TERRY L. THADY, Employee/Petitioner, v. MICHAEL A. POLCARO and AUTO-OWNERS INS. CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 2, 2010
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the terms of the parties’ stipulation for settlement had apparently been met, where the employee was adequately represented by counsel in the process of his settlement, and where, pursuant to the factors set forth in Fodness v. Standard Cafe, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989), the employee did not demonstrated any substantial change in his medical condition aside from the necessity of implantation of a spinal cord stimulator that had already been paid for by the employer and insurer, the employee did not show good cause to vacate his stipulation for settlement on grounds that there had been a substantial change in his medical condition.
Petition to vacate award on stipulation denied.
Determined by: Pederson, J., Johnson, C.J., and Stofferahn, J.
Attorneys: Jerry J. Lindberg, Drewski & Lindberg, Sauk Rapids, MN, for the Petitioner. Victor C. Johnson and Melissa S. Hareid, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee petitions this court to vacate an award on stipulation served and filed May 14, 1999. Concluding that the employee has not shown good cause to vacate the award at issue, we deny the employee’s petition.
On October 12, 1996, Terry Thady sustained a work-related injury to his left lower extremity when he fell through some scaffolding and hit a retaining wall in the course of his employment as a mason with Michael A. Polcaro [Brick & Tile]. A CT scan of the foot and ankle conducted that same day revealed a crush fracture of the heel and an oblique fracture of the talus, and Mr. Thady [the employee] had emergency surgery that same day, which evidently entailed the installation of two screws into the heel. The employee was forty-five years old on the date of his injury and was earning a weekly wage that remained in dispute at the time of the settlement here at issue. Michael A. Polcaro [the employer] and its insurer admitted liability for the injury and commenced payment of benefits.
The employee eventually came under the care of orthopedist Dr. Paul Rud. In May of 1997, he evidently underwent a second surgery to remove the screws in his foot, and in October of 1997 he underwent a third surgery, a fusion in his ankle involving staples. On January 14, 1998, Dr. Rud noted that the employee was “basically limited to seated duty only” and pronounced the employee’s prognosis “definitely guarded at this point.” On March 11, 1998, Dr. Rud reported that the employee’s condition was deteriorating, noting, “Basically I touch him anywhere in his foot and it sort of causes shock waves.” Dr. Rud diagnosed reflex sympathetic dystrophy [RSD], together with delayed union of the employee’s fusion, and he referred the employee to neurologist Dr. Irfan Altafullah.
Dr. Altafullah examined the employee on April 21, 1998, and, in his report on June 15, 1998, he concurred in the RSD diagnosis. He recommended a lumbar sympathetic block, medication, and various physical therapeutic measures, noting that he had explained to the employee “that his problem has been present since about a year and a half, and therefore the prognosis of complete recovery is very guarded.” Nevertheless, the objective of the doctor’s treatment remained an at least 50% reduction in pain and improvement in mobility. When he saw the employee again a week later, on July 22, 1998, Dr. Altafullah noted that the employee had neither progressed nor regressed and that his RSD symptoms had actually subsided, although at night the employee had been feeling “fever in the leg,” with his foot “hot and painful,” and even a slight twist of the foot while walking on uneven surfaces was causing “excruciating pain.”
In September of 1998, the employee commenced treatment with podiatrist Dr. Michael Stone on referral from Dr. Rud. When the employee saw Dr. Stone on October 13, 1998, the doctor noted that diagnostic therapeutic injections at a previous visit had provided 80% symptomatic relief, and he ordered EMG nerve conduction studies, anticipating a need for revision arthrodesis of the employee’s nonunion subtalar arthrodesis, evidently consequent to botched stapling. The studies were conducted on October 27, 1998, and were read to be consistent with a severe tibial nerve entrapment near the tarsal tunnel on the left. The employee returned to Dr. Stone for a preop physical examination on that same date, and Dr. Stone concluded that the employee was a suitable candidate for reconstructive arthrodesis of the left subtalar joint, together with left tarsal tunnel exploration and decompression, and that surgery was apparently performed immediately.
On December 30, 1998, in a letter to the employee’s attorney, Dr. Rud tentatively rated the employee’s total injury-related permanent partial disability at 17% of the whole body - - 3% for his heel injury, 1% for his ankle injury, and an additional 13% for RSD. After explaining his rating, Dr. Rud added, “If anything this maybe is an underestimate of the degree of disability and anguish this man has been through.”
