DAVID P. LEMKE, Employee/Petitioner, v. NAHAN PRINTING, INC., and MINNESOTA ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 10, 2002

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  The employee established good cause to vacate the award on stipulation, based upon a substantial change in condition, pursuant to Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).

 

Petition to vacate granted.

 

Determined by Rykken, J., Wilson, J., and Johnson, C.J.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee petitions this court to set aside an award on stipulation served and filed on July 27, 1992, on grounds that his medical condition has substantially changed since the award was issued.  Finding a sufficient cause to vacate the award, we grant the employee=s petition.

 

BACKGROUND

 

On January 30, 1986, David Lemke, the employee, sustained an admitted work-related low back injury while working for Nahan Printing, Inc., the employer, which was insured for workers= compensation liability by the Minnesota Assigned Risk Plan.  On that date the employee was 23 years old and earned a weekly wage of $226.00.  The employee underwent conservative treatment, eventually was diagnosed with an L5-S1 herniation and underwent a right L5-S1 discectomy on May 1, 1986.  The employee continued to have symptoms, and in March 1987, he was referred to Dr. Alexander Lifson at the Institute for Low Back Care.  A CT scan indicated narrowing of the L5-S1 disc space, residual swelling of the S1 nerve root and narrowing of the L5 nerve root foramen.  On July 20, 1987, the employee underwent decompression and laminectomy surgery.  In December 1987, the employee underwent a functional capacities evaluation, and was released to work with restrictions of no more than two hours of sitting, standing, or walking, and restricted to lifting no more than 20 pounds on an occasional basis.

 

In March 1988, the employee experienced a flare-up of his symptoms.  An MRI indicated post-operative changes with a residual bulging disc at L5-S1 on the right and mild compression of the nerve root.  In May 1988, the employee underwent an epidural injection at the L4-5 level.  In July 1988, the employee noted low back pain and bilateral leg pain.  Dr.  Lifson determined that the employee was developing discogenic low back symptoms, and discussed the possibility of fusion surgery with him.  After a functional capacities evaluation in August 1988, the employee was released to work with restrictions of sitting fours hours per day, standing and walking two hours per day, occasional bending, squatting, crawling, climbing, reaching, crouching, kneeling and pushing/pulling, and no lifting or carrying over 30 pounds.  In August 1988, Dr. Lifson concluded that the employee had reached maximum medical improvement [MMI] and assigned a rating of 18% permanent partial disability of the whole body.  The employee began working part time within his restrictions.  In January 1989, Dr. Lifson advised that fusion surgery could be considered to address the instability of the employee=s spine at the L5-S1 level, but that additional tests would be needed before considering that procedure, including an MRI scan, facet joint injections, and discograms.  Absent additional medical treatment, Dr. Lifson did not expect the employee=s condition to change.  The employee returned to Dr. Lifson in April 1991, reporting right buttock and right leg pain.  The employee underwent two months of physical therapy, at Dr. Lifson=s referral.

 

In August 1991, the employee was evaluated by Dr. Robert Wengler, who rated the employee as having a 27% permanent partial disability of the whole body, assigning a 13% rating for surgery for a herniated disc with a poor result and a 14% rating based on residual symptoms of spinal stenosis.  He recommended no further treatment, and recommended that the employee could work full time with a ten pound lifting restriction and the ability to change positions as needed.  Dr. Wengler determined that the employee was not a candidate for fusion surgery, and recommended retraining Aso that he could return to full-time employment without have [sic] to use his back in any strenuous capacity.@

 

The employer and insurer paid medical expenses, rehabilitation benefits, temporary total and temporary partial disability benefits, and permanent partial disability benefits based upon an 18% rating paid as impairment compensation.  By claim petition filed on October 1, 1991, the employee claimed continuing temporary partial disability benefits, retraining, and additional permanent partial disability benefits payable as economic recovery compensation based on a permanency rating of 27% permanent partial disability of the whole body.  The parties reached settlement, and executed a stipulation for settlement on June 29, 1992, following which an award on stipulation was served and filed on July 27, 1992.  The stipulation settled the employee=s claims on a full, final, and complete basis in exchange for a lump sum payment of $66,500.00.  The employer and insurer paid ongoing temporary partial benefits up to the time they issued payments pursuant to the award.  The employee=s claims for future medical expenses remained open.  

 

At the time of the settlement, the employee was working part time, 20 hours per week, as a salesclerk at a hardware store.  The employee testified that his symptoms persisted while he worked there.  The employee continued to work part time and did not seek any additional treatment until 1994 when he experienced increased symptoms.  An April 15, 1994, MRI indicated a large recurrent disc herniation with impingement of the right S1 nerve root.  On April 25, 1994, the employee underwent a decompression and discectomy at L5-S1 for a recurrent herniation with substantial nerve root impingement.  The employee experienced relief of his pain and was able to return to work part-time as a sales clerk for another hardware store for about a year, but he experienced pain and numbness which increased until he quit working in early 1996.  The employee attempted an office cleaning job one night a week for a few hours, but his symptoms increased and he quit after about six months.

