THERESE SCHOLZ, Employee/Petitioner, v. LeBISTRO CAFÉ and CIGNA INS. CO., Employer/Insurer, and TGI FRIDAY=S and ROYAL & SUN ALLIANCE INS., Employer/Insurer, and TGI FRIDAY=S and RELIANCE INS. GROUP/CRAWFORD & CO., Employer/Insurer, and INSTITUTE FOR LOW BACK AND NECK CARE, Intervenor, and SPECIAL COMP. FUND.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 12, 2007
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The employee has established a substantial change in her medical condition which justifies vacating the awards on stipulation issued in 1999.
CAUSATION - INTERVENING CAUSE. The employee=s slip and fall in an icy parking lot in March 2001 does not constitute a superseding, intervening cause so as to break the causal relationship with her previous work injuries.
Petition to vacate awards on stipulation granted.
Determined by: Stofferahn, J., Rykken, J., and Pederson, J.
Attorneys: Thomas A. Klint and Andrew J. Hippert, Babcock, Neilson, Mannella, & Klint, Anoka, MN, for the Petitioner. Thomas J. Misurek, Jardine, Logan & O=Brien, Lake Elmo, MN, for Respondent LeBistro Café/CIGNA. Brent Kleffman, Peterson, Logren & Kilbury, St. Paul, MN, for Respondent TGI Friday=s/Royal & Sun Alliance. Jay T. Hartman and Tracy M. Borash, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for Respondent TGI Friday=s/Reliance Ins. Sara Stoltman, St. Paul, MN, for the Special Compensation Fund.
DAVID A. STOFFERAHN, Judge
The employee petitions to vacate two stipulations for settlement which were the subjects of awards issued February 9, 1999, and November 23, 1999. Finding that the employee has established cause under the statute, we grant the petition and vacate the awards.
The employee=s petition involves three work injuries the employee sustained to her low back: March 30, 1985, at LeBistro Café; June 21, 1987, at TGI Friday=s; and November 16, 1996, at TGI Friday=s. The employee and the employers and insurers for the 1985 and 1987 injuries entered into a settlement in February 1999. The employers accepted that the employee had compensable injuries to her low back in 1985 and 1987 and accepted the apportionment of liability set by a compensation judge after a hearing in 1989. Liability for benefits was set at 75 percent for LeBistro/CIGNA and 25 percent for TGI Friday=s/Royal & Sun Alliance. The employee settled out all claims with the exception of future medical expense in return for payment of $35,000.00.
In November 1999, the employee settled her claims with the employer and insurer for the 1996 injury. The settlement came after a decision by a compensation judge that the employee had sustained a Gillette injury to her low back as of November 16, 1996, while she was working for TGI Friday=s, then insured by Reliance. The compensation judge awarded wage-loss benefits to be paid by Reliance and apportioned liability for the employee=s condition with 75 percent being due to the 1985 and 1987 injuries and 25 percent due to the 1996 injury. The compensation judge=s findings and order were affirmed by a decision of this court. In the November 1999 settlement, the employer and insurer accepted that the employee had a low back injury at work on November 16, 1996. The employee settled all claims on a full final and complete basis for $9,500.00. Future medical expenses were left open.
The employee had surgery to her low back on April 15, 1997. Dr. Charles Burton at the Institute for Low Back and Neck Care performed a two-level discectomy and anterior interbody fusion with titanium threaded fusion cages at L4-5 and L5-S1. The employee had complications following the surgery from an infection at the bone graft site in her left hip. The employee had substantial improvement in her low back and right leg symptoms after the surgery.
At the time of the first settlement, the employee was not working but had been released to return to work on a light-duty basis by Dr. Burton. In his January 22, 1999, chart note, Dr. Burton stated the employee was making reasonable progress. No treatment other than pain medication was discussed. On April 21, 1999, Dr. Burton said the employee had done Aquite well with the exception of her complex regional pain syndrome at her incisional site.@ With regard to treatment, Dr. Burton stated, Ashe really needs to focus on physical activation, antigravitational unloading, and weight loss.@ The employee was working as a restaurant hostess at the time of the second settlement. In August 2000, the employee began to work full time as a traveling salesperson.
In March 2001, the employee slipped and fell on ice in the parking lot of the apartment building where she was living. She reported that she landed on her buttocks and had left buttock pain. The employee treated at the Institute for Low Back and Neck Care and had surgery on November 28, 2001. The procedure done by Dr. Brian Lynn was an Aexploration of the fusion; posterior instrumentation and fusion on the right side, L4 to the sacrum, and left side L5-S1; right posterior iliac crest bone graft; and posterolateral fusion L4 to the sacrum bilaterally.@
Subsequently, the employee reported improvement in her low back but had increasing discomfort in her right leg. Follow-up treatment involved anti-inflammatory medication and a nerve root block. Later, the instrumentation was removed from the employee=s spine and the employee reported less pain. When she returned to Dr. Lynn in April 2003, she reported increasing discomfort over the past several weeks.