On March 25, 1999, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Nolan Segal. In addition to a conducting a physical examination, Dr. Segal examined a deposition summary of December 15, 1998, and certain available medical records of MeritCare Hospital and St. Joseph’s Medical Center. In his report on March 31, 1999, Dr. Segal indicated that the employee had reported to him that Dr. Rud had diagnosed his condition as RSD. Upon examination, Dr. Segal diagnosed status post-operative successful subtalar arthrodesis on the left but found no evidence of RSD or of any other problem related to the employee’s October 1996 work injury. He concluded that, provided he wear shoes with a good cushioned out-sole, good arch support, and good heel stability, the employee was capable of working full time, with restrictions against lifting or carrying over thirty pounds, against working on uneven ground, and against being on his feet for the full duration of an eight-hour day. He rated the employee’s injury-related permanent partial disability at 4% of the whole body pursuant to Minnesota Rules 5223.0520, subparts 3.A. and 4.B.(7)(b), concluding that the employee had reached maximum medical improvement [MMI] as of that date.
Dr. Segal’s report was served on the employee on April 7, 1999. On that same date, the employee saw Dr. Stone in follow-up on his reconstructive arthrodesis and posterior tibial nerve decompression. The employee reported that his pain was diminished since his surgery and that he was working six to eight hours a day, but he complained that after any period of prolonged walking or standing he would develop numbness or paresthesias over the dorsal lateral aspect of his left foot. On April 12, 1999, Dr. Stone wrote to the employee’s attorney, generally agreeing with Dr. Segal’s evaluation but suggesting that a functional capacities assessment might result in a “more definitive and valid” set of restrictions.
On that same date, April 12, 1999, Dr. Segal testified by deposition, essentially reiterating the opinions asserted in his report of March 31, 1999. On April 16, 1999, the employer and insurer filed an amended Notice of Benefit Payment, in which they declared that the employee would ultimately be paid permanent partial disability benefits for a 4% whole-body impairment, based on the opinion of Dr. Segal, for a total of $3,000.00. The report indicated that the employee had already been paid $2,250.00 of that amount, had already been paid 104 weeks of temporary total disability benefits for a total of $24,960.00 in wage replacement, and had already been paid $46,005.66 in medical benefits.
On April 21, 1999, the employee underwent a functional capacities evaluation [FCE] at the request of his attorney. As the testing progressed, he reported gradually increasing numbness in his left foot and then gradually increasing pain that turned to burning, aching, and stinging as the testing neared completion. The testing resulted in restrictions against performing any weight bearing activities on non-level surfaces and against doing any jumping or impact activities involving use of the lower extremities. The employee was also restricted from doing more than occasional bending, stooping, crawling, crouching, or kneeling, and from doing more than minimal squatting or stair climbing. The testing therapist recommended a home exercise program for strengthening, anticipating a gradual increase in physical ability, although the formation of scar tissue was considered a possible complicating factor.
On May 7, 1999, the parties executed a stipulation for full, final, and complete settlement of all claims based on the employee’s work injury of October 12, 1996. At the time of the settlement, it was the employee’s position that, in addition to the $73,965.66 in benefits already paid to or on behalf of him, he was entitled to additional temporary total and temporary partial disability benefits, compensation for an additional at least 13% impairment of the whole body related to RSD in his left lower extremity, and rehabilitation benefits including retraining. It was further the employee’s position that he had not reached MMI and that he was still in need of additional medical treatment related to his work injury. It was the employer and insurer’s position at the time that the employee had reached maximum medical improvement with regard to his work injury on April 7, 1999, with service of Dr. Segal’s report of March 31, 1999, and that he was entitled to permanent partial disability benefits for no more than the 4% whole body impairment for which he had already been compensated. They were also of the position that, pursuant to an attached report of a vocational expert, the employee was not in need of substantial further rehabilitation services and/or retraining. Under terms of the parties’ stipulation, the employee agreed to accept $10,000.00 in settlement of all remaining claims based on his work injury of October 12, 1996, other than certain specified medical care and treatment for his left lower extremity. An award on that stipulation was filed on May 14, 1999.
