LISA M. KARIESCH ANKER, Employee/Petitioner, v. HINRICK’S CUSTOM CABINETS and INDIANA INS. CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 8, 2011
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The employee established a change in diagnosis, a change in ability to work, additional permanent partial disability, and a causal connection between the work injury and her current condition sufficient to warrant vacating the award on stipulation.
Petition to vacate award on stipulation granted.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Attorneys: David B. Kempston and Jerry W. Sisk, Law Office of Thomas D. Mottaz, Coon Rapids, MN, for the Petitioner. Richard C. Nelson, Christine L. Tuft, and Matthew C. Kopp, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee petitions to set aside a 1987 award on stipulation based on a substantial change in condition. Finding sufficient cause to vacate, we grant the employee’s petition.
The employee sustained a work-related injury to her low back on September 7, 1982, while employed by Hinrick’s Custom Cabinets [the employer]. The employer and its workers’ compensation carrier admitted liability for the injury and paid temporary total disability benefits and medical expenses.
The employee received treatment, from Dr. Jack Bert, beginning on December 14, 1982. At that time, he diagnosed left sacroiliac joint sprain. On November 14, 1983, Dr. Bert rated the employee as having a 5% permanent partial disability to her spine, secondary to lumbar joint syndrome. Dr. Bert apparently referred the employee to Dr. Scott Williamson, D.C., for chiropractic treatments. In April of 1985, the parties entered into a stipulation for settlement regarding those chiropractic treatments.
On April 22, 1985, the employee was seen by Dr. Bert complaining of low back pain. He ordered a CT scan of the low back, which revealed a herniated disc at L4-5. Dr. Bert recommended an epidural steroid injection and also raised the possibility of a chymopapain injection or laminectomy. On May 22, 1985, an L4-5 chymopapain injection was performed. A repeat CT scan on June 8, 1985, showed that the disc herniation was unchanged in appearance.
On January 31, 1986, Dr. Bert wrote to the employee’s then attorney, stating that the employee had a 15% permanent partial disability to the spine, secondary to the chymopapain injection, and that she still had persistent complaints of low back pain and occasional left leg pain. He restricted the employee from lifting more than 15-20 pounds and advised her to avoid repetitive bending, stooping, crawling, and squatting.
Dr. David Ketroser performed an independent medical examination for the employer and insurer in January of 1986. In his report of February 7, 1986, Dr. Ketroser concluded that the employee should refrain from frequent bending and lifting of more than 25-30 pounds on a repetitive basis. It was further his opinion that the employee had sustained a 5% permanent partial disability of the back as a result of the work injury.
After examining the employee on March 13, 1986, Dr. Terrance Capistrant opined that the employee had normal neurological findings and no muscle spasm of the back or positive straight leg raising. He could not explain the employee’s multiple complaints and suspected functional overlay.
The employee saw Dr. Bert on April 9, 1986, complaining of pain “all over her body,” and again on August 18, 1986, with “multiple complaints of pain with arm radicular components.” The employee then apparently had no further medical treatment before entering into a stipulation of settlement in February of 1987.
At the time of the stipulation, the employee was claiming temporary total disability benefits ongoing from May 22, 1985, benefits for a 15% permanent partial disability of the back, and medical expenses of $7,354.62, including expenses related to the chymopapain injection. The employer and insurer contended that the employee’s physical complaints, if any, were the product of personal health circumstances, including complications related to her pregnancies and home activities with her children. They further contended that the employee had been capable of sustained gainful employment since March 28, 1983. Under the terms of the stipulation, the employee was paid $12,000 and all of her claimed medical expenses in exchange for a close-out of permanent partial disability benefits up to 15%, temporary total disability benefits, temporary partial disability benefits, permanent total disability benefits, and retraining benefits on a full, final, and complete basis. Medical expenses related to the work injury were left open. An award on stipulation was filed on February 24, 1987.
The employee went without additional treatment until August 21, 1987. By that time, she had moved to Oregon, had gone to school for awhile, and was working in a group home, assisting the residents with activities of daily living. When she presented at Good Samaritan Hospital, she complained of neck and low back pain, left arm pain with numbness, and left leg pain and numbness. A CT scan showed a probable bulging disc at L4-5. A subsequent myelogram showed narrowing of the omnipaque column at L4-5.
A neurological consultation was performed on October 12, 1987, by Dr. Allen Brooks. At that time, the employee was complaining of sharp low back pain, intermittent leg pain, neck pain and stiffness, pains in her shoulders, and headaches. The neurological exam was unremarkable with the exception of a slightly depressed right ankle jerk as compared to the left.
The employee also spent time in California, where she took a computer class and worked part-time in a flower shop. She received no medical treatment while there.
The employee moved back to Minnesota in 1990, and she was seen at Regina Memorial Hospital on December 27, 1990. An MRI performed on that date showed posterolateral disc protrusion at the L4-5 level. She sought medical treatment for her low back once in 1991 and then not again until September of 1997, when she returned to Regina Medical Center for an aggravation of her low back pain. It was recommended that the employee follow up with an orthopedic doctor.
