SALLY B. FAHEY, Employee/Petitioner, v. FEDERATED DEP’T STORES, INC., and LIBERTY MUT. INS. CO., Employer-Insurer, and BLUE CROSS OF CAL., SUMMIT ORTHOPEDICS, ALLINA HOME OXYGEN & MED. EQUIP., and ALLINA HOSPS. & CLINICS/SISTER KENNY, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 4, 2010
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the employee has required medical treatment more costly and extensive than originally anticipated at the time of the award on stipulation, and where there is a causal relationship between the employee’s work-related incident and her current condition, but where the employee’s ability to work has not changed since the award, where the employee’s diagnosis remains essentially the same as it was at the time of the award, and where there is no indication of an increase in permanent partial disability since the award, the evidence at this time does not establish that the employee has sustained an unanticipated substantial change in medical condition since the award on stipulation on April 1, 2008.
Petition to vacate award on stipulation denied.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Attorneys: Donald J. Fraley, Wayzata, MN, for the Petitioner. Matthew P. Bandt, Jardine, Logan & O’Brien, Lake Elmo, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee petitions to vacate an award on stipulation served and filed April 1, 2008, on the grounds of an unanticipated substantial change in medical condition. We conclude the employee has not established cause as required by Minnesota Statutes § 176.461, and the petition is denied.
Ms. Sally Fahey, the employee, worked approximately sixteen or seventeen years as a sales representative for the employer, Federated Department Stores, at one of its affiliates, Macy’s, f/k/a Marshall Field’s, department store. The employee claims to have sustained a work-related injury on December 16, 2005, which resulted in the aggravation of her pre-existing left knee condition and accelerated her need for a total left knee replacement surgery. At the time of her injury, the employee worked part-time, 24 hours per week, earning a weekly wage of $240.00.
The employer and its insurer, Liberty Mutual Insurance Company, denied primary liability for the employee’s injury. Following litigation on the claim, the parties reached settlement in April 2008. The employee now argues that she has experienced an unanticipated significant change in her medical condition since April 2008, and that the 2008 award on stipulation should be vacated. The employer and insurer maintain their denial of primary liability and object to the employee’s petition to vacate the award on stipulation.
By way of background, the employee received medical treatment for her left knee before her December 2005 work injury, including surgery conducted by Dr. H. William Park in June 1994, consisting of a left knee arthroscopy, partial medial meniscectomy, and debridement chondroplasty of the medial femoral condyle. Because her symptoms persisted, the employee consulted Dr. Paul Yellin, who recommended and performed a second surgery in September 1994, including a debridement of the left knee joint for severe end-stage degenerative arthritis. The employee again consulted Dr. Yellin in 2004 for examination of both knees. By mid-2005, the employee noticed pain and a catching and giving way of her left knee. Dr. Yellin stated that a repeat debridement surgery would not be of help due to the severity of the employee’s arthritis and suggested that the employee might need knee arthroplasty in the future.
On December 16, 2005, as the employee walked toward a storage area store while carrying scanning equipment, her foot caught on loose carpet at the entrance to the dock area. As a result, she jerked her left leg, causing her to plunge forward and extend her back. The employee did not fall to the ground, but she noted increased pain and symptoms in her left knee. She did not seek immediate medical treatment following this incident.
In mid-April 2006, the employee consulted her family physician concerning her left knee symptoms and was referred back to Dr. Yellin for an orthopedic opinion. On April 18, 2006, the employee reported to him that her left knee had progressively worsened since her December 2005 injury. Dr. Yellin detected diffuse swelling in her knee and her left lower extremity, and noted a deterioration of the employee’s knee condition since his last examination in 2005. He recommended diagnostic studies, including an ultrasound, to rule out phlebitis. He also referred the employee for an MRI of the left knee, which showed progressive degenerative arthritis of her left knee. Dr. Yellin ultimately recommended a total joint replacement of the employee’s left knee, which he performed on June 13, 2006. As a result of her surgery, the employee underwent physical therapy and was disabled from employment between June 10 and September 7, 2006, at which time she returned to work for the employer.
In January 2007, the employee filed a claim petition, seeking payment of temporary total disability benefits during her recuperation following surgery, rehabilitation assistance, and payment of medical expenses. In support of her claim, the employee relied on Dr. Yellin’s opinion that her work injury accelerated and aggravated her pre-existing condition and led to joint replacement surgery sooner than she had planned.
