SUSAN M. DALRYMPLE, Employee/Appellant/Petitioner, v. ELECTROLUX HOME PRODS. and OLD REPUBLIC INS. CO./GALLAGHER BASSETT SERVS., INC., Employer-Insurer, and CENTRACARE CLINIC - RIVER CAMPUS, ANESTHESIA ASSOCS. OF ST. CLOUD, PAYNESVILLE AREA MED. CLINIC., ST. CLOUD HOSP., and REG’L DIAGNOSTIC RADIOLOGY, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 9, 2011
CAUSATION - MEDICAL TREATMENT; MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY; Where medical expenses were submitted for conditions without medical opinions relating them to the employee’s work injury, the compensation judge did not err by denying payment for those expenses, and we affirm. Where medical expenses were submitted for expenses which could be related to the employee’s work injury, we reverse the compensation judge’s denial of those expenses and remand to the compensation judge for additional findings.
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The evidence submitted with the petition, evaluated in light of the factors in Fodness v. Standard Cafe, 41 W.C.D. 1054 (W.C.C.A. 1989), does not justify vacating the award on stipulation on grounds of a substantial change in condition.
Affirmed in part, reversed in part, and remanded.
Petition to vacate award on stipulation denied.
Determined by: Johnson, J., Pederson, J., and Milun, C.J.
Compensation Judge: Adam Wolkoff
Attorneys: Gregory S. Walz, Walz Law Office, St. Cloud, MN, for the Appellant/Petitioner. Erin E. Lord, Erstad & Riemer, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge’s determination she failed to prove by a preponderance of the evidence that the medical treatment in dispute was reasonable, necessary and causally related to the employee’s August 19, 2003, personal injury. We affirm, in part, reverse in part, and remand. The employee further petitions to vacate an Award on Stipulation filed July 19, 2004, on the basis of a substantial change in medical condition. Finding the petitioner has not established good cause to vacate the award, the petition to vacate is denied.
Susan M. Dalrymple, the employee, claimed she sustained a personal injury on August 19, 2003, arising out of her employment with Electrolux Home Products, the employer, insured by Old Republic Insurance with claims administered by Gallagher Bassett Services, Inc. The nature of the employee’s injury was disc herniations at C5-6 and C6-7 superimposed upon preexisting multilevel degenerative disc disease. The employer and insurer initially denied liability for the employee’s personal injury.
To treat the employee’s personal injury, Dr. Hector Ho performed a two-level cervical fusion at C5-6 and C6-7 on October 30, 2003. The employee returned to see Dr. Ho in March 2004 with complaints of persistent neck pain, headaches and intermittent left arm symptoms. Dr. Ho recommended a cervical CT scan to determine if the employee had a pseudoarthrosis or failure of the fusion at C5-6.
Thereafter, the parties entered into a settlement in which the employer and insurer admitted liability for a personal injury. In exchange for a lump sum payment, the employee settled all claims for workers’ compensation benefits arising out of her August 19, 2003, personal injury with the exception of reasonable and necessary medical expenses needed to treat her injury. An award on stipulation was served and filed on July 16, 2004.
A follow-up CT scan of the cervical spine in February 2005 showed only a partial fusion at C5-6 with a possible pseudoarthrosis, but a solid union at C6-7 and a possible right-sided C4-5 bulging disc leading to right-sided foraminal narrowing. Dr. Ho recommended additional surgery. In August 2005, Dr. Ho performed an anterior cervical decompression and fusion at C5-6 with removal of the previously placed fusion plate at C5-7 and use of a right iliac crest bone graft. The employee thereafter developed an infection at the site of the bone graft diagnosed as osteomyelitis. She was readmitted to the hospital and treated with debridements, and IV antibiotic therapy. The employee returned to see Dr. Ho on September 16, 2005, complaining of hip pain. The doctor diagnosed a small soft tissue abscess at the bone graft site. The doctor ordered an MRI scan which showed no convincing evidence for osteomyelitis.
In October 2005, Dr. Maria Mallory saw the employee for a surgical consultation at the request of Dr. Ho and Dr. Thomas Math. The employee complained of continued right hip pain. Dr. Mallory reviewed an October 2005 MRI scan which showed no convincing evidence of osteomyelitis but showed a continued room-enhancing fluid collection over the right superior iliac spine. Dr. Mallory recommended surgery to incise and drain the abscess cavity in the employee’s right hip. In December 2005, the doctor noted the employee’s wound was still draining and she was instructed to follow up with Dr. Math.
