SUZANNE HOLM, Employee/Petitioner, v. COUNTRY MANOR NURSING HOME and AMERICAN COMP. INS./RTW, INC., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 10, 2011
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the petitioner had essentially satisfied five of the six factors identified in Fodness v. Standard Cafe, 41 W.C.D. 1054 (W.C.C.A. 1989), the court granted the employee’s petition to vacate the first of her four awards on stipulation on the ground that she has experienced a substantial change in her medical condition.
Petition to vacate award on stipulation granted.
Determined by: Pederson, J., Johnson, C.J., and Stofferahn, J.
Attorneys: Ronald Drewski, Drewski & Lindberg, Sauk Rapids, MN, for the Petitioner. Craig A. Larsen and Joshua E. Borken, Cousineau McGuire, Minneapolis, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee petitions this court to vacate an award on stipulation served and filed in this case on February 10, 1998, on the ground that her medical condition has substantially worsened since the issuance of the award. Finding sufficient cause to vacate the award on stipulation, we grant the petition.
On September 5, 1993, Suzanne Holm [the employee] sustained an admitted injury to her lower back while working as a licensed practical nurse for Country Manor Nursing Home [the employer]. The employee was forty years old at the time and was earning a weekly wage of $510.40. In addition to lower back pain, the employee developed radiating pain into her left buttock and down her left leg. She was seen by occupational medicine physician Dr. Philip Bachman, who restricted the employee’s work, prescribed physical therapy, and eventually referred her for an MRI study and a series of epidural steroid injections. The employee did not improve, and in March of 1994 she was referred to Dr. David Kraker, an orthopedic surgeon specializing in spine conditions.
Dr. Kraker initially agreed with continuing non-surgical conservative care, but following a lumbar discography he recommended that the employee undergo a two-level fusion at the L4-5 and L5-S1 levels, which was performed on October 17, 1994. The employee’s recovery was slow, and she returned to work with restrictions in late January 1995, working as a scheduling coordinator. Within the year she was again suffering recurrent back and left leg pain, and on September 6, 1995, Dr. Kraker removed the previously inserted hardware. In January 1996, Dr. Kraker completed a physician’s report in which he stated that the employee had reached maximum medical improvement [MMI] having sustained a 17% whole body impairment under the permanent partial disability schedules. The employer and insurer evidently paid the employee’s permanent partial disability in the form of impairment compensation benefits on January 29, 1996.
The employee returned to see Dr. Kraker in the summer of 1996, complaining of persistent low back and left lower extremity pain. X-rays and an MRI scan in September of that year revealed degeneration at the transitional level, L3-4, with severe stenosis and compression of the exiting L3 nerve root. On October 29, 1996, the employee underwent a posterior laminectomy at L3-4, excision of an L3-4 facet cyst, and fusion with instrumentation at L3-4.
The employee remained off work until mid-January 1997, when she again returned to her light duty job with the employer. About three months later, the employer terminated the employee’s employment, allegedly for reasons unrelated to her work injury. The employee then evidently collected unemployment compensation until she obtained a job as a nursing scheduler at St. Cloud Hospital on September 8, 1997. In a letter to the insurer on June 9, 1997, Dr. Kraker stated,
It is also my opinion that [the employee] will have occasional flare-ups in her symptoms requiring intermittent, short-term use of physical therapy . . . She may also require the use of epidural steroid injections. She is at risk for further injury due to her degeneration, which the 1993 work injury aggravated, and she may subsequently need additional surgery in the future.
On October 30, 1997, the employee filed a claim petition, seeking about four months of temporary total disability benefits and temporary partial disability benefits continuing from September 8, 1997. Claims for additional permanent partial disability were reserved.
About three months later, the parties entered into a settlement whereby the employee agreed to accept a lump sum payment of $15,000 in return for a full, final, and complete settlement of all claims for workers’ compensation benefits arising out of the admitted injury of September 5, 1993, with the exception of reasonable, necessary, and causally related “non-chiropractic medical expenses.” In the stipulation, the employee contended that she was entitled to payment of ongoing temporary partial disability benefits based on her return to work at a lower wage with a new employer. She also claimed, without reference to any specific rating, that she had sustained additional permanent partial disability due to her injury and would require additional medical treatment for it. The employer and insurer disputed the employee’s claims, arguing in part that her claims for wage loss benefits were unrelated to her injury because she had been terminated from her pre-injury job for cause and that any additional permanent partial disability and need for medical treatment was due to degenerative processes or subsequent superseding injuries. An award on stipulation was served and filed on February 10, 1998.
