HAZEL M. PATTERSON, Employee/Petitioner, v. RELIANT EMPLOYMENT GROUP, and AMERICAN COMP. INS. CO./RTW, INC., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 3, 2008
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where there was evidence that the employee had suffered a substantial change in her medical condition since the time of her stipulation for settlement pursuant to the factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), the employee showed good cause to vacate her award on stipulation, and her petition that that award be vacated was granted.
Petition to vacate award on stipulation granted.
Determined by: Pederson, J., Johnson, C. J., and Rykken, J.
Attorneys: Hazel M. Patterson, pro se Petitioner. M. Shannon Peterson, McCollum, Crowley, Moshet & Miller, Bloomington, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee petitions this court to vacate an award on stipulation served and filed January 10, 2001. Concluding that the employee has shown good cause to vacate the award at issue, we grant the employee=s petition.
On July 13, 1999, Hazel Patterson sustained a work-related injury to her right knee when she struck the knee on a concrete floor at work in the course of her employment with Reliant Employment Group [the employer]. Ms. Patterson [the employee] was forty-eight years old on that date and was earning a weekly wage of $380.00. On July 30, 1999, the employee saw Dr. Donald Johnson, who, on examination, noted tenderness in the peripatellar region of the knee but full range of motion and no sign of meniscus injury. An x-ray revealed mild medial joint space narrowing and some tiny osteophytes in the intercondylar eminence, with no acute fracture. Dr. Johnson diagnosed a contusion of the right knee and chondromalacia secondary to the contusion, and he prescribed anti-inflammatory medication and instructed the employee to limit her kneeling and squatting. The employer and its insurer admitted liability for the injury and commenced payment of benefits.
On August 18, 1999, Dr. Johnson found the employee=s knee contusion improved, and on October 15, 1999, he found the employee continuing to make progress, but he referred her for a second opinion with an orthopedic surgeon. On October 21, 1999, the employee saw orthopedist Dr. Gary Sager, who diagnosed an osteoarthritic right knee with what appeared to be a medial meniscal tear. An MRI scan on November 29, 1999, revealed the menisci to be intact, but it also revealed chondromalacia of the patella and the medial femoral condyle. Dr. Sager believed the chondromalacia to be arthritic rather than traumatic, but the fall, he concluded, may have caused a flare-up of that arthritis. The employee saw Dr. Sager again on March 2, 2000, on which date he administered a steroid injection. She saw him again on March 23, 2000, with continuing right-knee problems, and on April 14, 2000, he performed a chondroplasty debridement and repaired the medial and lateral menisci in the employee=s right knee. The post-operative diagnosis was stage III chondromalacia of the medial femoral condylar surface, degenerative meniscal fraying of the lateral meniscus, and degenerative anterior horn tear of the medial meniscus.
Following her surgery, the employee was prescribed physical therapy, was assigned rehabilitation assistance, and was totally disabled through May 12, 2000. She was released to return to work on May 18, 2000, restricted to sitting work only, on which date Dr. Sager noted, AShe is a candidate in the future, depending on progression of arthritic changes, for a knee replacement.@ The employee returned to work for the employer at a modified job, and in a work ability report dated June 15, 2000, Dr. Sager again anticipated the need for Apossible future surgery.@ In July of 2000, the employee left her job with the employer and took a job with Wal-Mart. The employee=s pain continued, and on July 27, 2000, Dr. Sager prescribed another steroid injection and restricted the employee from doing any squats, kneeling, or deep knee bends, noting that the employee was currently subject also to restrictions from Dr. Johnson requiring her to sit fifteen to thirty minutes each hour at work. In September of 2000, the employee=s hours at Wal-Mart were reduced, and in a progress report dated September 13, 2000, the employee=s QRC indicated that the employee=s phone had been temporarily disconnected and that her employer had informed the insurer that the employee had told the employer that she was going to have a total knee replacement. On September 29, 2000, the employer and insurer filed a notice of intent to discontinue [NOID] the employee=s temporary partial disability benefits, on grounds that they had made to the employee acceptable offers of employment within her restrictions which she had voluntarily rejected in favor of reduced hours at Wal-Mart.
