TRINA M. HUGHES, Employee/Petitioner, v. MEDCOR, INC., and ST. PAUL FIRE & MARINE INS. CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 6, 2009
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where there is conflicting evidence on the employee’s current diagnoses and work-related restrictions, on whether the employee has experienced a change in her ability to work, and on whether the employee has sustained additional permanent partial disability since the 2005 award on stipulation that are causally related to her 2002 work injury, we refer this matter to the Office of Administrative Hearings for an evidentiary hearing.
Referred to OAH for evidentiary hearing.
Determined by: Rykken, J., Johnson, C.J, and Pederson, J.
Attorneys: David R. Ludwigson, Ludwigson Law Office, White Bear Lake, MN, for the Petitioner. Barbara L. Heck, John G. Ness & Assocs., St. Paul, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee petitions to vacate an award on stipulation issued on May 20, 2005, based on a substantial change in medical condition. We refer the matter to the Office of Administrative Hearings for an evidentiary hearing.
On June 16, 2002, Ms. Trina Hughes, the employee, sustained an injury to her right shoulder while employed by Medcor, Inc., the employer. On that date, the employee was working for the employer at a SuperValu location, and earned a weekly wage of at least $786.82. At the time of her injury, she was driving a Cushman cart which she steered with its T-shaped steering wheel. The employee pushed the steering wheel in order to make a turn and unexpectedly experienced a jerking sensation in her right arm and shoulder. This resulted in right shoulder pain, for which she sought medical treatment at Occupational Medical Consultants. Dr. Edgardo Yutango diagnosed a right rotator cuff strain, advised the employee that she could continue to work, and prescribed six sessions of physical therapy. The employee received follow-up medical care at Fairview Lakes Regional Health Care, where she was treated with a steroidal injection in her right shoulder.
In September 2002, the employee was referred to Dr. Carlos Guanche for an orthopedic evaluation, who also prescribed physical therapy. She eventually underwent an MRI scan of her right shoulder, which showed no rotator cuff tear nor evidence of subacromial or subdeltoid fluid. Based on her examination findings and continued symptoms, Dr. Guanche diagnosed a probable SLAP lesion and recommended surgery. On October 21, 2002, he performed arthroscopic surgery on the employee’s right shoulder, during which he detected and repaired a labral tear. He performed an arthroscopic acromioplasty with coracoacromial ligament release, and an arthroscopic distal clavicle excision. The employee continued to experience shoulder pain following her surgery, and was prescribed a polar cuff. The employee was re-evaluated by Dr. Guanche in late October, after falling on her right arm and shoulder. Dr. Guanche concluded that most likely there was a contusion around the employee’s shoulder as a result of her fall, but released her to work with restrictions by November 2, 2002.
The employer and its insurer, St. Paul Fire and Marine Insurance Company, admitted primary liability for the employee’s injury, and paid ongoing benefits to the employee, including wage loss benefits, rehabilitation assistance, permanent partial disability benefits, and medical expenses. Following her injury, the employee continued to work for the employer, at least on a part-time basis, except for periods of time that she was off work entirely due to surgery.
The employee’s shoulder pain persisted post-surgery, so the employee consulted Dr. Michael Freehill to obtain a second opinion. He recommended physical therapy and work restrictions, and also prescribed Vicodin for pain relief. He later referred the employee for an enhanced MRI scan, which was conducted in early January 2003 and which showed subacromial and subdeltoid bursal inflammation. Following an examination on January 10, 2003, Dr. Freehill diagnosed a possible regional pain syndrome.  On January 22, 2003, due to a flare-up of her pain, the employee sought emergency room treatment and underwent a subacromial injection and Toradol injection which provided relief to the employee.
The employee’s pain eventually resumed, and she again consulted Dr. Freehill. He offered the employee another subacromial injection for her pain, which she declined. Dr. Freehill and the employee’s physical therapist later detected instability in her right shoulder. In addition, following an orthopedic consultation on May 15, 2003, Dr. Daniel Buss advised the he would only recommend a diagnostic scope if needed, and possibly a limited decompression of the subacromial space and bursectomy. Dr. Buss recommended against any revision surgery or capsular shift as there were no significant signs of anterior instability or significant laxity. On June 12, 2003, Dr. Freehill performed a second surgical procedure, which consisted of a right arthroscopic capsular placation with rotator interval closure. The employee then received extensive physical therapy treatments from July 2003 to February 2004.