Dr. Math examined the employee in February 2006 and noted the employee’s wound continued to drain. An MRI scan showed a small abscess of the hip and recurrent osteomyelitis so the doctor readmitted the employee to the hospital to have the abscess drained. In April 2006, Dr. Math again diagnosed recurrent osteomyelitis and prescribed an antibiotic. On May 2, 2006, the doctor noted that on several occasions the employee had demonstrated methicillin-resistant staphylococcus aureus [MRSA] and prescribed chronic suppressive Keflex therapy for a year to treat the employee’s recurrent abscesses. Dr. Math reexamined the employee on May 15, 2006. He noted an MRI scan on May 10 showed no further abscess collection and resolving osteomyelitis. On May 30, 2006, Dr. Math found no evidence for persistent osteomyelitis but given the long history of reoccurrences, stated he would continue Keflex therapy for another ten months. Dr. Math also diagnosed chronic pain related to the employee’s right hip for which he prescribed OxyContin. An MRI scan on July 21 showed no evidence of osteomyelitis and continued healing of the right hip ulcer/tract. On July 24, 2006, the employee returned to see Dr. Math complaining of right hip pain. The doctor opined the employee had chronic pain and needed to see a pain specialist. An MRI scan on July 28 showed progressive healing/granulation of the right hip with no abscesses or underlying osteomyelitis.
In October 2006, Dr. Gregory Schlosser examined the employee “who is self-referred to my clinic for assistance with pain management related to a chronic osteomyelitis involving her anterior iliac crest.” (Pet. Ex. C3.) The employee gave a history of radiating pain down her right leg and deep pain at the iliac crest area. The doctor discussed pain management with the employee, prescribed medication, and scheduled her for a follow-up. The employee returned in August 2007 and the doctor stated she was being seen for “management of chronic pain secondary to an osteomyelitis.” (Pet. Ex. C3.) Dr. Schlosser again prescribed pain medications.
In November 2006, Dr. Math noted the employee had a pinhole-sized lesion at the infection site for which he planned to do a fistulogram, if possible. The doctor diagnosed recurrent chronic osteomyelitis with significant chronic pain and continued the Keflex. The employee next returned to see Dr. Math in May 2007 complaining of worsening hip pain over the prior two months. On examination, Dr. Math found no drainage, erythema, or evidence of cellulitis. The doctor ordered an MRI scan of the pelvis which showed minimal residual granulation tissue on the right anterior illiac spine without abscess or osteomyelitis, and new bilateral trochanteric bursitis, greater on the left than the right.
In January 2008, Dr. Math noted that an MRI scan obtained in May 2007 showed no persistent osteomyelitis but the employee reported continued complaints of pain. The doctor stated he was “not sure how much they actually relate to the osteomyelitis” and noted “I do not think we have any clinical evidence or reoccurrence of osteomyelitis at this juncture. It should have been successfully treated in the past.” (Resp. Ex. 2.) The employee returned to see Dr. Math in June 2009 with complaints of generalized myalgias, fatigue and persistent right flank, hip, and leg pain. The doctor noted an MRI scan obtained in January 2008 was normal and stated the last time the employee had an abnormal MRI was in February 2006. Dr. Math reported, “it will be very unlikely that she now has a reoccurrence of abscess or forer osteomyelitis years after the last debridement and presumably her cure.” (Resp. Ex. 4.)
In July 2008, the employee returned to see Dr. Schlosser who stated he was following the employee for primarily chronic pain management. In November 2008, the employee told Dr. Schlosser her chronic pain was in good control but she continued on pain medication. The employee returned to see Dr. Schlosser in March 2009 and he continued her prescriptions of OxyContin and Vicodin.
Dr. Maureen Kemper examined the employee in January 2010. The employee complained of a three-week history of increasing right hip pain. The doctor scheduled an MRI scan of the pelvis which showed mild to moderate right hip degenerative changes. The study was negative for osteomyelitis or septic arthritis.
