JAMES S. SCHUELER, Employee/Petitioner, v. WILLIAM MILLER SCRAP IRON & METAL and CNA INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 3, 2000

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where there was insufficient evidence of a substantial change in condition, pursuant to the factors listed in Fodness v. Standard Cafe, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989), the employee=s petition to vacate the award on stipulation was denied.

 

Petition to vacate award on stipulation denied.

 

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

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee petitions to vacate an award on stipulation based on substantial change in condition.  Finding no basis to vacate the award, we deny the petition.

 

BACKGROUND

 

The employee sustained an admitted work-related injury on January 24, 1989, while working for William Miller Scrap Iron & Metal [the employer].  He received temporary total disability benefits from January 25, 1989, through February 12, 1989, and again continuing from October 6, 1989.  On October 6, 1989, the employee underwent surgery for a herniated disc at L3-4.  Eight months later, on June 12, 1990, he signed a Rehabilitation Job Placement Plan and Agreement [JPPA], wherein he agreed to look for work full time.  Shortly thereafter, on June 15, 1990, the maximum medical improvement [MMI] report of Dr. Matthew Eich was served and filed, indicating that the employee had reached MMI as of May 14, 1990, and that the employee had sustained a 13% whole body impairment due to a herniated disc at L3-4 and an additional 5% impairment due to a herniated disc at L4-5.

 

On June 21, 1990, the employer and insurer filed a Notice of Intention to Discontinue Benefits [NOID], indicating that temporary total disability benefits would cease September 3, 1990, ninety days after service of the MMI report, and that economic recovery compensation would commence on that date.  However, on July 16, 1990, the employer and insurer filed another NOID, indicating that temporary total disability benefits would cease after July 13, 1990, because the employee had failed to cooperate with the JPPA.^[1]

 

In late August of 1990, the parties entered into a stipulation for settlement.  In that stipulation, the employee contended that he remained entitled to temporary total or temporary partial disability benefits continuing from July 14, 1990.  The stipulation provided for payment to the employee of $31,000, in a lump sum, less attorney fees, for a full, final, and complete settlement of all claims, with the exception of medical expenses.  An award on stipulation was filed on September 7, 1990, wherein the settlement judge used conclusive presumption language.  See Minn. Stat. ' 176.521, subd. 2.  Upon the request of John Thul, attorney for the employer and insurer, the settlement judge filed a second award on stipulation on October 2, 1990, stating that the stipulation was in substantial accord with the terms and provisions of the Minnesota workers= compensation laws.

 

On November 12, 1999, the employee petitioned this court to vacate the stipulation for settlement, contending that his condition has substantially changed.

 

DECISION

 

For awards issued prior to July 1, 1992, Acause@ to vacate includes a substantial change in condition.  A number of factors may be considered in determining whether an award should be vacated based on a substantial change in condition, including:

 

(1)        a change in diagnosis;

(2)        a change in the employee=s ability to work;

(3)        additional permanent partial disability;

(4)        necessity of more costly and extensive medical care/nursing services than initially anticipated; and

(5)        causal relationship between the injury covered by the settlement and the employee=s current worsened condition.

 

Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).

 

In his brief, the employee contended that there had been a significant change in  his diagnosis, in that there have been new diagnoses of Astenosis@ at L4-5, narrowing at L1-2, L2-3, and L5-S1, and abnormality at the T6 level.  However, at oral argument, counsel for the employee conceded that stenosis had been diagnosed prior to the awards on stipulation, and counsel withdrew his claim regarding a thoracic injury.  Our review of the records reflects that, while narrowing at L1-2, L2-3, and L5-S1 was not indicated in MRI reports prior to the awards on stipulation, the narrowing noted on MRI since that time has been described as Amild@ or Aminimal,@ and no doctor has opined that these findings are medically significant.   

 

At oral argument, counsel for the employee contended that the most important factor in this case is the change in the employee=s ability to work subsequent to the issuance of the awards on stipulation.  The employee contends that he was able to work at the time of the awards but is now permanently totally disabled.  We are not persuaded.

 

In a May 14, 1990, report, Dr. Eich, stated that the employee Awould like to pursue other work@ and that Ahe has an option of going into used car sales and feels quite confident about this.@ However, counsel for the employee was unable to locate any report referencing the employee=s specific restrictions at that time and suggested that, where there is no evidence of restrictions, this court is free to assume that none existed.  We note that Dr. Eich=s May 14, 1990, office note references completion of a R-33 form, and the R-3 Rehabilitation Plan Amendment dated June 12, 1990, contained in the division file, refers to Athe restrictions of the R33 completed by Dr. Eich on May 14, 1990.@  It is therefore apparent that the employee did in fact have restrictions on his activities in at least May of 1990, but we have no evidence as to what those restrictions were.

 

The employee contends that he is currently permanently totally disabled based on the medical records of Dr. Eich and the employee=s  treating doctor, Dr. Neal Taylor.  Dr. Eich did state, in a letter dated July 15, 1997, that Athis individual is unable to return to any meaningful work activities.@  However, nowhere in his report did Dr. Eich relate the employee=s inability to work to the 1989 work injury.  Dr. Taylor completed several Physician=s Status Reports, wherein he indicated that the employee was permanently totally disabled; however, on each of those forms, Dr. Taylor listed the injury date as A9/28/90" and the injury as AR MCL SRAIN/LBS.@^[2]  The employee therefore did not establish a change in his ability to work that is causally related to the 1989 work injury.

 

The employee=s claim of increased permanent partial disability is based on the October 3, 1996, office notes of Dr. Eich, which state that a Aspecific rating will be reviewed [but] I believe it would be an additional 5% for the lumbar surgery and an additional 5% for thoracic injury.@^[3]  At oral argument, however, counsel for the employee withdrew his claims relating to the thoracic spine, admitting that he did not know what Dr. Eich had relied on in making that rating.  Dr. Eich did not specify which rule he was relying on in assigning the additional 5% rating related to the employee=s lumbar spine condition, and he did not definitively state that the increased permanency is causally related to the employee=s 1989 work injury.^[4]

 

At oral argument, counsel for the employee conceded that fusion surgery had been discussed with the employee, prior to the time of the award on stipulation, and the employee, therefore, waived any argument that there had been more costly and extensive medical care than initially anticipated.

 

Finally, the employee contends that there has never been any dispute that his low back condition is substantially related to the 1989 work injury.  However, in their brief, the employer and insurer contend that Athere may certainly be issues regarding >causation= for any increased lumbar permanency subsequent to the 8/30/90 settlement.@  While Dr. Eich stated in his July 15, 1997, report that the employee Ahas had a progressive worsening since 1990,@ he did not relate that worsening specifically to the 1989 work injury, and Dr. Taylor specifically pointed to a 1990  injury as the cause of the employee=s disability.

 

Because the employee has not established that his condition has substantially changed since the issuance of the awards on stipulation, we deny his petition to vacate.