The employer and insurer denied the claim, relying on the opinion of Dr. Richard Strand, who concluded that the employee’s left knee condition was unrelated to her December 2005 injury. He examined the employee on April 18, 2007, and concluded that, “at most, there may have been a very minor aggravation of the underlying severe degenerative arthritis of [the employee’s] left knee as a result of the December 16, 2005, work incident,” and that the employee’s injury did not substantially accelerate her need for left total knee replacement surgery.
By July 2007, the employee sought medical treatment from Dr. Nancy Hutchison at Abbott Northwestern Hospital, for persistent swelling in her left knee. Dr. Hutchison diagnosed lymphedema which she determined was causally related to the trauma caused by the employee’s December 2005 injury.
In approximately October 2007, the employee was laid off from her position when the employer closed the retail sales department in which she worked. On November 5, 2007, the employee returned to Dr. Yellin for an examination of her knee. At that point, Dr. Yellin recommended permanent work restrictions that required avoidance of squatting, kneeling, crawling and climbing, and no lifting, carrying, pulling or pushing over 25 pounds. He advised that he would recheck the employee in two years.
From December 2007 to January 2008, the employee worked in a temporary position for a lighting company, working approximately 37 hours per week, at an hourly rate of $12.00.
The parties ultimately entered into a settlement agreement in March 2008, in which the employee agreed to a full, final, and complete close-out of all claims arising out of her December 16, 2005, injury, with the exception of claims for future medical treatment, in return for a lump sum payment of $32,014.00. The employee also received $4,200.00 in reimbursement for out-of-pocket medical expenses. In addition, the employer and insurer paid approximately $8,278.00 to various medical providers as payment of medical expenses.
In the stipulation for settlement, the employee claimed that she had sustained an injury to her left leg and back on December 16, 2005, which significantly aggravated her prior left knee condition and accelerated her need for total knee replacement surgery; that she had required medical treatment as a result of that injury; that she was entitled to temporary total disability benefits from June 10 through September 7, 2006; that she would need rehabilitation and/or retraining to obtain employment that would provide her an earning capacity approaching her pre-injury economic status; and that she may become entitled to additional benefits in the future, including but not limited to, permanent partial disability. The employer and insurer contended that the employee had not sustained any injury on or about December 16, 2005, while in the course and scope of her employment with the employer, but that her condition and need for medical treatment and surgery resulted from her condition that pre-dated December 2005. The employer and insurer also denied the employee’s entitlement to payment of temporary total disability benefits, medical expenses, and rehabilitation assistance.
Under the terms of the settlement agreement, the employee’s claim for future medical expenses remained open “as related to the injuries suffered during the course of employment on December 16, 2005.” Her future claims for medical expenses were subject to certain limitations delineated in the stipulation for settlement, and subject to the employer and insurer’s reservation of defenses to the employee’s claim. An award on stipulation was served and filed on April 1, 2008.
The employee sought replacement employment and began working for a home health care agency in May 2008, in a position involving computer work, typing and other office administrative work. She has continued to work there on an average of 22 to 24 hours per week at an hourly rate of $12.00.
The employee continued to treat intermittently for increased swelling in her left leg. She returned to Dr. Yellin in October 2008, reporting marked swelling in her left leg as well as pain, weakness and stiffness. She also continued to treat with Dr. Hutchison for chronic lymphedema. In March 2009, the employee consulted Dr. Yellin, reporting pain extending down the back of her calf into her foot. She also consulted her family physician in June and July 2009, reporting a rash, burning, redness and increased warmth on her left knee.
By August 2009, Dr. Yellin identified a potential staphylococcus (staph) infection in the employee’s left knee prosthesis; he had been monitoring the swelling in the employee’s knee, but had earlier thought that lesions on the knee were related to a virus or shingles. A bone scan showed loosening of the components surrounding the prosthesis in her left knee and a possible superimposed infection. Based on that scan and other diagnostic testing, Dr. Yellin and his associates concluded that the employee’s left knee total joint prosthesis was infected. Due to the infection, Dr. Yellin removed the joint prosthesis and surgically implanted a temporary prosthesis. Later x-rays revealed a significant loss of bone in the proximal tibia and distal femur.