On October 26, 2000, Dr. Sager ordered another series of injections and continued the employee=s restriction from doing any squats, deep knee bends, or kneeling, noting that her arthritis and chondromalacia were of an ongoing degenerative nature. The employee=s attorney at the time, Gary Meyer, of the Milavetz, Gallop & Milavetz, P.A., firm, requested an administrative conference on the employer and insurer=s NOID, which was scheduled for October 30, 2000, then rescheduled for November 29, 2000, and then cancelled in light of settlement negotiations. Apparently at some point during this time, Mr. Meyer left the Milavetz firm to join Meyer, Puklich, Merriam & Johnson. On November 21, 2000, Dr. Sager completed a health care provider report, in which he indicated that the employee had reached maximum medical improvement [MMI] on October 26, 2000, and he rated her permanent partial disability at 1% of the whole body, pursuant to Minnesota Rules 5223.0510, subpart 2C, for patellar shaving, for which the employer and insurer paid benefits.
Near the end of December 2000, the parties entered into a stipulation for full, final, and complete settlement of all except certain medical claims related to the employee=s July 13, 1999, work injury. At the time of settlement, it was the employee=s position in part (1) that she was entitled to ongoing temporary partial disability benefits, (2) that she might be entitled to significantly more permanent partial disability benefits than the benefits that she had already been paid for a 1% whole-body impairment, and (3) that she was entitled to either rehabilitation benefits or retraining benefits. It was the position of the employer and insurer at the time of settlement (1) that the employee had sustained no loss of earning capacity as a result of her work injury, (2) that the employee had sustained no permanent impairment beyond that 1% impairment for which she had already been paid, (3) that the employee was not in need of any additional medical treatment for her injury, and (4) that the employee had reached MMI and was presently capable of working without physical restrictions relating to her work injury. As part of the settlement agreement, the parties agreed that the employee had voluntarily terminated her employment with the employer and that she had reached MMI related to her work injury no later than November 28, 2000, with service and filing of Dr. Sager=s November 21, 2000, report. The agreement provided that, in exchange for ceasing all claims against the employer and insurer based on her July 13, 1999, work injury, the employee would be paid by the employer and insurer a lump sum of $6,500.00. It provided also that attorney fees in the matter would be split between the firm of Meyer, Puklich, Merriam & Johnson and the firm of Milavetz, Gallop & Milavetz, in a proportion left blank in the copy of the stipulation here offered into evidence. On December 20, 2000, the employee signed the stipulation for settlement, and about the same time her rehabilitation services were terminated. Also on December 20, 2000, the employee wrote to the Milavetz firm, advising them that she was discharging their firm and retaining the Meyer firm to represent her. An award on stipulation was filed on January 10, 2001, and the employee apparently continued to work part-time for Wal-Mart. On February 23, 2001, the employee signed a substitution of attorney, in which she discharged Mr. Meyer and again retained the Milavetz firm to represent her.
On March 15, 2001, the employee returned to see Dr. Sager with complaints of continuing right knee pain. Dr. Sager reinjected the employee=s knee with steroids and referred her to orthopedic surgeon Dr. Douglas Becker. When he saw the employee on April 23, 2001, Dr. Becker noted that the employee=s gait was slow and that she had intense medial jointline tenderness and swelling. An x-ray showed mild medial compartment degenerative changes, and Dr. Becker diagnosed early degenerative joint disease and recommended continued exercises and work restrictions. On May 7, 2001, the doctor noted that the employee was limping severely, and he restricted the employee=s work to four hours a day, indicating that anything short of a total knee replacement would be unlikely to provide optimal relief of the employee=s symptoms. By a report dated July 16, 2001, Dr. Becker diagnosed pre-existing degenerative joint disease aggravated by the July 13, 1999, work injury, and he recommended a total right knee arthroplasty and restricted the employee from any prolonged standing, walking, squatting, kneeling, or stair climbing.
