DIANE CHRISTENSON, Employee/Petitioner, v. INDEPENDENT SCH. DIST. #281 - ROBBINSDALE, and LIBERTY MUT. INS., Employer-Insurer, and INDEPENDENT SCH. DIST. #281 - ROBBINSDALE, SELF-INSURED/BERKLEY RISK ADM=RS, Employer.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 21, 2007
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the employee failed to provide evidence of an unanticipated substantial change in medical condition since the time of the award, the petition to vacate must be denied.
Petition to vacate award denied.
Determined by: Johnson, C.J., Rykken, J. and Stofferahn, J.
Attorneys: Dean M. Margolis, Margolis Law Firm, St. Louis Park, MN, for the Petitioner. Matthew D. Davis, Bakken and Robinson, St. Paul, MN, for the Respondent Employer/Liberty Mutual. Charlene K. Feenstra, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondent Self-Insured Employer/Berkley.
THOMAS L. JOHNSON, Judge
The employee petitions to vacate an Award on Stipulation, served and filed October 16, 2003, on the basis of a substantial change in medical condition, not anticipated at the time of the award. Concluding the employee has failed to establish good cause, we deny the petition.
Diane Christenson, the employee, began working for Independent School District #281 - Robbinsdale, the employer, as a custodian and bus driver on September 5, 1985. The employee claimed multiple personal injuries on October 27, 1989, November 12, 1998, and November 12, 2001, while working for the employer. The employer was self-insured, with claims administered by Berkley Risk Administrators, on October 27, 1989, and November 12, 2001. On November 12, 1998, the employer was insured for workers= compensation purposes by Liberty Mutual Insurance.
The employee sustained a personal injury to her cervical spine on October 27, 1989, and to her low back on November 12, 2001. The self-insured employer/Berkley admitted liability for the cervical spine injury and paid various benefits, including permanent partial disability benefits of seven percent to the body as a whole. Neither the employee nor the self-insured employer/Berkley submitted any records relating to the 1989 or 2001 injury.
On November 12, 1998, while driving school bus, the employee was rear-ended in the bus garage parking lot by another school bus. She was seen in the emergency room following the accident, and was examined by Dr. Gary Johnson the following day. The employee described neck, upper thoracic, and low back pain, was referred to her chiropractor for further treatment, and released to return to work on November 16, 1998.
In 1999, the employee reported persistent, intermittent low back pain and physical therapy was initiated. An MRI scan in June 2000 revealed bilateral spondylolysis at L4-5 without spondylolisthesis. The employee was given restrictions of no lifting over 50 pounds. In February 2001, she was seen by Dr. Paul Crowe, an orthopedic surgeon, with chronic low back and left foot pain. A repeat MRI scan in October 2001 showed mild degenerative changes and stenosis at L4-5. Additional physical therapy was prescribed.
Dr. Joseph Teynor performed an independent medical examination (IME) on November 26, 2001, at the request of the employer and Liberty Mutual. The employee complained of low back pain and left leg pain. Dr. Teynor diagnosed chronic spondylosis  and arthritic changes. He opined the employee=s low back complaints were not causally related to the November 12, 1998, accident, and believed the employee was capable of full time employment. In view, however, of the employee=s arthritis, Dr. Teynor recommended restrictions of no lifting over 30 to 50 pounds on a repetitive basis, and avoidance of twisting, stooping and bending activities. Relying on Dr. Teynor=s report, the employer and Liberty Mutual denied liability for the employee=s November 12, 1998, personal injuries.
The employee was seen by Dr. A. Nadine Maurer in 2002. A third MRI scan in June 2002, showed grade 1 spondylolisthesis at L4-5 and bulging discs. Dr. Maurer diagnosed degenerative facet joint disease, and continued conservative treatment. On December 6, 2002, Dr. Robert Wengler performed an IME at the request of the employee=s attorney. Dr. Wengler diagnosed degenerative disc disease and bilateral spinal stenosis at L4-5 and L5-S1 with associated radicular symptoms and segmental instability. He restricted the employee from returning to custodial work, limited lifting to around 10 pounds, and stated the employee should not engage in activities requiring repetitive bending or stooping, heavy pushing or pulling, or working in positions of prolonged postural stress.
On October 9, 2003, the employee returned to Dr. Maurer for re-evaluation of her chronic low back condition. Dr. Maurer noted the employee had a previous surgical consultation and the doctor indicated the employee should consider surgery only when her pain became severe. The employee reported her pain had become quite severe. She stated she was having difficulty tolerating it and reported chronic daily pain aggravated by any type of activity. Dr. Maurer ordered a repeat MRI scan followed by referral to an orthopedic surgeon.
