DOROTHY A. JANIKOWSKI, Petitioner, v. CENTRAL PARKING SYS. and CRUM & FORSTER, Employer-Insurer, and ACCESSIBLE SPACE, INC., and MINN. WORKERS= COMPENSATION ASSIGNED RISK PLAN, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 11, 2003

 

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where the employee had offered no expert medical opinion that she had, since the date of the award, sustained a rateable increase in permanent partial disability or experienced any substantial reduction in her ability to work that was consequent to either of the work injuries at issue in her stipulation for settlement, the employee did not show good cause to vacate her award on stipulation on grounds that she had sustained a substantial change in condition since the date of the award.

 

Petition to vacate denied.

 

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

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee petitions this court to vacate an award on stipulation served and filed in this matter on May 31, 1989.  Concluding that the employee has not shown good cause to vacate the award at issue, we deny the employee=s petition.

 

BACKGROUND

 

On July 23, 1985, while lifting patients in the course of her employment as a nurse=s aide with Accessible Space, Inc., Dorothy Janikowski had an onset of low back pain for which she was off work for about six weeks and received outpatient physical therapy.   A year and a half later, on January 19, 1987, Ms. Janikowski [the employee] sustained further work-related injury to her low back, again while lifting a patient in the course of her employment with Accessible Space, Inc. [Accessible Space].  The employee was forty-five years old at the time of this injury and was earning a weekly wage of $244.00.  She received treatment for the injury from orthopedic surgeon Dr. John Cragg, who ordered a CT scan.  The scan, conducted on January 30, 1987, evidently revealed degenerative disc disease at L3-4 and L4-5, with no evidence of nerve root impingement or disc herniation. Dr. Cragg prescribed physical therapy, and Accessible Space and its insurer admitted liability for the injury and commenced payment of benefits.  The employee evidently returned to her job with lifting restrictions in April 1987 and continued to work in that job until she terminated her employment about a month later.  About a month after leaving Accessible Space, on June 10, 1987, the employee was involved in a nonwork-related motor vehicle accident in which she injured her neck and back, following which she sought treatment again with Dr. Cragg, who again prescribed physical therapy.

 

About half a year later, in January of 1988, the employee complained of an increase in low back pain, together with some right thigh and buttock pain.  Not long thereafter, on February 10, 1988, she sustained another work-related injury, this to her coccyx, when she slipped and fell on some ice in the course of her employment as a parking lot cashier with Central Parking System [Central Parking], who ultimately admitted liability and commenced payment of benefits.  The employee was forty-seven years old on the date of this injury and was earning a weekly wage of $150.00.  X-rays of the lumbar spine on the date of the injury were read to reveal unchanged mild degenerative arthritis and narrowing of the L2-3 disc space.  Subsequent symptoms included neck pain and headache, in addition to pain in the lower back, and on May 27, 1988, after neck x-rays and a brain CT scan had proven normal, the employee commenced a brief regimen of ice, ultrasound, and traction therapy for her neck symptoms.  A lumbar MRI scan conducted on June 13, 1988, revealed evidence of disc narrowing at L3-4 and of mild disc bulging at that level and at L4-5.

 

With regard to her coccyx injury, the employee was treated by Dr. Bruce Snyder, who eventually, on July 25, 1988, transferred her care over to a chronic pain program instead of referring her for a low back program, due to psychological diagnoses of Amajor depressive disorder@ and Aconsiderable psychopathology.@  On August 3, 1988, the employee was evaluated by chronic pain specialist Dr. Christopher Reif, who concurred in admitting the employee for a chronic pain program, but only on a trial basis, concluding that A[h]er psychological status, especially [] as revealed in the MMPI, . . . raises questions as to possible obstacles to her rehabilitation.@  The employee was released from the chronic pain program on September 10, 1988, under a diagnosis of A[c]hronic low back pain and headache pain@ and A[c]hronic pain syndrome somewhat improved,@ and eventually she returned to work at her job with Central Parking.

