GENE N. RUDE, Employee/Petitioner, v. SWINGEN CONSTR. CO. and WAUSAU INS. COS., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 10, 2003

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where there is no change in diagnosis, no substantial change in the employee=s ability to work, no substantial change in permanent partial disability and where the employee=s claim for medical expenses remained open under the terms of the stipulation for settlement, good cause has not been established to set aside the award on stipulation.

 

Petition to vacate award denied.

 

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

 

Attorneys: Jeffrey R. Hanning, Hannig & Associates, Fargo, ND, for Petitioner.  Matthew D. Davis, Conley & Borgeson, St. Paul, MN, for Respondents.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee filed a motion to set aside an award on stipulation, alleging that there has been a substantial change in his condition which constitutes cause pursuant to Minn. Stat. ' 176.461.  We deny the motion.

 

BACKGROUND

 

On June 8, 1982, while working as a construction laborer for Swingen Construction Company, Gene Rude, the employee, sustained an injury to his low back.  The employer and its insurer, Wausau Insurance Companies, admitted primary liability for the injury, and paid temporary total and temporary partial disability benefits, as well as medical expenses.

 

According to the employee=s medical and chiropractic records, the employee had sustained an injury to his low back while lifting a piece of plywood.  He experienced a sudden onset of low back and left leg pain and first treated with a chiropractor, Dr. Lonny Berger.[1]  He received temporary relief of his symptoms and continued working through the construction season in the fall of 1982.  In January 1983, the employee noted severe pain in his low back.  He apparently attempted to return to work at some point in early 1983 but developed pain in his left leg and numbness in his big toe, and was unable to continue working.[2]  On March 10, 1983, the employee consulted a medical doctor, Dr. David Bjork, reporting a recurrence of symptoms three months earlier.  Dr. Bjork=s examination findings included good lumbar range of motion, normal reflexes and negative straight leg raising.  He also noted paravertebral muscle spasm and diffuse hypoesthesia.  Lumbar x-rays showed asymmetric congenital variation at L5 and S1 vertebral levels, with small osteophytes in the vertebral body margins and normal disc intervals.  Although Dr. Bjork recommended physical therapy, exercises and anti-inflammatory medications, it is unclear from the records whether the employee followed up with Dr. Bjork=s recommendations for additional treatment.

 

On December 5, 1983, the employee consulted with Dr. William Kelly, an orthopedic surgeon, reporting low back and left leg pain and numbness in his left big toe.  Lumbar x-rays taken on that date showed generally normal bony configuration and maintenance of the intervertebral disc spaces.  X-rays also showed partial sacralization of the first lumbar segment, with a fusion of the lateral process on the left.  Dr. Kelly concluded the employee had a negative neurological examination.  However, he ordered a lumbar CT scan as he had concerns about nerve root impingement.  The CT scan taken on December 6, 1983, showed mild diffuse bulges of the discs at L3-4 and L4-5 and a narrowed interspace at L5-S1, with no evidence of herniation.  Dr. Dale Schock, who reviewed the CT scan, commented that the scan findings possibly showed a very small disc fragment at the L3-4 level, but concluded that this was of questionable significance.

 

The employee was hospitalized from January 2-6, 1984, and received conservative treatment for his low back, including heat, massage and intermittent pelvic traction.  The employee reported no symptomatic relief from the therapy and later reported that the traction worsened his symptoms.  In February of 1984, Dr. Kelly concluded that the most likely cause of the employee=s back and leg symptoms was a fragment of nucleus pulpous impinging a nerve root, although no radiographic studies confirmed the existence of a disc fragment.  Dr. Kelly noted that the employee elected not to have surgery for that condition and that the employee accepted his present disability which Dr. Kelly considered to be Aquite severe.@  Dr. Kelly stated that the disability may prevent the employee from returning to any kind of heavy work and recommended certain restrictions, including no bending or lifting over a few pounds and no repetitive lifting.  He also assigned a 20-25% impairment rating of the whole body or 35% impairment of the spine.

