KATHERINE MARTINEZ, Employee/Petitioner, v. TELEX COMMUNICATIONS and EMPLOYERS INS. OF WAUSAU, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 9, 2000

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where surgery had been considered an option but had not been clearly recommended, where there was no certainty that changes identified on x-rays materially contributed to the employee=s complaints, where, given the fact that the employee had not worked since before her award on settlement, it was unclear how any change in diagnosis, however significant, had impacted on her ability to work, and where the employer and insurer had paid the employee=s medical expenses, the employee did not establish good cause to vacate her award on settlement based on a substantial change in her condition.

 

Petition to vacate award on stipulation denied.

 

Determined by Pederson, J., Wilson, J., and Johnson, J.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee petitions this court to set aside an award on stipulation served and filed in this case on June 28, 1982, on grounds that her condition has substantially changed since the issuance of the award.  Finding insufficient cause to vacate the award at this time, we deny the employee=s petition.

 

BACKGROUND

 

On January 28, 1978, Katherine Martinez [the employee] sustained an injury to her low back while working for Telex Communications [the employer].  On that date, the employee was twenty-six years of age and earning a weekly wage of $118.00.  The injury occurred when she lifted a heavy box off a shelf while standing on a ladder.  She felt a snap and experienced sudden low back pain that worsened throughout the day.  The employer and its workers= compensation insurer, Employers Insurance of Wausau [Wausau], acknowledged liability for the injury and commenced payment of workers= compensation benefits.^[1]

 

The employee initially received and responded to conservative medical treatment from the Blue Earth Medical Center and orthopedist Dr. Paul Arnesen, and she was able to return to light duty work for the employer by May 1978.  However, by October of that year she had become unable to continue working due to low back pain and an associated numbness in her right leg.^[2]  Dr. Arnesen again provided conservative therapy, but this time the employee failed to respond adequately, and on April 29, 1979, she was admitted to Immanuel-St. Joseph=s Hospital with a diagnosis of Alow back syndrome on the basis of protruded intervertebral disc with instability of the lumbosacral spine.@  On May 2, 1979, Dr. Arnesen performed a laminectomy and spinal fusion from L4 to S1.

 

Following surgery, the employee experienced significant relief of the symptoms that had necessitated the surgery, but her relief was short-lived.  She continued seeing Dr. Arnesen, but she was also referred by her attorney to neurosurgeon Dr. Stephen Martin.  In a report dated July 10, 1979, Dr. Martin noted that the employee claimed to have benefitted very little from the surgery, in that Aher low back still hurt and her [right] leg jumps and is numb as much as preoperatively.@  In that same report, Dr. Martin expressed concern over the employee=s Afairly marked hysterical overlay.@  Almost a year later, Dr. Martin examined the employee again and again concluded that Athis lady presents with rather incapacitating symptoms and hysterical signs, as noted.  She has no significant radicular objective signs or symptoms.  I think her major problem now is somatic fixation and hysterical overlay.@  Dr. Martin diagnosed a chronic pain syndrome and recommended a return to regular work or possibly an aggressive pain clinic.

 

On August 5, 1980, Dr. Arnesen reported examination findings similar to Dr. Martin=s, Aand on the basis of [the employee=s] unexplained continued disability, pain and contractions of the right lower extremity,@ arranged for a CT scan on August 19, 1980.  The scan showed evidence of a solid bony fusion from S1 to L4, with no significant evidence of nerve root compression.  Despite the scan results and a correlating clinical examination, the employee continued to complain of pain referable to the right lower extremity, and she did not believe she could return to work.  On September 30, 1980, Dr. Arnesen opined that the employee Ahas greater complaints than one would anticipate on the basis of her physical findings,@ and he recommended a pain modification program.

 

On January 6, 1981, the employee was seen in consultation by Dr. Loran Pilling of the Minneapolis Pain Clinic.  In a letter of the same date to Dr. Arnesen, Dr. Pilling concurred in the diagnosis of Aa very complicated chronic pain syndrome@ and indicated that he felt that the employee could be helped in the pain program.