Dr. Jason Wirtz, at St. Paul Infectious Diseases Associates, diagnosed the employee’s infection as staph lugdunensis. He treated the employee post-operatively with antibiotics, noting that her infection had continued after her joint prosthesis removal surgery.
The employee remained off work after her August surgery until mid-September 2009, while awaiting the revision surgery. She continued to work using a knee brace and walker. In November 2009, Dr. Yellin performed an additional surgery to remove the employee’s temporary prosthesis and to replace it with a full knee replacement, including a type of collared prosthesis.
While recuperating from her November surgery, the employee remained off work until mid- to late December 2009. When she returned to work, she initially worked limited hours but eventually resumed her schedule of 22 to 24 hours per week.
In February 2010, Dr. Peter Bornstein, infectious disease specialist, concluded that the employee’s staph lugdunensis infection persisted in her knee and he therefore prescribed chronic suppressive antibiotic medication, doxycycline, on an indefinite basis, which he felt was necessary in the event the employee’s new prosthesis was also infected.
At a re-examination with Dr. Yellin in February 2010, the employee reported that her knee was “doing better,” but also reported intermittent dull pain, along with some numbness. She also stated that she had no swelling early in the day, but that her knee became swollen if she was “up on it during the day.” X-rays showed good alignment of the employee’s left knee prosthesis. Dr. Yellin found no instability on examination and advised that the employee would probably continue to be prescribed a daily dose of doxycycline for her lifetime.
On January 27, 2010, the employee filed a petition to vacate the award on stipulation issued on April 1, 2008, alleging that she has experienced a substantial change in medical condition since the date of the award that was not and could not have been anticipated. In her accompanying affidavit, the employee stated that following her surgery in June 2006 for a total knee replacement, she developed a staph infection that loosened her prosthesis and endangered her health. She contended that these developments made it impossible for her to work for a substantial period of time and necessitated additional surgery and other medical treatment.
On May 19, 2010, the employer and insurer filed an objection to the petition, contending that there has been no change in the employee’s ability to work and no evidence of additional permanent partial disability since the time of the award.
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(4). In considering whether there has been a substantial change in medical condition, this court has generally applied factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), including:
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., Pantlin v. Krueger & Assocs., No. WC08-117 (W.C.C.A. Sept. 24, 2008), Bartz v. Meadow Lane HealthCare, No. WC06-184 (W.C.C.A. Feb. 26, 2007), and 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 2008 award on stipulation, and that she has satisfied the factors set forth in Fodness.
Change in Diagnosis
The employee specifically claims that her change in diagnosis - - revision of her original total left knee arthroplasty - - was not and could not have been anticipated. She developed a staph infection, the initial timing of which was unknown but which her infectious disease physician concluded could have originated from her initial knee replacement surgery in June 2006. That infection necessitated additional surgeries and the use of antibiotics continuing into the future, perhaps indefinitely.
The employer and insurer argue that at the time of the settlement the employee was aware that she might need to undergo a re-implantation in the future, and therefore this possibility was anticipated. The employee’s deposition testimony indicated that Dr. Yellin advised her, on a general basis, that knee replacements typically last an average of ten to fifteen years. Due to her infection, however, the employee’s second knee replacement surgery took place less than three years after her initial knee replacement surgery, not the ten or fifteen years later that Dr. Yellin had predicted. The parties could not have anticipated the employee would develop such a severe infection from her first surgery.
The employee testified that her left knee has not improved to the level it was at following her 2006 surgery. Her mobility has decreased; she cannot walk quite as far, and finds that she tires out sooner with her new knee. The employee experienced bone loss surrounding her knee as a result of her infection, and her current prosthesis is different from her original one in that it is a type of collared prosthesis. These factors are all indicative of a change in diagnosis or condition since the time of the settlement. On the other hand, the employee’s underlying condition, that of status post left knee total arthroplasty, is the same as her post-surgical condition at the time of the settlement, and so we cannot unequivocally state that the employee has satisfied this particular factor articulated in Fodness.
