GREGORY STRZELECKI, Employee/Petitioner, v. PMR, INC., and MINNESOTA ASSIGNED RISK PLAN/BERKLEY RISK ADM’RS CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 22, 2010
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the employee did not establish a change in diagnosis, continues to recuperate from additional surgeries since the time of the award, and no doctor has yet determined that he has reached MMI nor assigned a permanency rating, it is premature to grant a vacation of the award on stipulation.
Petition to vacate award on stipulation denied.
Determined by: Rykken, J., Wilson, J., and Pederson, J.
Attorneys: Michael G. Schultz, Sommerer & Schultz, Minneapolis, MN, for the Petitioner. Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee petitions to vacate an award on stipulation served and filed on April 25, 2007, based on a substantial change in medical condition. We conclude the employee has not yet established cause as required by Minnesota Statutes § 176.461 and the petition is denied.
Mr. Gregory Strzelecki, the employee, sustained an admitted injury to his right knee on March 20, 2006, while employed by PMR, Inc., the employer. At the time of his injury he was 31 years old and worked as a vendor representative at a Home Depot store location, setting up seasonal garden displays. While standing on a ladder, he slipped and fell; his right leg slipped between two of the ladder steps and he twisted his knee, sustaining a blow to the anterior aspect of his knee. The employee continued to work, but due to continued symptoms he sought orthopedic treatment. At an appointment with Dr. David R. Anderson on May 3, 2006, the employee reported knee pain and instability, sharp pain with activity, and moderate to severe pain even without activity. An MRI scan conducted on May 10, 2006, showed “findings suspect for chronic healed residua of PCL sprain injury without acute sprain or complete tear,” with no ACL, collateral ligament, or meniscus derangement. Dr. Anderson ultimately diagnosed a right knee PCL sprain/Grade II tear. He restricted the employee from work, and initially provided conservative treatment, including a knee brace, physical therapy and anti-inflammatory medication.
The employee’s first day of lost time from work was on May 8, 2006. The employer and insurer paid ongoing wage loss benefits thereafter, through approximately April 9, 2007, in addition to medical expenses and expenses related to statutory rehabilitation assistance.
Due to the employee’s lack of symptomatic improvement, Dr. Anderson referred the employee to Dr. Christopher Larson for a second opinion concerning surgery. Dr. Larson examined the employee on July 20, 2006, and initially recommended nonsurgical treatment. He also advised that a PCL reconstruction surgery would also be appropriate because of the employee’s continued give-way sensation in his right knee. He noted the following in his chart note from this initial examination:
At this point, I have told [the employee] that it is very appropriate to treat this injury non-surgically. He is now having continued giving-way episodes and my recommendation would be that he could simply live with this and continue with this bracing which hasn’t seemed to be that helpful or we could consider going forward with a PCL reconstruction. My recommendation would be [f]or a transtibial reconstruction with an Achilles allograft. I have talked to him about the risks, the benefits and the typical rehabilitation. He understands this and if he wishes to proceed, he can schedule this at his earliest convenience. I have told him also that there is a chance that with some slight varus alignment he may have a slightly increased risk for failure with this; however, at this point I think we should get long-leg films and this is relatively acute and make decisions about high tibial osteotomy at the same time of the PCL reconstruction. It would be in my mind more appropriate if he had a subsequent PCL failure and required a revision which I do not believe that he will.
On August 15, 2006, Dr. Larson performed right knee surgery, which included a debridement of the medial femoral condyle chondral flap and a posterior cruciate ligament reconstruction with Achilles allograft. Following a course of physical therapy, the employee underwent a functional capacity examination in late January 2007, which demonstrated that he was able to work full time in the “medium” category, but that he should limit the time spent on his feet to four hours per day, preferably with alternating periods of sitting and standing. In addition, he was limited to lifting only 20 pounds and was restricted against running, kneeling and crawling.
An MRI scan taken on March 19, 2007, was interpreted as being abnormal, with findings including “some signal alteration which could reflect degeneration of the graft although without evidence for graft disruption,” and “moderate to marked tendinopathy of the proximal aspect of the patellar tendon,” and some knee joint effusion.
