JOHN F. LOUGHRAN, Employee/Petitioner, v. MORRIE’S MINNETONKA FORD, and GENERAL CAS. INS. CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 26, 2008
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The employee failed to show a substantial change in condition sufficient to establish cause to vacate the January 2003 award on stipulation.
Petition to vacate award on stipulation denied.
Determined by: Stofferahn, J., Wilson, J., and Johnson, C.J.
Attorneys: Dean M. Salita, Brabbit & Salita, Minneapolis, MN, for the Petitioner. David O. Nirenstein, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee alleges there has been a substantial change in his medical condition since the time of the award on stipulation in January 2003, sufficient to constitute cause under Minn. Stat. § 176.461. We deny the petition to vacate the award on stipulation, finding that cause has not been established.
John Loughran was employed by Morrie’s Minnetonka Ford when he sustained a work injury on January 17, 2001. The employee slipped and fell on ice in the parking lot, striking the back of his head. He was seen in the emergency room at North Memorial Hospital the same day with complaints of posterior neck pain, left shoulder pain, and numbness and tingling in his left hand. The assessment was “minor head injury/cervical strain,” and the employee was given Motrin.
The employer and its insurer, General Casualty Group, accepted liability for the injury and began paying medical expenses and wage loss benefits. A QRC was provided by the insurer.
The employee was seen on two occasions in March and May 2001, by Dr. L. Michael Espeland at Midway Pain Center. The records indicate the employee was referred there for an occipital nerve block by George Adam. The nerve block was done on March 2 and the employee reported on May 4 that he had three to four days of relief of his symptoms. A diagnostic C2 nerve block was done by Dr. Espeland with a notation that if this led to relief, a left C2 radiofrequency ganglionotomy would be offered. There is no further record of treatment at that time.
At the recommendation of his QRC, the employee followed up for the care of his injury at Park Nicollet Medical Center. His initial visit there was on June 25, 2001. His primary complaint was ongoing headaches and “burning-type pain” from the base of the left side of his head to the top of his head. Prior treatment apparently included nerve blocks and a cortisone injection. He reported he had no relief of his pain from these procedures. The physical examination was essentially normal except for limited rotation of his neck. The assessment was occipital neuralgia and the employee was placed on Neurontin.
When he returned on July 16, the employee reported no improvement from his medication. He stated that he was unable to work and “basically spends his time sitting around watching ESPN classic.” The employee was placed on a different medication, Dilantin. A neurological assessment was done on August 10 at Park Nicollet. The assessment was “traumatic occipital neuritis. Secondary cervical myalgic pain.” The employee was taken off Dilantin and placed on Tegretol. At a later doctor visit, the physician was considered to be not helpful and a neurosurgical referral was made.
The employee was seen on September 27 by neurosurgeon, Dr. Mary Ann Ryken. He told her that he had daily headaches in the occipital area. He also told Dr. Ryken that he had been seen previously at the Midway Pain Clinic where a radiofrequency nerve ablation had been suggested. The employee had not pursed that option. Dr. Ryken concluded the employee had occipital neuralgia and headaches with myofascial findings. She recommended prolotherapy and a new medication, Baclofen. The insurer did not approve the prolotherapy. When the employee was seen at Park Nicollet on October 1, the recommendation was made that the employee be seen at Minnesota Advance Pain Specialist [MAPS]. Although he returned to Park Nicollet on two more occasions, he had no further treatment there.
The employee saw Dr. David Schultz at MAPS on October 12, 2001. The employee’s chief complaint was constant pain in the back of the neck. Activity aggravated his pain and the employee told Dr. Schultz that he had not worked since the injury. A brain MRI was done which was read as non-diagnostic. Dr. Schultz recommended cervical facet joint injections. These procedures were done on October 23 on the left side at C2-3, C3-4, C4-5, and C5-6. When the employee returned on November 6, he said his pain was less sharp, but was still at 9 on a 10 point scale. It was felt, based on the employee’s statement that his pain was less sharp, that the employee had “left-sided cervicalgia and cephalgia, which may be facet mediated.” Medial branch blocks were recommended, to be followed by radiofrequency neural ablation. The employee was also given a prescription for Percocet.
The medial branch blocks were done on December 6, 2001. The employee reported on January 8, 1001, that he received about 1 ½ hours relief from the blocks. On January 8, he reported pain at 9 on a 10 point scale. He was given a refill of Percocet. On January 28, the employee was taken off Percocet and placed on methadone.