In April 1998, the employee allegedly had a fall in front of her home secondary to her left leg giving way. She fell onto her right arm and elbow, injuring her upper extremity as well as her back and neck. She returned to Dr. Kraker, who ordered an MRI scan of the employee’s cervical spine on May 26, 1998. The study showed multilevel degenerative disc disease without evidence of nerve root compression. No surgery was recommended. In September, the employee had another flare-up of her low back symptoms, and Dr. Kraker obtained a CT myelogram that showed a solid fusion. About that same time, the employee quit her job at the St. Cloud Hospital because of her symptoms.
On October 8, 1998, the employee filed a claim petition for payment of medical expenses allegedly related to her injury of September 5, 1993, and to a consequential injury to her cervical spine occurring on April 21, 1998. About two months later, she applied for Social Security disability benefits.
On December 22, 1998, the employee was examined at the request of the employer and insurer by orthopedist Dr. Lloyd Leider. Dr. Leider obtained a history, reviewed the employee’s medical records, and diagnosed failed low back syndrome, status-post arthrodesis with instrumentation, L4 to sacrum and subsequently L3 to sacrum, together with a chronic pain syndrome. His examination of the employee’s cervical spine was normal. It was Dr. Leider’s opinion that the September 5, 1993, injury to the employee’s low back was a significant contributing factor in her leg give-way and fall on April 21, 1998, but he opined that the resulting cervical strain was only temporary, lasting approximately three months.
In late December 1998, the employee sought evaluation at the Twin Cities Spine Center, primarily for her continuing low back and left leg pain but also for her neck. Dr. Joseph Perra ordered a three-level lumbar discogram study, which was performed on January 6, 1999. On the basis of this study, Dr. Perra recommended additional surgery. On March 25, 1999, the employee underwent an anterior spinal fusion at L3-4 and L4-5, with removal of previous instrumentation. The employee reported that this surgery relieved considerably her low back discomfort but really did not much affect her left leg symptoms. She was, however, able to obtain a full-time job at Central Minnesota Surgeons in July 1999, and she discontinued receipt of Social Security disability benefits at that time.
The parties entered into a second stipulation for settlement and submitted it to the Office of Administrative Hearings on May 1, 2000. In that stipulation, the employee contended that she had sustained an injury to her cervical spine in April 1998 as a consequence of her 1993 low back injury, and she sought payment of medical expenses related to treatment of her cervical condition and to the lumbar fusion surgery performed by Dr. Perra in March 1999. The employer and insurer contended that the employee’s low back surgery was neither reasonable nor necessary nor causally related to the employee’s work injury. They contended also that the employee’s neck condition pre-existed her work injury and that some of the care rendered with respect to it was unreasonable and unnecessary. The stipulation for settlement resolved the employee’s claims for medical treatment “to date,” and an award on stipulation was issued on May 5, 2000.
Around the time that the parties were concluding their second settlement, the employee apparently sustained another fall at home, which she attributed to her left leg giving way. She again experienced increasing discomfort in her low back and neck, as well as some mid-back pain. In early February 2000, the employee quit her job at Central Minnesota Surgeons because of back pain. She evidently again began receiving Social Security benefits. Dr. Perra proceeded to order a number of diagnostic tests, including a work-up with MRI scans of both the cervical and the thoracic spine on May 10, 2000.
The employee filed an additional claim for payment of medical expenses in September 2000. The employer and insurer denied liability for the employee’s claim and arranged for a medical evaluation by orthopedist Dr. Jack Drogt on October 17, 2000. Dr. Drogt diagnosed multilevel degenerative disc disease of the cervical spine, with chronic thoracic pain. Although he agreed that the treatment provided to the employee for her neck and mid back had been reasonable and necessary, he found no causal relationship to the employee’s low back injury of September 5, 1993.