The employee next received treatment for her low back from Dr. Kirkham Wood, at Fairview University Medical Center, in July of 1999, presenting with increased symptoms over the past six months, including low back pain radiating around both hips and down both legs. An MRI performed at that time showed a decrease in the height of the L4-5 disc and a small broad-based central disc protrusion at L4-5, with a tear of the annular fibers, but no spinal stenosis or neural foraminal narrowing.
The employee returned to Fairview for low back pain in September of that year. A discography was strongly concordant at L4-5 with very abnormal morphology. On October 26, 1999, Dr. Wood wrote a letter, stating that the employee had chronic lumbar spondylosis and had been unable to work since September 16, 1999, due to that condition.
The employee underwent an anterior and posterior spinal fusion at L4-L5 on April 7, 2000.
On May 24, 2000, Dr. Gary Wyard performed an independent medical examination for the employer and insurer. At that time, Dr. Wyard diagnosed the employee as having degenerative lumbar disc disease with congenital anomaly of the lumbar spine, neurologically intact; post-failed chymopapain injection; and post lumbar fusion. It was his opinion that the employee had a longstanding degenerative condition of the lumbosacral spine, that there was evidence of a bulging disc at L4-5 as a result of the 1982 injury, and that the employee’s prognosis was guarded because of chronic pain findings. He anticipated that the employee would be able to return to work with a 40-pound lifting restriction six months after her fusion.
Dr. Wood wrote a letter to the employee’s then attorney on February 7, 2001, stating that once the employee “fuses up if she is comfortable she is basically free to consider returning to work without any specific restrictions.”
When she returned to Dr. Wood on June 20, 2001, the employee reported only intermittent back discomfort and some occasional right anterior thigh discomfort. Dr. Wood found full range of motion and negative straight leg raising, and he reported that the employee was neurologically intact.
The employee apparently sought no further medical treatment until June 11, 2003, when she returned to Regina complaining of having experienced neck and shoulder pain for a week. She was also seen at Regina on August 25, 2003, reporting a possible injury while lifting.
There was no further treatment for the employee’s low back condition until October 20, 2004, when the employee was seen by Dr. John Stark for complaints of shooting pain and tingling down her right leg and constant pain in the center of her lumbar spine. The employee indicated that she was not working at that time. Dr. Stark requested an MRI, following which a right SI joint injection and arthrography was performed. Dr. Stark opined that the employee had developed SI syndrome, but the injection provided immediate and lasting relief of her SI pain. She was told to return if her pain recurred.
The employee did not return for treatment but on April 14, 2005, she was seen at Regions Occupational Health for a permanent partial disability evaluation. At that point, the employee was complaining of joint pain and numbness and tingling over both legs. The examining doctors rated the employee at 15% whole body disability and indicated that they did not believe that her complaints of numbness and tingling and joint pain were related to her lumbar pain syndrome or surgical fusion.
In January of 2007, when the employee began treating with Dr. Joseph Perra, the employee’s chief complaints were of neck and upper back pain. Dr. Perra’s records indicate that the employee also had residual low back pain and lower extremity pain. Dr. Perra diagnosed cervical spondylosis, fibromyalgia, and epidermolysis, and he treated the employee for cervical spine issues from 2007-2009, including performing a cervical spine fusion.
The employee began receiving pain management services from Dr. Gary Mayer at the Allina Clinic in Forest Lake in July of 2008. Her complaints at that time were of fibromyalgia and neck pain, and she continued to treat with Dr. Mayer through 2009.
The employee returned to Dr. Perra on April 10, 2009, for treatment of her low back condition. A lumbar CT myelogram on May 19, 2009, revealed solid L4-5 fusion with no residual or recurrent central or foraminal impingement; mild to moderate transitional L3-4 disc degeneration with annular bulging and slight facet hypertrophy; and normal mildly transitional L5-S1 disc.
The employee was examined by Dr. Robert Wengler, at the request of her attorney, on March 18, 2010. Dr. Wengler diagnosed discogenic back pain and bilateral lower extremity sciatica, status post fusion at L4-5, and degenerative changes at L3-4 and L5-S1. He opined that the employee was permanently and totally disabled from working, that she had sustained a 40% permanent partial disability of the spine, and that the 1982 work injury was a substantial contributing cause of the employee’s low back condition.
On August 17, 2010, the employee filed a petition to set aside the 1987 award on stipulation based on a substantial change in condition.
Dr. Wyard performed a medical records review and issued a supplemental medical report on October 27, 2010. At that time, his diagnoses were a longstanding degenerative condition of the lumbosacral spine, failed chymopapain injection, and failed lumbar fusion. It was his opinion that the 1982 work injury was not a substantial contributing cause of the employee’s current condition. He agreed that there had been a change in the employee’s condition since the 1987 settlement, but he debated whether the change was substantial, and he contended that it had been totally predictable and anticipated in part because “chymopapain also creates destruction of the disc.”
On November 8, 2010, the employer and insurer filed an objection to the application to set aside award.