In August 2003, Dr. Freehill diagnosed regional pain syndrome. He recommended desensitization physical therapy as well as psychological or psychiatric evaluation and treatment. He eventually referred the employee to Medical Advanced Pain Specialist (MAPS) for a pain clinic evaluation, where Dr. David Nelson diagnosed possible reflex sympathetic dystrophy (RSD) and recommended stellate ganglion blocks for diagnostic and therapeutic purposes. The employee underwent six such blocks, which provided only temporary relief. MAPS staff continued to diagnose RSD and found discoloration, temperature changes, decreased range of motion and hypersensitivity in support of that diagnosis. On March 5, 2004, the employee was examined by Dr. David Schultz at MAPS, who confirmed the diagnosis of CRPS and recommended the MAPS chronic pain program.
The employee continued to receive treatment through MAPS, and continued to work for the employer on a part-time basis. By December 2004, the employee reported to Dr. Freehill that she continued to note a constant aching in her right shoulder, that she had developed some right wrist pain and burning, and was unable to work more than ten hours per week. Dr. Freehill observed a hypersensitivity of the employee’s right arm, impingement, and decreased right arm strength. He again confirmed the diagnosis of CRPS, and restricted the employee to work from ten to twenty hours as tolerated, with no above-shoulder work.
According to an evaluation report completed on December 21, 2004, by a certified nurse practitioner at MAPS, the employee reported that her physical therapy had improved her level of function, tolerance and endurance, and that her behavioral health therapy had improved her coping skills, but that her anxiety and depression persisted. The MAPS staff recommended that the employee consult a psychiatrist for continued medication for her depression. On January 20, 2005, the employee was again evaluated at MAPS by a nurse practitioner, in coordination with Dr. Schultz. By then, the employee continued to work approximately 15 hours per week as an occupational health technician and emergency responder, and continued her prescription medication to treat her pain and depression. She reported ongoing pain, nausea and sensitivity on her right arm, and that factors tending to increase her pain included physical activity, work activity and emotional stress. Dr. Schultz concluded that the employee was currently not a good candidate for continued opioid management, and recommended that such medication be tapered. He also modified his diagnosis and concluded that the employee no longer had CRPS. He recommended a return to work at full status without restrictions, and recommended discontinuance of interventional therapies.
The employee saw Dr. Freehill on January 25, 2005, who disagreed with Dr. Schultz’s recommendation for an abrupt change in medication, as the employee was not tolerating the change and was experiencing narcotic withdrawal symptoms. He provided the employee with a prescription for medication. Dr. Freehill again diagnosed CRPS and assigned permanent work restrictions of 12-16 hours per week with no above-shoulder use of the arms, a 3-5 pound lifting limitation, and a restriction of no repetitive outstretched reaching with the arms more than four to six inches from the body.
Dr. Freehill referred the employee to the United Pain Clinic for follow-up treatment, in part to assist with weaning the employee off her medications and possibly to find alternative medications for her. That treatment evidently was not authorized by the insurer, however, and due to the employee’s continued pain, Dr. Freehill recommended that she attend an alternative pain program.
On January 31, 2005, Dr. Larry Stern examined the employee at the request of the employer and insurer. He concluded that the employee’s medical treatment to date had been reasonable and necessary to treat her right shoulder injury and chronic pain syndrome, and recommended that the employee follow-up with the chronic pain program at MAPS for continued pain management. Dr. Stern concurred that the employee required work restrictions related to her right shoulder, but also stated that, from an orthopedic point of view, the employee should be able to work on a full-time basis. He determined that the employee had reached MMI, and assigned a 3% whole body impairment related to her right shoulder. Dr. Stern also concluded that although the employee certainly described a pain pattern suggestive of RSD, on examination she exhibited none of the objective findings suggestive of RSD.
In February 2005, the employee began treating with Dr. A.V. Anderson, Medical Pain Management, who continues to oversee treatment, including prescriptions for medication and exercise recommendations. The employer and insurer have paid for that medical treatment. The employee’s pain in her right shoulder and arm has persisted, and she has also noted neck and left arm pain. In addition, the employee has continued to report symptoms typical of CRPS, including tenderness in her right shoulder, redness and mottling toward her right elbow and a mottling or blue tint of her lower right arm.
In early 2005, following a dispute concerning the employee’s ability to work on a full-time basis, the parties entered into a settlement of the employee’s claims on a full, final and complete basis. As part of that settlement, the parties agreed that certain medical expense claims were foreclosed but that her claims for ongoing medical treatment with Drs. Freehill and Anderson remained open.
