CORNELIUS HICKS, Employee/Petitioner, v. KNIGHTS FORMAL WEAR n/k/a NORCOSTCO and THE HARTFORD INS. GROUP, Employer-Insurer, ARCHIVIT RECORDS MGMT. CTR. and MINNESOTA ASSIGNED RICK PLAN/BERKLEY RISK ADM’RS CO., Employer-Insurer, and RELIABLE MED. SUPPLY, INC., and PHARMACISTS MUT. INS. CO./RISK ENTER. MGMT., LTD., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 9, 2010
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The employee did not establish good cause to vacate the awards on stipulation on grounds of a substantial change in condition where any changes were or could have reasonably been anticipated and/or the changes were not substantial.
Petition to vacate awards on stipulation denied.
Determined by: Wilson, J., Johnson, C.J., and Rykken, J.
Attorneys: Lee J. Keller, Milavetz, Gallop & Milavetz, Coon Rapids, MN, for the Petitioner. Adam Rosenfield, Law Offices of Steven G. Piland, Eagan, MN, for Respondents Knights Formal Wear/ Hartford. Karen R. Swanton, Fitch, Johnson, Larson & Held, Minneapolis, MN, for Respondents Archivit/MARP/Berkley. Mark A. Wagner, Johnson & Condon, Minneapolis, MN, for Respondents Reliable Medical Supply/Pharmacists Mut./Risk Enterprise Mgmt.
DEBRA A. WILSON, Judge
The employee petitions this court to set aside three awards on stipulation based on a substantial change in medical condition. Finding no basis to vacate, we deny the employee’s petition.
The employee was working for Knights Formal Wear, Inc. [Knights] on February 14, 1997, when he sustained an admitted injury to his low back. The employee treated at the North Memorial Hospital emergency room, where medication and physical therapy were prescribed. He was also given restrictions, which were lifted on May 23, 1997.
The employee later worked for Archivit Records Management Center [Archivit], delivering office supplies and files, and, on September 22, 1997, he sustained further injury to his back. He eventually treated with Dr. Paul Crowe, who performed a laminotomy and disc excision on the right at L5-S1, on January 16, 1998.
The employee filed a claim petition on December 19, 1997, listing the February 14, 1997, injury and seeking temporary total, temporary partial, and permanent partial disability benefits, medical expenses, and rehabilitation services.
On April 27, 1998, Dr. Crowe noted that the employee was complaining of back pain but that his right leg pain had returned to its pre-surgery level. An MRI the next day showed a recurrent, moderate sized, right-sided disc herniation at L5-S1, impinging on the right S1 nerve root.
Dr. Crowe wrote to the employee’s attorney on August 28, 1998, and opined that the employee was suffering from a recurrent herniated disc, which could indicate a need for repeat disc surgery and/or a lumbar spinal fusion in the future. The doctor released the employee to return to work with a 50-pound lifting restriction and assigned a 14% permanent partial disability rating.
An amended claim petition was served on or about August 26, 1998, adding Archivit as a liable employer and listing the September 22, 1997, injury date.
On December 21, 1998, Dr. Crowe indicated that the employee “had been doing quite well and was working regularly, now the right leg has flared up fairly significantly.” The doctor noted that the employee was working for Brookdale Honda as a driver and that he “does not want to lose his job.”
On January 26, 1999, Dr. Crowe wrote to the employee’s attorney, summarizing the employee’s treatment and stating that the employee “underwent an operative intervention on January 16, 1998, from which he had a fairly poor result with development of epidural fibrosis.” Dr. Crowe’s subsequent office note from May 4, 1999, referred to a December scan showing “epineural fibrosis around the S1 nerve” and described the employee as suffering from chronic pain. Dr. Crowe also noted that the employee “will keep trying to work.”
