SHERI MICKELSON, Employee/Petitioner, v. PGI MAILERS and ATLANTIC MUT. INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 31, 2003

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where the employee=s diagnosis, restrictions, and ability to work remained essentially what they had been at the time of her settlement, where no doctor had opined that the employee was permanently and totally disabled or that there had been a change in her permanent partial disability since the time of that settlement, and where the employer and insurer apparently continued to pay the employee=s medical expenses, the employee did not established good cause to vacate her Award on Stipulation on grounds that she had experienced a substantial change in her medical condition since the date of her Award on Stipulation.

 

Petition to vacate award denied.

 

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

 

Attorneys:  Steven R. Sunde, Sunde, Olson, Kircher and Zender, St. James, MN, for Petitioner.  Mary E. Christenson, Johnson & Condon, P.A., Minneapolis, MN, for Respondents.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee petitions this court to set aside the Award on Stipulation filed  July 9, 1997, on grounds that she has sustained a substantial change in her medical condition that was clearly not anticipated and could not reasonably have been anticipated at the time of the Award.  Finding insufficient cause to vacate the Award at this time, we deny the employee=s petition.

 

BACKGROUND

 

On February 3, 1994, Sheri Mickelson [the employee] sustained an injury to her back while working for PGI Mailers [the employer].  On that date, the employee was twenty-nine years old and was earning a weekly wage of $230.00.  The injury occurred when she lifted a heavy box and the bottom fell out.  The employer and its workers= compensation insurer, Atlantic Mutual Companies [the insurer], acknowledged liability for the injury and commenced payment of workers= compensation benefits.^[1]

The employee initially received medical treatment on February 9, 1994, at the New Ulm Medical Center, but consistent treatment for her injury did not begin until December 1, 1994, when the employee saw her family physician, Dr. Craig Sievert.  At that time, the employee complained of pain in her lower back and into her left leg to the knee.  The employee described her job with the employer as requiring lifting between ten and seventy pounds.  Dr. Sievert prescribed Naprosyn and a course of physical therapy.  X-rays of the lumbar spine were read as normal. 

 

The employee reported no particular improvement as a result of physical therapy, and in January 1995 she began treating on a regular basis at the Kunerth Chiropractic Clinic in New Ulm.  On February 13, 1995, the employee was seen at the request of her chiropractor at the Noran Neurological Clinic by Dr. Michael Bromer.  The employee complained to Dr. Bromer of low back pain and symptoms in her right hip, right posterolateral thigh, and right calf.  On February 22, 1995, Dr. Bromer reported that an EMG of the employee=s right lower extremity was normal and that her lumbar MRI showed degenerative arthritis at the L5-S1 facet joints bilaterally.  There was no evidence of lumbar disc herniation or stenosis.

 

On March 30, 1995, the employee was seen at the Institute for Low Back Care by Dr. Alexander Lifson.  She complained to Dr. Lifson of constant low back pain and bilateral leg pain, aggravated by sitting, walking, bending forward, strenuous physical exercise, and, especially, bending backward.  She told the doctor that she was taking ibuprofen in the form of Advil, twelve tablets daily.  Dr. Lifson reviewed the February 22, 1995, lumbar MRI and concluded that it was entirely within normal limits.  He diagnosed Achronic, post-traumatic, mechanical low back pain, possibly related to facet joint arthropathy@ and recommended continued conservative treatment, including an exercise program.  No surgical treatment was recommended.

 

The employee returned to see Dr. Lifson on May 23, 1995, complaining of progressively increasing discomfort and pain in her low back despite five weeks of physical therapy.  On physical examination, Dr. Lifson noted that the employee presented with extremely severe antalgic scoliosis and severely restricted lumbar range of motion.  Noting that the employee=s symptoms appeared to be getting worse, Dr. Lifson eventually recommended a facet nerve block, which was performed by Dr. Thomas Hennessey at the L4, L5, and S1 levels bilaterally on May 31, 1995.

 

On July 11, 1995, the employee was examined at the request of the employer and insurer by Dr. John Dowdle.  The employee advised Dr. Dowdle that she had constant low back pain that increased by sitting, prolonged standing, walking, bending, and lifting.  She also reported that her legs were weaker now than they used to be.  Dr. Dowdle diagnosed mechanical low back pain with facet inflammation and recommended additional facet injections.  By this time, the employee was apparently working for the employer at a modified job with limited hours.

