TIMOTHY L. NEWMAN, Employee/Petitioner, v. FLAGSHIP ATHLETIC CLUB a/k/a RESTAURANT NO LIMIT, INC., and AMERICAN INS. CO./FIREMAN’S FUND INS. CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 9, 2011
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the employee did not make a sufficient showing of good cause under the factors set forth in Fodness v. Standard Cafe, the employee’s petition to vacate two awards on stipulation issued over eighteen years ago was denied.
Petition to vacate award on stipulation denied.
Determined by: Pederson, J., Rykken, J., and Johnson, C.J.
Attorneys: David G. Johnson, David George Johnson Law Office, Prior Lake, MN, for the Petitioner. Deborah L. Crowley and Jeffrey L. Homuth, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee petitions this court to vacate awards on stipulation served and filed in this case on March 10, 1989, and August 26, 1992. Concluding that the employee has not shown good cause to vacate the awards at issue, we deny the employee’s petition.
On April 23, 1987, Timothy Newman sustained a work-related injury to his back when he slipped and fell in the course of his work as a locker room attendant for Flagship Athletic Club. Mr. Newman [the employee] was twenty-five years old on that date and was earning a weekly wage of $200.00. Flagship Athletic Club [the employer] and its insurer admitted liability for the injury and commenced payment of benefits, including 1.4 weeks of temporary total disability compensation and limited medical expenses. The employee’s treatment included chiropractic adjustments with Dr. Daniel McGraw, who, in a letter to the employee’s former attorney about a year and a half later, on October 6, 1988, attributed the employee’s continuing back problems to his April 1987 work injury. Dr. McGraw recommended preliminary restrictions against any forward flexion of the low back and against any repetitive bending and twisting, noting that, due to gradually increasing back pain, the employee had stopped working for the employer shortly after New Year of 1988 and had not since found work that he could do. On October 10, 1988, the employee filed a claim petition, alleging an underpayment of the benefits paid to him for about a week and a half just after his injury, together with entitlement to unspecified medical, rehabilitation, and permanent partial disability benefits and to temporary total disability benefits continuing from December 28, 1987. On October 28, 1988, the employer and insurer answered the claim, affirmatively alleging that the employee had reached maximum medical improvement on July 30, 1987, related to his work injury, that he had been fully compensated for that injury, and that he had no permanent disability or current temporary disability or wage loss causally related to that injury.
On December 13, 1988, the employee underwent a Functional Capacities Evaluation [FCE]. In the report of that evaluation on December 28, 1988, the examining chiropractor, Dr. David Elton, indicated that physical examination had revealed lumbosacral involvement with some possible L5 nerve root irritation. There appeared to the doctor to be considerable weakness in the supporting musculature of the lumbopelvic region, with poor flexibility, some muscle imbalances, restricted range of movement, and extensive reflex muscle spasm in that area. Dr. Elton indicated also that the employee’s weight appeared to significantly contribute to the chronic nature of his lower back pain. The doctor recommended further diagnostic imaging of the lumbosacral region, and, should the results come back negative, he opined that the employee would significantly benefit from a physical rehabilitation program “to reverse the deconditioning” that has occurred in the employee’s lumbar extensor and abdominal musculature. He concluded that “[t]his . . . is really the only way I see that we would return [the employee] to work.”
On December 21, 1988, the employee was examined for the employer and insurer by orthopedic surgeon Dr. John Dowdle, who diagnosed a resolved myoligamentous injury to the lumbar spine, subjective complaints without objective findings, and physical deconditioning. Based on objective findings, Dr. Dowdle did not see any reason to assign work restrictions, but he did restrict the employee from performing overhead work and from lifting over fifty pounds, based on subjective complaints. He recommended instruction in an active home exercise program but concluded that the employee needed no further ongoing medical treatment, physical therapy, or chiropractic care related to his work injury. It was the doctor’s further opinion that the employee had reached maximum medical improvement [MMI] with regard to that injury, and he detected no permanent physical impairment of the employee’s lumbar or thoracic spine resulting therefrom.