The record contains conflicting information on how long the employee continued to work for the employer following the 2005 settlement. According to the employee’s petition to vacate, she continued to work for the employer for several months after the May 20, 2005, award on stipulation, working up to twenty hours per week. She eventually was unable to work two days in a row, and, by September 2005, the employer could no longer accommodate the employee’s restrictions. According to the employer and insurer’s response to the employee’s petition to vacate, however, the employee had been released from employment by the employer prior to the award on stipulation. In any event, at some point the employee left the employ of Medcor, and began working for Graco in February 2006. The employee describes her work at Graco as being a similar sedentary job as the one she worked at Medcor, and that after working twelve hours per week, she progressed to full-time work.
In May 2006, at Dr. Anderson’s referral, the employee consulted Dr. Ronald Berk, licensed psychologist, who conducted various psychological tests on the employee, and diagnosed severe depression and anxiety. He concluded that many of the employee’s anxiety symptoms were directly related to her CRPS, while other symptoms were a function of her general and specific anxiety.
In early 2007, the employee’s symptoms worsened, and she started to experience a progression of her “CRPS-type” symptoms to her low back and legs. She missed work at Graco during the second half of February 2007. By April, the employee reported continued lower extremity symptoms, including swelling and pain in her legs. She underwent two sympathetic blocks at the Center for Diagnostic Imaging, on the right side, but her leg pain persisted. By May 9, 2007, Dr. Anderson restricted the employee from work for two weeks, due to her medical condition.
In June 2007, the employee reported to Dr. Anderson that she felt pain in both legs, along with skin sensitivity and a slight color difference in her feet. Dr. Anderson referred the employee for a lumbar sympathetic block which provided only temporary relief to her right leg. By early July 2007, Dr. Anderson released the employee to return to work on a trial basis, preferably for no more than six hours per day.
On July 19, 2007, Dr. Stern reexamined the employee, this time on behalf of her new employer, Graco. He described his examination as a “Fitness for Duty Evaluation,” performed to determine whether the employee could continue working as an occupational health specialist for Graco, which evidently required the employee to function as both an occupational health technician and an on-site plant emergency responder. The employee reported continued right shoulder symptoms and that she had done well at her job with Graco until eight or nine weeks earlier, when she noticed bilateral leg pain and swelling and discoloration in her legs. She utilized a cane to assist with her balance and walking, although she advised Dr. Stern that she did not necessarily need to use the cane. Dr. Stern again diagnosed chronic pain syndrome, and also diagnosed a possible RSD involving both her upper and lower extremities, stating that the employee appeared to “at least give a history compatible with reflex sympathetic dystrophy and [the] fact that this had spread to her legs is of concern.” He referred to the employee’s current limp, and her report of pain in all of the major joints of both lower extremities and swelling in her ankles. He stated that, in his opinion, the employee was currently not capable of working a full-time job, due to both her ongoing symptoms and her use of narcotic medication, because he felt she was “not capable of administering first aid and responding to emergency situations cognitively and physically.” According to the employee, Graco terminated her employment effective July 27, 2007, and she has not worked since that time. The employee applied for and was awarded Social Security Disability Income, retroactive to May 9, 2007, which was the last day that the employee worked at Graco.
According to his report of November 26, 2007, Dr. Anderson concluded that the employee’s condition was disabling and severely restricted her ability to function, and that her condition had caused her to be significantly depressed. He felt that the employee was incapable of gainful employment in spite of her intentions to return to work.
Dr. Berk again examined the employee in October 2007, and consulted with her on two or three other occasions in late 2007. In Dr. Berk’s report of December 17, 2007, he concluded that the employee had a major depressive disorder, an adjustment disorder with anxious mood, and pain disorder. In his opinion, the employee was disabled from work, “for at least the next twelve months and into the indefinite future,” due to cognitive, memory and emotional conditions.
