EDWARD VIRNIG, Employee/Petitioner, v. CARLEY FOUNDRY, INC., and EMPLOYERS INS. OF WAUSAU, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 14, 2000

 

HEADNOTES

 

VACATION OF AWARD; EVIDENCE - RES JUDICATA.  A prior denial of a petition to vacate is not res judicata on subsequent petitions to vacate Ain light of the clear intent of the statute that the dates of comparison in any petition to vacate case are the date of the award on stipulation and the date of the petition to vacate.@  Clonkey v. Clusiau Sales and Rental, slip op. (W.C.C.A. Dec. 9, 1991).

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where the employee had furnished expert medical opinion to the effect that his currently worsened condition was causally related to his work injury, where that same opinion referenced evidence of a substantial change in the employee=s condition since his Award on Stipulation, where that same opinion was originally issued by the employer and insurer=s own independent medical evaluator, where that opinion was not controverted by the opinion of another medical expert, and where the court=s denial of the employee=s previous petition to vacate the award at issue did not constitute res judicata in the matter, good cause existed to vacate the employee=s Award on Stipulation on grounds that the employee had undergone a substantial change in his condition since that award was issued.

 

Petition to vacate award on stipulation granted.

 

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

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee petitions this court to vacate an Award on Stipulation served and filed in this matter on August 11, 1982.  Concluding that the employee has shown good cause to vacate the Award at issue, we grant the employee=s Petition.

 

BACKGROUND

 

On about May 4, 1978, Edward Virnig sustained an injury to his back in the course of his work as a laborer with Carley Foundry, Inc. [the employer].^[1]  Four years later, on June 30, 1982, Mr. Virnig [the employee], his attorney, and the employer=s insurer=s claims supervisor executed a stipulation for full, final, and complete settlement of all claims arising out of that injury.  It was the employee=s position at the time of the stipulation that his work injury had resulted in a 25% permanent partial disability to his back and that he had been temporarily totally disabled by that injury since its date, and the stipulation provided that this position was Asupported in whole or in part by the medical reports of Dr. Paul G. Patterson attached hereto and made a part hereof by reference.@  It was the employer and insurer=s position at the time of the stipulation that the employee had not been temporarily totally disabled since October 26, 1981, and had failed to make a reasonable and diligent effort to secure employment after that date, and the stipulation provided that this position was supported by an April 20, 1981, medical report of Dr. Paul Yellin.  Pursuant to the stipulation, the parties agreed that the employer and insurer would pay the employee over $111,000.00 in benefits and attorney=s fees, together with all medical expenses reasonably related to his May 1978 work injury, in exchange for the employee=s full, final, and complete release of his claims.  On August 11, 1982, Compensation Judge J. E. Murray issued an Award on Stipulation relating to that agreement, indicating that the stipulation was conclusively presumed to be fair and reasonable pursuant to provisions of Minn. Stat. ' 176.521, subd. 2, which provides that a compensation judge shall immediately sign an Award on Stipulation pertaining to a settlement at which all parties have been represented by legal counsel.

 

Subsequent to his Award on Stipulation, the employee eventually returned to employment at cleaning and custodial work.  On June 20, 1998, about sixteen years after the Award, he sought renewed care for his low back problems with Dr. Richard Helvig.  Dr. Helvig noted that the employee=s history of surgically treated back problems had previously Abeen stable and he has gotten relief from Ibuprofen when it flares up@ but that A[n]ow he=s had a problem with his back since June 15th@ and Adoes not recall any specific injury.@  By June 24, 1998, the employee=s pain had become Afairly marked,@ and on June 29, 1998, he underwent a lumbar MRI scan.  That scan was read to reveal A[l]oss of disc signal and disc height@ at all lumbar levels, A[a]nterior traction osteophytes@ at L1-2 and L2-3, a moderately narrowed spinal canal at L1-2 and L2-3, and mild posterior disc protrusions at T12-L1 through L2-3.  On July 7, 1998, the employee=s primary treating physician, Dr. Dennis Scherer, noted that the employee=s lower back pain was Apersisting like a toothache,@ and he concluded that Athe chances of [the employee] maintaining his work longterm [are] very poor,@ recommending that the employee apply for social security disability benefits.