On August 29, 2001, the employee petitioned this court to vacate her January 10, 2001, award on stipulation based on mistake of fact, newly discovered evidence, fraud, and substantial change in medical condition. At the time of her petition, the employee argued that neither party anticipated, at the time of her settlement, that she would require a total knee replacement; this fact, she contended, constituted a mutual mistake of fact. She apparently argued also at that time that Dr. Becker=s post-settlement opinion that additional surgery would be required constituted newly discovered evidence supportive of her petition. She argued also at the time that she had been induced into entering into an improvident settlement by the fraud, misrepresentations, concealment, and deceit of her former counsel, Mr. Meyer. Finally, she insisted that her medical condition had substantially changed, particularly in that she was now anticipating a total replacement of her work-injured right knee, a procedure entitling her to a permanent partial disability rating of 8% of the whole body, 7% more than the 1% to which she had been subject at the time of her award on stipulation. By a decision filed February 4, 2002, this court denied the employee=s petition, concluding as follows: (1) that, at the time of settlement, there was evidence that some additional surgery, however unspecified, might be necessary; (2) that Dr. Becker=s opinion was not in existence at the time of settlement and so did not qualify as newly discovered evidence; (3) that any qualifying fraud needs to have been between the parties, not between the employee and her attorney; and (4) that any post-award change in the employee=s condition was, after application of the factors established in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), insufficient to constitute good cause for vacating her award on stipulation.
On April 2, 2002, the employee underwent a right total knee arthroplasty as recommended by Dr. Becker, and a few months later, on July 23, 2002, she also underwent right knee manipulation under anesthesia. On September 18, 2002, Dr. Becker issued permanent work-injury-related restrictions, permitting the employee to work full time but restricting her from standing or walking for more than four hours a day and from doing any squatting, kneeling, or stair climbing for more than one hour a day.
On March 17, 2003, Dr. Becker rated the employee=s right-knee-related permanent partial disability at 20% of the whole body - - 8% under Minnesota Rules 5223.0510, subpart 3C(2), for a total condylar arthroplasty, and 12% under Minnesota Rules 5223.0510, subpart 4A(1)(c), for a limitation of flexion to between fifty-one and ninety degrees. The doctor indicated also that the employee had reached MMI with respect to her injuries on February 3, 2003.
Some soreness and stiffness remained in the employee=s work-injured right knee over the course of the next year. On April 7, 2004, Dr. Becker noted that, while that right knee was more swollen than the left, the employee=s gait was normal, she was able stand and walk for fairly long periods of time, she had normal stability, and her patellofemoral exam was unremarkable. Dr. Becker instructed the employee to continue to work on strengthening and to return when necessary. The employee returned to see Dr. Becker on September 13, 2004, complaining of long-standing left hip pain and a flare-up of right knee discomfort. However, she was not limping, her patellofemoral exam was unremarkable, and she had full left hip motion. Dr. Becker diagnosed trochanteric bursitis of the left hip and status post right total knee arthroplasty, and he prescribed physical therapy, noting, A[o]verall, [the employee] is doing well.@ The employee returned to Dr. Becker with the same complaints about nine months later, on June 6, 2005, but Dr. Becker found her to be overall Adoing well with regard to her knee@ and her left hip problems to be treatable by physical therapy, and he planned on seeing her for follow-up in two years.
On June 11, 2005, the insurer=s claims administrator wrote to Dr. Becker, denying Dr. Becker=s request for approval of physical therapy for the employee=s back and hip. On June 16, 2005, Dr. Becker=s office wrote to the employee, informing her of that denial, informing her of the clinic=s inability to reach her by phone, and requesting that she call them if she wanted to go ahead under private insurance. It is not clear from the record whether or in what manner the employee may have responded. On October 6, 2005, the employee saw Dr. Jeffrey Warshaw, to whom she complained of left-side abdomen, groin, and back pain. Dr. Warshaw ordered a CT scan, which was read to be normal, and, in a letter to the employee on October 25, 2005, Dr. Warshaw indicated that, while A[e]verything about the CT is quite reassuring,@ it nevertheless Aleaves us with no real explanation for the discomfort that you are having.@
In December of 2005, the employee was treated three times by Dr. Maryanne Moren for various maladies unrelated to her right knee condition, including dysphagia and reflux symptoms, chronic bloating, chronic smoking, left lower quadrant burning, chronic stress, hypertension. For better diagnosis of the dysphagia, Dr. Moren ordered an endoscopy, which proved normal, and she treated the other conditions by more conservative methods.
