DORIS J. JOHNSON, Employee, v. APPLE VALLEY HEALTH CARE CTR. and LUMBERMEN=S UNDERWRITING ALLIANCE, Employer-Insurer/Petitioners, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 7, 2003

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - PETITION TO DISCONTINUE.  Where the Stipulation for Settlement does not contain language clearly stating that permanent total disability benefits would continue only so long as the employee remained permanently and totally disabled, the request to discontinue permanent total disability benefits must be denied.

 

VACATION OF AWARD.  Information indicating the employee worked part-time for approximately three years, together with medical and vocational opinions submitted by the employer and insurer, raises the question of whether the employee=s condition has changed such that she is no longer permanently and totally disabled.  The case is referred to the Office of Administrative Hearings for an evidentiary hearing to determine whether the employee is or is not permanently and totally disabled under the standard set forth in Schulte v. C.H. Peterson Constr. Co., 153 N.W.2d 130, 24 W.C.D. 290 (Minn. 1967).

 

Petition to vacate award referred to OAH.

 

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

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employer and insurer petition to discontinue permanent total disability benefits or, in the alternative, for vacation of the Award on Stipulation of December 17, 1992.  We deny the petition to discontinue and refer the case to the Office of Administrative Hearings for an evidentiary hearing.

 

BACKGROUND

 

Doris  J. Johnson, the employee, sustained a personal injury to her left and right wrists on January 5, 1990, while working as a cook for Apple Valley Health Care Center, the employer.  The employee=s weekly wage was $431.39 which entitled her to the base compensation rate of $287.59 per week.  The employer and insurer admitted liability for the employee=s personal injury and paid workers= compensation benefits to the employee.

 

In support of their petition to discontinue or vacate, the employer and insurer submitted medical records prepared prior to the award on stipulation.  On December 20, 1991, Dr. Samuel Yue was asked by Dr. Luken at the Apple Valley Clinic to evaluate the employee=s chronic right-sided hand pain.  The doctor noted the employee had undergone two carpal tunnel releases to her right hand, the first in 1990 and the second in 1991.  The employee reported she continued to have pain in her entire right arm following the second surgery.  Dr. Yue diagnosed reflex sympathetic dystrophy secondary to the multiple surgeries on the employee=s right hand and  recommended a diagnostic stellate ganglion block. 

 

Dr. Allen Van Beek examined the employee on May 4, 1992.  The doctor noted the employee had undergone a left-sided carpal tunnel release in February 1990 and a right-sided release in March 1990, following which she returned to work.  The employee experienced recurrent symptoms of pain, tingling and numbness and underwent a second left-sided carpal tunnel release in December 1990 and a right-sided carpal tunnel release in March 1991.  Dr. Van Beek reported the employee continued to experience symptoms of burning pain and dysesthesia following the second surgical releases.  The employee told the doctor she returned to a part-time job in January 1992, cooking at a daycare center.  Dr. Van Beek diagnosed recurrent carpal tunnel syndrome with evidence of median nerve irritation but concluded the employee did not have reflex sympathetic dystrophy.  The doctor stated the employee should not continue in her current work because it would likely lead to repetitive carpal tunnel disease or median nerve irritation.  He recommended a five-pound weight restriction and less than five or six repetitions per minute.

 

In January 1992, the employee was evaluated by Dr. Phillip B. Haber, a licensed psychologist and certified rehabilitation counselor.  The doctor performed vocational/psychological testing, an MMPI,[1] an individual personality evaluation and numerous work evaluation tests.  Considering the employee=s age, education, work experience, measured aptitudes, interests, abilities and her residual physical capacity, Dr. Haber concluded the employee was no longer capable of sustained occupational activity in the national economy.  He noted the employee was currently working in a light-duty, restricted employment, but opined it was physically too taxing and felt the employee would not be able to continue that employment.

 

In June 1992, Dr. Van Beek noted the employee continued to work part-time as a cook with increasing symptoms when she worked.  In an office note dated November 30, 1992, Dr. Van Beek recorded the employee had been granted social security disability benefits.  The doctor concluded the employee was permanently and totally disabled.

 

By report dated October 28, 1992, Dr. Van Beek stated the employee had persistent carpal tunnel syndrome despite surgical interventions.  He opined the employee had reached maximum medical improvement and recommended no additional surgery.  Dr. Van Beek rated a three percent permanent partial disability of both hands.  The doctor opined the employee had a component of causalgia-type pain associated with her persistent carpal tunnel syndrome which he rated at an additional 15 percent permanent partial disability.

 

In December 1992, the parties entered into a stipulation for settlement.  The employee contended she was entitled to permanent total disability benefits from and after May 4, 1992, or, in the alternative, entitled to temporary total disability benefits.  The employer and insurer denied the employee was permanently and totally disabled or temporarily and totally disabled as a result of her January 5, 1990 work injury.  To settle their dispute, the parties agreed the "employee has been permanently and totally disabled as of May 4, 1992 to the present and continuing."  They further stipulated:

 

That the employer and insurer have commenced and will continue ongoing payment of permanent total disability benefits to the employee, as of May 4, 1992, at the employee=s adjusted compensation rate of $308.46 per week.  This compensation rate will be adjusted annually on the date of the work injury, in accordance with Minn. Stat. '176.645.