Change in Ability to Work
The employee returned to work following her November 2009 surgery, and finds that she is able to tolerate her work because she can alternate her standing and sitting. She currently works 22 to 24 hours per week, earning $12.00 per hour. At the time of the stipulation for settlement, the employee was not working, as she had been laid off by the employer. She expected to return to work following the settlement, and by May 2008 she began working for a home health care agency. Although the employee missed work during two periods of time in 2009 as a result of her additional surgeries, her physical work restrictions are the same as she had following her initial surgery in 2006, and she has not shown any change in her ability to work on a continuing basis since the time of the award on stipulation. See Bell v. Flower City, No. WC09-160 (W.C.C.A. Dec. 14, 2009).
Change in Permanent Partial Disability
The employee argues that although there is no additional permanent partial disability documented yet, she anticipates an increase in the future. The employee has not yet shown any medical evidence of her current level of permanent partial disability, and, as a result, has not shown any increase since the time of the settlement.
Need for Medical Care
The employee contends that she has been required to undergo much more costly and extensive medical care than anyone would have anticipated and has incurred medical expenses which the employer and insurer have not yet paid. Where, as here, a stipulation for settlement leaves future medical expenses open, that factor carries less weight in determining whether a substantial change in condition has occurred. Further, the “need for additional surgery does not in and of itself, necessarily compel the conclusion that there has been a substantial change in [the] employee’s condition.” Sondrol v. Del Hayes & Sons, Inc., 43 W.C.D. 367, 368 (W.C.C.A. 1990). We have previously noted, however, that even where medical benefits are left open, the need for more expensive medical care than anticipated remains useful evidence bearing on whether there has been a substantial change in an employee’s condition. See, e.g., Vellieux v. Catholic Charities, No. WC06-223 (W.C.C.A. Mar. 8, 2007). Although the employee’s claim remains open for reasonable and necessary medical expenses, the additional medical treatment was more extensive than any of the parties anticipated at the time of the settlement, and we therefore conclude that the employee has satisfied this factor.
We next consider whether the employee’s need for additional left knee surgeries and her current medical condition are causally related to her claimed injury in December 2005. The employer and insurer have maintained their denial of primary liability for the employee’s claims, arguing that her medical condition and need for medical treatment since the settlement are not related to any work incident in December 2005 but instead are related to the employee’s left knee condition that pre-dated the December 2005 incident. The employer and insurer have conceded, however, that the employee’s infection and follow-up surgeries were causally related to the December 16, 2005, work incident that was subject to the settlement.
In summary, factors that mitigate in favor of granting the employee’s petition include her worsened symptoms since the time of the settlement, the extensive and unanticipated medical treatment that she has required, and the causal relationship between the employee’s current condition and the work incident on December 2005. The employee, however, has not adequately demonstrated a change in diagnosis or in her ability to work, nor an increase in the level of permanent partial disability, since the time of the 2008 settlement.
In addition, another consideration in evaluating a petition to vacate is “the extent to which the settlement precludes the employee from seeking benefits to which [s]he might otherwise be entitled.” Boyington v. Hirschbach Motor Lines, No. WC05-199 (W.C.C.A. Sept. 28, 2005). Here, the stipulation for settlement does not preclude the employee from filing a medical request or claim petition for payment of the medical expenses she has incurred since the settlement. And, at least at the present time, the employee is earning a higher weekly wage than she earned before entering into the settlement agreement. The employee is able to continue working, in part because her job duties allow her to alternate sitting and standing, and there is no evidence at this time that the employee is unable to continue working at that position. “Prospective or anticipated changes do not provide a basis for vacation.” Battle v. Gould, Inc., 42 W.C.D. 1085 (W.C.C.A. 1990). Should the employee’s ability to work change in the future, or should other changes develop in the future, she remains free to petition to vacate the settlement agreement at that time.
Under all these circumstances, therefore, we conclude that it is premature to vacate the award on stipulation. At this time, good cause to vacate the settlement has not been established, and we therefore deny the petition.
 Portions of the background information have been taken from the transcript of a deposition of the employee and from the employee’s medical records; some of the references to the employee’s medical history were gleaned from Dr. Richard Strand’s report of April 25, 2007, issued following his independent medical examination.
 Lymphedema is defined as chronic unilateral or bilateral edema of the extremities due to accumulation of interstitial fluid as a result of stasis of lymph, which is secondary to obstruction of lymph vessels or disorders of the lymph nodes. Dorland’s Illustrated Medical Dictionary 1036 (29th ed. 2000).