On March 17, 2006, the employee underwent x-rays of her right knee and left hip. The right knee x-rays revealed a stable knee prosthesis - - good, unchanged position, no evidence of loosening or other complication, and only minimal degenerative changes. The left hip x-ray was within normal limits - - it revealed no bony lesion, normally maintained joint space, and no soft tissue abnormalities. On May 10 and again on July 28, 2006, the employee saw Dr. Verna Hillstrom regarding a cluster of health issues separate from and in addition to her chronic back and right knee condition, including what Dr. Hillstrom diagnosed as hypertension, cluster headaches, deconditioning, nicotine abuse, and obesity. Noting that the employee walked eight blocks one way to Cub about twice a week, Dr. Hillstrom modified the employee=s prescriptions, encouraged her to get more exercise, dispensed Nicorette gum, and referred her for a neurological consultation. On August 1, 2006, the employee was examined by neurologist Dr. Scott Bundlie. Dr. Bundlie noted that the employee, in addition to those several other maladies, was subject also to degenerative joint disease and Aa history of depression,@ but he offered no recommendation for change in her treatment.
On August 30, 2006, Dr. Becker issued a narrative report, in which he indicated that, since September 13, 2004, the employee had suffered left hip trochanteric bursitis, which he indicated was secondary to an altered gait stemming from her July 13, 1999, right knee work injury. That same work injury, he indicated, had also cause the need for the employee=s second and third right knee surgeries, that injury having Aresulted in meniscal tearing and eventually progressive meniscal tearing and then progressive degenerative joint disease in her right knee that necessitated the surgeries.@ It was Dr. Becker=s opinion that the employee Adid not appear to have significant underlying degenerative change in the right knee that would have required any ongoing treatment for her knee had it not been for the July 13, 1999 injury and subsequent surgeries.@
On December 8, 2006, the employee saw Dr. Hillstrom again, concerning her chronic headaches, chronic knee and back pain, and also some sharp, stabbing pains in her upper abdomen. Dr. Hillstrom diagnosed dysphagia, hypokalemia, deconditioning, and chronic headaches and prescribed medication. On January 25, 2007, she also saw chiropractor Dr. Thea Killeen, with complaints of daily sharp and burning pain in her left hip, headaches and neck and upper back pain three or four times a week, and persistent burning ache and swelling in her right knee. Dr. Killeen prescribed physical therapy and chiropractic adjustments three times a week for a total of twelve to fifteen visits.
The employee saw Dr. Becker again on April 30, 2007, regarding some residual stiffness and discomfort and sometimes swelling in her right knee, as well as some persistent bursitis in her left hip, for which she had been receiving physical therapy. Upon examination, Dr. Becker found the knee=s stability normal, with no atrophy, and the employee=s gait purposeful, noting that Ashe is really not limping severely today.@ He noted that the employee would continue to work on exercises and to take anti-inflammatories, and he recommended that she modify her activities and return to see him in two years. The prescribed regimen was apparently ineffective, however, and by September 24, 2007, the employee was complaining to Dr. Becker of persistent pain radiating from her low back on the left side down into her left hip and then into her leg posteriorly to her ankle. Noting that fairly extensive physical therapy was not helping, Dr. Becker ordered an EMG of the employee=s left lower extremity, set up some new physical therapy for the employee=s left hip and low back area, and, depending on the EMG findings, anticipated consideration of trochanteric injection.
On November 26, 2007, the employee filed another petition to vacate her January 10, 2001, award on stipulation, on grounds that there had been a substantial change in her medical condition and that her settlement was not originally fair and reasonable even on its face. On December 24, 2007, the employee=s attorney, Joseph A. Rymanowski, Jr., filed a notice of withdrawal of attorneys, withdrawing as the employee=s attorney of record. On January 4, 2008, the employee refiled her petition pro se. She is evidently not now represented by counsel.
This court's authority to vacate a compensation judge=s award is found in Minnesota Statutes sections 176.461 and, with regard to settlements, 176.521, subdivision 3. An award may be set aside if the petitioning party makes a showing of good cause to do so. Good cause has long been held to exist if "(a) the award was based on fraud; (b) the award was based on mistake; (c) there is newly discovered evidence; or (d) there is a substantial change in the employee's condition." Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989). These bases were codified in slightly different language in a 1992 amendment of Minnesota Statutes section 176.461. In that amendment, the substantial change in condition basis was defined as "a 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 (underscoring added).
In Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), this court identified six factors that it considered in deciding whether to vacate an award based on a substantial change in condition. These factors, which are still applicable following the 1992 amendment of section 176.461, include the following: (1) changes in the employee's diagnosis; (2) changes in the employee's ability to work; (3) the development of any additional permanent partial disability; (4) the necessity of more costly and extensive medical or nursing care than was anticipated; (5) the causal relationship between the work injury and the worsening of the condition; and (6) the contemplation of the parties at the time of the award.