The parties submitted a third stipulation for settlement to the Office of Administrative Hearings on April 25, 2001. In that stipulation, the employee contended that she had sustained injuries to her cervical and thoracic spine consequent to her September 5, 1993, low back injury and that she was entitled to payment of various outstanding medical bills. The employer and insurer contended that the employee had not sustained injury to her mid back as a result of the 1993 work injury and that, if the employee had sustained any injuries to her neck as a consequence of the 1993 work injury, those injuries were temporary. They asserted that the employee’s cervical spine condition was due to a pre-existing neck condition, consequent to a specific injury that had occurred on September 17, 1990, or to other nonwork-related injuries. The employer and insurer also denied that any psychological/psychiatric treatment that the employee had obtained was causally related to her 1993 low back injury. The parties again agreed to a compromise of the employee’s outstanding medical claims. This time, however, they also agreed that the settlement represented a full, final, and complete settlement of “any benefit claims in relationship to a psychological/psychiatric condition, and as to the neck and the mid back.” An award on this stipulation was filed on April 30, 2001.
The employee continued with progressive pain in her thoracic spine and at the site of her prior low back fusion. On January 24, 2002, Dr. Perra performed an extensive surgical procedure consisting of the following: “(1) anterior discectomies and spinal fusion, T4 through T11 with rib autograft; (2) posterior exploration of fusion mass; (3) transforaminal lumbar interbody fusion at L1-2 and L2-3; and (4) posterior spinal instrumentation fusion with local allograft and AGF from T4 to sacral fusion mass.”
The employee did not benefit from her 2002 fusion surgery. She was able to return to work at a temporary job for about four months in 2004, but by September 2005 her pain was severe, and Dr. Perra referred her to Dr. Olando Charry at the University of Minnesota for consideration of a spinal cord stimulator implant for pain management. After a complete assessment and a psychological evaluation, Dr. Charry recommended a trial and eventual implementation of the stimulator. On January 9, 2006, the employee filed another claim petition for certain out-of-pocket expenses and approval of the surgery recommended by Dr. Charry. The employer and insurer denied that the proposed treatment was reasonable and necessary, but the employee followed through with the surgery on February 21, 2006.
On June 8, 2006, the employee was examined for the employer and insurer by orthopedist Dr. David Florence. Dr. Florence opined that the trial and eventual implementation of the spinal cord stimulator was reasonable and necessary and causally related to the employee’s September 5, 1993, injury. At the time of Dr. Florence’s exam, the employee reported that, except for a small band across her low back, she had had no pain in her low back or lower extremities since the insertion of the stimulator.
The parties resolved the employee’s claims for the spinal cord stimulator surgery by entering into a fourth stipulation for settlement in August 2006. This settlement represented a “to date” settlement of the employee’s claims, and an award on stipulation was filed on August 15, 2006.
The employee was able to return to a full-time job with the American Red Cross in August 2006. She worked as a phlebotomist until July 2008, by which time she was reporting a worsening of her symptoms associated with the lifting of equipment required by her job. She saw her family physician, Dr. Barbara Bollinger, who supported the employee’s need to leave her position at the Red Cross. The employee has not returned to work since that time and has again been receiving Social Security benefits.
At the request of her attorney, the employee was examined by orthopedist Dr. Robert Wengler on January 13, 2010. Dr. Wengler diagnosed chronic discogenic back pain and left lower extremity sciatica, with the employee being status post multiple surgical procedures including solid fusion from T4 through the sacrum. In Dr. Wengler’s opinion, all of the surgeries undergone by the employee were causally related to the September 5, 1993, work injury. He rated the employee’s functional impairment following her 1994 and 1996 surgeries at 33% of the whole body, for multiple level lumbar herniations and fusions. The employee’s transthoracic fusion was not specifically covered by the permanency rules, and Dr. Wengler assigned to it a Weber rating of 10% of the whole body. In Dr. Wengler’s opinion, the upward cascade of the employee’s disc problems was “unusual and unforeseen and represents a substantial new development since the original settlement of this claim.” He found the employee to be permanently and totally disabled from sustained gainful employment.