The employee was seen by Dr. Mulawaka at the Paynesville Area Hospital in February 2010 for complaints of right hip and groin pain. The doctor examined the employee and ordered an MRI scan of the pelvis which showed the same moderate degenerative joint disease described on the January 2010 MRI scan. Dr. Mulawaka diagnosed right hip greater trochanteric bursitis and right hip degenerative joint disease.
The employee returned to see Dr. Schlosser in March 2010 for follow-up of chronic pain involving the right hip area. The employee reported a burning-type pain in her right thigh and some erythema at the site of the prior infection. On examination, the doctor noted some redness at the infection site but stated the site was clean with no obvious drainage. Dr. Schlosser refilled the employee’s medications and instructed her to return in four months. In November 2010, the employee gave the doctor a history of developing increasing back discomfort over the years. Dr. Schlosser recommended the employee follow-up with her primary care physician to perform an oncology workup which he thought might explain her increased pain.
The employee filed a Medical Request seeking payment of medical bills from various providers in the amount of $21,235.33 for treatment rendered from February 25, 2006, through June 17, 2010. Following a hearing, the compensation judge found the employee failed to prove the medical treatment at issue was reasonable, necessary, and causally related to the August 19, 2003, work injury. Accordingly, the judge denied the employee’s claims and those of the intervenors. The employee appealed this decision. Thereafter, the employee filed with the court a petition to vacate the July 16, 2004, award.
The employee contends the compensation judge erred in placing upon the employee the burden of proving the claimed medical treatment was reasonable, necessary, and causally related to her personal injury. The employee relies on Wolf v. State Farm Ins. Co., 450 N.W.2d 359 (Minn. Ct. App. 1990), pet. for rev. denied (Minn. Mar. 16, 1990), which held that an insured has a right to basic economic loss benefits under the Minnesota No-Fault Act and once the insurer receives reasonable proof of loss, the burden is on the insurer to establish the insured is not entitled to benefits. The employee contends workers’ compensation is a similar no-fault law and the burden should be placed on the insurer to establish the treatment in dispute was not reasonable, necessary, or causally related to the employee’s personal injury. We disagree.
Minn. Stat. § 176.021, subd. 1, provides that every employer is liable to pay compensation in every case of personal injury to an employee arising out of and in the course of employment and the burden of proof of the these facts is upon the employee. The propriety and necessity of requested medical treatment are questions of fact and the employee has the burden of proof. Adkins v. University Healthcare Ctr., 405 N.W.2d 231, 39 W.C.D. 898 (Minn. 1987).
Respondents’ Exhibit 1 is a grouping of the employee’s medical bills denied by the insurer. Contained in the exhibit are bills, medical records documenting the treatment provided, and denial letters of the insurer. The exhibit references treatment for syncope, ischemic colitis, gastrointestinal bleeding, abdominal pain, and kidney disease. The compensation judge found the employee did not present medical evidence relating any of these conditions or treatment to her work injury. We agree. The employee presented no medical opinion causally relating the treatment for these enumerated conditions to her personal injury. The employee failed to meet her burden of proof that the treatment she received for these conditions was necessitated by her personal injury.
Respondents’ Exhibit 1, however, also contains bills for treatment of the employee by Dr. Math and Dr. Schlosser. The employee also presented evidence of unpaid bills for treatment. Petitioner’s Exhibit D4 references unpaid balances of bills for treatment by Dr. Schlosser; Exhibit D5 contains unpaid bills for treatment by Dr. Math; Exhibit D6 itemizes charges at the Paynesville Hospital radiation department which includes radiographic studies of the employee’s cervical spine and pelvis; and Exhibit D7 itemizes charges by Janet Jacobson, PA-C and Dr. Lawrence Strate for chronic pain and narcotic management and charges by Dr. Kemper and Dr. Mulawaka for right hip pain. The compensation judge found the employee failed to prove that any of the medical treatment in dispute was reasonable, necessary, and causally related to her personal injury. We conclude, however, that the compensation judge erred in his rationale with respect to at least some of this treatment.