 

On February 26, 1981, Wausau arranged for an examination by orthopedist Dr. Joseph Tambornino.  Dr. Tambornino opined that the employee had recovered from her surgery and had what appeared to be a very solid fusion with no motion from L4 to S1.  He noted also, however, that the employee=s examination showed Asigns of a rather bizarre type of complaint, namely shaking of the right leg which seems to be on a voluntary basis.  There are no other objective findings to indicate that the patient has a significant residual organic back problem.@  The doctor recommended that the employee could return to her former job, with restrictions against repeatedly lifting items weighing more than twenty-five pounds.  He also suggested that a program of weight reduction would be imperative for her general good health and avoidance of recurrent back difficulties.

 

On November 9, 1981, Dr. Arnesen concluded the employee had a solid bony fusion and that she had recovered sufficiently to return to work, providing that her job did not necessitate excessive bending or lifting or assuming awkward positions.

 

Shortly after Dr. Tambornino=s examination, Wausau apparently discontinued the employee=s temporary total disability benefits, and on January 4, 1982, the employee filed a claim petition, seeking temporary total disability benefits continuing from March 1981.  Following a deposition of the employee taken on June 1, 1982, the parties entered into a settlement agreement, whereby the employee, relying upon Dr. Arnesen=s report of November 9, 1981, contended she was temporarily totally disabled.  The employer, also relying upon Dr. Arnesen=s report, contended that the employee had been released to return to work and had failed to conduct a diligent search for employment within her restrictions.  The employee was paid a lump sum of $12,500.00 in return for a full, final, and complete settlement of all claims for workers= compensation benefits, except for medical care and treatment.  The settlement was approved by a compensation judge at the Office of Administrative Hearings on June 28, 1982. 

 

Following the settlement award in 1982, the employee did seek additional care with Dr. Arnesen on August 5, 1985, October 8, 1987, and finally on June 13, 1989.  On each visit, Dr. Arnesen noted the existence of a solid bony fusion from L4 to S1, and remarked that the employee was precluded by her symptoms from returning to any type of physical work, especially any work that required bending, lifting, or twisting stresses to the spine.  Notably, however, on October 8, 1987, Dr. Arnesen reported that the employee had Asignificant evidence of transitional problems between the fused and unfused portions of the spine.@  He stated that, Aif the patient=s symptoms become absolutely unacceptable and intractable, consideration for evaluation of the extension of the fusion to the L-3, 4 level could be given.@  Also in 1987, the employee=s primary care provider, Dr. Joseph Tempel, prescribed fairly regular sessions of physical therapy treatment for the employee=s chronic low back and right leg pain.  The therapy provided only temporary relief of the employee=s increased symptoms. 

 

In 1989, the employee transferred her care to the Faribault Clinic, where she has primarily and regularly treated with family practitioners Dr. Bruce Gutzmann and Dr. Reed Johnson to the present time.  The employee has also sought urgent medical attention at the Rice County District One Hospital when she has experienced severe exacerbations of her low back and right leg pain, usually secondary to an increase in activity.  On these occasions, the employee was often given intramuscular injections of Demerol and Vistaril.  The doctors at the Faribault Clinic have also referred the employee for sessions of physical therapy and various orthopedic consultations.  In addition, the employee=s medical status since 1994 has been complicated by exacerbations of chronic asthma, sinusitis, upper respiratory infections, and bronchitis.

 

On August 19, 1994, the employee was seen in consultation by Dr. Sunny Kim of the Institute for Low Back Care.  Dr. Kim noted the transitional syndrome at L3-4 previously reported also by Dr. Arnesen, and he recommended facet joint injections, stating,

 

If she notes improvement with the injections, she might benefit from extension of the fusion to L3.  There is no evidence that nerve root impingement is the cause of her right thigh pain which may be referred from the L3-4 facet joint arthrosis.

 

When she returned to Dr. Kim on February 3, 1995, the employee reported that the facet joint injection at L3-L4 had been of no benefit to her.  Dr. Kim opined that, A[g]iven the unfavorable response following the facet joint injection at 3-4, surgery such as extension of the fusion to L3 is not recommended.@  The employee=s symptoms persisted, and she saw Dr. Kim again on May 22, 1995.  The doctor again noted that, given the possibility of transitional syndrome and stenosis at the transitional zone, a repeat facet joint injection was warranted at L3-4.  Dr. Kim also recommended a myelogram to evaluate the degree of stenosis, stating that, A[i]f both of these results are negative, then the patient is not a candidate for any sort of surgical intervention.@  The records submitted contain no further follow-up with Dr. Kim.