On June 13, 2007, about eight years after his award on stipulation, the employee saw Dr. Roger Macy, complaining of ongoing left ankle pain that had grown unmanageable and “burning” and that now radiated up into his left hip. Dr. Macy referred the employee to pain specialist Dr. Jason Wolff, who examined the employee on July 27, 2007. Upon examination, Dr. Wolff diagnosed chronic left foot pain, together with a “differential diagnosis” that included “RSD versus sural/posterior tibial neuralgia,” and possible left leg sciatica. On these diagnoses, Dr. Wolff recommended additional testing, including a left lower extremity MRI scan and an EMG. The MRI scan was conducted on August 22, 2007, and was read to be unremarkable except for an apparent lipoma in the employee’s left hip. The EMG was conducted on September 14, 2007, and was read to reveal findings consistent with an L5-S1 radiculopathy, with possible superimposed generalized neuropathy, and Dr. Wolff evidently recommended an MRI scan of the lumbar spine.
Upon examination of the employee again on October 5, 2007, Dr. Wolff added a diagnosis of “[l]eft L5-S1 radiculopathy acute on [sic] chronic,” noting that the insurer had declined to pay for a lumbar MRI scan. In those same notes, Dr. Wolff indicated that the employee had “several symptoms that are consistent with a reflex sympathetic dystrophy in his left foot,” and he recommended placement of “a trial of spinal cord stimulation for [the employee’s] left foot sural nerve and posterior tibial neuralgia.” He explained that he was “not sure if [the employee] can make complete gains with treating his left foot without treating [his] lumbar radiculopathy at the same time.” Payment for the stimulator was also apparently denied by the insurer, on grounds that it was related to the employee’s back and not to his foot and ankle work injury. On December 6, 2007, Dr. Wolff wrote to the insurer, asserting that, although the employee was subject to “a secondary complaint of left leg sciatica” that was most likely related to “some type of disc herniation in his lower back,” the stimulator was “specifically for [the employee’s] left foot pain and the nerve damage in his foot from the prior trauma and surgeries over the years.”
On January 14, 2008, the employee testified by deposition, in part that, since December of 1998, a few months before his settlement, the pain in his left leg had increased while the strength and stamina in that leg had decreased, and now he also had related balance and numbness problems, sometimes shaking in the leg, and sometimes tingling and curling in the toes. He testified that he sometimes also felt pain now resembling an electrical current running from his ankle up to his knee and that he sometimes also felt intermittent throbbing and broadly vacillating temperature sensations in the leg - - sometime heat, sometimes a sensation of freezing. He testified also, however, that, even in those months before the settlement, he was unable already then to walk a full block without having to stop, due to his left leg disability.
On February 4, 2008, the employee was examined again by Dr. Segal. In his report on March 20, 2008, after physical examination of the employee and a thorough review of his medical records through December 6, 2007, Dr. Segal reported that he found no evidence of lumbar radiculopathy by examination, concluding that recent evidence of such by EMG had “absolutely nothing to do with” the employee’s 1996 work injury. It was his opinion that the employee’s “condition really has remained unchanged since my March 1999 evaluation,” and it remained his opinion that the employee had reached MMI by the date of that earlier evaluation, the doctor finding “absolutely no examination evidence of RSD.” The doctor concluded further that the employee was not a candidate for a spinal cord stimulator and that it was unlikely that any additional surgery on the employee’s foot or ankle would be of any benefit.
On May 19, 2008, the employee was seen by podiatrist Dr. Daniel Ryan, on referral from Dr. Wolff. In addition to “some residual RSD,” Dr. Ryan diagnosed “[c]hronic left foot and ankle pain secondary to previous traumatic injury and subsequent fusion of the subtalar joint and posterior tibial nerve decompression.” Noting that the employee had never been fitted with any type of support or orthotic, Dr. Ryan took an impression of the employee’s foot and ordered a custom fit molded insole for the employee’s left foot. He noted finally that he “certainly would not advocate any further surgical intervention in regards to [the employee’s] condition.”
On October 21, 2008, Dr. Wolff implanted a spinal cord stimulator at T12-L1 of the employee’s spine. On follow-up on November 25, 2008, the doctor reported that the employee was “doing quite well with the stimulator” and was “in excellent spirits,” stating that “he only uses Vicodin on an occasional basis.” On those findings, Dr. Wolff diagnosed chronic lower extremity and left foot pain, left sural nerve and posterior tibial neuralgia, and left lower extremity RSD, and he released the employee on a PRN basis. In July of 2009, the employee saw Dr. Timothy Olson for some reprogramming of the spinal cord stimulator, having evidently experienced some occasional paresthesias in his back and lower extremity, although in general he reported getting “good relief of his pain.” In a letter to the employee’s attorney dated two months later, on September 14, 2009, Dr. Wolff reiterated a diagnosis of RSD for the employee and opined that the employee is permanently totally disabled from any gainful employment as a laborer, any possible employment in his opinion being limited to light duty desk work.