 

The employee was referred for consideration of facet nerve block injections to orthopedist Dr. Gene Swanson on August 22, 1995.  On that date, Dr. Swanson noted that the employee presented to him with very severe and significantly incapacitating back pain, despite extensive neurologic and orthopedic evaluation and long-term chiropractic care.  The doctor found it most interesting Athat she tends to walk in such a forward stooped position and is unable to really get into the upright position.@  Dr. Swanson agreed to administer facet injections, but he noted that A[t]here are many factors associated with her presentation that make one quite concerned regarding the potential for secondary gain both [in] the length of time that [her condition] has persisted and [in] her refractiveness to all other modes of treatment.@

 

The employee reported slight or no improvement in her condition following facet injections administered by Dr. Swanson in August, September, and October of 1995.  On October 31, 1995, Dr. Swanson reported that a recent MRI of the employee=s lumbar spine had been obtained and was read as entirely normal.  He recommended that the employee proceed with manipulation of her lumbar spine under anesthesia and application of a cast to hold her lumbar spine in some extension, or at least in the neutral position.  This procedure was performed by Dr. Swanson on November 10, 1995.

 

The employee remained in her cast until February of 1996, when she was fitted instead with an Orthoplast splint.  The employee reported significant improvement in her symptoms following casting and the use of her brace, but on July 25, 1996, she reported to Dr. Swanson that going to eight hours a day at her job increased her symptoms.  On examination, the doctor noted that Ashe is tending to forward flex a little bit and stand with sort of a very flat back syndrome@ and that her symptoms Areally defy explanation by myself on a truly organic basis.@

 

By March of 1997, after finding additional casting procedures only marginally beneficial in helping to reduce the employee=s pain, Dr. Swanson noted that the employee was still walking with a marked antalgic gait Awhich is markedly abnormal.@  He recommended fitting her with a new corset that would have a right leg extension.  He also reported that the employee Ahas plateaued significantly and may be at or near her level of maximum medical improvement.@  He rated the employee=s permanent partial disability at 3.5% of the body as a whole under Minn. R. 5223.0390, subp. 3.B.^[2]

 

After being fitted with the new brace and a leg extension, the employee complained that she did not believe that it was safe for her to drive forty miles to work with the brace on her leg.  Dr. Swanson apparently found no medical reason to restrict her driving and continued her release to part-time work with restrictions.  The employee evidently did not return to work with the employer after March 27, 1997, and, at a subsequent visit to Dr. Swanson on May 14, 1997, she continued to complain that she did not feel that she could drive safely with the splint on her leg. Accordingly, Dr. Swanson recommended that the leg splint be removed, that the employee use her normal brace, and that she return to work under her previous restrictions.  The doctor also suggested that the employee=s work hardening be progressed to the point where she could work eight hours a day.  He stated further that

 

[s]he is just starting on a strengthening program at physical therapy but I feel that her treatment has been prolonged, that her response to physical therapy has been manipulative and that she should be able to progress over the next month up to eight hours a day and we should be able to be gradually working her out of her lumbar corset. 

 

The employee did not return to Dr. Swanson for treatment after May 14, 1997.

 

On May 28, 1997, the employee transferred her physical therapy to the New Ulm Medical Center.  On her initial visit there, the employee reported difficulty with bending, lifting, being up on her feet, and getting up from a seated position.  She stated that she had been working four-hour days at the employer, with restrictions against lifting over ten pounds, bending, twisting, pushing, or pulling.  She advised the therapist that she was not working at that time but hoped to become a teacher=s aide in the fall. 

 

In June of 1997, the parties entered into a stipulation for settlement wherein the employer and insurer agreed to pay the employee $18,000.00 for a full, final, and complete settlement of any and all claims arising out of her work injury, with the exception of medical expenses.^[3]  The stipulation does not set forth the specific claims and contentions of the parties at the time of the settlement.  An Award on Stipulation was filed on July 9, 1997.

 

In August 1997, the employee evidently filed an application for social security disability benefits. 

 

On November 11, 1997, the employee was evaluated at the New Ulm Medical Center by physiatrist Dr. Todd Holmes.  On physical examination, Dr. Holmes noted that the employee walked with an antalgic gait and a cane and was wearing a soft corset brace.  He diagnosed a Achronic cervical thoracic lumbosacral sprain/strain@ and recommended additional physical therapy.  When the employee returned to see Dr. Holmes on February 17, 1998, the doctor noted that she continued to walk with an antalgic gait and use of a cane.  She was continuing to receive physical therapy twice a week, but she had not noticed much change in her back or right hip.  On examination, the doctor reported the presence of new neurologic findings, which he described as fasciculations in the medial hamstring and gastroc muscles.  In view of these findings, Dr. Holmes sought a consultation with Dr. Mary Jane Chiasson at the Noran Clinic.