 

On May 4, 1999, Wausau arranged for an independent medical evaluation with Dr. Michael Smith.  Dr. Smith reported that the employee=s severe limitation of motion could not be anatomically explained by the radiograph description of her lumbar spine, nor was there any particular muscle spasm that would limit her motion either.  Waddell signs were present, and the employee was found clearly to have excessive tenderness and distraction and over-reaction findings.  Dr. Smith concluded that the employee=s problems were ones of fairly nonanatomic chronic pain.

 

On September 1, 1999, the employee was seen by Dr. Manuel Pinto for a second opinion regarding diagnosis and treatment options for her condition.  Dr. Pinto reviewed radiographs as well as an MRI, which showed stenosis as well as a herniated disc at L3-4 and Adegenerative discs at these levels as well as the levels below.@  He concluded that the employee was a reasonable surgical candidate.  He discussed the various surgical options with the employee and advised her that, prior to going into surgery, she should undergo a discogram to determine whether or not the L3-4 disc is symptomatic and whether or not it is giving her some back pain.

 

On February 24, 2000, the employee filed an Application to Set Aside Award, based upon a substantial change in her condition since the 1982 settlement.  The employer and insurer object to the petition.

 

DECISION

 

This court may set aside an award Afor cause@ pursuant to Minn. Stat. ' 176.461 and Minn. Stat. ' 176.521, subd. 3.  This court=s authority to vacate an award on settlement is governed by statutory provisions in effect at the time of the parties= settlement.  See Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).  Under statutory provisions applicable in the present case, good Acause@ to vacate the award at issue includes a substantial change in condition.  See Krebsbach v. Lake Lillian Coop. Creamery Ass=n, 350 N.W.2d 349, 36 W.C.D. 796 (Minn. 1984).  Where a change in condition is alleged, the focus of this court=s inquiry is on whether there has been a substantial or significant change and whether there is adequate evidence of a causal relationship, we must compare the employee=s condition at the time of the petition with the employee=s condition at the time of settlement.  See Franke, 509 N.W.2d at 376-77, 49 W.C.D. at 525.  This court has delineated a number of factors that may be considered in determining whether a substantial change in 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 Cafe, 41 W.C.D. 1054 (W.C.C.A. 1989).

 

The employee in this case alleges that at the time of settlement she believed that her back was getting better and that she would be able to return to work in some capacity.  She now contends, however, that treatment she has received since that time to relieve the effects of her back injury has been unsuccessful and that she has not returned to any sort of work since her surgery in May of 1979.  She alleges that her condition has worsened and that she has now developed additional problems in her lumbar spine at a level or levels above the site of her fusion.  She contends that, whereas at the time of settlement she had a solid bony fusion from L4 to S1, Dr. Pinto now diagnoses related instability and stenosis also at L3-4 and suggests that Ashe is a reasonable surgical candidate.@  The employee contends the addition of one or possibly two disc levels becoming surgical represents a substantial change in her diagnosis. Although the employee evidences a substantial history of chronic low back pain, we are not persuaded, on the record submitted, that she has established a substantial change in her medical condition since the 1982 settlement.

 

It is true that certain radiographic changes are evident since the award on stipulation that is here at issue.  What is missing from the analysis, however, is a medical opinion relating the employee=s x-ray and MRI findings to her complaints of low back pain and lower extremity pain.  Dr. Pinto noted that the employee=s pain complaints were eighty percent related to her back and twenty percent related to her right leg, with periodic pain also in her left leg.  While indicating that the employee is a reasonable surgical candidate, Dr. Pinto also recommended that she undergo discography to Ahelp outline whether or not the L3-4 disc is symptomatic and whether or not it is giving her some back pain.@  Dr. Pinto did not comment on whether he would recommend surgery in the event that the L3-4 disc was found to be not symptomatic.  Moreover, there is no indication that Dr. Pinto reviewed prior medical records to assist in determining whether the employee=s symptom complaints actually relate to the changes on x-ray.^[3]

 