 

About the first of August 1998, the employee apparently went off work for awhile, but by September 10, 1998, his low back pain was radiating into his right knee and keeping him from sleeping more than two or three hours a night.  By September 15, 1998, his radicular symptoms had subsided some, but on September 22, 1998, Dr. Scherer reported that the employee=s return to work had failed after about six minutes, due to a marked increase in pain and muscle spasm.  On October 7, 1998, the employee saw Dr. Thomas Edwards with continuing back problems and muscle spasm, which the doctor reported to be Aacute and chronic,@ noting that the employee was walking Ain a stooped forward fashion.@  On October 19, 1998, Dr. Scherer concluded as follows:

 

At this point, I believe that [the employee] is totally disabled and is not capable of competitive work.  I suspect this to be a chronic, slowly progressive problem with recurrent exacerbations.  Even as much as 10 lbs is a problem and repetitive lifting along with any bending, twisting or reaching are not possible on a sustained basis.  I will leave him out of work for 1-2 weeks at a time. We discussed options of neurosurgical evaluations, [but he] would be a very poor surgical candidate and repetitive lifting, etc, would risk more extensive and severe problems.@

 

In November and December 1998, the employee filed and amended a Claim Petition, alleging entitlement to $1548.79 in medical benefits and physical therapy.  In their Answer filed January 12, 1999, the employer and insurer denied liability, alleging that Aany need for medical care which has not been paid for arose from causes wholly unrelated to the Employee=s injury of May 4, 1978.@  The employer and insurer scheduled the employee for another independent medical examination [IME] with Dr. Yellin, which the employee underwent on April 15, 1999.  On May 4, 1999, the employee filed a Petition to Vacate his 1982 Award on Stipulation, on grounds (1) that, since the date of that award, he had experienced a substantial change in condition related to his May 1978 work injury and (2) that Athe original Award on Stipulation is defective on its face@ for its application of the statutory presumption of fairness and reasonableness pursuant to Minn. Stat. ' 176.521, subd. 2, in that the employer and insurer were unrepresented by counsel at the time of the stipulation.  The employee=s petition was eventually heard by this court without oral argument, and on October 8, 1999, we issued our decision denying the petition.  Neither Dr. Patterson=s records nor Dr. Yellin=s report on his April 15, 1999, IME was included in evidence submitted to this court at the time of the petition or prior to our issuance of our decision.

 

Subsequent to issuance of our October 8, 1999, decision, the employee was provided with a copy of Dr. Yellin=s April 1999 IME report.  In that report, Dr. Yellin, who had also conducted two previous IMEs of the employee, in 1980 and 1981, traced the history of the employee=s low back treatment, from his injury in 1978 up to April 1999.  Dr. Yellin indicated that in April 1981, just over a year prior to the employee=s 1982 Stipulation for Settlement, the employee=s status had been as follows:

 

At that time [the employee] was status post diskectomy and interbody fusion of L3-4, along with having undergone bilateral/lateral transverse interbody fusions at L3 through the sacrum.  He had degenerative disc changes at the time.  There was narrowing of the L5, S1 disc interspace on the x-rays which I reviewed and also narrowing of the interspaces at L3-4 and L2-3.  Osteophyte formation was also noted.  No motion was noted at the fusion sites.