In July 2010, the employee petitioned this court to vacate her first award on stipulation, filed on February 10, 1998. In an affidavit accompanying her petition, the employee contended that her spinal cord stimulator had lost much of its effectiveness and that she is now incapable of working because of chronic pain. She stated that she is taking extensive prescription medications for pain, insomnia, depression, and urinary incontinence, all of which, she contends, are related to her low back injury in 1993. She stated that her pain is unmanageable, that she is no longer able to work, that her activities of daily living are severely affected, and that she had no idea when she signed the 1998 stipulation for settlement that her condition would deteriorate as it has.
For this court to grant a petition to vacate, the moving party must show good “cause” to do so, pursuant to the provisions of Minnesota Statutes section 176.461 and Minnesota Statutes section 176.521, subdivision 3. For awards filed on or after July 1, 1992, good “cause” is limited to the following: (1) a mutual mistake of fact; (2) newly discovered evidence; (3) fraud; or (4) 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. The employee claims good cause to vacate her award on stipulation based on a substantial change in her medical condition. This court has delineated a number of factors that may be considered in determining whether a substantial change in medical condition has occurred. These factors include the following: a change in diagnosis, a change in the employee’s ability to work, an increase in permanent partial disability, the necessity of more costly and extensive medical care or nursing services than was initially anticipated, the causal relationship between the injury covered by the settlement and the employee’s current worsened condition, and the contemplation of the parties at the time of settlement. Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).
Change in Diagnosis
The employee first contends that there has been a substantial change in her diagnosis since the 1998 award. She is now status post spinal fusion extending through her entire lumbar spine and most of her thoracic spine. Her original lumbar problems now extend into her thoracic and cervical spine as well and she has also been diagnosed with chronic pain syndrome and related depression. The employer and insurer contend that the employee’s diagnosis of chronic discogenic back pain has not changed since 1998. They maintain that the employee’s treating physician had diagnosed chronic pain syndrome already back into 1993, and that the employee had been diagnosed and treated for depression as early as 1987. Moreover, they contend, the employee cannot here assert that these conditions represent bases for vacation when, in 2001, the parties settled all benefit claims related to psychological/psychiatric conditions and the employee’s neck and mid back.
We agree with the employer and insurer that the employee’s primary underlying diagnosis remains multilevel degenerative disc disease. We cannot agree, however, that the employee’s diagnosis remains unchanged in the face of three surgical procedures endured by the employee since 1998. In 1999, Dr. Perra explored the employee’s previous posterior fusion and removed instrumentation that had been used at L3-4. He then performed an anterior spinal fusion at both the L3-4 and the L4-5 levels. In 2002, the employee’s extensive surgery included a transforaminal lumbar interbody fusion at L1-2 and L2-3, and, in 2006, placement of a spinal cord stimulator was performed in part to address the employee’s low back and lower extremity pain. Focusing solely on the employee’s lumbar spine condition, we conclude that the employee has established a substantial change in her diagnosis since the 1998 award.
Change in Ability to Work
At the time of her 1998 award on stipulation, the employee was working full time as a nursing scheduler at St. Cloud Hospital. Her primary claim was for ongoing temporary partial disability benefits. Between 1999 and 2008, the employee alternated between periods when she was able to work and periods when she has collected Social Security benefits. By the summer of 2008, she contends, she was no longer able to continue working because of her chronic pain. Her contention is supported by the opinion of Dr. Robert Wengler, who has concluded that the employee is permanently and totally disabled from sustained gainful employment. The employer and insurer argue that the employee’s brief employment history after 1998, together with her receipt of Social Security disability benefits soon after the stipulation was finalized, illustrates that the employee was never really capable of returning to work and that her attempts at returning have all been futile. They contend that there has been no real change in the employee’s ability to work since the award on stipulation.
As noted, the employee was working at a full-time job when she settled her case in 1998. She had worked at this job for a year before quitting because of pain. Following the implantation of the spinal cord stimulator, the employee worked full time for two years as a phlebotomist before she left because of pain. We cannot agree that the employee’s work history following the 1998 settlement supports the employer and insurer’s argument. The employee was working full time at the time of her settlement and has offered evidence that she is unable to work at the present time. We conclude that the employee has demonstrated a substantial change in her ability to work since the 1998 award on stipulation.