On May 1, 2008, Dr. Paul Biewen examined the employee on behalf of the employer and insurer. He also diagnosed chronic pain syndrome, as well as right shoulder, right upper extremity and bilateral lower extremity pain of unknown etiology. Dr. Biewen noted that the employee’s medical records support a diagnosis of CRPS following her second shoulder surgery in June 2003, but that her objective examination findings no longer demonstrated CRPS in her upper or lower extremities. Concerning the ongoing treatment that the employee had received from Dr. Anderson since 2005, Dr. Biewen felt that the treatment had been reasonable, necessary and causally related to the employee's 2002 injury and its sequelae. He felt that the treatment, including her medication protocol, was no longer effective as she had developed more widespread symptoms, a lower level of functioning and a greater level of depression, and was requiring more opioid medication than she had originally taken. Dr. Biewen also concluded that the psychotherapy provided at MAPS and by Dr. Berk was medically necessary, although he disqualified himself from determining whether the employee’s depression was causally related to her 2002 injury. He stated that he considered it of “utmost importance that she receive psychological treatment and, in fact, this would appear to be the main area of intervention which has the potential to be helpful” for the employee. He also recommended that the employee reduce her opioid medications under medical supervision, and that she carry through with the exercises she had learned previously. On the issue of whether the employee was capable of working, Dr. Biewen stated as follows:
I understand that Ms. Hughes is looking for employment. Her history and medical records do suggest that she does feel better when employed, and so I would strongly encourage that she seek employment. She does require restrictions for her right upper extremity, particularly for activity above the shoulder level. She is, in my opinion, capable of working full-time within restrictions.
In his report dated May 14, 2008, Dr. Anderson reiterated his opinion that the employee’s CRPS has made it more difficult for the employee to work, that she will require additional medical treatment for this condition, and that her CRPS and her related depression and persistent pain are causally related to her June 16, 2002, work injury. He concluded that the employee had sustained 42% whole body impairment relative to her CRPS in her right upper and right lower extremities.
The employee petitions this court to vacate the May 20, 2005, award on stipulation on the basis of a substantial change in medical condition. She contends that she has experienced a change in her diagnosis and a change in her ability to work since the time of the award on stipulation, and also has sustained additional permanent partial disability since then, all as a result of the ongoing effects of her 2002 work-related injury. The employer and insurer have opposed the employee’s petition. We refer the matter to the Office of Administrative Hearings for an evidentiary hearing.
This court has jurisdiction to set aside an award on stipulation upon a showing of cause. Minn. Stat. §§ 176.461 and 176.521, subd. 3. Cause, as defined in the statute, includes “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. 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.
See, e.g., Bartz v. Meadow Lane HealthCare, No. WC06-184 (W.C.C.A. Feb. 26, 2007), Bresnahan v. Vicorp/Bakers Square, No. WC05-292 (W.C.C.A. Apr. 27, 2006). Applying these factors to the analysis of the case, this court compares 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. See 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 substantial and unanticipated change in her diagnosis and medical condition since the time of the award on stipulation. The employee claims that she also has experienced a change in her ability to work and has sustained additional permanent partial disability since the time of the award.
At the time of the Award on Stipulation in 2005, the employee had been diagnosed with right shoulder pathology and had undergone two right shoulder surgeries, and also was diagnosed with CRPS in the upper extremities. It was not until May 2007 that the employee’s medical records refer to symptoms in her low back or lower extremities, including leg pain and swelling. She underwent a diagnostic and therapeutic right-sided lumbar sympathetic block on July 6, 2007. The employee’s treating physician at the time, Dr. Anderson, concluded that the employee’s CRPS had spread to her lower extremities. In addition, Dr. Stern concluded that the employee’s positive response to the lumbar sympathetic block supported a diagnostic conclusion that her CRPS had spread to her lower extremities. There is evidence that by 2007, the employee’s diagnosis had changed and then included symptoms indicative of CRPS of the lower extremities.
The parties dispute, however, whether there has been a change in the employee’s diagnosis since the award on stipulation, even though the employee’s medical records document newly-diagnosed conditions after 2005. The record contains conflicting medical evidence as to whether the employee’s diagnosis of CRPS has continued to the present time, and whether the employee’s alleged CRPS is causally related to her 2002 work injury. Dr. Biewen examined the employee in May 2008, and concluded that although the employee had developed CRPS in June 2003, by the time of his examination in 2008, she no longer had that condition.
As for the employee’s need for additional medical care since the award on stipulation, the record shows that by at least 2003, well before the parties entered into a settlement agreement, the employee had undergone psychological evaluations and consultations but had not received treatment for low back or lower extremity symptoms. Following the settlement agreement in May 2005, the employee has undergone significant medical treatment. Due to the progression of her condition, including symptoms in her low back and lower extremities, the employee has undergone sympathetic nerve blocks, has continued treatment for both upper and lower extremities, and has continued to receive treatment for her depression.