The employee and Knights entered into a stipulation for settlement [Stipulation 1], stipulating that the employee had sustained an injury at Knights on February 14, 1997, and an injury at Archivit on September 22, 1997. The employee contended that he was entitled to temporary total and temporary partial disability benefits for intermittent periods from and after September 16, 1997, and that he was entitled to benefits for a 12% permanent partial disability and payment of medical expenses as a result of the two injuries. Under the terms of the stipulation, Knights agreed to pay the employee $25,000 for a full, final, and complete settlement of all claims arising out of the February 14, 1997, and September 22, 1997, injuries, with the exception of non-chiropractic medical care. Knights reserved claims for reimbursement and contribution from Archivit. The stipulation was signed by the employee on May 10, 1999, and an award on stipulation [Award 1] was filed on May 11, 1999.
About a week later, on May 19, 1999, Dr. Crowe noted that the employee was not doing much better and indicated that “it looks like epidural fibrosis on MRI.” He also noted that the employee “continues to barely hold on to his job at this time.”
Knights filed a claim for reimbursement against Archivit. In a subsequent stipulation for settlement [Stipulation 2] between the employee, Knights, and Archivit, it was agreed that the employee had sustained a work injury with Knights, and it was alleged that he had sustained a work injury with Archivit. At that time, Knights was seeking 50% contribution from Archivit for benefit payments totaling $46,201.59. Archivit denied liability for the employee’s claimed injury. The parties agreed that Archivit would reimburse Knights for one-third of all benefits paid to or on behalf of the employee to date of the stipulation and to reimburse Knights one-third of all future medical benefits, with Knights acting as the paying agent for future medical expenses. The stipulation also clarified that the employee’s intent in entering into Stipulation 1 had been to give both employers a full, final, and complete settlement, with the exception of non-chiropractic medical expenses. An award on stipulation [Award 2] was filed on November 8, 1999.
After leaving his job with Brookdale Honda, the employee attended computer school and then worked in shipping for Electrol for approximately one year. After being laid off from that employment, he next worked as a repair technician and delivery driver for Reliable Medical Supply, Inc. [Reliable], beginning in June of 2000. The employee continued to treat for low back complaints in 2001, 2002, and 2005, and claimed that he sustained work-related injuries to his low back on January 17, 2007, September 10, 2007, and January 21, 2008, while employed by Reliable.
An MRI performed in October 24, 2007, revealed “multi-level degenerative disc changes but no significant nerve root compression.” Dr. Crowe considered it to be “a nonoperative scan.”
On December 3, 2007, Dr. Crowe recommended “a revision decompression right L5-S1, a fusion L5-S1 with Capstone, pedicle screws, neuro-monitoring, On-Q INFUSE, and autografting.” Dr. Crowe’s notes reflect that he discussed the proposed surgery with the employee and that the employee understood “the risks of being worse from the procedure.”
Dr. Crowe performed a rigid decompression and complete facetectomy of the right L5-S1 and fusion of L5-S1 on January 23, 2008. The employee has not worked since that surgery.
In February of 2008, the employee filed an amended claim petition seeking benefits from Knights and Reliable for the injuries of February 14, 1997, and September 10, 2007, and an alleged Gillette injury of January 21, 2008. At that time, he was seeking temporary total disability benefits continuing from January 21, 2008, payment of medical expenses, and rehabilitation assistance. Knights contended that the employee’s claim for temporary total disability benefits was foreclosed by Stipulations 1 and 2. Reliable denied that the employee had sustained an injury while in their employ.
By March 4, 2008, Dr. Crowe noted that the employee had no back pain but was still having a lot of leg pain. The employee continued to follow up with Dr. Crowe.
The employee was examined by independent medical examiner Dr. Jack Drogt on July 18, 2008. Dr. Drogt opined that the employee had not sustained any injuries while working for Reliable and that all of the employee’s restrictions and disability related back to the February 14, 1997, injury at Knights. He stated that the employee could return to work in a sedentary clerical position six months post-surgery.
