ANN LAWRENCE, Employee/Petitioner, v. WHISPERING PINES NURSING HOME and LIBERTY MUTUAL INS. CO., Employer-Insurer.

 

WORKERS' COMPENSATION COURT OF APPEALS

APRIL 9, 2002

                                                                             

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  The employee has established a case of a significant change in diagnosis, an increase in permanency, a change in ability to work and a causal relationship to the work injury, and her petition to vacate the Award on Stipulation of October 11, 1991 is granted.

 

Petition vacate award on stipulation granted.

 

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

 

OPINION

 

THOMAS, L. JOHNSON, Judge

 

The employee has petitioned this court to vacate and set aside an Award on Stipulation, served and filed October 11, 1991, on the basis of a substantial change in medical condition since the time of the award.  We conclude the employee has established cause for vacation of the award and grant the employee=s petition.

 

BACKGROUND

 

This case was returned to this court following a referral to a compensation judge at the Office of Administrative Hearings for a hearing and factual findings regarding the employee=s work history and whether a causal relationship exists between the employee=s current medical condition and her work-related injury.  Briefly, Ann Lawrence, the employee, sustained a personal injury to her low back on July 15, 1987, while working as a nurses= aide for Whispering Pines Nursing Home, the employer.  She initially re­ceived treatment at the Pine and Lakes Clinic.  A CT scan on July 28, 1987, showed some asym­metric bulging of the L5-S1 disc impinging on the S1 nerve root on the left.  The L3-4 and L4-5 discs were unremarkable.  The employee was referred to Dr. Schmitz and Dr. Bardolph, ortho­pedic physicians, who treated the employee for low back pain from August 1987 through 1993.

 

On March 3, 1989, the employee was examined by Dr. Robert Wengler who diagnosed  a minimal herniated disc at L5-S1 on the left with impingement of the first sacral nerve root.  Dr. Wengler did not recommend surgery, but imposed a ten pound lifting restriction with limited bend­ing, stooping, pushing and pulling.  Dr. Wengler also provided a permanency rating of 14 per­cent for the L5-S1 disc.

 

In December 1987, the employee filed a claim petition seeking payment of wage loss benefits, medical ex­penses and permanent partial disability benefits.  The employer and insurer con­tended the em­ploy­ee=s July 15, 1987 injury was temporary, and denied liability for further benefits.  In a Findings and Order, served and filed August 9, 1989, the employer and insurer were ordered to pay temporary partial disability benefits, medical expenses, re­habili­tation benefits and benefits for a 14 percent permanent partial disability.

 

On January 24, 1991, the employee filed another claim petition seeking penalties for an alleged failure to pay temporary partial disability benefits, costs and attorney fees in a timely manner.  The employer and insurer denied the employee was entitled to penalties.  In September 1991, the parties entered into a full, final and complete settlement.  In the Stipulation for Settlement, the employee agreed to accept a net lump sum payment of $7,800.00, con­sisting of $9,000.00 in compensation for benefits plus $1,000.00 for penalties, less $2,200.00 in attorney=s fees, in return for a complete closeout of all workers= compensation claims relating to the July 15, 1987 injury, except medical expenses.  An Award on Stipulation was filed on October 11, 1991.

 

The employee moved to Montana in late 1996.  On January 2, 1997, she was seen by Dr. David Kane at the Billings Clinic in Billings, Montana, complaining of low back pain.  The em­ployee was diag­nosed with arthritis and was prescribed Relafen, an anti-inflammatory medication.  On June 18, 1997, the employee was seen by Dr. Robert Schultz, an orthopedic surgeon, at the Billings Clinic.  The employee complained of low back and leg pain for 20 years.  Dr. Schultz diag­nosed fibromyalgia and referred the employee to a neurologist, Dr. Joav Kofman.  An EMG showed a left L4-5 radiculopathy with evidence of active denervation.  An MRI scan on August 8, 1997, showed disc space narrowing and a bulging disc at L3-4 with non-stenotic narrowing of the spinal canal and moderate compromise of the lateral recesses bilaterally.  The scan also showed sub­lux­ation at L4 and L5 with severe spondylitic stenosis of the spinal canal and spondylotic changes with a midline disc bulge at L5-S1.  Dr. Kofman diagnosed lumbosacral radiculopathy second­ary to spinal stenosis due to spondylitic changes and subluxation.  Dr. Schultz then recommended surgery.