 

On October 5, 1988, the employee was examined for Central Parking by orthopedic surgeon Dr. Stephen Barron.  In his report to Central Parking=s attorney on October 10, 1988, able to make no objective findings, Dr. Barron concluded in part that the employee was subject to a healed fracture at S5 of her spine as a result of her February 10, 1988, work injury with Central Parking.  It was Dr. Barron=s opinion that the employee had reached maximum medical improvement [MMI] with regard to that injury without sustaining any spine-related permanent partial disability.  Dr. Barron concluded that the February 10, 1988, injury, had been only a temporary aggravation of the employee=s January 19, 1987, work injury and that the employee was currently capable of full time work, subject to a forty-pound lifting restriction and a restriction against continuous frequent bending from the neck or waist.  In a follow-up report on December 6, 1988, Dr. Barron opined that the employee had recovered from her February 10, 1988, temporary aggravation by April 18, 1988, when she had been released by Dr. Cragg to return to work.

 

In about February of 1989, the employee apparently left her job with Central Parking and began work at a 7-Eleven store.  On March 23, 1989, the employee was examined for Accessible Space by orthopedic surgeon Dr. Mark Engasser, who diagnosed degenerative disc disease of the lumbosacral spine, chronic myoligamentous strain of the cervical spine, and status post nondisplaced fracture of the sacrum, the latter sustained consequent to the employee=s February 10, 1988, work injury.  It was Dr. Engasser=s opinion that the employee had reached MMI with regard to all of her injuriesB1985, 1987, and 1988Band that she was capable of working full time with restrictions against doing more than occasional bending stooping, squatting, and lifting of objects weighing up to twenty-four pounds and against sitting for more than an hour and a half without a break.  Dr. Engasser concluded that the employee was not in need of further medical care but that she did demonstrate significant elements of chronic pain and depression.

 

On May 17, 1989, the employee, Accessible Space, and Central Parking entered into a stipulation for full, final, and complete settlement of the employee=s claims with regard to the 1987 and 1988 work injuries.  As of the date of the settlement, Accessible Space had paid the employee $7,313.42 in total wage replacement benefits from January 20, 1987, through the date of the stipulation and $5,250.00 in permanent partial disability benefits for a 7% whole body impairment.  As of that same date, Central Parking had paid the employee $1,410.00 in temporary total disability benefits and $1,630.81 in temporary partial disability benefits from April 18, 1988, through December 25, 1988.

 

At the time of the settlement, the employee was claiming that, as a result of her 1987 low back injury with Accessible Space, she had sustained a 10.5% whole body impairment, instead of the 7% impairment for which she had been paid, and that she had been underpaid temporary partial disability benefits in the amount of $800.00.  The employee was also claiming at the time of the settlement that, as a consequence of her injury with Central Parking, she had sustained an unspecified level of permanent partial disability, not just a temporary disability as she had been compensated for.  The employee was also claiming at the time that she was currently temporarily partially disabled as a consequence of either or both of her work injuries and was due various ongoing benefits accordingly.

 

For its part in the settlement, and relying on the March 23, 1989, report of Dr. Engasser, Accessible Space took the following position at the time of the settlement: (1) that the employee=s permanent impairment was rateable at no more than 7% of her whole body; (2) that the employee had reached MMI on September 21, 1987, with regard to her 1987 injury with Accessible Space, pursuant to a September 21, 1987, medical report of Dr. Cragg; (3) that the employee=s disability and need for medical treatment was 100% the responsibility of Central Parking for six months following the employee=s injury with that employer and was 70% the responsibility of that employer at all times thereafter; (4) that Accessible Space had paid $5,055.53 in medical expenses and was entitled to contribution and/or reimbursement from Central parking with regard to those benefits; and (5) that the employee=s injury with Central Parking had permanently aggravated the employee=s preexisting lumbar condition in addition to causing her coccyx injury.

 

Central Parking, for its part in the settlement, relying on the October 10 and December 6, 1988, reports of Dr. Barron, took the following position on the date of the settlement: (1) that the employee had sustained only a temporary exacerbation of a preexisting condition as a result of her 1988 injury with Central Parking; (2) that she had fully recovered by April 18, 1988, rendering all or part of any disability or need for medical treatment after that date the responsibility of Accessible Space; and (3) that, following her work injury with Central Parking, the employee had returned to work at a wage equal to or greater than her pre-injury Central Parking wage, rendering any obligation for ongoing temporary partial disability benefits the responsibility solely of Accessible Space.