 

In 1985, the parties entered into a stipulation for settlement, which was the subject of an award on stipulation, served and filed February 22, 1985.  At that time, the employee was being paid temporary total disability benefits.  The stipulation provided that the employee would be paid $52,500.00, in exchange for a settlement of present and future claims for temporary total and temporary partial disability benefits, permanent total disability benefits, and permanent partial disability to the extent of 35% of the back.  The settlement also closed out the employee=s claim for retraining benefits and rehabilitation services for eight years from the date of the award on stipulation.  The employee=s claim remained open for reasonable and necessary medical expenses relating to treatment for his work injury of June 8, 1982.

 

In the stipulation for settlement, the employee contended that he remained temporarily totally disabled as a result of his work injury, that he had sustained 35% permanent partial disability of his spine, and that he may need surgery in the future which would result in temporary total disability, temporary partial disability and medical expenses.  The employer and insurer contended that the employee had sustained only 10% permanent partial disability of the spine as a result of his work injury.  The employer and insurer also asserted that the employee could find suitable employment after a period of rehabilitation and/or retraining, but the employee contended that due to the nature of his injury, the proposed rehabilitation program would not allow him to return to his previous employment.

 

The record includes no documentation of medical treatment between 1985 and 2001.  The employee consulted Dr. Steven Johnson on June 14, 2001, reporting worsening low back pain with radiculopathy into his left leg.  He reported that he had experienced low back pain since his 1982 work injury.  Dr. Johnson referred the employee for an MRI scan, taken on June 22, 2001, which showed disc degeneration at multiple levels of the lower spine, with some joint space narrowing.  There was no evidence of disc herniation or of any definite nerve root compression to suggest a cause of the employee=s left leg symptoms.  Dr. Johnson recommended conservative medical therapy, intermittent use of anti-inflammatory medication, and intermittent periods of rest mixed with a long-term program of stretching and strengthening the low back.

 

In November 2001, the employee underwent physical therapy which he felt did not help his symptoms.  On January 11, 2002, the employee was examined by Dr. Bryan Lynn, Institute for Low Back and Neck Care.  The employee advised Dr. Lynn that physical therapy in November 2001 did not help his symptoms.  Dr. Lynn diagnosed multi-level lumbar degenerative disc disease with burning in the left lower extremity, and prescribed Vioxx and treatment at the Low Back Rehabilitation program for trunk stabilization exercises.  The employee received therapy through that program, but on May 10, 2002, the employee reported to Dr. Lynn that the rehabilitation program did not substantially improve his discomfort and that the LTX chair used during that program worsened his lower extremity pain.  At Dr. Lynn=s referral, the employee consulted Dr. Kevin Xie, a neurologist, on June 19, 2002.  Dr. Xie recommended a nerve conduction study and EMG test to analyze the employee=s low back and left leg pain and radiculopathy.  Dr. Xie also prescribed Neurontin, but the employee later discontinued that as it was not helping his symptoms.  An EMG taken on August 20, 2002, had borderline normal results.  Dr. Xie diagnosed diffuse disc disease and disc bulging at multiple levels from L2 to L5 but no disc herniation or neural foraminal stenosis.  He interpreted the nerve conduction study and EMG as being unremarkable and prescribed a Lidoderm patch.  He also recommended weight loss, possibly a steroid injection in the future, and follow-up treatment on an as-needed basis.

 

Between October 2001 and March 2003, the employee was provided rehabilitation services by the employer and insurer.  QRC Ken Moberg worked with the employee, and his services consisted primarily of medical management, vocational testing and counseling, and facilitation of a functional capacities evaluation.  Since the employee now resides in a small community located near Jamestown, North Dakota, the QRC arranged for a consultation with the vocational rehabilitation branch of the North Dakota Department of Human Services, in an attempt to coordinate vocational services for the employee.  The employee underwent a functional capacity evaluation (FCE) in October 2002, which indicated that the employee was limited to sedentary employment within standing, sitting and lifting limits.