With regard to her diagnosis, the employee asserts that she was, at the time of her settlement, of the understanding that she was subject to permanent partial disability of only 1% of her whole body and that she had already attained MMI as of October 26, 2000. This understanding, she argues, has proven erroneous, in that her work-injury-related permanency is now rated at 20% - - 8% related to her knee replacement and 12% related to loss of range of motion in the knee. Moreover, she argues, she has only recently, as of February 3, 2003, attained MMI with regard to her work injury, the October 2000 MMI date having also proven erroneous. She argues further that she has now developed trochanteric bursitis in her left hip consequent to an altered gait that developed in compensation for her right knee pain. Finally, she notes that on January 25, 2007, Dr. Thea Killeen noted head, neck, and upper back pain in addition to extreme left hip pain.
The employer and insurer contend that the employee=s diagnosis has not changed since her award on stipulation. They suggest that, although Dr. Becker may not have made his recommendation of a total knee arthroplasty until July 16, 2001, six months after the award on stipulation, Dr. Becker=s recommendation was essentially the same as Dr. Sager=s had been well prior to that award - - hence the essential identity of the current diagnosis with the pre-award diagnosis. The employer and insurer concede that Dr. Becker has now also diagnosed secondary left hip trochanteric bursitis. They argue, however, that this diagnosis has resulted in Ano change in the restrictions recommended by Dr. Becker since the recovery from the total knee replacement and manipulation surgeries,@ that A[a]dditional restrictions have not been recommended as a result of the left hip difficulties,@ and that there is no indication that the bursitis condition is permanent or has resulted in any disability. We acknowledge that the post total arthroplasty diagnosis may not effectively qualify as an entirely new diagnosis, in that the surgery was clearly anticipated prior to settlement. To the extent that they may modify that diagnosis, however, we see no reason to disqualify from consideration here the employee=s new restrictions to standing and walking no more than four hours a day and from doing any squatting, kneeling, or stair climbing for more than one hour a day, restrictions that clearly apply to the employee=s work-injured right knee condition and not solely to her total knee replacement.
With regard to her ability to work, the employee notes that, a year before her stipulation for settlement, she had become certified in electrocardiography and phlebotomy and that, at the time of her award on settlement, she had just received a diploma as a medical assistant. She argues that, following her total knee replacement and the loss of range of motion and onset of trochanteric bursitis that followed it, she became restricted to standing and walking no more than four hours a day and from doing any squatting, kneeling, or stair climbing for more than one hour a day, which restrictions, she argues, have effectively precluded her from working in those medical professions for which she had recently completed training. She acknowledges that she was aware of the possible necessity of knee replacement prior to her settlement, but she contends that she was not aware of the limitations that would ensue until about four months after the settlement. She contends that she wants very much to return to work but, without rehabilitation assistance, has been unable to find a job. She argues that, if her settlement is vacated, she will at least have significant outstanding temporary total, temporary partial, rehabilitation, and retraining benefits available, together with nursing services and housing modification.
The employer and insurer contend that the employee Ais actually less restricted than she was prior to the surgeries performed by Dr. Becker.@ They argue that, whereas the employee could only work four hours a day just prior to her total knee replacement, now she can work unlimited hours, provided that she limit her standing and walking to four hours a day and her squatting, kneeling, and stair climbing to one hour a day. We note, however, that the pre-surgery blanket limitation to four hours of work a day did not come into effect until May 7, 2001. According to the record here presented, at the time of the award on settlement the employee was restricted only from to performing any squats, kneeling, or deep knee bends and was perhaps required to sit for fifteen to thirty minutes each hour at work. We acknowledge that a total knee replacement may have been anticipated at the time of settlement, but we conclude nevertheless that the employee=s work restrictions are materially greater now than they were at the time of the settlement, even though they may be arguably less now than they were immediately before the surgery.