 

Dr. Chiasson examined the employee for the first time on May 4, 1998.  At that visit, the employee complained of almost constant low back and right lower extremity pain.  She also complained of difficulty walking and problems with sleep because of the pain.  Dr. Chiasson diagnosed chronic mechanical low back pain without evidence of radiculopathy, and she recommended physical therapy to stabilize the employee=s pelvis and a trial of Neurontin and Zoloft.

 

On April 3, 1998, the employee reported to Dr. Chiasson that she was now using crutches instead of a cane on the advice of her physical therapist.  Dr. Chiasson felt that the employee=s symptoms were consistent with an internal disc derangement and radiculopathy and therefore ordered a discogram.  The employee=s discogram, performed on August 5, 1998, was interpreted by the radiologist as showing normal disc morphology at the four disc spaces tested but concordant low back and leg pain at L3-4 and L4-5.  The radiologist concluded that the employee=s discography was positive at L3-4 and L4-5, with normal levels at L2-3 and L5-S1.

 

Following the employee=s positive discogram, a surgical consultation was arranged with Dr. Charles Burton at the Institute for Low Back Care.  Dr. Burton reviewed the employee=s records and diagnostic studies and concluded that she was not a surgical candidate.

 

On September 15, 1998, Dr. Holmes noted that the employee disagreed with Dr. Burton=s assessment and that a second opinion was being requested of Dr. Francis Denis of Twin Cities Spine Center.  Dr. Holmes, however, thought Athe best course of action especially regarding her long protracted course would be to have surgery to the two levels of disk derangement.@

 

The employee was examined by Dr. Francis Denis on October 5, 1998.  X-rays taken on that date showed Agood lumbar lordosis, no narrowing of the disc spaces and no evidence of degenerative disease or osteophyte formation.@  Dr. Denis recommended repeat MRI scans of the cervical and lumbar areas, as he did not find the employee=s February 1995 MRI reflective of the etiology of her pain.^[4]

 

On March 15, 1999, an administrative law judge issued a decision in favor of the employee=s claim for social security disability benefits dating back to March 27, 1997.

 

At the request of the employer and insurer, the employee was again examined by Dr. John Dowdle.  In a report dated April 2, 1999, Dr. Dowdle diagnosed (1) mild radiculitis related to the L5 nerve root on the right, (2) mechanical low back pain possibly related to degenerative disc disease or degenerative facets L5-S1, (3) decreased motion of the right hip in rotation, and (4) cervical and thoracic strain with no objective findings.  Dr. Dowdle related the employee=s subjective low back and right hip complaints to her 1994 work injury and recommended a repeat MRI scan of the lumbar spine and an x-ray of the right hip.  If those proved normal, the doctor stated that he would Asuggest that there is no further care and treatment that is necessary.@  Dr. Dowdle also opined that the employee was capable of working at a sedentary job with no repetitive bending, no prolonged single position activities, and a lifting maximum of ten pounds.  He also opined that the employee=s neck, upper back, and headache complaints were not related to the 1994 injury.

 

The employee underwent a repeat MRI of the lumbosacral spine on June 29, 1999.  According to the radiologist, the A[e]xamination of the lumbosacral spine demonstrates no abnormality.  There is no evidence for disc herniation or spinal stenosis.@  X-rays of the employee=s right hip were also reported as negative.

 

In a letter to the employee=s attorney dated September 20, 1999, Dr. Holmes reported that he had performed an EMG on the employee on July 26, 1999.  He indicated that the EMG had revealed evidence consistent with a right L5-S1 radiculopathy, but he noted expressly that Athat evidence was at a minimal level.@  Nevertheless, diagnosing multi-level internal disc disruption, Dr. Holmes continued to opine that the employee would benefit from surgical intervention.

 

Dr. Chiasson, in an effort to rule out a lateral disc herniation or lateral nerve root compression, arranged for an additional lumbar MRI scan on September 24, 1999.  The neuroradiologist interpreting that scan noted only a Aslightly disordered signal of the disc@ at the L5-S1 level and felt that this finding Amay reflect very early degenerative changes.@

 

On September 29, 1999, the employee underwent a lower thoracic and lumbosacral myelogram, followed by a CT scan of the lumbosacral spine.  No myelographic abnormalities were noted in the lumbar or lower thoracic spine, and the CT scan did not show evidence of lumbar disc herniation, spinal stenosis, or nerve root compression.