In the meantime, the parties agreed to settle the employee=s claims. The stipulation for settlement provided for a lump sum payment of $20,000.00, including payment of attorneys fees, in return for a full, final and complete settlement of all workers= compensation claims arising out of the employee=s October 27, 1989, November 12, 1998, and November 12, 2001, injuries, leaving open only reasonable and necessary medical expenses. Liberty Mutual reserved the right to assert all defenses, including a denial of primary liability. The stipulation was approved by a compensation judge and an Award on Stipulation was served and filed on October 16, 2003.
The MRI scan performed on October 29, 2003, showed bilateral facet joint changes at L4-5 with 3mm of spondylolisthesis. Dr. James Schwender, an orthopedic surgeon, saw the employee on January 13, 2004. Dr. Schwender believed fusion surgery was appropriate, but the employee elected to continue conservative treatment as long as possible.
In January 2006, the employee returned to Dr. Schwender. An MRI scan on February 9, 2006, showed a 3 to 4mm spondylolisthesis at L4-5, with a slight internal increase in degenerative changes at L4-5 since the October 2003 scan. A posterior fusion was scheduled for February 23, 2006.
The employee was seen by Dr. Paul Wicklund on May 16, 2006, at the request of the self-insured employer/Berkley. Dr. Wicklund diagnosed an L4-5 fusion for grade 1 spondylolisthesis with good early post-operative results. He stated the February 2006 MRI scan showed expected mild progression of the employee=s L4-5 degenerative disc disease, and opined the November 12, 1998, injury continued to be a substantial contributing cause of her need for medical care and treatment. It was Dr. Wicklund=s opinion that the employee could return to light-duty work in the next six weeks, and that the employee would be able to drive a bus, as long as she had an air cushioned seat, within the next two months.
By letter dated September 8, 2006, Dr. Schwender diagnosed spondylolisthesis at L4-5 with stenosis, and opined the employee=s need for surgery and medical treatment was causally related to the November 12, 1998, accident. The doctor stated the employee had been disabled since February 6, 2006, as a result of her work related condition, and opined the employee was not yet at maximum medical improvement which he anticipated would be reached at one year post-surgery.
The employee returned to Dr. Maurer on January 16, 2007, for a recheck of her chronic neck, low back and leg pain. The doctor reported the employee continued to be significantly limited by chronic low back and leg pain following the fusion surgery. Dr. Maurer prescribed narcotic pain medication and referred the employee for a chronic pain program and pool therapy. A work ability report indicated the employee was off work from January 11, 2007, through follow-up in March.
In February 2006, the employee filed a claim petition alleging injuries to the low back on November 12, 1998, and February 6, 2006, and seeking additional benefits including temporary total disability and a rehabilitation consultation. On September 13, 2006, the employee filed a Petition to Vacate Award on Stipulation on the basis of a substantial change in medical condition not anticipated at the time of settlement. Both the employer/Liberty and the self-insured employer/ Berkley object to the petition.
This court has jurisdiction to set aside an award on stipulation upon a showing of good cause. Minn. Stat. '' 176.461 and 176.521, subd. 3. Good cause 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.@ Minn. Stat. ' 176.461(4). In determining whether an award should be vacated, the claimed change in medical condition is considered in the context of the employee=s diagnosis and necessary medical care, her ability to work, and the extent of permanent partial disability. Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989); see, e.g., Bresnahan v. Vicorp/Bakers Square, No. WC05-292 (W.C.C.A. Apr. 27, 2006); Bartz v. Meadow Lane HealthCare, No. WC06-184 (W.C.C.A. Feb. 26, 2007). The inquiry in a change of condition case looks back on events, comparing the employee=s condition as it was at the time of the award with the employee=s condition at the time vacation of the settlement is sought. Davis v. Scott Moeller Co., 524 N.W.2d 464, 466-67, 51 W.C.D. 472, 475 (Minn. 1994).
In this case, the employee contends there has been a major, unanticipated change in her diagnosis since the time of the award. We are not persuaded. An MRI scan on June 21, 2002, was read as showing grade 1 spondylolisthesis at L4-5 with bulging discs. In his December 6, 2002 report, Dr. Wengler diagnosed degenerative disc disease and bilateral spinal stenosis at L4-5 and L5-S1 with radicular symptoms and segmental instability. On October 9, 2003, Dr. Maurer diagnosed chronic low back pain with L4-5 spondylolisthesis and degenerative facet joint disease. Dr. Maurer noted the employee previously had been seen by a consultant who stated the employee should consider surgery only when her pain became severe. The employee reported intolerable pain aggravated by any type of activity, and requested a referral for consideration of surgery. A repeat MRI scan on October 29, 2003, two weeks after the award on stipulation was served and filed, showed bilateral facet joint changes at L4-5 with 3mm of spondylolisthesis.