Dr. Math treated the employee for osteomyelitis and MRSA and there is no dispute these conditions resulted from the employee’s personal injury. Dr. Schlosser diagnosed the employee with chronic pain related, at least in part, to osteomyelitis. Ms. Jacobson and Dr. Strate referenced treatment for chronic pain. Drs. Kemper and Mulawaka treated the employee for right hip pain. In conjunction with their treatment, various providers ordered radiographic studies of the employee’s cervical spine and pelvis. Thus, there is evidence of record that some of the disputed treatment may have been necessary because of the employee’s personal injury.
Because the compensation judge erred in denying payment of certain treatment listed in Respondents’ Exhibit 1 and Petitioner’s Exhibits D4, D5, D6, and D7 on causation grounds, a remand is necessary to allow the judge to evaluate the reasonableness and necessity of that care. We would observe, however, that part of the difficulty in this case may have arisen because the claim was not presented to the compensation judge in a detailed and organized manner. The record in this matter is voluminous, the claims are extensive, and the parties did little to assist the compensation judge in evaluating the issues with respect to any particular disputed bill. For that reason, the compensation judge may in his discretion require the parties to address each disputed bill individually for purposes of facilitating the judge’s resolution of those claims. It may well become evident that not all of the bills are in fact actually in controversy.
Finally, we note that Medicare and Medicaid have made payments to the medical providers. It does not appear from the record that either Medicare or Medicaid was provided notice of their right to intervene. On remand, Medicare and Medicaid should be provided with the appropriate notice if that has not been provided.
Petition to Vacate
The employee petitions to vacate an award on stipulation filed July 16, 2004, contending she has experienced a substantial change in her medical condition that was clearly not anticipated and could not reasonably have been anticipated at the time of the award. In support of her petition, the employee relies on the opinion of Dr. Robert Wengler who examined the employee in January 2011 at the request of her counsel. Dr. Wengler opined that following the original fusion surgery, the employee suffered a pseudoarthrosis at C5-6 and chronic osteomyelitis of the right iliac crest with associated gluteal muscle ossification limiting motion. These two conditions, Dr. Wengler opines, are a change in diagnosis. The doctor rated additional permanent disability of 2.5% for the repeat fusion at C5-6 as well as a 2% whole body disability for loss of flexion of the right hip and 4% permanent disability for loss of internal and external rotation of the right hip.
Based upon the medical records and report of Dr. Wengler, the employee contends there has been a change in her diagnosis, a change in her ability to work, additional permanent partial disability, and more costly and extensive medical care than initially anticipated. The employee claims there is a clear causal connection between the injury covered by the settlement and her worsened condition. Finally, the employee asserts her worsened condition was not contemplated at the time of the settlement. Accordingly, the employee argues it is appropriate to vacate the award on stipulation.
This court has jurisdiction to set aside an award on stipulation upon a showing of good cause. Minn. Stat. §§ 176.461 and 176.521, subd. 3. Cause 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). Cause sufficient to justify setting aside an award on the grounds of a change in medical condition exists where there is evidence of a substantial deterioration in the employee’s condition or significant additional disability since the time of the settlement and a showing of a causal relationship between the injury covered by the award and the employee’s present condition. Davis v. Scott Moeller Co., 524 N.W.2d 464, 51 W.C.D. 472 (Minn. 1994). In determining whether an award should be vacated, the claimed change in condition is generally considered in the context of the employee’s diagnosis, the employee’s ability to work, the extent of permanent partial disability, and the anticipated cost and extent of medical care and treatment. Fodness v. Standard Cafe, 41 W.C.D. 1054 (W.C.C.A. 1989). The Workers’ Compensation Act permits a vacation of an award on stipulation so as to assure compensation proportionate to the degree and duration of disability. Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).
1. Change in Diagnosis
The employee’s initial diagnosis was disc herniations at C5-6 and C6-7 superimposed upon preexisting multi-level degenerative disc disease. The employee underwent a two-level cervical fusion as a result of her personal injury. Following the settlement, the employee underwent a second surgery with a bone graft from her right hip. She later developed a significant infection at the site of the bone graft requiring extensive medical care. There has been a change in the employee’s diagnosis.
2. Change in Ability to Work
The employee contends there has been a change in her ability to work as a result of her worsened condition. However, the employee has presented no evidence to show that her ability to work has changed since the date of the award on stipulation. The employee has not established any change in her ability to work.