On January 12, 1989, the employee underwent a CT scan of his lumbar spine, which was read to reveal a central disc bulging at L5-S1 without nerve root compression, an eccentric bulging of the disc at L4-5 without frank herniation or definite nerve root compression, and mild to moderate narrowing of the right L4-5 foramen due to spurs, without evidence of L4 nerve root compression. In a letter to the employee’s attorney dated February 2, 1989, Dr. McGraw diagnosed the employee’s condition as chronic sacroiliac posterior facet syndrome, resulting from an acute post-traumatic lumbosacral sprain/strain. He noted that the employee definitely had evidence of disc involvement at times, and he indicated that clinical findings were consistent with results of the January 12, 1989, CT scan in revealing a disc herniation, which Dr. McGraw rated as a 14% whole body permanent partial disability. It was Dr. McGraw’s further opinion, in keeping with that of Dr. Elton, that the employee required physical rehabilitation in order to return to work and so was not yet at MMI.
In March of 1989, the parties executed a stipulation for full, final, and complete settlement of all but future non-chiropractic medical expenses and temporary partial disability benefits related to the employee’s April 1987 work injury. It was the employee’s position at the time that he was entitled to various other benefits, including the following: underpaid temporary total disability benefits from April 23, 1987, through May 3, 1987; temporary total disability benefits continuing from December 28, 1987; compensation for a 14% whole-body permanent partial disability; rehabilitation benefits; and attorney fee reimbursement under Minnesota Statutes section 176.081, subdivision 7. The employer and insurer’s position at the time was as follows: that the employee had reached MMI no later than January 25, 1989, upon service of the December 21, 1988, report of Dr. Dowdle; that the employee had not sustained a 14% whole body impairment as a result of his April 23, 1987, work injury; that the employee had gone off work for reasons unrelated to his work injury and had failed to perform a reasonably diligent job search thereafter; that chiropractic care was no longer reasonable and necessary relative to the April 1987 work injury; that the employee was not entitled to Subdivision 7 reimbursement as alleged; and that the employee was not a “qualified employee” for rehabilitation services within the meaning of the statute.
In settlement of their issues, the employer and insurer agreed to pay, and the employee to accept, half of the employee’s accrued temporary total disability claim through January 25, 1989 - - $2,459.80 - - in satisfaction of that claim through that date. The stipulation provided further that, so long as the employee remained unemployed, benefits would continue for ninety days after that date as well, pursuant to the statute, the parties stipulating further that the employee reached MMI on that date with service of Dr. Dowdle’s report. The employer and insurer also agreed to provide rehabilitation services for ninety days beyond the service and filing of an award on stipulation, all entitlement to rehabilitation services thereafter expiring. The employee agreed also to discontinue all chiropractic treatment, treating only with medical doctors in the event he should require further treatment. Further, the employer and insurer agreed to pay, and the employee to accept, $10,500.00 in satisfaction of closing out all permanent partial disability to the extent of 14% of the body as a whole. The employee also waived subdivision 7 reimbursement and Roraff and Heaton attorney fees pursuant to terms of the stipulation. Temporary partial disability benefits remained open under the stipulation, and the employer and insurer agreed to pay $3,410.00 in outstanding medical expenses and $283.86 in medical transportation expenses. An award on this stipulation was filed on March 10, 1989.