The employee was evaluated by Dr. Bruce Mack on behalf of the employer and insurer on February 26, 2002. The employee reported that he had experienced constant shooting pain in the left posterior of his head ever since his work injury. Pain was increased by activity and the employee had not worked since the injury. Dr. Mack concluded the employee had an occipital injury, but he saw no indication of a facet joint injury. Dr. Mack stated on occipital nerve block could be considered, and, if the nerve block was effective, a radiofrequency neurotomy could be considered.
After the IME, the employee returned to Dr. Schultz for treatment. Dr. Schultz continued to believe the employee had facet mediated pain and he continued to recommend facet blocks, followed by radiofrequency ablation. The employee reported to Dr. Schultz when he saw him again on April 8 and May 3 that his pain was at 10 on a 10 point scale. The employee continued to receive Percocet from Dr. Schultz.
The employee saw Dr. Espeland at Midway Pain Center on May 10, 2002, for an occipital nerve block. The employee followed with Dr. Espeland for treatment after that visit. Treatment consisted of medication. In July 2002, Gabitril was added to the methadone prescription. In October, Dr. Espeland gave the employee work restrictions of no lifting over twenty pounds, no overhead work and no work more than 4 hours a day. About that time, the employee worked for about two weeks delivering flowers, but quit because he felt he was not physically able to do the job. He had not been employed since then.
Dr. Espeland saw the employee again on November 12, 2002. The employee reported pain at a level of 8 on a 10 point scale. Dr. Espeland noted the employee was seeking approval for the radiofrequency ganglionotomy that had been recommended previously. Dr. Espeland continued to diagnose occipital neuralgia.
The employee was seen by Dr. Mack again in November of 2002. In addition to updated records, Dr. Mack also reviewed records from the Veterans Administration of earlier treatment. The employee was treated in 1988 for alcohol dependency and in 1996 for chemical dependency, self destructive behavior and anger issues. In 1998 he was seen for numbness in his arms and complaints of neck pain. His treatment in 1998 was related to a claim he was making for a service-related disability. The employee was also seen for chemical dependency, bipolar disorder and anger issues. Based on his review, Dr. Mack stated that he had come to doubt the employee’s as to the onset and nature of his symptoms. Dr. Mack concluded the employee had symptoms of occipital neuralgia related to the 2001 work injury, but that the employee’s continued treatment was no longer reasonable or related to the work injury. He gave the employee a permanent partial disability of 3% under Minn. Rule 5223.0360, subp. 2(A), and also opined that the employee did not need work restrictions.
The parties entered into a stipulation for settlement in January 2003. The employee settled all claims, except for future medical care, on a full, final, and complete basis in return for a payment of $16,000.00 less attorney’s fees. In the stipulation, the employer and insurer set forth their position that the employee’s current condition was the result of a pre-existing condition and that previous payments were made under a mistake of fact. In the stipulation, the employer and insurer agreed to pay for one radiofrequency procedure and the employee agreed to waive claims for future similar procedures. An award on stipulation was issued January 14, 2003.
The employee continued to treat with Dr. Espeland after the settlement. On February 27, he reported to Dr. Espeland that he was still on methadone and had pain at a 8 or 9 level. He advised Dr. Espeland at that visit that he would be going to Michigan to get a second opinion on the radiofrequency procedure. There is no medical record from such a visit in the file. The employee returned in March and May and Dr. Espeland noted that the case was in “semi-settlement” and approval of the radiofrequency treatment was pending. The employee was given a refill on his methadone prescription at each visit.
July 15, 2003, was the employee’s last visit with Dr. Espeland. The employee returned for medical refill only and told the doctor his pain was at a level of 10. The prescription refill was refused and the October 2002 work restrictions were restated.
On July 17, 2003, the employee saw Dr. William Phillips at the Glencoe Medical Clinic for the first time. The history provided to Dr. Phillips was of the fall in January, 2001, which resulted in pain that shot up from the occipital region to the top of his head. The employee told Dr. Phillips he was looking for a “third opinion” in his case. Dr. Phillips assessed “left occipital neuralgia of unclear etiology.” He was referred to Mayo Clinic for further evaluation and was given a prescription for methadone. The employee returned on July 31 and reported difficulty with obtaining an appointment at Mayo because of his insurance coverage questions. The employee was given a new prescription for methadone.
The employee applied for Social Security disability benefits in October 2003. He was found to be disabled as of January 17, 2001, with benefits to be paid beginning in October 2002.