 

In December 1996, the employee=s son was born and he stayed home to care for him.  In 1997 or 1998, the employee began to develop bladder and bowel incontinence problems.  The employee=s symptoms gradually worsened, and he treated with a chiropractor.  By mid-1999, the employee started sending his son to daycare because he could not physically care for him. In November 1999, the employee began treating with Dr. Lifson=s colleague, Dr. Sunny Kim, for severe pain.  An MRI indicated a residual or recurrent disc at L5-S1 with S1 symptomatology.  Dr. Kim performed a microdiscectomy at L5-S1 on November 21, 1999.  The surgery decreased the employee=s leg pain, but did not eliminate it.  On April 28, 2000, the employee underwent a facet nerve block, with limited success.

 

On August 8, 2000, Dr. Kim opined that the employee was entitled to an additional five percent permanency rating due to his fourth herniation at the L5-S1 level, that the employee=s condition was substantially worse than it had been in 1992, and that he was permanently and totally disabled.  Dr. Wengler evaluated the employee on January 3, 2001, and opined that the employee was entitled to an additional ten percent permanency rating relative to his lumbar spine due to the two later surgeries, an additional ten percent rating for impaired bladder function, and an additional ten percent rating for impaired bowel control.  Dr. Wengler agreed that the employee was permanently and totally disabled and that he was a potential candidate for fusion surgery.  Dr. Wengler also diagnosed cauda equina syndrome.

 

The employee was evaluated by Dr. Mark Urban at the employer and insurer=s request on October 18, 2001.  Dr. Urban opined that there was no substantial change in the employee=s diagnosis since 1992, but that his pain had become more discogenic in nature over time.  Dr. Urban agreed that, as a result of the employee=s two additional surgeries, he had sustained an additional ten percent permanent partial disability of the whole body that was unanticipated in 1992.  Dr. Urban disagreed with Dr. Wengler=s diagnosis of cauda equina syndrome, concluding that the employee=s radiographic studies did not support that diagnosis.  Dr. Urban also concluded that the employee was capable of working 20 hours per week in a light duty capacity, within a 20- to 30-pound lifting restriction, and concluded that those restrictions were not substantially different than those in effect at the time of the 1992 settlement.

 

On August 23, 2001, the employee filed a motion to set aside the 1992 award on stipulation based upon a change in condition.  The employer and insurer object.

 

DECISION

 

This court=s authority to consider petitions to vacate awards on stipulation is governed by Minn. Stat. '' 176.461 and 176.521, subd. 3.  For this court to vacate an award on stipulation, the petitioner must show good cause.  For stipulations entered into before July 1, 1992, good cause to vacate an award was limited to (1) a mutual mistake of fact; (2) newly discovered evidence; (3) fraud; or (4) a substantial change in medical condition since the time of the award.  Stewart v. Rahr Malting Co., 435 N.W.2d 538, 41 W.C.D. 648 (Minn. 1989).  The 1992 amendments to Minn. Stat. ' 176.461, which were effective July 1, 1992, added the requirement that the substantial change in medical condition Awas clearly not anticipated and could not reasonably have been anticipated at the time of the award.@

 

In this case, the parties executed a stipulation for settlement on June 29, 1992, and the award on stipulation was served and filed on July 27, 1992.  Since a settlement agreement is not effective or binding until an award on stipulation is signed and issued by either a compensation judge, or by this court, the parties= settlement agreement in this case was not effective or binding until July 27, 1992, and the law effective on that date is controlling for purposes of determining what constitutes good cause.  Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).  See, Alvord v. Hoffman Eng=g Co., 55 W.C.D. 47 (W.C.C.A. 1996), summarily aff=d. (Minn. July 18, 1996); Saathoff v. Alex Rubbish Serv., 35 W.C.D. 670 (W.C.C.A. 1982), summarily aff=d. (Minn. Mar. 1, 1983).  Therefore, the employee must show that he has experienced a Asubstantial 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.  After reviewing the evidence presented, we have determined that the employee has presented a sufficient showing to warrant a vacation of the award on stipulation.

 

Where a change in condition is alleged, the focus of this court=s inquiry is on whether there has been a substantial or significant worsening of the employee=s condition, and whether there is adequate evidence of a causal relationship.  This inquiry looks back on events, comparing the employee=s condition at the time of settlement with the employee=s condition at the time of the petition to vacate.  Davis v. Scott Moeller Co., 524 N.W.2d 464, 466-67, 51 W.C.D. 472, 475 (Minn. 1994); Franke, 509 N.W.2d at 376-77, 49 W.C.D. at 525.  A number of factors may be considered in determining whether a substantial change in condition has occurred, including a change in diagnosis, a change in the employee=s ability to work, additional permanent partial disability, the necessity of more costly and extensive medical care than anticipated, a causal relationship between the work injury and the worsened condition, and the contemplation of the parties at the time of the settlement.  Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).

