but was unable to maintain that position post settlement Adue in substantial part to her ongoing cervical complaints.@ The employee went on to compare her earnings at the time of the stipulation with her earnings in the years that followed. However, at oral argument, the employee=s attorney acknowledged that the employee=s restrictions have remained the same and that he could not point to a medical or vocational record indicating that the employee was not working because of any disability resulting from her work injuries.
The third Fodness factor is additional permanency. The employee contends that she had been rated as having a 7% whole body impairment related to the cervical spine at the time of the stipulation for settlement and that she has a 10% impairment now. We are not convinced that this change in permanency is substantial.
With regard to the necessity for more extensive and expensive medical care, the employee contends that she has incurred $15,000.00 in medical expenses related to the cervical spine. The stipulation for settlement closed out future medical expenses with the exception of those related to the low back. It does appear that this degree of medical treatment was not anticipated at the time of the award.
Finally, with regard to causation, the employee asserts, in the memorandum of law attached to the petition, that her doctors have opined that her condition is related to the work injuries. As the employer and insurers note, however, Dr. Stock merely checked a box on forms indicating that the employee=s condition is work-related; she never issued a report or explained in any office note how the employee=s condition post-settlement was related to the work injuries. And, while Dr. Seidelmann did state that the employee=s neck pain Awas felt to be work related,@ that statement was contained only in the history portion of his records. At oral argument, the employee=s attorney admitted that there is no medical report containing a specific or detailed opinion on the issue of causation.
An employee who seeks to vacate an award on stipulation on the basis of a substantial change in condition has the burden of presenting evidence to this court in support of her claim. Bartz v. Meadow Lane HealthCare, No. WC06-184 (W.C.C.A. Feb. 26, 2007). While the employee arguably established a change in diagnosis and more costly and extensive medical care than contemplated, there is no medical or vocational support for the claimed change in ability to work, and there is no causation opinion adequate to establish that the current worsened condition is causally related to the employee=s work injuries. The petition is therefore denied.
 See Gillette v. Harold Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 The records submitted with the petition to vacate do not establish who, if anyone, had prescribed OxyContin.
 Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).
 The employee has not argued that her low back condition has substantially worsened; the petition to vacate addressed only an alleged substantial change in the employee=s cervical condition.