The employee completed his post-surgical physical therapy by mid-April 2007, and continued performing home strengthening exercises. On April 11, 2007, Dr. Larson examined the employee to assess his condition following surgical removal of hardware in his knee. The employee reported that he was doing “okay” and that he wished to increase his activity level. On examination, Dr. Larson noted that the employee had full range of motion of his knee and that his surgical incision was healing. Dr. Larson allowed the employee to “increase his activity as tolerated,” and advised that he would allow the employee to return to some running activities “as he feels comfortable.”
On or about April 10, 2007, the employee began working for Avalon Security at twenty hours per week, earning $9.00 per hour. According to a Notice of Intention to Discontinue Benefits, dated April 12, 2007, the employer and insurer advised that they would discontinue temporary total disability benefits and would commence payment of temporary partial disability benefits.
Later that month, the employee, employer, and insurer entered into a full, final, and complete settlement relative to the employee’s March 20, 2006, admitted injury. In the stipulation for settlement, the employee contended that he had been and was temporarily disabled on varying dates from March 20, 2006, to the present and continuing, and that as a result of his injury he would need ongoing vocational rehabilitation and/or retraining. According to the employee’s affidavit, prepared in conjunction with his petition to vacate the award on stipulation, his right knee felt well at the time of the settlement, he had no significant pain or symptoms, and did not anticipate any further significant, conservative, or surgical treatment for his right knee.
Pursuant to the Award on Stipulation, served and filed April 25, 2007, the employee received a lump sum payment of $30,000.00 in exchange for settlement of all benefit claims, with the exception of claims for future medical care and treatment related to his right knee injury; such claims remained open under the terms of the agreement.
In May 2007, the employee located full-time unrestricted work for Minnesota Pools. He began working on the basis of 40 hours per week, earning an hourly wage of $20.00.
On July 16, 2007, Dr. Christopher Ellingson, a colleague of Dr. Larson, examined the employee, who reported that he was doing well overall but that he continued to note slight numbness over the lateral aspect of his right thigh. Dr. Ellingson assessed “residual lateral foraminal cutaneous nerve irritation,” and concluded that the nerve irritation might slowly continue to improve but “he may still have some residual slight numbness long-term, which should not be a functional problem for him.” Dr. Ellingson also examined the employee’s left knee at that appointment, in response to his reported left knee pain noted while performing strengthening exercises. Dr. Ellingson diagnosed left quadriceps tendonitis and recommended that the employee avoid squatting activities but that he should continue his strengthening exercises. He suggested that the employee follow-up on an as-needed basis.
The employee returned to Dr. Larson on April 30, 2008, reporting that his right knee felt “a little bit loose” and that he felt some left knee pain on the anterior aspect. Dr. Larson diagnosed some mild residual laxity in the right knee and recommended that the employee continue his strengthening exercises.
As to the employee’s left knee, Dr. Larson felt that the employee had likely been compensating with his left knee, due to his right knee injury, and that he therefore developed some left patellofemoral and IT band symptoms secondary to his right knee injury and surgery. Dr. Larson recommended physical therapy for the left knee and asked the employee to return if his symptoms worsened or did not continue to improve.
The employee again consulted Dr. Larson in mid-January 2009, reporting that for the past two months he had increased pain over the medial and patellofemoral region of his right knee. Dr. Larson queried whether the employee had some degenerative changes or meniscal tearing, and recommended an MRI scan to evaluate. That MRI, taken on March 11, 2009, was again interpreted as being abnormal. When compared with the MRI scan taken in March 2007, the graft resulting from surgery was relatively unchanged, although the later scan showed some degeneration and a paracruciate cyst that had developed adjacent to the graft. By contrast, some mild findings in the patella area, detected in 2007, had significantly improved between 2007 and 2009.