The employer and insurer have continued to pay for the employee’s ongoing medical treatment, and have reached agreement with the employee on continued payments for medical treatment she may receive from Dr. Anderson in the future, as well as psychiatric treatment she anticipates receiving from an agreed-upon psychiatrist, Dr. John Curran. The employer and insurer therefore contend that this factor is of diminished significance where, as here, the award leaves open the employee’s claims for future medical care. Accordingly, they argue, this court need not consider the extent of post-stipulation medical care in determining whether to grant the employee’s petition to vacate. However, we have also repeatedly stated that even where medical benefits are left open, changes in the extent of treatment since the time of the settlement may nonetheless be useful evidence bearing on whether there has been a substantial change in the employee’s medical condition. We find that the extent of additional treatment here could be an indication of such a change in condition.
Concerning the factor of whether the employee’s level of permanent partial disability has changed since the time of the award on stipulation, the record includes evidence that the employee may have sustained an increase in her level of disability. At the time of the stipulation for settlement in 2005, the employee had been rated with and paid for 3% permanent partial disability of the body as a whole, relative to her shoulder condition. The employee’s treating physician, Dr. Anderson, has since assigned additional permanent partial disability related to the employee’s claimed CRPS, to the extent of 42% whole body impairment. A dispute exists on this issue, however, because Dr. Biewen does not believe that the employee currently has CRPS, and there is no other medical opinion, other than Dr. Anderson's opinion, that addresses the employee’s current level of permanent partial disability.
The employee contends that her ability to work has changed since the award on stipulation in May 2005. The record contains conflicting information and medical opinions on this issue. At the time of the award on stipulation, the employee worked for the employer, on a limited part-time basis. By September 2005, however, the employer was no longer able to accommodate the employee’s restrictions. The employee remained off work until February 2006, when she began working for Graco, performing work similar to her work for the employer. She initially worked part-time for Graco, 12 hours per week, and eventually worked on a full-time basis. In early 2007, however, the employee developed lower extremity symptoms, and as a result, she missed work in February 2007 and again after May 2007. In July 2007, Dr. Stern reexamined the employee, and concluded at that time that the employee was unable to perform her sedentary work at Graco. Graco terminated the employee’s employment in July 2007, and the employee has not worked since May 2007. She later applied for and was deemed eligible for Social Security disability income, effective as of May 2007.
The employer and insurer, on the other hand, refute the employee’s contention that her ability to work has changed. Based on Dr. Biewen’s opinion, they argue that the employee is capable of working, even up to full-time. Dr. Biewen acknowledged that the employee requires work restrictions for her right upper extremity, particularly for activity above her shoulder level, but that she is, in his opinion, capable of working full time within restrictions.
In summary, the record contains conflicting medical opinions as to whether there has been a substantial change in the employee’s medical condition since the time of the award on stipulation. From our perspective, this represents a very close case, with conflicting evidence on the factors to consider for vacation of an award. Although it appears that the employee’s ability to work has decreased since the award, we cannot definitively conclude that it has substantially changed, in view of her limitation to part-time work at the time of the award. Medical experts disagree on whether the employee has CRPS, or whether her symptoms qualify her for additional permanent partial disability, and whether there has been a change in the employee’s diagnosis that is causally related to her 2002 work injury. Under these circumstances, we deem it appropriate to refer this matter to the Office of Administrative Hearings for an evidentiary hearing and findings on those issues.
We request that a compensation judge conduct an evidentiary hearing and provide this court with factual findings as to the employee’s current diagnoses and whether her diagnosed conditions are causally related to the work injury; her current work-related restrictions; whether the employee is currently disabled from employment; and whether the employee has sustained any permanent partial disability beyond the 3% earlier paid by the employer and insurer. Following the hearing and decision, the matter should be returned to this court. At that time we will make a determination of whether there has been a substantial change in condition sufficient to vacate the 2005 award on stipulation.
 The employee’s medical records contain various references to the diagnosis of “complex regional pain syndrome,” and “regional pain syndrome,” terms that typically are used to describe what is also known as “reflex sympathy dystrophy.” We have used the terms “CRPS” and “RSD” to refer to this diagnosis.
 The parties recently reached agreement on payment for medical expenses related to treatment for the employee’s lower extremity CRPS. (See Employee Ex. Y, 2008 stipulation for settlement and award on stipulation.)