 

On the date of the stipulation, the employee agreed to accept $14,500.00 minus attorney fees in full, final, and complete settlement of any and all claims against the two employers, aside from claims for reasonable and necessary future medical expenses.  It was also stipulated on that date that all future lumbar medical expenses found related to either of the work injuries at issue would be the responsibility solely of Accessible Space, all future medical expenses found related to the employee=s February 1988, coccyx injury would be the responsibility solely of Central Parking.

 

At some point in time the employee quit her job with 7-Eleven and began working for Beckland HHC [Beckland] as a home health care aide.  On November 5, 1990, while working for Beckland, the employee Apulled a muscle@ on the right side in her low back while trying to keep a heavy patient from falling to the floor. The employee evidently did not miss any time from work, but her symptoms apparently increased, and she was transferred from home health care tasks to office filing work.  In January or February of 1991, the employee left employment with Beckland and hasn=t returned to work since that time.  In August of 1991, the parties entered into a second stipulation for settlement, resolving a claim for payment of $8,936.99 in medical expenses by equal apportionment between Accessible Space and Central Parking .  An award on that stipulation was filed on August 22, 1991.

 

The employee=s low back symptoms evidently continued, and on September 9, 1991, on referral from Dr. Bruce Snyder, the employee underwent an MRI of her lumbar spine, which revealed mild degenerative disc disease at L3-4 and L4-5, with a small disc herniation at L3-4 that was unchanged since the June 13, 1988, MRI.  The scan revealed A[n]o focal right-sided findings to account for the right-sided sciatica.@  On September 27, 1991, the employee commenced what would prove to be about ten years of  regular treatment with osteopath Dr. Ronald Bateman for lumbosacral and right hip and leg symptoms.  By March of 1992 the employee had also recommenced extended treatment for major depression, and in June of that year she underwent treatment also for a painful right foot or ankle, due to no known injury.  Finally, in 1993, after two denials, the employee evidently succeeded in obtaining Social Security disability benefits, which she has apparently continued to receive ever since that time.  The Social Security benefits were evidently awarded under diagnostic code 8480, which apparently covers Asprains and strains of all types.@^[1]

 

In August of 1994, the employee began receiving treatment also for what was diagnosed as a probable right C5-6 cervical radiculopathy and a chronic hereditary polyneuropathy in her right shoulder and upper extremity.  A year later, on September 6, 1995, the employee was seen regarding right foot and ankle pain, which was diagnosed as an ankle sprain.  Three months later, on December 27, 1995, she was seen regarding complaints of  right arm pain, which she claimed to have had for the past four years.  On February 15, 1996, the employee underwent an MRI scan of the right shoulder, which was read to reveal a tear in the mid supraspinatus tendon together with other abnormalities.  On April 8, 1996, the employee was seen and treated again regarding Aa complaint of right-sided mid back pain, near the scapula,@ which had grown progressively worse over the past few days.  In the spring of 1998, the employee began experiencing increasing left shoulder pain, and on March 18, 1998, she underwent an open decompression, bursectomy, acromioclavicular resection.  Five months later, on August 5, 1998, she was diagnosed with a failed rotator cuff repair and underwent a revision decompression and repair.  On November 6, 1998, the employee=s shoulders were reported to be Adoing very well,@ but the employee was complaining of pain in her wrists.  X-rays proved unremarkable, and the attending physician, Dr. Mark Heller, prescribed medication and certain exercises to increase motion.