 

The parties also agreed the employee=s benefits would be reduced under Minn. Stat. ' 176.101, subd. 4, in the event the employee was awarded social security disability benefits.  They further agreed the employee would be entitled to supplementary benefits from the Special Compensation Fund commencing January 5, 1994.[2]  An Award on Stipulation was served and filed on December 17, 1992.

 

In May 1999, the employee began working for REM Home Health Care, Inc., as a personal care attendant.  Payroll records submitted by the petitioners reflect gross earnings of $18,410.05 from the payroll period ending May 29, 1999 through May 25, 2002.  The employee received a base salary of $8.43 an hour.  In 1999, the employee worked 663.4 hours during 16 two-week pay periods for an average of 20.73 hours per week.  In 2000, the employee worked 899.78 hours or 17.3 hours per week.  In 2001, the employee worked 483.5 hours or 9.3 hours per week.  Through the payroll period ending May 25, 2002, the employee worked 177.5 hours which is approximately 8.45 hours per week.  The petitioners provided no evidence the employee has worked since May 25, 2002.

 

On June 19, 2001, Dr. William H. Call performed an independent medical examination of the employee.  The employee stated she was then 63 years of age and working on an on-call basis performing daycare for REM.  The employee stated she currently experienced right arm pain from her wrist radiating to the elbow but denied any significant left arm symptoms.  The doctor reviewed extensive medical records and performed a physical examination.  He reported the employee had undergone surgeries to her right arm, including carpal tunnel releases in March 1990, March 1991, July 15, 1997, and a re-exploration of the median nerve in the proximal forearm in January 1999.  On the left arm, the employee had undergone carpal tunnel releases in March 1990 and December 1990.  Based upon the history, a review of the medical records and a physical examination, Dr. Call concluded the employee had bilateral carpal tunnel syndrome, greater on the right than on the left, with some post-surgical residuals.  The doctor found no evidence of reflex sympathetic dystrophy or pronator syndrome.  He concluded the employee had attained maximum medical improvement and no further surgeries were warranted.  Dr. Call opined the employee could work 40 hours a week, eight hours a day, subject to restrictions.  The doctor recommended the employee wear light wrist splints on both hands.  Dr. Call stated that, although the employee had ongoing subjective symptoms, the medical records documented some degree of somatization, pain focus and self-limiting behaviors.

 

Ms. Catherine Erickson, a qualified rehabilitation consultant (QRC), was retained by the insurer to provide a rehabilitation consultation for the employee.  By report dated October 22, 2001, Ms. Erickson stated she had been unsuccessful in scheduling a meeting with the employee to perform a consultation.

 

Richard W. VanWagner, a rehabilitation consultant, provided a vocational evaluation of the employee=s employability.  Mr. VanWagner did not meet with the employee but based his report on a deposition of the employee taken on January 17, 2002, and a review of medical and vocational records.  Mr. VanWagner recorded the employee currently worked for REM providing daycare services for a child with a behavior problem.  The employee stated she typically worked with the child three days a week and would pick him up and take him to places such as the YMCA or Mall of America.  The employee denied she had worked anyplace else since 1992.  He concluded the employee had demonstrated the capacity to perform sustained gainful employment in the work she had performed with REM.  He stated REM provided the employee with training as a personal care attendant and she had performed companion work with behaviorally disturbed children.  Mr. VanWagner concluded there were no medical or physical contraindications to the employee performing this type of work.  Mr. VanWagner opined the employee could find similar work with other agencies providing similar services to those for which she had been trained and was currently performing.  Mr. VanWagner conducted some labor market research and reported five agencies providing homemaker/companion services for which the employee would be qualified.  Mr. VanWagner concluded the employee=s earning capacity was $8.50 per hour or higher based upon the work she had performed with REM and the results of his labor market research.

 

DECISION

 

1.  Petition to Discontinue Permanent Total Disability Benefits

 

In Ramsey v. Frigidaire Co. Freezer Prods., 58 W.C.D. 411 (W.C.C.A. 1998), this court stated the court would accept petitions to discontinue permanent total disability benefits where a stipulation for settlement contains language demonstrating the parties intended the permanent total disability benefits would continue only so long as the employee remained permanently and totally disabled.  See also Haberle v. Erickson Mills, 58 W.C.D. 478 (W.C.C.A. 1998).  The petitioners contend the stipulation in this case demonstrates an intent by the parties that permanent total disability benefits are payable only so long as the employee is permanently and totally disabled.  Such intent, they argue, is demonstrated by Paragraph XII of the stipulation which states:

 

The payments made pursuant to this Stipulation and Agreement are for the purposes of settlement only and shall in no way be taken as an admission of liability by the employer and insurer.  The employer and insurer reserve all rights and defenses they may have to further claims made by the employee.