 

In a brief report dated October 11, 1999, after reviewing the employee=s September MRI and her right hip x-rays, Dr. Dowdle opined that the scan was essentially normal and Ashowed very early changes in the lumbosacral disc which are minor in nature.@  In his opinion, the employee had reached maximum medical improvement, did not need any further medical care or treatment for her back or hip, and was capable of working on a full-time basis.

 

On October 19, 1999, Dr. Chiasson referred the employee for a surgical consultation with Dr. Gregg Dyste.  The employee complained to Dr. Dyste of low back pain and spasms and pain radiating from the low back into her right leg, as well as numbness in her right shin.  Dr. Dyste noted that the Alocation of the pain and distribution of numbness into the leg is the same as it was five years ago.@  On examination, the doctor noted that the employee appeared to be in pain and that she walked with the aid of crutches.  He found her neurologic exam to be entirely normal.  Dr. Dyste reviewed the employee=s EMG and concluded that any changes were subtle and nonspecific.  He reviewed her lumbar myelogram with a radiologist and concluded that it was totally within normal limits, showing no degenerative disc injury or disc derangement.  Dr. Dyste diagnosed a A[h]istory of low back injury with chronic pain,@ but he stated that he found Ano definable injury in her lumbar spine to explain [her] pain syndrome@ and no indication for surgical treatment.

 

In a letter to the employee=s attorney dated December 8, 1999, Dr. Chiasson rated the employee=s permanent disability at 3.5% of the body as a whole, consistent with lumbar pain syndrome under Minn. R. 5223.0390, subp. 3.B.  She felt that a consultation from the Minnesota Advanced Pain Specialists might be helpful to see if something could be done to mitigate the employee=s pain.  Dr. Chiasson also opined that the employee=s back pain was related to her injury in February 1994.  She explained in detail her disagreement with Dr. Dowdle=s findings and assessment, concluding that the employee was not capable of working at that time and had not reached MMI.

 

On August 14, 2000, Dr. Chiasson issued a note indicating that the employee was under her care for low back pain and that she was prescribing an electronic wheelchair in treatment.  About a year later, in a letter to the employee=s attorney dated October 4, 2001, Dr. Chiasson reported a progressive decline in the employee=s physical capabilities.  On December 10, 2001, Dr. Chiasson diagnosed intractable pain syndrome with multi-level degenerative disc disease and arthritis, noting that the employee was agreeable to attending a pain clinic.  On March 18, 2002, Dr. Chiasson recommended a consultation at the Fairview Pain Clinic.

 

On June 3, 2003, Dr. Chiasson reported that subsequent to her initial consultation with the employee in 1998, the employee=s condition had deteriorated greatly.  The doctor stated that the employee had undergone progressive degeneration of her discs and had experienced a progressive worsening in her ability to perform activities of daily living, which in turn had required increased pain medication in the form of narcotics and strong anti-inflammatories.

 

On August 11, 2003, the employee filed a petition to vacate her July 9, 1997, Award on Stipulation, alleging that there had been a substantial change in her medical condition.  The employer and insurer objected to the petition.

 

On October 3, 2003, the employer and insurer arranged for the employee to be examined by orthopedist Dr. Randall Norgard.  Dr. Norgard obtained a history from the employee, conducted a physical examination, and reviewed the employee=s medical records.  He diagnosed a right lumbar strain and chronic pain syndrome causally related to the employee=s work injury of February 3, 1994.  He also rated the employee=s permanent partial disability at 3.5% of the body as a whole, but he concluded the employee was capable of working within restrictions for four hours a day or twenty hours a week.  He opined that, despite the increase in the employee=s symptoms and pain complaints since 1997, the employee=s current restrictions were the same as they would have been in 1997.  Finally, Dr. Norgard opined that the employee would not benefit from surgery, stating that her lumbar studies revealed no abnormality and her most recent EMG of the right lower extremity was normal.

 

DECISION

This court may set aside an award for Acause@ pursuant to Minn. Stat. ' 176.461 and Minn. Stat. ' 176.521, subd. 3 (1994).  For awards filed on or after July 1, 1992, Acause@ is limited to the following:  (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.  Minn. Stat. ' 176.461.^[5]  The employee here alleges that there has been a substantial change in her medical condition.

 

In determining whether a substantial change in the employee=s condition has occurred, this court in the past has examined such factors as the following: 

 

(1)changes in the employee=s diagnosis;

(2)changes in the employee=s ability to work;

(3)additional permanent partial disability;

(4)the necessity of more costly and extensive medical care than was initially anticipated; and

(5)the existence of a causal relationship between the injury covered by the settlement and the currently worsened condition. 

