CHERYL A. DAVIS, Employee/Petitioner, v. METRO DENTAL and CINCINNATI INS. COS., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 23, 2007
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the records submitted failed to establish a significant change in diagnosis, a substantial deterioration in medical condition or a significant change in the employee=s ability to work, the employee=s petition to vacate an award on stipulation must be denied.
Petition to vacate award denied.
Determined by: Johnson, C.J., Wilson, J., and Rykken, J.
Attorneys: Ronald Drewski, Drewski & Lindberg, Sauk Rapids, MN, for the Petitioner. James K. Helling and Kristin M. Nervig, Brown & Carlson, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee petitions to vacate an Award on Stipulation served and filed October 6, 2005, on the ground of a substantial change in medical condition. We conclude the employee has failed to establish good cause and deny the petition to vacate the stipulation.
Cheryl Davis, the employee, worked as a dental hygienist for Metro Dental, the employer. The employee claimed she sustained a Gillette injury on October 15, 2002, to her neck, bilateral shoulders and upper extremities. The employer and its insurer, Cincinnati Insurance Companies, admitted liability for the employee=s right-sided carpal tunnel syndrome and forearm tenosynovitis/tendonitis, and paid workers= compensation benefits solely for these conditions. The employer and insurer denied primary liability for the claimed neck and bilateral shoulder injuries.
The employee continued to work for Metro Dental until June 27, 2003, when she went off work to have carpal tunnel release surgery, performed by Dr. Michael Forseth on June 30, 2003. The employee was terminated from her employment with Metro Dental on January 15, 2004, when her family medical leave expired. She has not worked since that time.
Although the employee improved following the carpal tunnel surgery, she continued to complain of neck, shoulder and upper extremity pain and numbness. An MRI scan of the cervical spine on October 8, 2003, showed multi-level degenerative disc disease with mild to moderate stenosis from C3 through C6. Following neurological and orthopedic evaluations, Dr. Forseth referred the employee to Dr. Mark Agre at Physical Medicine and Rehabilitation. In January 2004, Dr. Agre noted the employee=s grip and pinch strength were weak, and physical therapy was initiated.
The employee was seen by Dr. Robert Wengler, an orthopedic surgeon, on March 24, 2004, on referral from her attorney. Dr. Wengler concluded the employee=s neck, shoulder and arm pain and atrophy of the first dorsal interosseous muscles of the hands were secondary to cervical spondylosis. The doctor recommended a discogram, stating that if the hand atrophy was secondary to discogenic disease it should be addressed surgically. Dr. Wengler opined the employee had sustained a Gillette injury to the neck resulting from her work as a dental hygienist, and rated a 22% permanent partial disability attributable to the cervical spine.
Dr. Edward Szalapski, an orthopedic surgeon, examined the employee on November 9, 2004, at the request of the employer and insurer. Dr. Szalapski reported normal findings in the neck and shoulder, but noted thenar atrophy and first dorsal interosseous atrophy in the right hand. The doctor diagnosed right carpal tunnel syndrome, status post successful carpal tunnel release; tenosynovitis and tendinitis, right wrist and forearm, resolved; possible right shoulder impingement syndrome; and degenerative disc disease of the cervical spine complicated by a congenitally small spinal canal. In Dr. Szalapski=s opinion, the employee=s neck and shoulder problems were not work-related.
A cervical discography was performed on November 23, 2004. The discogram revealed abnormal disc morphology with concordant neck and shoulder pain at C6-7 (10/10), C5-6 (8.5/10) and C4-5 (7.5/10). The employee returned to Dr. Wengler on February 7, 2005. He noted progression of the first dorsal interosseous muscle atrophy of the right hand, and diagnosed three-level symptomatic cervical spine degenerative disc disease. Dr. Wengler made no recommendation for management of the employee=s degenerative disc disease at that time.
The employee returned to Dr. Forseth on February 24, 2005, for re-evaluation. On examination, the doctor noted significant atrophy in the first dorsal interosseous muscle and weakness on index finger abduction. Dr. Forseth noted a new onset of the employee=s right hand atrophy and that it had become quite severe. The employee was referred for a repeat EMG and nerve conduction study of the right upper extremity. In May 2005, the employee began a functional exercise program at Therapy Partners. In a progress report dated June 10, 2005, the therapist stated the employee would be unable to work unrestricted as a dental hygienist at that time.