 

Dr. Yellin also reviewed both the actual hard copy and the radiologist=s report of the employee=s June 29, 1998, MRI scan and summarized the findings.  He also noted that the employee Astates that he continues to have pain in his back,@Ahas difficulty straightening up at this time,@ and Ahas difficulty working because of the severe and continuing back pain that he experiences.@  Dr. Yellin concluded in his report Athat the injury of May 4, 1978, is the substantial contributing factor to [the employee=s] low back condition and his need for medical treatment.@

 

By a new petition filed March 1, 2000, the employee again seeks vacation of the same 1982 Award on Stipulation, again on grounds that he has experienced a substantial change in condition.^[2]

 

DECISION

 

This court's authority to vacate a compensation judge=s award is found in Minn. Stat. '' 176.461 and, with regard to settlements, 176.521, subd. 3.  An award may be set aside if the petitioning party makes a showing of good cause to do so.  Good cause exists to set aside an award on stipulation issued prior to 1992 if there has been a substantial change in the employee's condition since the date of the award.  Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989).^[3]  In Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), this court identified a number of factors that it considers in deciding whether to vacate an award based on a substantial change in medical condition.  These factors include the following:  (1) changes in the employee's diagnosis; (2) changes in the employee's ability to work; (3) the development of any additional permanent partial disability; (4) the necessity of more costly and extensive medical or nursing care than was anticipated; (5) the causal relationship between the work injury and the worsening of the condition; and (6) the contemplation of the parties at the time of the award.

 

Our October 8, 1999, denial of the employee=s previous petition to vacate was based in large part on the fact that we did

 

not find in the very thin file as we have received it sufficient evidence of a causal relationship between th[e] deterioration [in the employee=s back over the seventeen years since his award on stipulation] and the employee=s 1978 work injury to conclude at this time that good cause exists to vacate the 1982 Award on Stipulation here at issue.

 

We also indicated at that time that,

 

[a]lthough the Stipulation for Settlement indicates at Paragraph II that the employee=s >claims are supported in whole or in part by the medical reports of Dr. Paul G. Patterson attached hereto and made a part hereof by reference,= no medical reports are attached to the copy of the Stipulation that is included in the employee=s Petition to Vacate.  Without Dr. Patterson=s records at the time of the Award on Stipulation we are unable to compare the employee=s diagnosis at the time of his Award with his diagnosis at the time of his Petition.

 

But Amost importantly,@ we indicated, the

 

records of Dr. Scherer [submitted by the employee with his petition] contain no clear or definitive statement causally relating the currently evident worsening of the employee=s low back condition to his 1978 work injury.  Absent records of the employee=s treating physician, Dr. Patterson, contemporary with the Award at issue, and absent a more definitive current medical opinion attesting to the causal relationship between the employee=s currently worsened low back condition and his 1978 work injury, we simply have no sufficient evidence at this time upon which to conclude that the employee has sustained, since the time of his Award on Stipulation, a substantial change in his medical condition that is causally related to his 1978 work injury.

 

In his current petition, the employee contends that Dr. Yellin=s April 15, 1999, IME report, submitted now as evidence in support of the employee=s position, satisfies the deficiencies of his previous petition as identified by this court.  In their brief, the employer and insurer contend that this court=s denial of the employee=s May 4, 1999, petition is res judicata in this matter, in that A[a] second petition can be considered only if critical underlying facts and circumstances change between one proceeding and the next,@^[4] and A[Dr. Yellin=s] report does not establish any change in underlying facts and circumstances since the conclusion of the last proceeding@ but Amerely recites the medical history already considered by this Court.@  At oral argument they contended further that Dr. Yellin=s opinion lacked sufficient foundation to be credited and that the employee had not, after all, proven that his condition had substantially deteriorated since his Award on Stipulation.  We disagree and grant the employee=s petition to vacate his August 11, 1982, Award on Stipulation.