 

Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989) (citations omitted).  These factors must be applied in a manner consistent with Minn. Stat. ' 176.461, which requires that the change in the employee=s condition be one that was Aclearly not anticipated and could not be reasonably anticipated at the time of the award.@  Powell v. Abbott Northwestern Hosp., slip op. (W.C.C.A. Aug. 17, 1995).

 

The employee contends that there has been a change in her diagnosis, in that her level of pain control, her ability to function with her activities of daily living, and her increased need for medication are markedly different from what they were at the time of settlement.  She argues that Dr. Chiasson has diagnosed internal disc derangement and that she has had progressive degeneration of her discs in a fashion that could not reasonably have been anticipated at the time of the award.  She also points to Anew neurologic findings@ of fasciculations in the medial and gastroc muscles noted by Dr. Holmes.  We are not persuaded that the employee has established a change in her medical diagnosis.

 

While it is evident that the severity of the employee=s symptom complaints have worsened since 1997, there is no clear evidence of an objective change in the employee=s diagnosis.  The most recent medical opinion regarding the employee=s diagnosis is from Dr. Randall Norgard.  In his report of October 3, 2003, Dr. Norgard diagnosed a right lumbar strain and chronic pain syndrome causally related to the employee=s 1994 work injury.  This appears to be substantially the same diagnosis offered by Dr. Swanson at the time of settlement, and by numerous other physicians during the course of the employee=s treatment.  The employee has essentially suffered from unrelenting low back pain since the date of her injury.  Drs. Swanson, Chiasson, and Norgard have all rated the employee=s permanent partial disability at 3.5% of the body as a whole.  The employee=s neurologic examinations have been predominantly normal, and, according to Dr. Dyste, her diagnostic studies do not reveal evidence of degenerative disc injury or disc derangement.  We find no showing of a significant change in diagnosis.

 

At the time of the settlement, the employee was evidently released to work four hours per day by her treating doctor, Dr. Swanson.  The employee argues that there has been a significant change in her ability to work since the Award.  She asserts that she is now unable to carry on any gainful activity and is totally disabled.  We are not convinced.  The employee was not working at the time of the Stipulation for Settlement and she is apparently not working now.  Dr. Chiasson makes no reference to the employee=s ability to work in her report of June 3, 2003.  The employee has not submitted an affidavit indicating that she is unable to carry on any gainful activity or that she is totally disabled.  The only recent medical report referencing the employee=s ability to work is the report of Dr. Norgard in which that doctor opined that the employee=s restrictions at the time of her exam were the same as they would have been at the time of settlement.  In Dr. Norgard=s opinion, the employee was capable of sedentary work on a part-time basis.  We find insufficient evidence of a change in the employee=s ability to work.

 

The employee does not contend that there has been any change in her permanent partial disability since the Award on Stipulation.  Her permanency rating remains at 3.5% of the body as a whole.

 

With regard to the factor of more costly and extensive medical care than was initially anticipated, the employee argues that she could not have foreseen that within a few years subsequent to her Award she would be using a cane, then crutches, then occasionally a wheelchair at home.  Nor was there reason to anticipate, she contends, the substantial medical care that she has undergone or the significant medications that she currently requires.  We do not agree.  First of all, we note that the employee=s claims for medical treatment remain available under the settlement agreement.  We also note that medical treatment for the employee=s injury has remained fairly consistent since December of 1994.  No evidence has been presented that the employee=s medical treatment since the 1997 Award has been significantly more costly and extensive.  Her treatment since July of 1997 has consisted mainly of diagnostic exams, physical therapy, and prescription medications.  Her use of prescription medications has undoubtedly increased, but, given the extensive history in this case, we cannot conclude that her treatment in general has been significantly more costly and extensive or, to the extent that it may have been, that the increase was unanticipated at the time of settlement.

 

The causal relationship between the work injury and the conditions on which the employee bases her petition to vacate are not contested.^[6]

 

On the basis of the records submitted, we cannot conclude that there has been a substantial change in the employee=s medical condition since the time of the Award on Stipulation.  Although the evidence supports the assertion that the employee suffers from chronic low back pain and a chronic pain syndrome related to her 1994 injury, this is essentially the same diagnosis assessed by the employee=s doctors at the time of settlement.  According to Dr. Norgard, the employee=s restrictions and ability to work are essentially the same now as they were at the time of settlement.  No doctor has expressed an opinion that the employee is permanently and totally disabled or that there has been a change in the 3.5% permanent partial disability rating that existed in 1997.  All of these factors, coupled with the employer and insurer=s apparent continued payment of the employee=s medical expenses, lead  to our conclusion that the employee has not established good cause to vacate her Award on Stipulation at this time.