 

Late in 1999, the employee complained to Dr. Bateman of symptoms in her low back and right buttock area that were so intense that she could not walk, and Dr. Bateman referred her to low back specialist Dr. John Stark.  In his report of his examination on January 10, 2000, Dr. Stark noted that the employee=s complaints were of Avery low pain@ on the right, Aover the area of the SI joint,@ and that tests for sacroiliac dysfunction were clearly positive.   Dr. Stark ordered a lumbar MRI scan and x-rays of the employee=s SI joints.  The lumbar tests, conducted on January 17, 2000, were read to reveal some multilevel degenerative spondylosis with some disc derangement and disc space narrowing, together with some mild to moderate stenosis and foraminal narrowing at various locations from L3 through S1, with some mild nerve impingement only at L5.  Three days later, on January 20, 2000, the employee underwent a diagnostic sacroiliac arthrography and blockade, to which her response was an eighty-five percent overall improvement in pain.  X-rays of both of the employee=s sacroiliac joints on that same date, however, were reported to appear normal, and on February 9, 2000, independent examiner Dr. Robert Fielden evidently opined that the employee was not in need of a sacroiliac fusion.  Nevertheless, on March 21, 2000, Dr. Stark performed a fusion of the employee=s right SI joint, apparently based importantly on the employee=s response to the sacroiliac arthrography.

 

On July 17, 2000, in reply to a query from the employee=s attorney, Dr. Stark indicated that, while initially he had been Avery skeptical@ as to Athe possibility that [the employee=s] problem may be related to a work-related injury in 1987 or 1988,@ he had on further inquiry come to conclude that the employee Ahas a surprisingly well-documented history of classic right SI area complaints dating back to 1987 and 1988,@ complaints that Ahave bothered her since then and have resolved now that her right SI joint has been fused.@

 

On August 2, 2000, less than five months after her sacroiliac joint fusion, the employee also underwent synovectomies of the peroneal tendons and posterior tibialis in her right foot and ankle.  About eight months after that, on April 4, 2001, under a diagnosis of left shoulder impingement, the employee also underwent a left open decompression and a revision acromioclavicular joint resection.  On that same date, the employee underwent also, under a diagnosis of cavovarus deformity of the right foot, a percutaneous right Achilles tendon lengthening and an open debridement of the right peroneal tendon.

 

On July 19, 2001, the employee and Accessible Space litigated the reasonableness and necessity of  the employee=s March 21, 2000, SI joint fusion.  At hearing of the matter on that date, those two parties stipulated in part that the fusion at issue was causally related to the employee=s January 1987 work injury with Accessible Space.  At Finding 8 of her decision filed August 22, 2001, the compensation judge concluded that A[t]he employee has had only modest improvement in her right low back and right leg complaints since the surgery in March 21, 2000,@ and that A[t]he surgery has not significantly improved her level of functioning.@  Nevertheless, at Finding 9, the judge concluded that ADr. Stark=s decision to perform the sacroiliac fusion was reasonable and necessary given the employee=s failed improvement with past conservative treatment, her symptom level in March, 2000 and the results of the SI arthrography and blockade.@  In her memorandum, the judge explained that

 

[a]ll surgeries bear the risk of failure.  In deciding whether a surgery was reasonable or necessary, one must look at the facts and circumstances as they existed at the time the decision for surgery was made.  A reasoned decision is not rendered unreasonable because the surgery does not produce an optimum result.

 

Accessible space was ordered to pay for the surgery at issue, and no appeal was apparently taken from that order.

 

On November 20, 2001, the employee saw Dr. Heller again with complaints of increasing shoulder pain, numbness in her fingers, and swelling in her arm.  About the beginning of April 2002, the employee also suffered a broken right wrist in a fall, for which the arm was cast for a month.  On June 18, 2002, following removal of the cast from her right wrist, the employee began complaining of pain also in her left wrist, and, when x-rays suggested a nondisplaced fracture there also, the left wrist also was placed in a cast.  X-rays a month later, on July 12, 2002, showed no change.