The employee did not go to Mayo, but instead saw a neurologist at Fairview University Medical Center, Dr. James Moriarty, on November 17, 2003. Dr. Moriarty assessed “left greater occipital neuralgia and instability of the upper cervical vertebrae.” He recommended a cervical MRI to identify the instability and to assist in considering possible surgery. The MRI was done on February 16, 2004, and was read by Dr. Moriarty as shown degenerative changes and stenosis at multiple levels. Dr. Moriarty indicated he wanted a flexion/extension CT scan of the neck, but that procedure could not be done until the neck muscles were relaxed. Dr. Moriarty provided the employee with various medications, including muscle relaxants. There are no further treatment records from Dr. Moriarty in the file.
The employee returned to Dr. Phillips in March 2004 and advised him that he had stopped taking the muscle relaxants because the medicine made him ill. His only medications at that point were Oramorph and Paxil. It was expected that the employee would follow with Dr. Moriarty for treatment, but Dr. Phillips gave him a different pain medication to replace the Oramorph.
The employee last saw Dr. Phillips in July 2004 to tell him he was moving back to Michigan to be with his family. Dr. Phillips continued to diagnose left occipital neuralgia and he gave the employee prescriptions for Avinza, Oramorph, and methadone until he could see a doctor in Michigan.
The employee saw Dr. Theodore Reahm at Cheboygan Memorial Hospital in Cheboygan, Michigan, on December 12, 2004. He advised the doctor that the pain from his occipital neuralgia was at 8 or 9 on a 10 point scale. Dr. Reahm stated that the employee’s pain was not supported by observation or findings on exam. The employee returned in January for medication and a disability exam. Dr. Reahm assessed occipital neuralgia and cervical degenerative disc disease. An orthopedic consultation was recommended and the employee’s medications - - Motrin, Oramorph and Fioricet - - were continued. Dr. Reahm also stated that the employee’s pain was controlled to a fair degree with medications, but he had increasing pain with motion. “Whether or not he could sustain a working lifestyle is unsure at this point.”
Dr. Reahm wrote a “To Whom It May Concern” letter on March 31, 2005. In it he stated his assessment was “occipital neuralgia, worse on the left than on the right, posterior cervical spasm and pain and restricted neck motion.” With regard to causation, Dr. Reahm stated, “evidently, all this is related to the previous slip and fall.” Dr. Reahm noted the employee had seen an orthopedist, but those records were not in the file. The employee was scheduled to see a neurosurgeon.
Dr. David Morris, a neurosurgeon at the Center of Neurological Surgery, saw the employee on one occasion on May 16, 2005. The employee noted constant pain in his left occipital area that was exacerbated by physical activity. He also told Dr. Morris that he had sporadic numbness in his left arm. Dr. Morris assessed potential occipital neuralgia. In a letter to Dr. Reahm, Dr. Morris indicated that treatment options were either ablative procedures to the greater occipital nerve or neural augmentative stimulation. An evaluation to consider those options further was to take place in the next 5-10 days. There is no record of such an evaluation or of any other treatment by Dr. Morris.
The employee continued to see Dr. Reahm after he consulted with Dr. Morris. He saw Dr. Reahm on October 6 for medicine refill and was given an increased dose of Oramorph and a prescription for Zanaflex. The chart note also stated that the employee had a “neurosurgical examination planned for 11/15/05 at Beaumont.” The employee later said he had no idea what this reference meant. Further treatment with Dr. Reahm consisted of medication. At the time of the last visit with Dr. Reahm in the record, March 2, 2006, no exam was done. The employee reported pain at 10 on a 10 point scale, but Dr. Reahm noted, “he obviously does not appear to be in any pain today at all.” The employee was given prescriptions for Oramorph and Zanaflex.
Apparently at some point the employee saw Dr. Christopher Gunnell at Thunder Bay Community Health Services in Michigan. Dr. Gunnell wrote a letter dated June 22, 2007, to the employee’s attorney. An affidavit dated July 10, 2007, followed. Dr. Gunnell referred to the “well documented uncertainty” of whether the appropriate diagnosis was facet mediated or occipital neuralgia, the employee’s increasing pain, and the cervical MRI of May 22, 2007, as reasons why “the medical aspects of Mr. Loughran’s case merits reopen.” There is no report from the 2007 MRI in the record.
The employee filed his petition to vacate the 2003 stipulation on August 24, 2007. The employee alleged there had been an unanticipated substantial change in his medical condition which constituted cause to vacate the stipulation under Minn. Stat. § 176.461. The employer and insurer objected to the petition.
The employee’s deposition was taken on November 5, 2007. At one point, the employee produced a note from Dr. Gunnell which apparently indicated the employee was not able to be on his feet for more than a half hour and that he was not able to lift anything, except in connection with activities of daily living.