Dr. Mark Larkins performed an independent medical examination on July 19, 2008. It was his opinion that the employee had sustained a Gillette injury, due to his work at Reliable, culminating on September 10, 2007, but that the employee had not sustained a Gillette injury culminating on January 21, 2008. He apportioned 30% of the responsibility for the employee’s treatment and disability to the February 14, 1997, injury at Knights, 50% to the September 22, 1997, injury at Archivit, and 20% to the September 10, 2007, Gillette injury at Reliable. Dr. Larkins was of the opinion that the employee should avoid repetitive lifting, lift no more than 20 pounds, and avoid repetitive bending.
On August 18, 2008, Dr. Crowe noted that the employee was “feeling dramatically better at this point. He is overall fairly pleased with his progress at this time. Because of that nothing else is going to be done at this point.”
The employee, Knights, and Reliable entered into a stipulation for settlement [Stipulation 3] in October of 2008, wherein the employee claimed injuries of February 14, 1997, September 22, 1997, and September 10, 2007, to the low back and left leg arising out of his employment with Knights, Archivit, and Reliable. He also indicated that there were possible additional injuries with Reliable on January 17, 2007 and/or January 21, 2008. The employee contended that he had ongoing symptoms, disability, and restrictions as a result of his work injuries and that he was entitled to temporary total disability benefits continuing from January 21, 2008. He also contended that he was precluded from returning “to his pre-injury or other suitable gainful employment.” Reliable denied the claimed injuries but agreed to pay the employee $70,000 in full, final, and complete settlement of all claims, including medical claims, arising out of the alleged injuries on January 17, 2007, September 10, 2007, and/or January 21, 2008. Knights paid the employee $450 in settlement of any claims for out-of-pocket medical expenses, and Reliable paid $50. Knights agreed to pay the claims of intervenors and potential intervenors for the employee’s medical treatment and acknowledged that Reliable would have no responsibility for past, present, or future medical care. An amended award on stipulation [Award 3] was filed on November 4, 2008.
On December 17, 2008, a few weeks after the award, the employee applied for Social Security disability benefits, indicating that he had been unable to work since January 23, 2008. The employee’s application was denied.
The employee treated with Dr. Crowe again on January 5, 2009. Dr. Crowe noted that “his back has bothered him so much he cannot get around. It is not his hip so much as his back and he is having a great deal of back pain. I think he has got advanced epidural fibrosis and scarring at the point of his old fusion.” The following month, on February 16, 2009, Dr. Crowe noted that the employee was getting progressively worse and could not function, indicating, “he can no longer compete in the workplace. I think he should be permanently totally disabled from work.”
An MRI performed on February 27, 2009, showed a small right lateral disc bulge at L5-S1, which did not appear to impinge upon the nerve roots, some postoperative scarring surrounding the right L5 nerve root in the neural foramen, and mild disc bulging at L1-2, L3-4 and L4-5. On March 23, 2009, Dr. Crowe noted that he had discussed the MRI with the employee and that the employee had elected to “just live with this.”
Later that year, on October 12, 2009, Dr. Crowe noted that the employee was dealing with ongoing chronic back and leg pain and chronic cervical strains.
On November 10, 2009, the employee filed a petition seeking to vacate the three awards on stipulation based on a substantial change in his medical condition.
On January 14, 2010, the employee was examined by independent medical examiner Dr. Mark Thomas. In his subsequent reports, Dr. Thomas diagnosed chronic low back pain status post-lumbar fusion surgery. He noted no objective changes in the employee’s back condition since August of 2008 and opined that the employee’s restrictions should include a lifting limit of 20 pounds with no repetitive bending or stooping.