Additional Permanent Partial Disability
The employee contends that she has sustained additional permanent partial disability for which she has not already been compensated. Prior to her 1998 stipulation, the employee had evidently been compensated for a 17% permanent partial disability. Dr. Wengler has opined that, as a result of her pre-stipulation surgeries, the employee was entitled to compensation for a 33% permanent partial disability. He has also concluded that she is entitled to an additional 10% Weber-based rating based on her 2002 thoracic surgery. The employer and insurer argue that Dr. Wengler’s 33% rating addresses the employee’s condition before the stipulation for settlement, not the development of additional permanent partial disability since the settlement. In addition, Dr. Wengler’s 10% Weber rating, they contend, pertains to the employee’s thoracic spine condition, compensation for which was denied and settled in 2001.
We agree with the employer and insurer that the employee has not submitted evidence of a claim for additional permanent partial disability that either post-dates the 1998 stipulation for settlement or has not been closed out by a subsequent stipulation. The employee has not met this Fodness factor.
Need for Medical Care
Where, as here, a stipulation for settlement leaves future medical expenses open and the employer and insurer have paid such expenses, we have held that the fourth Fodness factor carries less weight in determining whether a substantial change has occurred since the settlement. Burke v. F & M Asphalt, 54 W.C.D. 363, 368-69 (W.C.C.A. 1996). However, we have also previously noted that, even where medical benefits are left open, the need for additional medical care remains useful evidence bearing on whether there has been a substantial change in an employee’s condition. See, e.g., Hughes v. Medcor, Inc., 69 W.C.D. 258, 269 (W.C.C.A. 2009).
In the present case, the employee’s medical expenses were the subjects of stipulations two, three, and four. On review of the insurer’s Notice of Benefit Payment filed after each award, it appears that more than $185,000 in medical expenses has been paid since the 1998 settlement. We conclude that the extent of additional treatment in this case supports the employee’s claim of a substantial change in her medical condition.
The employer and insurer have essentially conceded that the employee’s 1993 work injury was a substantial contributing factor in her subsequent surgeries. No medical opinion has been offered that refutes this conclusion, and the employee has offered the express opinion of Dr. Wengler that the employee’s worsened condition and need for the additional surgeries is causally related to her September 1993 work injury. To the extent that the parties agree that the employee’s surgeries have been related to her work injury, the employee has satisfied the fifth Fodness factor. In granting her petition to vacate, however, we take no position on whether the employee is permanently and totally disabled as a result of her work injury. This issue remains subject to proof at a hearing below. Cf. Davis v. Scott Moeller Co., 524 N.W.2d 464, 51 W.C.D. 472 (Minn. 1994). The employee’s claims at hearing may also be subject to the employer and insurer’s defenses under the 2001 award on stipulation.
Contemplation of the Parties
Finally, the employer and insurer argue that the parties either did or could have contemplated the need for additional surgery and/or a change in the employee’s condition at the time of the stipulation and that vacation of the award is therefore unwarranted. We acknowledge that ongoing back problems could reasonably have been anticipated in this case. In his June 9, 1997, letter to the insurer, Dr. Kraker referenced the employee’s risk for further injury due to her degeneration, together with the likelihood of her needing additional surgery. That being said, however, we don’t believe either party could have anticipated the extent of this employee’s post-settlement surgical history.
Concluding that the employee has essentially satisfied five of the six factors identified in Fodness and has therefore shown good cause to vacate the award at issue, we grant the employee’s petition to vacate her February 10, 1998, award on stipulation on the ground that she has experienced a substantial change in her medical condition.
 The parties to this case also entered into settlements that were approved by awards issued May 5, 2000, April 30, 2001, and August 25, 2006. The employee is seeking to vacate only the award issued February 10, 1998.
 Dr. Kraker rated 7% under Minn. R. 5223.0390, subp. 3.C.(1), and 10% under Minn. R. 5223.0390, subp. 5.B.
 See Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).