The employee filed a claim petition seeking permanent partial disability, medical and rehabilitation benefits. In September 2005, the parties reached an agreement settling all of the employee=s claims on a full, final and complete basis, with the sole exception of future reasonable and necessary medical expenses related to the right wrist and arm below the shoulder. In return, the employee received a lump sum payment of $80,000.00, less $13,000.00 in attorney fees and $5,000.00 in reimbursement of long-term/short-term disability benefits paid to the employee. The settlement was approved and an Award on Stipulation was served and filed on October 6, 2005.
The employee attempted a working interview for a dental hygienist position in February 2006. She was unable to do the work and was not hired.
On March 8, 2006, the employee returned to Dr. Wengler. He noted pronounced atrophy of the first dorsal interosseous muscle of the right hand, progressive since March 2004, and diagnosed degenerative disc disease at multiple levels with C7 radiculopathy likely secondary to pathology at C6-7. A repeat MRI scan on March 8, 2006, revealed multi-level bilateral stenosis from C3-4 to C5-6, a new small, contained midline disc bulge at C6-7 with no neural impingement or significant canal stenosis, and minimal annular bulging at C7-T1 without stenosis or impingement. At a follow-up examination on March 17, 2006, Dr. Wengler diagnosed cervical nerve entrapment with right C7 radiculopathy, stating he felt the employee=s symptoms were secondary to instability of the C6-7 motion segment. Dr. Wengler recommended a one-level anterior interbody fusion which was performed on April 18, 2006.
On October 26, 2006, the employee filed a petition to vacate the October 6, 2005, Award on Stipulation on the basis of an unanticipated, substantial change in medical condition. The employer and insurer object to vacation of the stipulated settlement.
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 at the time of the award.@ Minn. Stat. ' 176.461(4). 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, 52 W.C.D. 472, 475 (Minn. 1994). In evaluating whether a substantial change has occurred, the court may consider various factors 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; and a causal relationship between the work injury and the employee=s worsened condition. Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989). Not all of the factors need be met, and the weight given any factor may vary, depending on the circumstances of the case. See, e.g., Timmerman v. George A. Hormel & Co., 54 W.C.D. 299 (1996).
Change in diagnosis. The employee asserts that although her underlying diagnosis may not have changed, there has been a substantial deterioration in her condition since the award, including new herniated discs and fusion surgery. We are not persuaded.
The employee=s October 2003 MRI scan revealed multi-level degeneration of the cervical spine from C3 through C7. In March 2004, Dr. Wengler diagnosed cervical spondylosis, noting atrophy of the first dorsal interosseous muscles in the hands, evidence of segmental instability over the lower cervical vertebrae, and bilateral radicular symptoms. Based upon the employee=s symptoms and his findings, Dr. Wengler anticipated a lesion at a level lower than C5-6 and recommended a discogram to establish the level of involvement. Dr. Wengler further stated that if the interosseous atrophy was secondary to discogenic disease it should be addressed surgically. The discogram, performed on November 23, 2004, revealed abnormal morphology of the C6-7 disc with 10 out of 10 concordant right-sided neck, scapular and shoulder pain.
The employee returned to Dr. Wengler on February 7, 2005, who noted progression of the atrophy of the first dorsal interosseous muscle of the right hand, but provided no further recommendation for treatment. The employee was then seen by Dr. Forseth on February 24, 2005, who noted increased weakness and significant atrophy of the first dorsal interosseous muscle of the right hand that had become Aquite severe.@ (Resp. Ex. 7.)
The parties entered into a stipulation for settlement in September 2005 and the Award on Stipulation was served on October 6, 2005. On March 8, 2006, five months later, the employee returned to Dr. Wengler who noted pronounced atrophy of the first dorsal interosseous muscle of the right hand, Aa progressive lesion since March 2004.@ (Pet. Ex. P.) He diagnosed a C7 radiculopathy of the right upper extremity likely secondary to pathology at C6-7. The MRI scan on March 8, 2006, again showed multi-level degeneration of the cervical spine from C3-4 through C6-7. Although there was new disc bulging noted at C6-7 and C7-T1, there was no evidence of any stenosis of the spinal canal or neural impingement at these levels. On March 17, 2006, Dr. Wengler stated he believed the employee=s symptoms were secondary to segmental instability at the C6-7 level, and recommended fusion surgery.