On January 16, 2010, the employee was re-examined by Dr. Larkins, who diagnosed status post L5-S1 fusion, with an element of right radicular symptoms. He also opined that there had been no change in diagnosis since his 2008 evaluation. Dr. Larkins further reported that, while the employee complained of more pain than he had at his last exam, the MRI showed no significant changes. It remained Dr. Larkins’ opinion that the employee could perform sedentary work, and he rated the employee with an additional 5% impairment due to the fusion surgery in 2008.
Pursuant to Minn. Stat. § 176.461, this court may vacate an award for cause, which the statute defines as a mutual mistake of fact, newly discovered evidence, fraud, or a substantial change in medical condition “that was clearly not anticipated and could not reasonably have been anticipated at the time of the award.” In the instant case, the employee contends that the three awards should be set aside based upon a substantial change in medical condition.
A number of factors are relevant when evaluating whether there has been a substantial change in the employee’s medical condition, including:
- A change in diagnosis;
- A change in the employee’s ability to work;
- Additional permanent partial disability;
- The necessity of more costly and extensive medical care than initially anticipated;
- The causal relationship between the work injury covered by the settlement and the employee’s current worsened condition; and
- The contemplation of parties at the time of the settlement.
Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989) (citations omitted). These factors must be applied in a manner consistent with the requirement that the change be one which was clearly not anticipated and could not reasonably have been anticipated. Powell v. Abbott Northwestern Hosp., slip op (W.C.C.A. Aug. 17, 1995).
1. Award 1 - - filed May 11, 1999
A. Change in Diagnosis.
At the time of that award, the employee was post-laminotomy and disc excision on the right L5-S1, and Dr. Crowe had diagnosed the employee as suffering from a recurrent herniated disc. Prior to that award, Dr. Crowe had also noted the employee had a “fairly poor result” from the laminotomy/disc excision and that he had developed epidural fibrosis. Dr. Crowe’s office note of May 4, 1999, the medical record most contemporaneous to the award, described a scan as showing “epineural fibrosis around the S1 nerve” and indicated that the employee was suffering from chronic pain. Following Award 1, the employee underwent an additional surgery, making him “status post fusion,” but Dr. Crowe’s diagnosis is “advanced epidural fibrosis and scarring” and chronic pain. This does not represent a substantial change in diagnosis.
B. Change in Ability to Work.
At the time of Award 1, Dr. Crowe’s medical records reflected that the employee was struggling to continue working. For example, his office note of May 4, 1999, indicated that the employee “will keep trying to work.” And, on May 19, 1999, just eight days after Award 1, Dr. Crowe noted that the employee “continues to barely hold on to his job at this time.” Presently, the employee is not working. While Dr. Crowe has indicated that the employee is permanently and totally disabled, he did so only after the employee had been denied Social Security disability benefits, indicating in that February 16, 2009, office note that the employee “can no longer function I guess.” Drs. Thomas and Larkins, on the other hand, have opined that the employee is capable of working at this time. Given the difficulties with work that the employee was having at the time of Award 1, it could have or should have been anticipated that he might become unable to work, or need greater restrictions, in the future. In any event, the change in the employee’s ability to work was not substantial.
C. Increase in Permanent Partial Disability.
The employee had been rated as having a 14% permanent partial disability at the time of Award 1. Dr. Crowe subsequently rated an additional 5%, based on the fusion surgery. However, while there has been a change in the extent of permanency since Award 1, the surgery was reasonably anticipated. As such, it cannot be said that the increase in permanency was not anticipated.
D. Need for More Costly and Extensive Medical Care.
As the employee acknowledged in his brief, less emphasis is given to this factor when medical expenses are not closed out by the award, see Burke v. F & M Asphalt, 54 W.C.C.A. 363 (W.C.C.A. 1996), and medicals were left open under Award 1. In addition, we note that, prior to Award 1, Dr. Crowe had clearly indicated that the employee could need repeat disc surgery and/or a spinal fusion in the future. Therefore, the additional medical treatment after Award 1 was clearly anticipated.
E. Causal Relationship.
The medical evidence supports a causal connection.