Subsequent to his award on stipulation, the employee apparently tried going back to work, but he was evidently unable to keep a job because of the pain that he was in. Eventually, on April 6, 1990, apparently on referral from Dr. McGraw, he saw neurologist Dr. Richard Golden at the Noran Neurological Clinic, who identified the employee’s current complaints as “lower back pain with pain into his shoulders and pain into the right portion of his skull.” After physical examination of the employee’s neck and back, Dr. Golden diagnosed post-traumatic cervical sprain, post-traumatic lumbar sprain, and headaches secondary to the cervical sprain. On that diagnosis he recommended cervical and lumbar MRI scans with follow-up and encouraged the employee to enter an exercise program if the scans did not somehow preclude one. Both MRI scans were scheduled for April 19, 1990, but the employee completed only the cervical scan, and even that only suboptimally and incompletely, because of the employee’s motion due to pain. The employee returned to Dr. Golden’s office on April 26, 1990, where he was examined by the doctor’s nurse practitioner, Ann Rechtzigel, who diagnosed post-traumatic cervical sprain with multi-level disc bulging and secondary headaches, together with post-traumatic thoracic and lumbar sprain. On that diagnosis NP Rechtzigel rescheduled the employee’s thoracic and lumbar MRI scans, prescribed medication, and scheduled follow-up. Both scans were performed on May 12, 1990, and were read to reveal a small disc herniation at T8-9, decreased hydration and narrowing of the L4-5 and L5-S1 discs, and Schmorl’s nodes at L5, L1, L2, T8, and T9, with mild degenerative changes of the L4-5 facets. The employee saw NP Rechtzigel again on May 21, 1990, when he reported to her that his pain and financial difficulties were causing him to become depressed. NP Rechtzigel prescribed medication for sleep and pain control, recommended a chronic pain program, and authorized continued chiropractic treatment if it was proving helpful to the employee.
At some point subsequent to his March 1989 award on stipulation, the employee dismissed the legal counsel that had served him in the 1989 settlement, then both retained and subsequently dismissed a second attorney, and then, in August of 1992, without benefit of counsel, entered into another stipulation for settlement with the employer and insurer. By the time of this 1992 stipulation, the employee had returned to working about twenty hours a week and was receiving temporary partial disability benefits based on his date-of-injury average weekly wage of $200.00. Under terms of the 1992 stipulation, the employer and insurer agreed to pay the employee $23,400.00, minus $3,471.84 in fees still owed to the employee’s first attorney, and to release $735.92 earlier withheld and payable to the employee’s second attorney. In exchange for this payment, the employee agreed to waive subdivision 7 reimbursement and any possible entitlement to supplementary benefits under Minnesota Statutes section 176.132 or adjustments under Minnesota Statutes section 176.645, and to grant the employer and insurer full, final, and complete settlement of any and all claims that he might have against them, past, present, and future, except for medical expenses, stemming from his April 23, 1987, work injury. An award on this stipulation was filed on August 26, 1992.
About seven years later, near the end of 1999, the employee sought treatment for suddenly worsened low back pain with Dr. Daniel Trajano, who ordered an MRI scan and prescribed a pain killer. The MRI scan, conducted on December 29, 1999, was read to reveal a slight disc herniation at L5-S1, which slightly abutted the right S1 root sheath. His pain did not subside, and on about December 31, 1999, he sought emergency treatment for pain that radiated down the back of his right leg and into his calf. He was treated there by Dr. Ellen Sevenich, who, in her report dated January 1, 2000, noted that the employee had “had mild low back pain daily since [his work injury] with occasional flares” and that his sudden onset of pain a few days earlier had been “without any preceding event.” Noting that the MRI earlier that week had revealed a disc herniation at L5-S1 that was abutting and slightly displacing the right S1 root sheath, Dr. Sevenich diagnosed low back pain with radiculopathy and admitted the employee to the hospital for pain medication. The employee saw Dr. Trajano again on January 25, 2000, who diagnosed a herniated disc at L5-S1, with S1 radiculopathy on the right. Noting that steroid injections, physical therapy, and medications had all been tried, and that the employee was still off work, Dr. Trajano recommended surgery. On January 27, 2000, the employee underwent a lumbar hemilaminectomy with excision of a free fragment herniated disc at L5-S1, performed by Dr. Andrew Smith.
On July 30, 2002, the employee saw Dr. Donald Abrams with complaints of increasing low back pain that radiated into his right buttock and as far down as the middle of his right calf. He had until recently been working at a job maintaining motor homes, but recently the bending and stooping and lifting and twisting had grown too difficult given his low back condition. Dr. Abrams restricted the employee from working for a few days, prescribed medication, and ordered another MRI scan of the lumbar spine. The scan was performed on August 1, 2002, and was read to reveal (1) early degenerative disc disease at L4-5, with mild disc bulge but no nerve impingement, (2) post-operative changes at L5-S1, with a minimal broad-based residual disc herniation at that level without nerve impingement, and (3) a question of a residual or recurrent small extruded disc at S1, with apparent enlargement and slight enhancement of the right S1 nerve root.