On February 4, 2010, the employee filed a motion to set aside his May 14, 1999, award on stipulation, alleging that there had been a substantial change in his medical condition since the date of his award. In his accompanying affidavit, the employee stated that he believed at the time of his award that he would be able to work within the restrictions set out in his April 21, 1999, FCE. He stated that at the time of his award he was unaware that his left ankle would deteriorate to the point where he would be unable to work or to perform activities of daily living such as walking without a cane. He indicated that he has not worked since the date of his award, that he is no longer able to walk very far without pain, that his whole left leg shakes and his toes go numb when he tries to walk, and that sometimes his foot turns either hot or cold and changes color.
This court’s authority to vacate a compensation judge’s award is found in Minnesota Statutes § 176.461 and, with regard specifically to settlements, § 176.521, subd. 3. An award may be set aside if the petitioning party makes a showing of good cause to do so. Good cause has long been held to exist if “(a) the award was based on fraud; (b) the award was based on mistake; (c) there is newly discovered evidence; or (d) there is a substantial change in the employee’s condition.” Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989). These bases were codified in slightly different language in a 1992 amendment of Minnesota Statutes § 176.461. In that amendment, the mistake basis was further defined as “a mutual mistake of fact,” and the substantial change basis was further defined as “a substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated at the time of the award.” Minn. Stat. § 176.461 (underscoring added). The employee in this case has moved to vacate his award on stipulation based on his position that there has been a substantial change in his medical condition since the date of his award.
In Fodness v. Standard Cafe, this court identified the following factors for a court to consider in determining whether to vacate an award based on a substantial change in condition: (1) changes in the employee’s diagnosis; (2) changes in the employee’s ability to work; (3) the development of any additional permanent partial disability; (4) the necessity of more costly and extensive medical or nursing care than was anticipated; (5) the causal relationship between the work injury and the worsening of the condition; and (6) the contemplation of the parties at the time of the award. Fodness v. Standard Cafe, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989). The employee contends that he satisfies all six of these criteria.
1. Change in Diagnosis
The stipulation and award here at issue were in May of 1999. In the month immediately preceding that award, Dr. Segal had diagnosed only status post-operative successful subtalar arthrodesis on the left, finding no evidence of RSD or of any other work-related problem, and Dr. Stone had concurred, suggesting only that an FCE be ordered to establish more accurate restrictions. For a period of seven months at the end of 1998, however, the year immediately preceding that, both Dr. Rud and Dr. Altafullah, the employee’s own orthopedist and neurologist, had reiterated diagnoses of RSD, in addition to other debilitating consequences of the employee’s heel and ankle work injuries. Although Dr. Rud’s 17% total whole-body permanency rating for those three conditions in December 1998 may have been, as the employee has emphasized, only tentative, we note Dr. Rud’s own qualification of that rating, that “[i]f anything this maybe is an underestimate of the degree of disability.” Although Dr. Altafullah did note some subsiding in the employee’s RSD symptoms between June and July of 1998, Dr. Rud’s reiteration of the RSD diagnosis in December of 1998, with the emphasis that he gave it, appears to us to demonstrate a pre-award diagnosis insubstantially different from the post-award RSD diagnoses of Drs. Ryan and Wolff in May of 2008 and September of 2009, respectively. Indeed, notwithstanding Dr. Stone’s concurrence in it, the most definite pre-award medical finding of no RSD remains that of the employer’s examiner, Dr. Segal, in March of 1999, whose conclusion remains identical in February of 2008, Dr. Segal himself emphasizing expressly that the employee’s “condition really has remained unchanged since my March 1999 evaluation.” The employee argues that he is now diagnosed also with left sural nerve and posterior tibial neuralgia, in addition to his RSD. We conclude, however, that these diagnoses have not been definitively demonstrated to constitute a substantial enough change from the diagnoses of chronic numbness and paresthesias, which the employee complained of prior to his award, to materially support vacation of that award, particularly in light of their apparent overlap with the employee’s other conditions. Nor has the employee offered, in response to the February 2008 medical opinion of Dr. Segal, any medical opinion specifically articulating any change in his diagnoses and the magnitude of that change.