 

On July 25, 2002, in response to receipt of additional medical records of Dr. Bateman, Dr. Stark opined to the employee=s attorney that the employee=s sacroiliac fusion and subsequent treatment were related to her January 1987 injury with Accessible Space.  On August 19, 2002, the employee petitioned this court to vacate the award on stipulation filed in her case on May 31, 1989, on grounds that there has been a substantial change in her work-related condition since the date of her award on stipulation.  On December 11, 2002, the employee was examined for Accessible Space by orthopedic surgeon Dr. Nolan Segal.  In his report on December 31, 2002, Dr. Segal diagnosed degenerative disc disease of the lumbar spine, with evidence of functional overlay, status post-operative right sacroiliac fusion.  It was Dr. Segal=s opinion that, except for the employee=s sacroiliac fusion, the employee=s diagnosis remained essentially what it had been in 1985, prior to the 1987 work injury with Accessible Space.  Dr. Segal saw no significant deterioration in the employee=s spine evident by a comparison of her 1987 CT scan with her January 2000 MRI scan, and he concluded expressly that Athere really has been no significant change in [the employee=s] ability to work over the years.  Also, her condition really has not worsened to any significant degree.@  On February 3, 2003, Accessible Space and Central Parking filed Objections to the employee=s petition to vacate her May 31, 1989, Award on Stipulation.^[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 being long held to exist if "(a) the award was based on fraud; (b) the award was based on mistake; (c) there is newly discovered evidence; or (d) there is a substantial change in the employee's condition."  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 six factors for consideration in determining whether to vacate an award based on a substantial change in condition.  These factors included (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 any worsening in the employee=s condition, and (6) the contemplation of the parties at the time of the award.^[4]  Fodness, 41 W.C.D. at 1060-61.

 

The employee=s principal arguments in this case stem from her need for an SI joint fusion in March of 2000, which need, as satisfied, constitutes, she argues, an important change in diagnosis that has resulted in a substantial increase in the cost of her medical care and in her permanent partial disability ratingBfrom 7% whole-body impairment actually compensated and 10.5% whole-body impairment alleged at the time of the award to, she argues, 17.5% whole-body impairment now as a result of the SI joint fusion.  She argues further that her need for the SI fusion surgery was not contemplated by the parties at the time of her award, has been judicially determined to be causally related to her 1987 injury with Accessible Space, and has resulted in a total loss of her ability to work.  We are not persuaded that the employee has demonstrated sufficient cause to vacate the award at issue.

 

We concede that the employee=s sacroiliac dysfunction constitutes a change in diagnosis and that, to the extent that she may have required fusion of her right SI joint, her need for more costly medical care has increased.  However, the mere fact that an employee undergoes surgery does not, by itself, justify vacation of an award.  See  Miedema v. Brown Group, Inc., slip op. (W.C.C.A. Apr. 22, 1996).  Moreover, where a stipulation leaves medical expenses open, the need for more costly or extensive medical care than may have initially been anticipated is less important in determining whether there has been a substantial change in the employee=s condition.  See Burke v. F-M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1966).  We concede also that the employee=s sacroiliac fusion has now been judicially related to at least her 1987 low back injury with Accessible Space, to the extent that Accessible Space stipulated to that causal relationship at hearing on July 19, 2001.  Further, although right buttock pain was a definite element of the employee=s medically documented symptomology at the time, we concede also that the employee=s need for the fusion surgery may not have been clearly contemplated by the parties at the time of the 1989 stipulation here at issue.

 

Notwithstanding these concessions, however, the fact remains that the employee has not demonstrated, by expert medical opinion or other persuasive evidence, that she has, since the date of her award, either sustained a substantial increase in medically rated permanent partial disability or, more importantly, experienced a clear reduction in her ability to work that is causally related to her 1987 and/or 1988 work injuries.  She has argued that, whereas at the time of her award on stipulation she had been released to work full time with restrictions and was working and collecting temporary partial disability benefits, A[b]y 1991 [she] was no longer able to engage in employment,@A[she] has not engaged in any employment since 1991,@^[5] and Adoctors do not foresee [her] being able to return to work.@  While the allegation that the employee has not worked since 1991, together with her receipt of social security disability benefits, supports the employee=s contention that there has been a change in her ability to work, we find in the record no medical opinion affirmatively supporting the employee=s claim that any change in her ability to work is causally related to either of her work injuries.

 

Concluding that the employee has not demonstrated good cause to do so, we deny the employee=s petition to vacate the 1989 award on stipulation here at issue on the alleged grounds that there has been, since the date of her award, a substantial change in the employee=s condition that is causally related to her 1987 low back injury and/or to her 1988 coccyx injury.