The employee was evaluated on behalf of the employer and insurer by Dr. Khalafalla Bushara on November 6, 2007. The employee told Dr. Bushara that his symptoms were constant pain in the back of his head on the left side that had begun with his fall of January, 2001. Dr. Bushara noted the employee was on morphine and Elavil. Physical examination was normal except for complaints of tenderness in the cervical spine. Dr. Bushara also reviewed the employee’s medical records before providing his opinion. Dr. Bushara stated his diagnosis was occipital neuralgia, the same as the diagnosis given for the employee ever since his injury in 2001. It was Dr. Bushara’s opinion that there had been no change since January 2003 in the employee’s condition. It was his further opinion that the employee had sustained no permanent disability from the 2001 injury, did not need any work restrictions and did not need any additional medical care for the 2001 injury.
The employee also had a vocational assessment on behalf of the employer and insurer by L. David Russell on November 6, 2007. Mr. Russell found no change in the employee’s ability to work since 2003.
This court has authority to set aside an award for cause under Minn. Stat. § 176.461. One of the definitions of cause set out in the statute is a substantial change in the employee’s medical condition since the time of the award which could not have been reasonably anticipated. It is the employee’s assertion that such cause exists in the present case.
This court has often chosen to consider the question of a substantial change in medical condition in the context of the factors set out in our decision in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989). The Fodness factors are:
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.
Each of these factors will be considered in turn.
Change in Diagnosis
There has been no change in diagnosis. Medical records from the date of injury to the time of the most recent record in the file consistently diagnose the employee as having occipital neuralgia. One health care provider diagnosed the employee before the settlement as having a cervical facet mediated condition, but that diagnosis has not been repeated since then. Contrary to Dr. Grunnell’s statement in his affidavit, there was no “confusion” as to the employee’s diagnosis at the time of the settlement. There has been, instead, widespread agreement on the diagnosis of occipital neuralgia. None of the records since the award use a diagnosis other than occipital neuralgia to describe the employee’s work injury.
Change in Ability to Work
Except for a brief period of less than two weeks in 2002, the employee has not worked since the injury. In the stipulation, the employee claimed he was either temporarily totally or partially disabled. In October 2002, Dr. Espeland restricted the employee to four-hour work days, no lifting of more than twenty pounds, and no overhead work. In the medical records, the employee has consistently advised his doctor that he was not able to work and that any physical activity aggravated his symptoms. The employee applied for Social Security disability benefits in October 2003, claiming an inability to work since January 2001. Dr. Gunnell has now restricted the employee to four hour days with no lifting.
We find no change in the employee’s ability to work.
Additional Permanent Partial Disability
Dr. Mack, the IME, gave the employee a rating of 3% under Minn. Rule 5223.0360, subp. 2(A), for partial unilateral sensory loss of the trigeminal nerve. No other rating of permanent partial disability is in the records and we see nothing in the medial records which would serve as a basis for a higher or different rating.
Necessity of More Extensive Medical Care
While we have said in other cases that this fact is of lesser importance in cases where as in the present case, medical claims have not been waived by the employee in the settlement, a change in recommended medical care may indicate a substantial change in the medical condition of the employee. We find no change in recommended medical treatment in this case. Before the settlement, the treatment provided to the employee was the prescription of pain medication. A number of the employee’s physicians also suggested another possible treatment, referred to under different labels, but essentially a procedure using heat to deactivate the occipital nerve. That procedure was never done, although in the settlement the insurer agreed to pay for one radiofrequency procedure.
Since the settlement, the employee’s treatment has continued to consist of pain medication. Dr. Morris, who saw the employee in March 2005, appears to have been the last specialist who saw the employee for treatment and his treatment recommendation was either an ablative procedure or a neural augmentation stimulation after further evaluation was done. The evaluation desired by Dr. Morris never happened. Instead the employee continued to treat with his primary care physicians and to receive pain medication. The records do not indicate that there have been any other treatment recommendations since 2005.
From the medical records provided, the employee’s condition after the settlement appears to be causally related to the January 7, 2001, work injury. We note, however, that the most recent IME, Dr. Bushara, questions that connection.
The employee has failed to show a substantial change in medical condition since the time of the award on stipulation. Cause to set aside the award under Minn. Stat. § 176.461 is not found to exist and the employee’s petition is denied.
 At oral argument, the employee’s attorney suggested that consideration of the petition should include a recognition that the amount the employee received in the settlement was unconscionable. That issue is not for this court to review and does not provide a legal basis for vacating an award.