On September 4, 2002, the employee saw his surgeon, Dr. Smith, again. Dr. Smith noted that the employee’s surgery two years earlier had been very successful, with his pain going from a level 10 out of 10 to a level 1 out of 10. Although the employee had subsequently returned to jobs of a fair amount of physicality, there appeared to Dr. Smith to have been no specific injury or recurrent disc herniation triggering the employee’s recent increase in back pain. Dr. Smith surmised that evident degenerative changes at the level above the surgery, at L4-5, might be participating in the employee’s current pain, which represented in Dr. Smith’s opinion “an aggravation of his preexisting Worker’s Comp injury that led ultimately to a herniated L5-S1 disc,” which Dr. Smith had removed two years earlier. Dr. Smith recommended only conservative treatment, noting that the employee did not want any epidural steroid or nerve block injections.
About four years later, on September 27, 2006, with his low back radicular pain continuing, the employee underwent another lumbar MRI scan. The scan was read to reveal multilevel mild vertebral body Schmorl’s nodes of uncertain clinical significance, together with moderate to severe stenosis at L5-S1, with no evidence of recurrent or residual disc herniation at that level. On October 16, 2006, the employee was examined again by Dr. Smith, on a neurosurgical consultation. Upon examination of the recent MRI scan, Dr. Smith concluded that, although the employee appeared to have had an excellent surgical result at the L5-S1 level, long-term degenerative disc disease at adjacent vertebral levels, together with some partial bulging, collapse, and dehydration at specifically the L4-5 level, were apparently resulting in the employee’s pain, which the doctor concluded was “a continuation of [the employee’s] previous work-comp problem.” On that conclusion, the doctor diagnosed “[m]echanical back and right lower extremity pain secondary to degenerative disk disease and a previous back injury that was work-comp in 1986,” and he planned conservative treatment, anticipating the possible need for a fusion at L4-5 and L5-S1.
On May 14, 2009, the employee was examined by Dr. Trevor Busch regarding complaints of continuing low back and right leg pain, together now with pain in the right upper thoracic back and intermittent neck pain that sometimes extended down into the right arm, with burning and sometimes weakness. The doctor diagnosed chronic low back pain with right lumbar radiculopathy, lumbar stenosis, and neck pain with symptoms consistent with cervical radiculopathy. On that date, the employee had not worked for several months due to his pain, and the doctor medically restricted him from working temporarily, pending surgical consultations regarding lumbar and cervical radiculopathy and a physical medicine consultation regarding his chronic low back pain.
On May 21, 2010, the parties filed a stipulation for settlement of certain attorney fees, past and outstanding medical expenses, and related out-of-pocket expenses. The parties stipulated in their agreement that the terms and provisions of their two prior stipulations for settlement were incorporated by reference, and the employer and insurer expressly reserved all of their rights and defenses on the merits of the employee’s claims. An award on this stipulation was filed on May 24, 2010.
On October 18, 2010, the employee was examined for the employer and insurer again by Dr. Dowdle. In his report on October 27, 2010, Dr. Dowdle diagnosed an acute herniated nucleus pulposus at L5-S1, degenerative disc disease at L4-5 and L5-S1, radiculitis at L5 and S1, and obesity and deconditioning. In his discussion, Dr. Dowdle opined that “[t]he diagnosis of degenerative disc changes in the lumbar spine was present prior to [the employee’s] low back injury on April 23, 1987,” because, although there had been no evidence of actual disc herniation on the employee’s CT scan in January 1989, there was “evidence of degenerative disc changes at L5-S1 prior to that date of injury.” On this basis, Dr. Dowdle continued in his opinion that the employee’s April 1987 work injury was only a temporary aggravation of his underlying degenerative disc condition and that the employee’s current complaints were merely a result of the continuation of his pre-existing degenerative condition. It was Dr. Dowdle’s opinion that the employee’s sudden onset of back and right leg pain in December of 1999 was “an acute, new [injury that] had no relation to the injury of April 23, 1987,” and that any performance of the proposed fusion surgery would therefore be unrelated to that April 1987 work injury, as would be any related restrictions. Dr. Dowdle reiterated his opinion that the employee had reached MMI with regard to his work injury by the date of his prior evaluation on December 21, 1988.