The employee developed increasing problems with his right knee, including swelling and a feeling of instability. Dr. Larson eventually referred the employee to Dr. Robert F. LaPrade, orthopedic surgeon at the University of Minnesota. Dr. LaPrade noted the employee’s increasing right knee pain and instability, and diagnosed the following conditions:
1. Right knee failed posterior cruciate ligament reconstruction.
2. Right knee posterolateral corner injury, primarily popliteus tendon - chronic.
3. Genu varus alignment, right lower extremity.
4. Mild genu recurvatum, right knee.
On January 29, 2010, Dr. LaPrade performed a right knee arthroscopic chondralplasty of the medial femeral chondral and biplanar osteotomy with platting and bone graft. The employer and insurer authorized and paid for the surgery.
Dr. LaPrade advised the employee of the potential need for a second stage surgery, depending on the results from the January 2010 surgery. By mid-February, Dr. LaPrade recommended an additional surgery, within approximately nine months, once his osteotomy showed evidence of healing. Dr. LaPrade recommended a double bundle PCL reconstruction and posterolateral corner reconstruction. Dr. LaPrade restricted the employee from weight-bearing activities, and restricted him from work “for the indefinite future because of his heavy labor job possibly through the second stage surgery.” The employee has remained off work since January 2010.
According to the employee’s petition to vacate, he anticipated undergoing the third surgery in October or November 2010, but the record before the court does not contain any further information on the timing of that proposed surgery. The record does show, however, that the employer and insurer authorized payment for that surgery.
Evidently, Dr. LaPrade has advised the employee that the employee would be unable to return to work in any capacity for at least six months following his second surgery.
On May 24, 2010, the employee petitioned this court to vacate the Award on Stipulation, served and filed on April 25, 2007, on the basis of an unanticipated substantial change in medical condition.
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). While these factors are a useful guide for our review of such cases, we also remain mindful that the primary purpose of allowing a vacation of an award is to assure compensation proportionate to the degree and duration of disability. Monson v. White Bear Mitsubishi, 663 N.W. 2d 534, 63 W.C.D. 337 (Minn. 2003).
In this case, the employee contends there has been a substantial and unanticipated change in his diagnosis and medical condition since the time of the 2007 award on stipulation, and that he has satisfied the factors set forth in Fodness. The employer and insurer contend that the employee has not established a basis for vacating the April 25, 2007, award on stipulation.
Change in Diagnosis
The employee specifically claims that his change in diagnosis - - a need for revision of his original surgery - - was not and could not have been anticipated at the time of the 2007 settlement. He contends that by the time of the award on stipulation in April 2007, he had recovered well from his August 2006 surgery, as reflected in Dr. Larson’s medical records.
By contrast, the employer and insurer argue that the employee’s medical records do not establish a substantial change in diagnosis since the time of the award in April 2007. They contend that the employee was not “well healed” prior to the time of the settlement, but that he instead was experiencing ongoing problems with his knee at that time and that the March 2007 MRI scan reflected positive findings. The employer and insurer also point to Dr. Larson’s April 2007 chart notes, completed shortly before the award on stipulation of April 25, which included a reference to the healing of the surgical incision, “improving status post hardware removal” and ongoing symptoms. The employer and insurer also compared the findings on MRI in March 2007 and March 2009, and contend that those MRI scans were both interpreted as being “abnormal” and did not indicate a significant change in diagnosis in the later MRI.
We acknowledge that the employee has undergone additional medical treatment since the award on stipulation. Based on our review of the medical evidence, however, we conclude that the employee was still treating for his knee condition and was continuing to recover from his surgery at the time of the award. He continued to have objective findings on examination, he continued to complain of instability in his knee, and he remained under restrictions based on the assessment performed through a functional capacities evaluation in January 2007. The evidence in the record does not establish that the employee has experienced a change in diagnosis since the time of the award on stipulation.
Change in Ability to Work
The employee returned to work following his 2006 surgery, initially on a part-time basis and later on a full-time basis. At the time of the April 2007 award on stipulation, the employee was working for Avalon Security. Shortly thereafter, by May 2007, he began working full time with Minnesota Pool. Since January 2010, however, the employee has been disabled from all work for the foreseeable future, initially while awaiting follow-up surgery and presumably while recovering from the anticipated surgery. At least up to this point, the employee has demonstrated a change in his ability to work on a continuing basis since the time of the award on stipulation. Whether the employee’s ability to work will be changed on an ongoing basis, however, remains to be seen. See Bell v. Flower City, No. WC09-160 (W.C.C.A. Dec. 14, 2009) (issue is not intermittent periods of total disability after surgery, but whether there is a significant change in the employee’s ability to work on a continuing basis). At the present time, however, he remains off work for surgical recovery, and the employer and insurer have conceded that the employee’s ability to work has changed since the award on stipulation. The employee has satisfied this particular Fodness factor.