It is evident from the medical records that the employee has essentially suffered from unrelenting low back pain since the date of her injury.  Subsequent to her fusion surgery and prior to the 1982 settlement, neurosurgeon Dr. Stephen Martin and psychiatrist Dr. Loran Pilling both diagnosed the employee as suffering from chronic pain syndrome.  In 1994, Dr. Kim, reaching essentially the same diagnosis as Dr. Pinto, elected to treat the employee with facet joint injections, which apparently were of no benefit to her.  Dr. Kim subsequently reported that A[g]iven the unfavorable response following the facet joint injection at 3-4, surgery such as extension of the fusion to L3 is not recommended.@  In addition, the insurer had the employee examined by Dr. Michael Smith on May 4, 1999.  After an examination and review of the medical records, Dr. Smith concluded that the employee=s Acurrent problems are that of fairly nonanatomic chronic pain.@

 

Given the employee=s report of disabling low back pain at the time of settlement, and given the evidence of a chronic pain syndrome both then and currently, and the lack of a medical opinion explaining the clinical significance of the radiographic changes, we cannot conclude that the clearly evident change in diagnosis in this case materially contributes to the employee=s symptoms, which have remained essentially unchanged since 1982.

 

The employee further contends that a change in her ability to work is demonstrated by the fact that she was released to return to work at the time of the settlement but has not been able to hold any substantial gainful employment since the date of injury.  We cannot agree that this represents a change in the employee=s ability to work.  The employee apparently last worked in October of 1978.  In her stipulation for settlement, the employee contended she was temporarily totally disabled.  The employee was not working at the time of the settlement and has not worked since that time.  The employee has offered no evidence suggesting that her restrictions are any different now from what they were at the time of settlement.  We fail to discern any change in the employee=s ability to work.

 

The employee further contends that, by virtue of the change in her diagnosis and the possibility of surgery, additional permanent partial disability will obviously be established.  We do not agree.  As stated earlier, the significance of the radiographic changes is unclear, and the likelihood of surgery is undetermined.  Medical evidence has not been presented of any change in the permanent partial disability rating above the twenty-five percent previously resolved by the parties.

 

The employee has received a considerable amount of medical treatment since the date of settlement.  If indeed the employee undergoes the surgery suggested by Dr. Pinto, clearly her treatment will be more costly and extensive than initially anticipated.  However, the insurer has paid all expenses to date and, in fact, has agreed that, should the surgery proposed by Dr. Pinto become necessary, the costs will be covered under the terms of the settlement.  We have stated on a number of occasions that, where a stipulation for settlement leaves future medical expenses open and the employer and insurer have paid such expenses, the factor of increased necessity of medical care carries less weight in 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).

 

Ongoing causation is an essential factor under Fodness.  The employer and insurer agree that the employee=s current low back complaints are causally related to the injury of January 28, 1978, but they deny that the employee has established a substantial change in condition. 

 

The employee essentially argues that the Workers= Compensation Act permits an Aadjustment of the award in relation to facts subsequently appearing so as >to assure a compensation proportionate to the degree and duration of disability=.@  Elsenpeter v. Potvin, 213 Minn. 129, 132, 5 N.W.2d 499, 501, 12 W.C.D. 366, 369 (1942), quoting Mark v. Keller, 188 Minn. 1, 246 N.W. 472, 7 W.C.D. 325 (1933), and Herzog v. City of New Ulm, 199 Minn. 352, 272 N.W. 174, 9 W.C.D. 370 (1937).  The employee argues that the parties could not have been contemplating that the employee would become permanently and totally disabled when they agreed to a full, final, and complete settlement for the sum of only $12,500.00.

 

While we agree that fundamental fairness and a compensation proportionate to the degree and duration of disability may be reasons to distinguish workers= compensation settlements from the finality of other settlements, absent clear evidence of a change in condition sufficient to constitute Acause@ under the statute, we are reluctant to substitute our sense of fairness for that of the parties evaluating the case in 1982.  At the time of settlement, both sides were represented by competent counsel, and their agreement was reasonable, fair, and in conformity with the Workers= Compensation Act at the time it was entered into.

 

On the basis of the record submitted, we cannot conclude that there has been a substantial deterioration or change in the employee=s condition since the award.  Although the possibility of surgery does exist, it has by no means been clearly recommended.  Nor is it certain that the changes identified on x-ray materially contribute to the employee=s symptom complaints.  Moreover, given the fact that the employee has not worked since 1978, it is unclear how any change in diagnosis, however significant, has impacted this employee=s ability to work.  These facts, coupled with the payment of her medical expenses by the employer and insurer, leads us to conclude that, on the record submitted, the employee has not established good cause to vacate her award on settlement.