The employee argues further, with regard to the additional permanency factor under the Fodness case, that, whereas she had only a 1% rating at the time of settlement, she has now a 20% rating. She acknowledges that a possible additional 7% was clearly anticipated at the time of settlement, as she anticipated the necessity of a total knee replacement. But she contends that the additional 12%, for decreased range of motion, was not anticipated and clearly represents a substantial change in her permanent partial disability. This change in permanency alone, she argues, would result in an additional $14,250.00 for her, in the event her $6,500.00 award on settlement is vacated. The employer and insurer do not address the specifics of the employee=s argument, arguing only that, A[w]here the surgery was predicted prior to the settlement and where the fact of the surgery is what gives rise to the increase in the permanency rating, the additional permanent partial disability is not a proper basis for the vacation of an Award on Stipulation.@ We conclude that, while the additional 7% was reasonably foreseeable at the time of settlement, the additional 12% may not have been, and the employer and insurer have offered no medical opinion to support their rebuttal position.
With regard to the necessity of more costly and extensive medical care than was initially anticipated, the employee argues that at least $2,245.66 in treatment related to her trochanteric bursitis was unanticipated and that this arguably modest amount is very substantial relative to her income and in light of her now unsatisfied need for additional physical therapy. The employer and insurer contend with merit that, pursuant to their agreement to pay all injury-related medical costs except for costs of chiropractic care, pain clinics, psychiatric or psychological treatment, and health club activities, they have paid all costs of post-settlement surgeries and other care directly related to treatment of the employee=s right knee. The unforeseen additional costs referenced by the employee are costs related to a condition - - the employee=s left hip trochanteric bursitis - - that Dr. Becker has clearly opined to be secondary to the employee=s right knee work injury. However, because the employee=s left hip condition was not a subject of the settlement and so not closed out by the January 2001 award on stipulation, the treatment expenses related to the employee=s trochanteric bursitis are not a basis for vacating the award.
With regard to the fifth and sixth factors set forth in Fodness, the employee contends that the above-documented change in her diagnosis, diminishment in her ability to work, increase in her permanent partial disability, and increase in her medical expense are all causally related to her original right knee work injury and were all essentially uncontemplated at the time of her settlement. She bases the directly medical aspect of this contention essentially on the expert opinion of Dr. Becker, and the employer and insurer have offered no medical or other evidence to rebut Dr. Becker=s opinion. To the extent, therefore, that the referenced medical changes pertain directly to the employee=s right knee, aside from the employee=s left hip bursitis, we find the employee=s arguments supported by the evidence.
In addition to her arguments based on the Fodness considerations, the employee contends that the $6,500.00 that she received in full, final, and complete settlement of all claims related to her work injury was simply unfair on its face. She acknowledges that she was represented by counsel at the time of the settlement and that this fact is normally evidence that the settlement was presumptively reasonable and fair. See Minn. Stat. ' 176.521, subd. 2 (AA settlement agreement where both the employee or the employee=s dependent and the employer or insurer are represented by an attorney shall be conclusively presumed to be reasonable, fair, and in conformity with this chapter.@). She contends, however, that she was pressured at the time of settlement by her then lawyer, Mr. Meyer, into signing the stipulation for settlement. She contends that she did not know Athe correct facts about my knee condition, and how it relates to my work injury,@ that Mr. Meyer Anever told me about the benefits (financial, QRC, medical) that I was waiving by settling,@ that Ahe just asserted that if I did not, I would get nothing,@ although A[a]pparently, [he] knew that I may need a knee replacement in the near future, and he did not discuss it with me.@ She argues that the statutory presumption of fairness does not affect this court=s authority to vacate a settlement Awhen the [Workers= Compensation] Court of Appeals can reasonably conclude from the terms of the settlement and the other evidence that the settlement is more likely than not to be opposed to the best interests of the employee,@ quoting Heinz v. Vickerman Constr., 306 N.W.2d 888, 890, 33 W.C.D. 667, 671 (Minn. 1981). Here, she argues, Athere is ample evidence showing that [the employee=s] settlement is anything but fair and reasonable@ and that her stipulation and the award thereon Aare greatly opposed to her best interests, and fail to provide [her] with adequate compensation for her serious work-related injuries.@
We needn=t address the employee=s final fairness argument. We conclude, as progressively implied in our analysis above pursuant to the factors set forth in the Fodness case, that the employee has shown cumulative good cause to vacate her January 10, 2001, award on stipulation on grounds that she has undergone a substantial change in her medical condition. Accordingly, we grant the employee=s petition to vacate that award on stipulation.
 Facts in the Background up through August 29, 2001, are drawn from this court=s February 4, 2002, decision denying the employee=s earlier petition to vacate the same award on stipulation that is here at issue.