 

Considering these factors in turn, we first address whether the employee has experienced a change in diagnosis since entering into the stipulation for settlement.  At the time of the settlement, Dr. Lifson diagnosed the employee=s condition as discogenic segmental instability at L5-S1, right-sided disc herniation at L5-S1 and significant mechanical low back pain due to discogenic segmental instability.  Prior to the settlement, the employee underwent two lumbar spine surgeries at the L5-S1 level.   Since the settlement in 1992, the employee has been diagnosed with two recurrent herniations and has undergone two resulting surgeries.  In January 2001, Dr. Wengler diagnosed lumbar disc syndrome at L5-S1 with probable significant segmental instability, and developing cauda equina syndrome.  In October 2001, Dr. Urban diagnosed right-sided L5-S1 disc herniation associated with disc degeneration and spinal stenosis at that level.  The employee testified as to his additional symptoms not present at the time of the settlement, including weakened calf and ankle muscles, absent reflexes in the lower extremities, severe left-sided symptoms, and periodic loss of bowel and bladder control which developed after his third and fourth surgeries.  Based on these significant developments, we conclude that the employee=s diagnosis has changed since the 1992 settlement.

 

Another factor to consider is the necessity of more costly and extensive medical care than anticipated.  The fact that an employee has undergone additional surgery is generally not sufficient to justify vacation of an award.  Burke v. F & M Asphalt, 54 W.C.D. 363, 386-87 (W.C.C.A. 1996).  In addition, where medical expenses are not closed out by the award on stipulation, the factor of increased necessity of medical care carries less weight in determining whether a substantial change in condition has occurred since the settlement.  Id. at 368.  In this case, however, the employee underwent two additional surgeries which, as noted by Dr. Urban, were not anticipated in 1992.

 

With respect to the factor of  a change in the employee=s ability to work, the evidence shows a decrease in the employee=s ability to work since the settlement.  At the time of the settlement, the employee was able to work as a salesclerk at a hardware store twenty hours per week.  The employee apparently has not been able to work since 1996.  Dr. Kim and Dr. Wengler opined that the employee was permanently and totally disabled.  Dr. Urban concluded that the employee could still work within his restrictions.  Although a dispute exists between physicians concerning the employee=s ability to work, it does appear that there has been a change in the employee=s functional ability and his ability to work.

 

An additional factor to consider is the change in the employee=s permanency ratings since the settlement.  Prior to the award, the employer and insurer paid permanency benefits based on an eighteen percent rating.   Dr. Kim, Dr. Wengler, and Dr. Urban all agree that the employee is entitled to an additional rating of ten percent permanent partial disability of the whole body as a result of his surgeries in 1994 and 1999.

 

The employer and insurer argue that Dr. Lifson had raised the possibility of fusion surgery as early as 1988, which would have resulted in additional permanent partial disability at that time, and that as a result, the additional permanency was anticipated.  The employee, however, did not undergo fusion surgery at that time, but since has undergone surgeries for recurrent herniations, qualifying him for an increased permanency rating.

 

Dr. Wengler also assigned additional permenancy ratings based upon the employee=s cauda eqina syndrome.  The employer and insurer dispute this diagnosis and related permanency rating.  However, they do not dispute that the employee=s current lumbar spine condition is causally related to his 1986 work injury, which is another factor to consider.

 

The employer and insurer also argue that, at the time of settlement, the parties contemplated that the employee=s condition could worsen, and therefore the employee has not shown that his change of condition Awas clearly not anticipated and could not reasonably have been anticipated at the time of the award.@  We disagree.  Dr. Lifson, in his report of January 3, 1989, stated his opinion that, if the employee decided to forego fusion surgery, he did Anot expect any significant change in [the employee=s] physical condition.@  In August 1991, Dr. Wengler concluded that the employee was not a candidate for fusion surgery.  Dr. Urban, in his report dated October 18, 2001, stated that the employee Ahas sustained additional permanent partial disability that was unanticipated in 1992.@  (Emphasis added).  The employee was working half-time when the parties entered into the settlement agreement in 1992, and did not seek additional medical treatment until a flare-up of symptoms occurred in early 1994.

 

In view of all the Fodness factors, the facts of this case compel setting aside the award on stipulation.  It is clear from the record that the employee=s diagnosis has changed since the 1992 settlement, and there is no dispute that he has sustained an increase in permanent partial disability.  Based on the employee=s recent work history and his testimony offered at deposition, the employee=s ability to work has changed.  The employee has undergone additional medical treatment, including two additional surgeries, not contemplated at the time of the settlement, and apparently there is no dispute as to the causal relationship between the employee=s work injury and that additional medical treatment.  Considering these significant changes, we conclude that the employee has made a sufficient showing to warrant vacation of the 1992 award on stipulation on the grounds that he has experienced a substantial change in medical condition.  We therefore grant the employee=s motion to set aside the 1992 award on stipulation.