3. Additional Permanent Partial Disability
Dr. Wengler, in his January 26, 2011 report, stated the employee sustained a 23% whole body impairment as a result of her first surgery and rated an additional 2.5% for the repeat fusion surgery at the C5-6 level. The doctor also opined the employee had a functional impairment of her right hip due to loss of motion associated with the osteomyelitis. The doctor rated a 2% whole body disability for loss of flexion and a 4% whole body disability for loss of internal and external rotation. Based upon Dr. Wengler’s ratings, the employee contends she has additional permanent disability caused by her personal injury.
Dr. Wengler associated the ratings of permanent disability for the right hip with the employee’s osteomyelitis. This condition was not in existence at the time of the award on stipulation and, accordingly, could not have been a subject of dispute between the parties at that time. A stipulation for settlement that closes out claims for unknown injuries which were not the subject of the dispute between the parties is impermissibly broad. See Sweep v. Hanson Silo Co., 391 N.W.2d 817, 39 W.C.D. 51 (Minn. 1986); Buske v. State, Dep’t of Human Servs., 60 W.C.D. 44, 48-49 (W.C.C.A. 1999), summarily aff’d (Minn., Feb. 18, 2000). The employee is free to bring a claim for any permanent disability resulting from her osteomyelitis. Since the claim for the additional 6% permanent disability for that condition remains open, that claim does not qualify as additional permanent disability for purposes of vacation of the award. The employee has some additional permanent partial disability related to her additional single level fusion surgery caused by her personal injury.
4. Necessity for More Costly and Extensive Medical Care
The employee’s need for a second surgery and the resulting osteomyelitis has resulted in much more extensive and costly medical care than initially anticipated at the time of the settlement. This factor has been established.
5. Causal Relationship
There is no question there exists a causal relationship between the employee’s injury and the need for the second surgery and the subsequent osteomyelitis. This factor has been established.
6. Anticipation of Substantial Change
Minn. Stat. § 176.461 requires that a substantial change in the employee’s medical condition be one that “was clearly not anticipated and could not reasonably have been anticipated at the time of the award.” On March 24, 2004, the employee returned to see Dr. Ho following the first surgery. The employee complained of neck pain radiating into her arm and hand numbness. An x-ray of the cervical spine showed some lucency at C5-6. The doctor recommended a CT scan of the cervical spine to determine whether the employee had a pseudoarthrosis or a failure of the fusion at C5-6. The doctor instructed the employee return in four weeks to see how she was doing and stated that “if she continues to have persistent symptoms then consideration for re-do at C5-6 if not fused.” (Pet. Ex. A.) Clearly, there was some suggestion prior to the date of the award on stipulation that a second surgery was possible. However, neither party contemplated the employee would develop osteomyelitis because of the second surgery.
There has been a change in the employee’s diagnosis which necessitated more costly and extensive medical care. There is, however, no evidence that the changed diagnosis has caused any wage loss and the employee’s claim for the permanent partial disability of the right leg remains open. Dr. Wengler did rate an additional 2.5% permanent disability for the repeat fusion surgery at C5-6 but the respondents argue the second surgery could have been anticipated at the time of the award. Whatever the merits of that argument, it appears the only additional benefit at issue at this time is the 2.5% permanent disability rated by Dr. Wengler. On balance, we cannot conclude the employee has established good cause to vacate the July 2004 award. The employee’s petition to vacate is denied.
 In his memorandum, the compensation judge stated the employee failed to meet her burden of proof. We disagree. There is evidence of record that some of the disputed treatment may have been necessary because of the employee’s personal injury. The employee, therefore, submitted prima facie evidence sufficient to establish her claim for some of the disputed treatment. As to that treatment, the employee met her burden of proof. Fidelity Bank and Trust Co. v. Fitzimons, 261 N.W.2d 586 (Minn. 1977).
 Petitioner’s Exhibit D8 contains a number of bills from Paynesville Area Health Care for treatment provided the employee by different doctors at the clinic. The exhibit, however, contains no medical reports detailing the reason for the treatment or the nature of the treatment. Standing alone, Petitioner’s Exhibit D8 is insufficient to establish the treatment was necessitated by the employee’s personal injury.
 See Minn. R. 5223.0370, subp. 5.A.; Minn. R. 5223.0500, subp. 4.A.(1)(b) and 4.C.(4)(b).