F. Contemplation of the Parties.
The employee contends that at the time of the first two settlements, there was no reasonable contemplation that the employee would become restricted from any work or that he would need surgery in the future. The record, however, suggests otherwise, as the employee’s medical records show that the employee was struggling to keep working and Dr. Crowe had already talked about the possibility of further surgery.
Therefore, with regard to Award 1, the employee has failed to establish a substantial change in his medical condition that was “clearly not anticipated and could not reasonably have been anticipated at the time of the award.”
2. Award 2- - filed November 8, 1999
A. Change in Diagnosis.
The employee contends that his current diagnoses of residual bilateral lumbar radiculitis/radiculopathy, chronic low back pain with persistent right radicular pain, and advanced epidural fibrosis represent a change from his diagnoses at the time of Awards 1 and 2. We are not convinced. Dr. Crowe’s records for the period between Awards 1 and 2 indicate diagnoses the same or similar to the employee’s current diagnoses.
B. Change in Ability to Work.
In his office note of June 23, 1999, Dr. Crowe released the employee to light-duty work with minimal lifting and noted that the employee “is going to get a job in a daycare type setting, a business he may set up himself.” Dr. Crowe’s office note of July 26, 1999, indicates that the employee was interested in going to work with fewer restrictions and that he wanted to work overtime. In his deposition taken June 26, 2008, the employee testified that he worked for Electrol, Inc., from January of 1999 to January of 2000. The employee’s brief suggests only that the employee “worked almost continually from within months of his January 16, 1998, surgery to January 21, 2008.” It is unclear whether the employee was working at the time of Award 2. Therefore it is not possible to determine whether the employee has had a change in his ability to work since the time of that award.
C. Additional Permanent Partial Disability.
As noted with regard to Award 1, the employee has been rated with an additional 5% permanency since the time of Award 2. However, that additional permanency is the result of a surgery that was anticipated or reasonably could have been anticipated at the time of Award 2.
D. Necessity of More Costly and Extensive Medical Care.
As indicated with regard to Award 1, Dr. Crowe had noted prior to the time of Award 2 that the employee might need a fusion surgery in the future. Therefore, the surgery that the employee underwent subsequent to Award 2 was anticipated or could reasonably have been anticipated at the time of that award.
E. Causal Connection.
Medical evidence supports a causal connection.
F. Contemplation of the Parties.
See the discussion with regard to Award 1.
Therefore, with regard to Award 2, the employee has failed to establish a substantial change in his medical condition that was “clearly not anticipated and could not reasonably have been anticipated at the time of the award.”
3. Award 3- - filed on November 4, 2008
A. Change in Diagnosis.
The employee admits in his brief that there has been no change in diagnosis since Award 3 was issued.
B. Change in Ability to Work
At the time of Stipulation 3, the employee was contending that he was precluded from returning “to his pre-injury or other suitable gainful employment,” and Dr. Crowe had not yet released the employee to return to work. At the present time, the employee is not working. The employee has not established a change in ability to work.
C. Additional Permanent Partial Disability.
The employee admits that there is no medical opinion rating the employee with additional permanency since the time of Award 3.
D. Causal Relationship.
There is evidence of a causal relationship.
E. Contemplation of the Parties.
The employee contends that at the time of Award 3, “there was no contemplation that Mr. Hicks would become restricted from any work and be deemed by his treating doctor to be permanently and totally disabled in February 2009.” The record, however, again reflects otherwise. According to the employee’s medical records, the employee was not working at the time of Award 3, and, just a few weeks after that award, the employee filed for Social Security disability benefits.
Therefore, with regard to Award 3, the employee has failed to establish a substantial change in medical condition that was “clearly not anticipated or could not reasonably have been anticipated at the time of the award.”
As the employee has not established good cause to vacate any of the awards on stipulation, the petition to vacate is denied in its entirety.
 It is unclear what claim petition led to this amended claim petition.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).