In her affidavit accompanying the petition, the employee states that she reduced her employment to part-time work after the November 2001 surgery. After her pain continued to increase, she stopped working completely in September 2003. The employee has not worked since that time.
In May 2004, the employee consulted with Dr. Paul Maurer at the University of Rochester Medical Center in Rochester, New York. It was Dr. Maurer=s opinion that a foraminotomy and nerve root decompression at the L4-5 and L5-S1 levels would be appropriate. This procedure was done on June 4, 2004, by Dr. Maurer. The employee states in her affidavit that while there was some initial improvement in her symptoms following the surgery, her condition worsened over the next several months so that it was worse than before the surgery.
The employee reported that at the time of her petition, she was limited to lifting less than ten pounds, standing less than five minutes, walking less than ten minutes, and sitting less than 15 minutes. The employee applied for Social Security disability benefits and was awarded benefits with an effective date of disability of September 3, 2003. The employee uses a cane and has numerous medication prescriptions.
Since her initial injury in 1985, the employee has had medical evaluations on several occasions at the request of the employers and insurers involved in her case.
The employee was seen by Dr. Michael Davis in 1988, 1997, and 2002. In his latest report, Dr. Davis reviewed the employee=s medical history since the time of his 1997 examination and reviewed the medical records produced during that time. It was his opinion that the March 2001 incident when the employee slipped on ice was a causal factor in the employee=s need for treatment after that date. Dr. Davis also concluded that her medical treatment had been reasonable and necessary.
Dr. Mark Friedland evaluated the employee on December 18, 1997. From the report, it appears Dr. Friedland was asked as to whether or not the employee had sustained a Gillette back injury in 1996. He concluded the employee had such an injury and apportioned liability 90 percent to the 1985 injury and ten percent to the 1996 injury. Dr. Friedland placed work restrictions of no lifting over 20 pounds and no repetitive bending, twisting, or stooping. Dr. Friedland stated that the employee=s medical treatment after 1996 was reasonable, necessary and related to the employee=s work injuries. It was his opinion that the employee had 19 percent permanent partial disability as the result of her work-related back injuries.
The employee was evaluated by Dr. David Boxall in 1998, 2002, and 2007. The diagnoses used by Dr. Boxall in 2002 to describe the employee=s condition referenced her surgical procedures. He concluded the treatment after 2001 was due to the slip and fall in March 2001. He stated, ASince she was doing well prior to March of 2001, I do not believe that her pre-existing work-related injury plays a significant role in her subsequent treatment up to the present time.@ In 2007, Dr. Boxall addressed the question of a change in the employee=s condition and whether the 2004 surgery was appropriate. Dr. Boxall attributed 75 percent of the employee=s condition in 2007 to her work injuries and 25 percent to the March 2001 slip and fall. It was also his opinion that there had been a substantial change in the employee=s medical condition. He would place work restrictions on the employee of no lifting over 35 pounds and only occasional lifting over 20 pounds. It was Dr. Boxall=s opinion that, within those restrictions, the employee could work 40 hours a week. Finally, it was his opinion that her treatment since 2002 had been unreasonable.
Dr. David Florence evaluated the employee on July 5, 2007. He stated in his report that he was unable to take a full history from the employee because she was Azonked@ on medication. He had multiple diagnoses including Achronic pain syndrome@ and Amarked functional overlay.@ Dr. Florence apparently placed great reliance on a journal article he had written 25 years earlier in determining that the employee had chronic pain syndrome. Dr. Florence was of the opinion that there had not been a substantial change Aphysically@ in the employee=s medical condition. Dr. Florence did not find the employee=s work injuries to be medically significant and concluded her treatment after March 2001 was not appropriate.
The employee filed her petition to vacate on March 1, 2007.
This court has authority to vacate an award for cause under Minn. Stat. ' 176.461. Cause as defined in the statute 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.@ The employee claims that there has been a substantial unanticipated change in her medical condition.
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 are a useful guide for our review of such cases, we also remain mindful that the primary purpose of allowing a vacation of an award is to assure compensation proportionate to the degree an duration of disability. Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 63 W.C.D. 337 (Minn. 2003). We turn to a consideration of the Fodness factors.
The employee=s diagnosis at the time of her settlement is best characterized by Dr. Friedland at the time of his 1997 IME. His diagnosis was:
1. Status post L4-5 and L5-S1 anterior interbody fusion with titanium threaded cages.
2. Status post infected hematoma of left posterior iliac crest graft site with clinical resolution of infection.
The employee=s diagnosis in 2007 is set out by Dr. Boxall in his IME report of June 28:
1. Status post anterior fusion with cages, L4-5 and L5-S1, with post-op infection of the graft harvest site, resolved.
2. Status post redo posterior spinal fusion, instrumentation, and bone grafting, October 4, 2001, L4 to S1 with findings at that time of a pseudo arthrosis at L5-S1.