 

Accordingly, they argue, they do not need to establish good cause to vacate the Award on Stipulation under Minn. Stat. ' 176.461.  Rather, they contend the terms of the stipulation allow them to discontinue payment of permanent total disability benefits based upon the language of the stipulation.  We disagree.

 

In the Stipulation for Settlement, the parties agreed the employee was permanently and totally disabled and stipulated Athe employer and insurer have commenced and will continue ongoing payment of permanent total disability benefits to the employee . . . .@  This language appears clear and unambiguous.  We cannot construe this provision as anything other than an agreement to pay and continue to pay permanent total disability benefits to the employee.  We note in Paragraph XII, the parties acknowledged the payments made under the stipulation were not an admission of liability and the employer and insurer reserved all rights and defenses they might have to further claims made by the employee.  The petitioners admitted the employee sustained a personal injury on January 5, 1990.  Thus, they were legally liable for all benefits to which the employee was entitled by reason of that personal injury.  In the stipulation, the parties agreed the employee became permanently and totally disabled as of May 4, 1992.  Although, in Paragraph XII of the stipulation, the employer and insurer reserved their rights and defenses, such reservation pertained only to Aany further claim made by the employee.@  The phrase Aany further claim,@ within the context of the stipulation, can only relate to claims not settled in the stipulation.  Accordingly, we deny the request to discontinue permanent total disability benefits.

 

2.  Petition to Vacate

 

The petitioners next argue good cause exists under Minn. Stat. ' 176.461 to vacate the Award on Stipulation.  Based upon the medical and vocational records submitted in support of their petition, they argue they have established a mutual mistake of fact, newly discovered evidence and a substantial change in the employee's condition since the time of the award.  Citing Fodness v. Standard Café, 44 W.C.D. 337 (W.C.C.A. 1990), the employee argues the sole factor supporting the petition is an arguable change in her ability to work.  Although the employee did work on a part-time basis for three years, she apparently left her job with REM in 2002 and has been unable to work since.  The employee contends there is no evidence her condition has significantly improved since the award and the petition should be denied.

 

Minn. Stat. '' 176.461 and 176.521, subp. 3, govern this court's authority over petitions to vacate.  For awards on stipulation issued after July 1, 1992, good cause is 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 that was clearly not anticipated and could not reasonably have been anticipated at the time of the award.  Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).  "Provisions for reopening and modifying workers' compensation awards are a recognition of the obvious fact, that no matter how competent a commission's diagnosis of the claimant's condition and earning prospects at the time of the hearing may be, that condition may later change markedly for the worse, or may improve, or may even clear up altogether."  Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 63 W.C.D. 337 (Minn. 2003).[3]

 

The employee has undergone two surgeries since the date of the Award on Stipulation.  Dr. Call concluded the employee had attained maximum medical improvement and stated no further surgeries should be performed on her arms.  The doctor opined the employee could return to work 40 hours a week, eight hours a day, but recommended she wear light wrist splints on both hands.  Mr. VanWagner opined the employee has demonstrated the capacity to perform sustained gainful employment in the work she performed with REM Home Health Care, Inc.  He found no medical or physical contraindications to the employee=s performance of this type of companion work.  Mr. VanWagner concluded the employee was not permanently and totally disabled from all employment and opined she had an earning capacity of $8.50 an hour or higher.  We note this is not simply a case involving different medical and vocational opinions of the employee=s ability to work.  Rather, in this case, the employee has a demonstrated three-year history of part-time employment.

 

In Schulte v. C.H. Peterson Constr. Co., 153 N.W.2d 130, 24 W.C.D. 290 (Minn. 1967), the court held that total disability exists if the person=s physical condition, in combination with the person=s age, training and experience and the type of work available in the community, causes the person to be unable to secure anything more than sporadic employment resulting in an insubstantial income.[4]  The statutory definition of permanent total disability at Minn. Stat. ' 176.101, subd. 5 (1992), essentially codifies the Schulte decision.  Thus, the statutory definition of permanent and total disability contains not only medical components but vocational and economic components as well.  Total disability is not based solely on an inability to work but may also be based on an inability to find work the injured employee is capable of performing.  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).

 

  The basic concern under Minn. Stat. '' 176.461 and 176.521, subd. 3, is to insure compensation proportionate to the degree and duration of disability.  Krebsbach v. Lake Lillian Coop Creamery Ass'n., 350 N.W.2d 349, 36 W.C.D. 796 (Minn. 1984).  The newly discovered information that the employee worked for three years, together with the medical and vocational opinions submitted by the petitioners, raises the question of whether the employee=s condition has changed such that she is no longer permanently and totally disabled.  Accordingly, we refer this case to the Office of Administrative Hearings for an evidentiary hearing.  The compensation judge should determine whether the employee is permanently and totally disabled under the Schulte standard.  The employer and insurer shall have the burden of going forward to establish a prima facie case that the employee is not permanently and totally disabled.  The compensation judge should also make findings as to the employee=s current diagnosis and physical restrictions.  The findings of fact shall be reported to this court for determination of the petition to vacate, as provided by Minn. Stat. ' 176.381, subd. 2.