The employee returned to Dr. Schwender on January 10, 2006. X-rays on that date showed a grade 1 spondylolisthesis, and a repeat MRI scan on February 9, 2006, showed 3 to 4mm of spondylolisthesis at L4-5 with degenerative disc and facet disease that had progressed slightly since the October 2003 scan. It does not appear to us, based on the medical records submitted, that there has been a substantial change in the employee=s underlying diagnosis since the settlement.
The employee maintains, however, that she has required more costly and extensive medical care than contemplated at the time of settlement in the nature of an unanticipated fusion surgery, performed in February 2006, and that the surgery represents a significant change in diagnosis. It appears, however, that surgery was considered prior to issuance of the award on stipulation. The employee requested and Dr. Maurer provided a referral for a surgical consultation contemporaneous with the stipulation for settlement. Dr. Schwender concluded that fusion surgery would be appropriate only a few months after the award was issued. That the employee elected to continue conservative treatment, and did not have the surgery for another two and a half years, does not establish that surgery was not anticipated or could not have been reasonably anticipated at the time of the award. Although the employee asserts she had a poor result, no medical records were submitted substantiating this claim.
The employee also asserts there has been a substantial change in her ability to work. She states that at the time of the settlement, she was able to continue her regular, full-time job as a school bus driver for the employer. Now, the employee asserts, she is permanently and totally disabled and unable to work at any job. While it appears the employee has been off work for a significant period of time while recovering from her fusion surgery, no medical or vocational reports were submitted establishing the employee is now permanently and totally disabled. Dr. Wicklund opined the employee could return to work as a bus driver, so long as she had an air cushion seat. Dr. Schwender=s report states only that the employee has been disabled since February 6, 2006, and that, as of September 8, 2006, she was not yet at maximum medical improvement. A work ability report from Dr. Maurer dated January 16, 2007, indicates the employee was taken off work until follow-up in March.
An employee who seeks to vacate an award on the basis of an unanticipated substantial change in condition has the burden of presenting to this court evidence in support of her claim. Bartz v. Meadow Lane HealthCare, No. WC06-184 (W.C.C.A. Feb. 26, 2007). While there is some indication there may be a change in the employee=s ability to work, there is no medical support for the employee=s claim that she will be permanently precluded from driving bus or that she is permanently and totally disabled from all work.
The employee further asserts there has been an increase in her permanent partial disability rating. At the time of settlement, the employee claimed a permanency rating of 24 percent, including a 22 percent rating for the low back provided by Dr. Wengler. In his May 16, 2002, report, Dr. Wicklund provided a post-fusion surgery rating of 15 percent, and on September 8, 2006, Dr. Schwender provided a preliminary rating of 17 percent. Each rating applies different provisions within Minn. R. 5223.0390. On the record before us, we are unable to determine, without fact-finding, whether there has been a change in the employee=s permanency, and, if so, whether her current permanent partial disability is greater than that claimed at the time of settlement.
The burden is on the employee to submit medical records and other documentation sufficient to establish good cause for vacation of an award. In this case, we conclude the employee has failed to meet her burden of establishing an unanticipated substantial change in medical condition since the time of the award. The employee=s petition is, therefore, denied.
 The employee does not allege any change in her cervical spine condition or that her cervical condition contributes to the worsening of her medical condition. At oral argument, employee=s counsel agreed vacation was not sought for that portion of the award relating to the employee=s neck condition.
 The facts in this decision regarding the employee=s pre-stipulation diagnosis and treatment relating to the November 12, 1998, incident are based on records submitted by the employer and Liberty Mutual. The employee submitted solely post-stipulation records relating to the diagnosis and treatment of her low back condition in 2006 and 2007.
 The employee also claimed a right knee injury on November 12, 1998. The employee did not submit any records relating to the right knee injury, and did not contend that her right knee condition was a contributing cause of her worsened condition.
 ASpondylolysis@ refers to deterioration or dissolution of the bony part of a vertebra. ASpondylolisthesis@ is forward displacement of one vertebra over another, usually due to progressive degeneration of the spinal joints. Dorland=s Illustrated Medical Dictionary 1684 (29th ed. 2000).
 ASpondylosis@ is a general term for degenerative joint disease affecting the lumbar vertebrae and intervertebral discs. Dorland=s at 1684.
 The parties had entered into a previous stipulation for settlement separately providing for payment of medical expenses. (Award on Stipulation 4/18/03.)
 The employee withdrew the claim petition, without prejudice, in January 2007.