3. Status post hardware removal, July 22, 2002, with findings of a solid fusion at L4-5 and L5-S1.
4. Status post compression and foraminotomy L5 nerve root on the right, June 7, 2004.
5. Status post repair of cerebral spinal fluid and dural leak, July 14, 2004.
6. Ongoing evidence of functional overlay and chronic pain syndrome.
7. Addiction to prescription narcotics.
The employers/insurers argue that there has not been any change in diagnosis, that the correct diagnosis has always been chronic pain syndrome. For authority, an assessment at Mayo Clinic in 1987 which refers to that condition and Dr. Florence=s IME report in 2007 are cited. We believe this argument misstates the medical evidence in this case. The Mayo assessment predates the 1997 surgery by ten years. Further, by the time of the 1999 settlements, the employee had been seen by a number of IME doctors, none of whom diagnosed chronic pain syndrome. While the employee may now have a diagnosis which includes chronic pain after dealing with this injury for more than 20 years, to ignore the mechanical changes in her back due to surgery and to suggest that the employee=s only problem now is chronic pain is simply not credible.
The second Fodness factor is a change in the employee=s ability to work. At the time of the settlements, the employee=s treating doctor had released her to light work and the employee was employed as a hostess at a restaurant. In the opinions of the IME doctors, the employee=s work restrictions are essentially the same. The employee, however, has stated that she has been unable to work since September 2003 and her reported physical limitations would seem to preclude her from employment. The employee applied for and received Social Security disability benefits with an effective date of disability of September 2003. As part of that process, Dr. Maurer filled out an RFC (residual functional capacity) questionnaire, dated February 18, 2005, in which he stated the employee was not capable of any employment. A disability questionnaire was also completed by Dr. Shep Cohen, a pain management doctor the employee started seeing in November 2004. Dr. Cohen=s response, dated February 17, 2005, was not able to be employed.
While there are a number of different ratings of permanent partial disability by the time of the settlements, it is not clear what payments were made. In any event, there is no evidence as to what her current permanent partial disability rating might be.
The next factor is the necessity for more costly and extensive medical care. While this factor may be of paramount importance in those few cases in which future medical is closed out by the settlement, it is also important in a case such as this as an indication of how unanticipated medical care reflects a change in condition.
There is no indication in Dr. Burton=s records from the time of the settlements that any significant additional medical care was anticipated. The employee=s treatment at that time consisted of pain medication, due primarily to her left hip infection. She had major surgery in November 2001 and neither of the IME doctors who saw her in 2002, Drs. Davis and Boxall, thought that treatment to be unreasonable. The parties disputed the reasonableness of the employee=s surgery in 2004, a dispute resolved by settlement. In any event, considering whether there has been a need for more extensive medical care is not the same issue as whether or not the treatment is reasonable under Minn. Stat. ' 176.135.
The final factor is causation. The employers/insurers argue that the employee=s current condition is not the result of her work injuries but rather is the result of a superseding, intervening cause, the employee=s slip and fall in March 2001. It is axiomatic that the work injury need not be the sole cause of the disability but may be a substantial contributing factor. Roman v. Minneapolis Street Railway Co., 268 Minn. 367, 129 N.W.2d 550, 23 W.C.D. 573 (1974). The causal connection between a work injury and a disabling condition may be broken by a superseding, intervening cause if it is shown that the intervening cause was not a natural consequence of the injury but was the result of Aunreasonable, negligent, dangerous or abnormal activity@ on the part of the employee. Eide v. Whirlpool Seeger Co., 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437 (1961).
There is no serious argument that the employee=s conduct in March 2001 was abnormal or unreasonable. Traversing an icy or snowy parking lot in March is a normal physical activity in a Minnesota winter. The employee=s fall while doing so does not constitute a superseding, intervening cause. While the employers cite various IME reports, this issue is a legal question and not a medical question.
Finally, LeBistro/CIGNA argues that even if this court decides the employee has established cause to vacate, only the last settlement, the one of November 1999, should be vacated. There is no reason to vacate both settlements, they contend, where vacating only the last settlement will provide the employee with a claim for her injuries. LeBistro/CIGNA refers to two decisions from this court in which we held that it was premature to vacate a settlement while a claim for benefits was pending. Kinnunen v. Brockway Glass, slip op. (W.C.C.A. Jan. 27, 2000); Enstad v. Granite Falls Municipal Hospital, No. WC06-122 (W.C.C.A. Oct. 5, 2006). We conclude, however, that the cases cited by LeBistro/CIGNA are not determinative in this matter. Central to Kinnunen was the fact that the question of apportionment of liability between the injuries had not been established. It was not yet known whether the last injury had any responsibility for the employee=s condition. We held that in such circumstances, vacating the stipulation was premature. We did not hold that it would never be appropriate. Here, where the stipulations are nine months apart, where there was no significant difference in the employee=s condition between February and November, and where apportionment among the employers has been determined, it is not premature to consider both settlements.
We find the employee has established cause to vacate pursuant to Minn. Stat. ' 176.461. The employee=s petition is granted.
 Scholz v. LeBistro Café, slip op. (W.C.C.A. Oct. 4, 1999).