In a letter report dated August 10, 2006, Dr. Wengler acknowledged the cervical discogram in November 2004 confirmed pathology at the suspected C6-7 level. He noted he made no surgical recommendation in February 2005, stating he believed the employee=s disc degeneration had stabilized and he did not anticipate a progressive neurologic deficit. This statement, is however, contrary to the evidence of significant progression of the employee=s right hand muscle weakness and atrophy documented in Dr. Wengler=s and Dr. Forseth=s notes in February 2005. It is also clear that cervical spine surgery was considered prior to the stipulation, and that the possibility of future surgical intervention could reasonably have been anticipated at the time of the award. On the whole, we cannot conclude there is evidence of a significant change in diagnosis or a substantial deterioration in the employee=s condition since the award on stipulation.
Change in ability to work. While acknowledging she was not working at the time of the stipulation, the employee argues she expected, at the time of the stipulation, that she would be able to return to work as a dental hygienist, and that, since the award, it has become apparent that she will not be able to do so.
It is clear the employee hoped she would be able to return to work as a dental hygienist, but, as the employee testified, it was a matter of Abeat[ing] the odds.@ (Dep. Nov. 8, 2006, at 75.) The employee was evaluated by Dr. Agre, a rehabilitation specialist, in January 2004. At that time, he noted weakness in the employee=s right hand grip and pinch strength, and indicated that because of her difficulty with gripping, grasping and repetitive use of the right hand, she would likely have difficulty returning to dental hygienist work. In May 2004, Dr. Agree indicated the employee would eventually need a functional capacities evaluation (FCE) as he suspected that dental hygienist work would be beyond her capabilities. In June 2004, the doctor noted the employee continued to have cervical and upper extremity pain that had been recalcitrant to several months of hand therapy. Dr. Agre observed the employee continued to find gripping, pinching and fine motor repetitive activities very aggravating in the right arm and hand, and continued the employee off work. In December 2004, Dr. Agre again recommended an FCE, stating the employee would probably need to do a job search as he doubted she would ever be able to return to dental hygienist work. In June 2005, the hand therapist stated the employee would be unable to work, full-duty, as a dental hygienist at that time.
The employee, while maintaining she hoped to return to work as a dental hygienist at the time of the stipulation, acknowledged that her hand grip and strength never returned to a working level and she did not recover the full use of her thumb or fingers on the right hand. She agreed she no longer had the required pinch strength or grip strength to work as a dental hygienist. (Dep. Nov. 8, 2006, at 20-28.) She further agreed that her hand therapist did not think she would be able to return to work as a dental hygienist. (Dep . Nov. 8, 2006, at 75.) At the time of the award on stipulation in October 2005, the employee was off work and had not worked since the end of June 2003. On these facts, we conclude there has not been a significant change in the employee=s ability to work since the time of the award on stipulation.
Increase in permanency. The employee also contends there has been an increase in her permanent partial disability since the time of the award. At the time of the stipulation, the employee claimed a 22% permanency referable to the cervical spine. No new permanency rating has been provided, but the employee asserts the fusion surgery will entitle her to at least an additional 2.5% rating. It is not clear the employee will have a total permanency of more than the 22% claimed at the time of the stipulation, even with the fusion. And, even accepting the employee=s claim, in the absence of other factors to support a vacation of the award, we are not persuaded that vacation of the award is appropriate on these facts.
Increased medical expenses. The employee contends the cervical fusion surgery subsequent to the award provides a substantial basis for vacation of the award on stipulation, since in this case, medical expenses, except treatment to the right hand and arm, were closed out. As discussed previously, however, fusion surgery was discussed and considered prior to the settlement. The employee acknowledged that, prior to the stipulation for settlement, no doctor had ever told her she would not need neck surgery in the future. (Dep. Nov. 8, 2006, at 85.) Since the cervical spine surgery could reasonably have been anticipated at the time of settlement, it does not provide a basis for vacation of the award on stipulation.
We conclude the employee has failed to establish a substantial change in her medical condition that was clearly not anticipated and could not reasonably have been anticipated at the time of the award, and, accordingly, deny the petition to vacate the award.