Pursuant to Minn. Stat. § 176.461 (1986), an award may be set aside “for cause,” which, pursuant to case law, includes a substantial change in condition. A number of factors may be considered in determining whether an award should be vacated on the basis of substantial change in condition, including:
Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).1. Change in Diagnosis
The employee contends that her diagnosis at the time of the settlement was lumbar disc herniation at L4-5 with radicular symptoms in the left leg and that, in 1999, following the settlement, chronic lumbar spondylosis was diagnosed, for the first time, by Dr. Wood. The employer and insurer contend that Dr. Wood’s diagnosis of chronic lumbar spondylosis was not a change in diagnosis but rather represents a predictable progression of the employee’s pre-settlement diagnosis.
The relevant comparison, however, is between the employee’s present medical condition and the employee’s condition at the time of the award. Battle v. Gould, 42 W.C.D. 1085 (W.C.C.A. 1990). In 2010, Dr. Wengler’s diagnosis was post-status failed fusion and degenerative changes at L3-4 and L5-S1. In 2010, Dr. Wyard also diagnosed a failed fusion at L4-5. While not including it as part of his diagnosis, Dr. Wyard also discussed degenerative changes at other levels. Furthermore, for purposes of vacating an award issued prior to 1992, the change in condition need not be unanticipated. Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).
The employee has established sufficient evidence of a substantial change in diagnosis since the time of the award on stipulation.
At the time of the award on stipulation, Dr. Bert had limited the employee to lifting 15-20 pounds, and Dr. Ketroser had limited the employee to lifting 25-30 pounds. In 2000, Dr. Wyard opined that he anticipated that the employee would be able to return to work in the future with a lifting restriction of 40 pounds. In his 2010 report, Dr. Wyard did not give an opinion regarding work ability. At the time of the application to set aside award, Dr. Wengler was opining that the employee was permanently and totally disabled from employment.
The employer and insurer contend that Dr. Wyard’s 40-pound lifting restriction, given in 2000, is representative of an improvement, rather than a worsening, of the employee’s condition. When Dr. Wyard saw the employee in 2000, however, he was merely “anticipating” that the employee would be able to return to work six months after her fusion surgery. And, as stated above, the comparison is between the employee’s present medical condition and the employee’s condition at the time of the award.
For the purposes of an application to set aside an award, the employee has adequately established a change in ability to work.
Dr. Bert rated the employee as having a 15% permanent partial disability of the back at the time of the stipulation for settlement. Dr. Wengler rated the employee at 40% of the back in 2010. We could find no rating by Dr. Wyard. The employee has established that she has sustained additional permanency since the issuance of the award.
The employee contends that, prior to the award on stipulation, none of her doctors had anticipated the need for surgery. The employer and insurer contend that the records of Dr. Bert indicate that surgery was in fact contemplated. Dr. Bert did mention, in July of 1985, the possibility of a laminectomy. When medical expenses are not closed out by the award the petitioner is seeking to vacate, however, we may place less emphasis on this factor. Burke v. F & M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996).
At oral argument, counsel for the employee contended that the medical report of Dr. Wengler established the existence of a causal relationship between the employee’s current condition and her work injury. The employer and insurer contend that, when Dr. Wyard examined the employee in 2000, he did not relate the employee’s back condition to the work injury. Again, however, the relevant inquiry concerns causation of the employee’s current condition. After his 2010 records review, Dr. Wyard suggested that the employee’s current condition is attributable, at least in part, to the chymopapain injection she received in 1985. At oral argument, counsel for the employer and insurer admitted that the chymopapain injection was causally related to the work injury. There is a suggestion, therefore, that Dr. Wyard, as well as Dr. Wengler, found a causal connection between the work injury and the employee’s current condition. In any event, for purposes of the petition, Dr. Wengler’s opinion constitutes sufficient evidence that a causal relationship exists between the employee’s current condition and the work injury.
The employee contends that, at the time of the stipulation, she intended to re-enter the workforce and that she did eventually obtain employment but that, after her fusion surgery, she was unable to continue working. She also contends that she did not contemplate being so disabled by 2000 that she would be totally unable to return to any type of job. The employer and insurer argue that the record fails to support these contentions.
Unless the parties are in agreement, it is often difficult to determine precisely what was contemplated at the time of an award on stipulation. We would note here, however, that the employee was only 23 years old at the time of the award on stipulation and that she received only $12,000 for a full, final, and complete settlement of all claims, with the exception of permanency in excess of 15% and medical expenses. These factors certainly suggest that the employee intended to return to work.
After considering the entire record, we conclude that the employee’s petition to set aside is sufficiently supported by the evidence to warrant vacation of the 1987 award on stipulation. However, nothing in this decision should be construed as a finding as to diagnosis, ability to work, permanent partial disability, or causation, for purposes of future litigation.
 This background is in no way an inclusive review of the voluminous medical records that were submitted to this court. Rather, we intend to summarize primarily the treatment rendered to the employee for her low back condition, and we do not address, in any detail, treatment rendered for other medical issues.
 We do not consider Dr. Wyard’s single statement that the employee “continues to need restrictions and limitations” to be an indication that the employee was capable of returning to work with restrictions in 2010.