 

As we have indicated in the past, a prior denial of a petition to vacate is not res judicata on subsequent petitions to vacate Ain light of the clear intent of the statute that the dates of comparison in any petition to vacate case are the date of the award on stipulation and the date of the petition to vacate.@  Clonkey v. Clusiau Sales and Rental, slip op. (W.C.C.A. Dec. 9, 1991).  That there may be no change in the Aunderlying facts and circumstances@ in this case is not dispositive, particularly in that new evidence in the form of concrete medical opinion as to causation has now been added to the evidence of record.  Moreover, that medical opinion identifies and implicitly embraces evidence of a demonstrated change in the employee=s condition since the date of his Award on Stipulation.

 

In his April 15, 1999, IME report, Dr. Yellin reviews the findings on x-rays taken at the time of his previous, April 1981, IME of the employee and the hard copy and radiologist=s report of the employee=s June 29, 1998, MRI scan.  Both the 1981 x-rays and the 1998 MRI scan revealed evidence of discectomy and fusion from L3 through S1 and of osteophyte formation.  However, whereas the 1981 x-rays revealed narrowing of the disc interspaces only at L2-3, L3-4, and L5-S1, the 1998 MRI revealed loss of disc height at all lumbar levels.  Moreover, the 1998 MRI also revealed narrowing of the spinal canal itself at L1-2 and L2-3, together with posterior disc protrusions from T12 through L3Bfindings not indicated on the 1981 x-rays.  In addition to this radiological evidence, Dr. Yellin also noted the employee=s current difficulty straightening up, his inability to lie on his back, and his complaint of difficulty working due to severe and continuing back pain, although he had evidently been able to perform cleaning work over the course of much of the seventeen-year interim since his Award on Stipulation.  It also appears that Dr. Yellin credited the employee=s report that he had sustained no further injury and had done nothing but relatively light work since 1981.  All of this radiological, expert medical, and testimonial evidence of the employee=s present condition was evidently considered in light of substantial medical records, Aincluding the multiple emergency room reports [since 1982] and the report of Dr. Scherer of October 20, 1998, along with reports of Dr. Patterson in the 1980s@ (emphasis added).

 

In the end, it was Dr. Yellin=s conclusion that Athe initial injury of May 4, 1978, is the initiating factor in [the employee=s] current low back condition@ and Athe substantial contributing factor to [the employee=s] low back condition and his need for medical treatment@ (emphases added).   It is apparent from Dr. Yellin=s report that his opinion was based on his review of the employee=s radiological records, of substantial elements of the employee=s medical records, including the reports of Dr. Patterson that were unavailable to this court on the employee=s previous petition, of the employee=s own complaints and histories, and of the doctor=s own physical examination findings.  These materials constituted sufficient foundation for the doctor=s opinion.  See Bossey v. Parker Hannifin, slip op. (W.C.C.A. Mar. 14, 1994) (while adequate foundation is necessary for an expert medical opinion to be afforded evidentiary value, the expert need not have been made aware of every relevant fact).

 

The employee has now furnished, in the form of an expert medical opinion, evidence of a causal relationship between his current condition and his work injury of May 4, 1978, and that same opinion references evidence of a substantial change in the employee=s condition since his Award on Stipulation.  This evidence comes in the form of an opinion of the employer and insurer=s own independent medical evaluator, and that opinion has not been controverted by the opinion of another medical expert.  While we would have preferred, in addition to this evidence, also an affidavit from the employee or other evidence relative to the employee=s current ability to work, we conclude that the employee has now shown sufficiently good cause to vacate his August 11, 1982, Award on Stipulation on grounds that he has undergone a substantial change in condition.  Accordingly, we vacate that award.  We caution, however, as we have in previous decisions granting petitions for vacation, that no inference as to the merits of the employee=s claim should be drawn from this decision.  Should the matter proceed to hearing, the employee remains subject to the usual burden of proving all elements of his claim, including causation if it is still in dispute, and it is the responsibility of the trier of fact to weigh all the evidence submitted without any deference to conclusions drawn in the present decision.  Cf. Shelton v. Viewcrest Nursing Home, slip op. (W.C.C.A. May 4, 1995).