The employee now petitions this court to vacate his awards on stipulation dated March 10, 1989, and August 26, 1992, on grounds that there has been a substantial change in his condition since the time of the awards.
This court’s authority to vacate a compensation judge’s award is found in Minnesota Statutes sections 176.461 and, with regard specifically to settlements, 176.521, subdivision 3. An award may be set aside if the petitioning party makes a showing of good cause to do so, and one form of good cause has long been held to exist if “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). This case-law basis was codified in slightly different language in a 1992 amendment of Minnesota Statutes section 176.461. In that amendment, the substantial change of condition 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 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 section 176.461. See Franke v. Fabcon, Inc., 509 N.W.2d 373, 377, 49 W.C.D. 520, 525 (Minn. 1993).
This court has identified 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, and the causal relationship between the injury covered by the settlement and the employee’s current worsened condition. Fodness v. Standard Cafe, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).
The employee contends that his diagnosis at the time of the two awards here at issue was that of lumbar, thoracic, and cervical strain/sprain, with no evidence of serious degeneration, whereas it changed to disc herniation seven years after the second award and to serious degeneration seven years after that. We note, however, that it was the employee’s stipulated position already at the time of the first award, in April 1987, that he had already then a 14% whole-body impairment, based apparently on Dr. McGraw’s diagnosis and rating of a disc herniation, which the doctor found to be consistent with disc bulges at L4-5 and L5-S1 that had been revealed on the employee’s January 12, 1989, lumbar CT scan. We conclude that the employee has not proven that his condition has substantially changed with regard to his diagnosis since the time of the awards.
Ability to Work.
At the time of his second award on stipulation, the employee was working about twenty hours a week, and he concedes that, although he was able to work full time from about 1994 to 1999, he continues to be able to work about twenty hours a week. We conclude that the employee has not offered any evidence that his ability to work has diminished at all from what it was at the time of the stipulations.
Permanent Partial Disability.
As we have noted above, in our discussion of the employee’s diagnosis, it was the employee’s position already at the time of his first, 1989, award that he was subject to a permanent impairment of 14% of his whole body consequent to his April 1987 work injury. The employee’s claim is that he is now “likely” to require two-level lumbar fusion surgery, which is “likely” to increase his permanent whole-body impairment to 16% to 19%. The employee has not yet undergone that possibly necessary surgery, however, nor, as he acknowledges, has he been issued a new permanency rating greater than the 14% rating issued by Dr. McGraw prior to the employee’s first stipulation for settlement, in 1989. We conclude that the employee has not offered evidence of an increase in his permanent partial disability that is sufficient to support his claim that he has experienced a substantial change in condition since the time of the awards here at issue.
Where, as here, a stipulation for settlement leaves future medical expenses open and the employer/insurer have paid such expenses, the fourth Fodness factor carries less weight when determining whether a substantial change in condition has occurred since the settlement. Burke v. F-M Asphalt, 54 W.C.D. 363, 368 (W.C.C.A. 1996). The parties have resolved the employee’s post-settlement claims for medical treatment expenses by stipulation for settlement and award issued May 24, 2010. As for the projected fusion surgery, litigating the reasonableness, necessity, and causal relationship of that treatment remains an option for the employee under the terms of the awards here at issue. We conclude that the employee’s post-award medical care has not been so costly or extensive as to support the employee’s petition to vacate.
Finally, the employee has provided the opinion of Dr. Smith that the employee’s current medical condition is causally related to the April 23, 1987, work injury. Dr. Dowdle evidently questions that connection. Again, the employee is not precluded by his settlements from litigating the causation issue as it pertains to the employee’s claims for medical treatment.
Because we conclude there has not yet been a change in the employee’s diagnosis, ability to work, or permanent partial disability, and because medical treatment remains open under the settlements, we deny the employee’s petition to vacate at this time.