2. Change in Ability to Work
The employee asserts that, although he was not working at the time of his award on stipulation, he expected at the time that he would eventually be able to work, arguing that he is now, pursuant to the September 2009 opinion of Dr. Wolff, permanently and totally disabled from any gainful employment other than light duty desk work. In January of 1998, the employee’s pre-award treating doctor, Dr. Rud, had also pronounced him “basically limited to seated duty only,” with a “definitely guarded” prognosis. Later that year in July of 1998, nearly two years after the work injury and less than a year prior to the stipulation here at issue, the employee was still reporting to Dr. Altafullah “fever in the leg” at night, with a “hot and painful” foot, and “excruciating pain” with even a slight twist of the foot while walking on uneven surfaces. Moreover, in November of 2008, over nine years after the award here at issue, the employee was reported by Dr. Wolff to be “in excellent spirits,” using his Vicodin on only an occasional basis, and Dr. Wolff released him on a PRN basis. Further, in July of 2009, only two months prior to Dr. Wolff’s assessment of permanent total disability, he was pronounced by Dr. Olson as generally getting “good relief of his pain,” having experienced only occasional paresthesias in his back and lower extremity. Nor did Dr. Segal find any notable change in the employee’s condition over the course of the nine years intervening his two examinations of the employee. It is apparent to us that, notwithstanding Dr. Wolff’s pronouncement of permanent total disability aside from work “confined to light duty desk work,” the employee’s ability to work has not been demonstrated to be substantially enough different from what it was prior to his award to materially support his petition to vacate that award.
3. Additional Permanent Partial Disability
The employee acknowledges that he has not yet obtained a permanent partial disability rating for his current condition, arguing that “[i]t is clear, however, that the employee’s neuralgia and RSD will entitle him to a substantially higher permanent partial disability than the 4% assigned by Drs. Segal and Stone for the ankle fracture” at the time of the stipulation. “The amount received in the settlement,” he continues, “is not sufficient to have fully compensated the employee for his likely current permanent partial disability.” The permanency ratings of virtually all of the expert medical experts involved in the case, however, remain essentially the same now as they were prior to the May 1999 award here at issue, and, based on the evidence presented, we cannot conclude that the employee has made a sufficiently definitive showing of increased permanent partial disability to support his petition to vacate his award.
4. Necessity of Increased Medical Care, Causal Relationship of any Change to the Work Injury, and Contemplation of the Parties at Time of the Award
The parties’ 1999 stipulation for settlement provided for the payment of future treatment expenses, with certain specified exceptions. The employee argues that, since his award on stipulation, he has had to undergo surgical implantation of a spinal cord stimulator, which, though originally contested by the employer and insurer as unrelated to the work injury, has now been adjudicated to be related and has been paid for by the employer and insurer. We agree that such a work-related medical expense qualifies as evidentiary support for vacation of an award on stipulation. See Segler v. Work Connection, No. WC06-142 (W.C.C.A. Aug. 17, 2006). Such an already paid expense does not, however, provide grounds for vacation of an award standing alone. See Burcalow v. Tweeten Lutheran Health Care Ctr., 65 W.C.D. 370, 376 (W.C.C.A. 2005), citing Sovell v. Swift-Eckrich, Inc., 62 W.C.D. 93, 105 (W.C.C.A. 2001). Aside from the employee’s need for implantation of a spinal cord stimulator, we have found adequately demonstrated no substantial or even material change in the employee’s condition that is causally related to his work injury. It was clearly the parties’ intention at the time of stipulation to settle all but certain medical expense claims stemming from the employee’s October 1996 work injury, and all properly qualifying medical expense claims have apparently been paid by the employer and insurer.
In that the terms of the parties’ stipulation for settlement have apparently been met, in that the employee was adequately represented by counsel in the process of that settlement, and in that the employee has not demonstrated any substantial change in his medical condition aside from the necessity of implantation of a spinal cord stimulator that has already been paid for by the employer and insurer, we deny the employee’s petition to vacate his May 14, 1999, award on stipulation.
 The supreme court has indicated that the statute’s language as to foreseeability of the change in condition constitutes a modification in the law not applicable to awards on stipulation predating the July 1, 1992, effective date of the amendment of Minnesota Statutes § 176.461. See Franke v. Fabcon, Inc., 509 N.W.2d 373, 377, 49 W.C.D. 520, 525 (Minn. 1993).