Change in Permanent Partial Disability
At the time of the award on stipulation, the employee had not yet reached maximum medical improvement (MMI) and therefore his treating physician had not assigned any rating of permanent partial disability. The employee contends, however, that at the time of the award, he would have been rated as having a zero percent permanent partial disability. He bases that contention on Dr. Larson’s examination findings on April 11, 2007, that the employee had recovered well from his initial surgery and had full range of motion with no laxity in his right knee. It is unknown, however, what rating Dr. Larson would have later assigned. In April 2007, Dr. Larson advised the employee to return in six months for a recheck of his knee with measurements and knee scoring forms to be completed. The employee periodically consulted Dr. Larson later in 2007, but his medical records do not include any notation of a permanent partial disability rating.
The employee contends that since he has undergone additional surgery, in January 2010, and that he anticipated a follow-up surgery, he likely will be assessed a permanency rating. But his current treating surgeon, Dr. LaPrade, has not yet determined that the employee has reached MMI, and therefore has not yet assigned a permanency rating relative to the employee’s 2010 surgery or surgeries. The record before the court, therefore, does not contain sufficient information to determine whether the employee has experienced an increase in the level of his injury-related permanent partial disability. Because it is unknown what rating may be assigned to the employee in the future, it is premature to conclude whether the employee has satisfied this particular Fodness factor.
Need for Medical Care
The employee contends that he has required much more costly and extensive medical care than was anticipated at the time of the award on stipulation. The employer and insurer argue that ongoing treatment was anticipated. They contend that the type of surgery undertaken in January 2010 - - a PCL reconstruction - - was one treatment option presented by Dr. Larson at his initial examination of the employee in July 2006.
In addition, the employer and insurer argue that the potential need for this medical care and treatment was contemplated and anticipated at the time of the settlement, that medical benefit claims were left open in the settlement agreement, and that they have paid for all of the employee’s additional medical treatment for his right knee. 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).
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 treating surgeon forewarned of the potential need for surgery, and though the employee’s claim remains open for reasonable and necessary medical expenses, the additional medical treatment he has undergone - - a two-stage surgery - - arguably was more extensive than any of the parties anticipated at the time of the settlement. We conclude that the employee has satisfied this factor.
We next consider whether the employee’s need for additional right knee surgery and his current medical condition are causally related to his 2006 injury. The employer and insurer have admitted primary liability for the employee’s 2006 injury, and have paid for his ongoing medical expenses, conceding that his surgery or surgeries following the 2007 award on stipulation were causally related to his March 2006 injury that was subject to the settlement. In a report dated April 12, 2010, Dr. Larson provided his opinion that the employee’s continued treatment has resulted from his original right knee injury in March 2006. The employee has satisfied this factor.
In summary, factors that mitigate in favor of granting the employee’s petition include the extensive medical treatment that he has required since entering into a settlement, the present change in his ability to work, and the causal relationship between his current condition and work injury in March 2006. The employee, however, has not yet adequately demonstrated a change in diagnosis or an increase in the level of his permanent partial disability since the time of the 2007 settlement.
The employee continues to recuperate from his additional surgeries, and it is possible that his long-term ability to work may improve after his recovery from surgery. No doctor has yet determined that the employee has reached MMI nor assigned a permanency rating. 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), summarily aff’d (Minn. May 24, 1990). Based on the evidence submitted at this time, we cannot say that the employee has demonstrated a substantial change in condition that would justify a vacation of the April 25, 2007, award on stipulation. At this time, it is premature to vacate the award on stipulation. Good cause to vacate the settlement has not yet been established, and we therefore deny the petition.