 

On October 9, 1997, the employee underwent surgery, performed by Dr. Schultz, in the nature of a decompressive laminectomy at L3 through S1 with arthrodesis at L4-S1 with internal fixation and an iliac crest bone graft.  The employee followed up with Dr. Schultz after the surgery and received physical therapy.  By report dated April 15, 1998, the doctor noted the employee=s arthrodesis appeared to have healed solidly and instructed the employee to begin a walking pro­gram.  On September 15, 1999, however, Dr. Schultz noted the employee was experiencing a re­currence of her lumbar spinal stenosis symptoms.

 

On July 21, 2000, the employee was reexamined by Dr. Wengler.  The doctor diagnosed chronic degenerative disc disease and failed low back surgery.  Dr. Wengler rated a 28 percent per­manent partial disability for the three-level stenosis decompression and 22.5 percent for the two-level spinal fusion.

 

The employee filed a Petition to Vacate Award on Stipulation with this court on October 30, 2000, contending there had been a substantial change in her condition since the 1991 award, justifying vacation of the award.  In a decision issued on May 17, 2001, this court concluded the employee had established a significant change in her diagnosis, and an increase in her permanent partial disability since the 1991 Award on Stipulation.  The court observed, however, the em­ployee=s vocational history from and after the 1991 settlement through the date of the petition was less than clear, and the evidence as to a causal relationship between the employee=s work injury and her sub­sequent deterioration and surgery was disputed.  The case, therefore, was referred to a com­pensation judge at the Office of Administrative Hearings for factual findings on these two issues.

 

At a hearing before a compensation judge on September 7, 2001, the parties presented a joint exhibit, stipulating to the employee=s work history from 1982 though the date of hearing.  This exhibit was adopted by the judge and incorporated by reference into the Findings and Order, served and filed October 5, 2001.  The compensation judge further found the employee=s July 15, 1987 personal injury was a substantial contributing cause of the change in the employee=s medical condition and need for surgery subsequent to the October 11, 1991 Award on Stipulation.  Neither party appealed the compensation judge=s findings.

 

DECISION

 

This court may set aside an award for Agood cause,@ pursuant to Minn. Stat. ' 176.461 and Minn. Stat. ' 176.521, subd. 3 (1991).^[1]  Good cause includes a substantial change in the em­ployee=s medical condition.  Krebsbach v. Lake Lillian Coop. Creamery Assn., 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 significant change and whether there is adequate evi­dence of a causal relationship.  Setting aside an award is justified where there has been a sub­stantial worsening in the employee=s condition or significant additional disability since the time of the settlement.  Davis v. Scott Moeller Co., 524 N.W.2d 464, 466-67, 51 W.C.D. 472, 475 (Minn. 1994); Franke v. Fabcon, Inc., 509 N.W.2d 373, 376-77, 49 W.C.D. 520, 525 (Minn. 1993).  Factors this court may consider in making this determination include a change in diagnosis, a change in ability to work, additional permanent partial disability, the necessity of more costly and extensive medical care than anticipated, and whether there is a causal relationship between the employee=s changed condition and the work injury covered by the settlement.  Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).

 

With respect to a change in diagnosis, this court previously held that the employee had established a significant change in her diagnosis since the date of the Award on Stipulation.  This court also held the employee had shown evidence of more extensive medical care than anticipated at the time of the settlement and an increase in her permanent partial disability since the settlement.  The work history submitted by the parties at the September 7, 2001 hearing, showed the employee continued to work, part-time, following her work injury, through August 1991.  She was unem­ployed for a brief period ­at the time of settlement, but then returned to work and continued to work on a part-time or seasonal basis from April 1992 through October 1997, when she had the surgery.  The employee was unemployed for nearly two and a half years after the surgery to her low back, evi­dencing a change in her ability to work.  Finally, the compen­sation judge, in unappealed findings, found a causal relationship between the employee=s current worsened condition and her July 15, 1987 personal injury.

 

We conclude the employee has established Agood cause,@ within the meaning of Minn. Stat. ' 176.461 and Minn. Stat. ' 176.521, subd. 3 (1991), and, accordingly, grant the employee=s petition to vacate the October 11, 1991 Award on Stipulation.