 

A regional administrator from the North Dakota DHS interviewed the employee on February 5, 2003.  He concluded that the employee would have difficulty obtaining employment in the Jamestown, North Dakota, area based on the following concerns:  physical condition, academic skills, lack of transportation from the employee=s small town since the employee does not have a driver=s license, and limited transferable skills from his previous physical and construction work experience. 

 

The employee underwent a vocational evaluation by Jack H. Casper in January 2003.  Mr. Casper concluded the employee was permanently and totally disabled from any substantial gainful work activity as a result of his 1982 personal injury.  The rehabilitation plan was closed in 2003 after the QRC concluded that it was unlikely that the employee would benefit from direct placement or retraining.

 

DECISION

 

This court may set aside an award for Agood cause@ pursuant to Minn. Stat. ' 176.461 and Minn. Stat. ' 176.521, subd. 3 (1984).[3]  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 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 v. Fabcon, Inc., 509 N.W.2d 373, 376-77, 49 W.C.D. 520, 525 (Minn. 1993).  A number of factors may be considered in determining whether a substantial change in medical condition has occurred, including:

 

1.         A change in diagnosis;

2.         A change in the employee=s ability to work;

3.         Additional permanent partial disability;

4.         A necessity for more costly and extensive medical care/nursing services than initially anticipated;

5.         A causal relationship between the injury covered by the settlement and the worsened condition.

 

Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).  The employee contends that his condition has substantially changed since the 1985 award on stipulation, primarily based on a significant decrease in his ability to work. 

 

As to the first Fodness factor, the employee acknowledges that there arguably is little or no change in his objective diagnosis since 1985, as the employee was diagnosed with multi-level degeneration in the lumbar spine at the time of the award and again in 2001 and 2002.  However, the employee argues that his symptoms have changed dramatically since 1985 and that his chronic pain and resulting limitations on his activities of daily living are much greater now than in 1985.  See Kashuba v. Donaldson Co., Inc., slip op. (W.C.C.A. Jan. 12, 2001).

 

In response, the employer and insurer argue that despite repeated evaluations by various doctors, the employee=s diagnosis has remained the same since 1985, and that his physicians= conservative treatment recommendations remain similar to those in place before the award on stipulation.  When the employee=s claim was settled in 1985, the diagnosis of his condition by his treating doctor, Dr. Kelly, was of multi-level degenerative disc disease with numbness in his left extremity; that diagnosis was substantiated by a CT scan.   An MRI taken on June 14, 2001, again revealed degenerative disc disease, and results from neurological examinations and a nerve conduction test and EMG, as performed by Dr. Kevin Xie in 2002, were Aunremarkable.@  Based on the employee=s medical records from 2001 and 2002, we do not find a change in diagnosis since the award on stipulation.

 

The employee argues that he satisfies the second Fodness factor, a change in his ability to work.  He argues that he was able to work at the time of the award on stipulation in 1985, and was not totally restricted from working at that time by his treating doctor, Dr. Kelly, nor by Dr. Fielden, the independent medical examiner.  The employee argues that there has been a substantial change in his ability to work since he was able to be employed after the settlement and he is now permanently and totally disabled.  At the time of the award, however, the employee was not employed, and in the stipulation he contended that he remained temporarily totally disabled as a result of his work injury and that he was unable to find gainful employment within his physical restrictions.  During the ten years following the stipulation, the employee returned to work, earning annual wages ranging between $996 and $35,918.  The employee has not worked since 1993, and, according to the FCE conducted in 2002, is now limited to sedentary employment.  The employee argues that he now is permanently totally disabled based on his lack of transferable skills, lack of education, and functional illiteracy.  In support of that contention, he submitted reports from Mr. Moberg, his QRC, and from Mr. Casper, independent vocational evaluator.

 

While there is evidence to support the employee=s argument concerning a change in ability to work, the employee=s  work restrictions in 1985 and his current restrictions are quite similar.  Although the employee demonstrated his ability to work between the 1985 award and 1993, and although the findings from the FCE in 2002 limit him to sedentary work, the employee contended in the stipulation that he remained temporarily totally disabled and he now contends he is permanently totally disabled.  We do not find a substantial change in his ability to work since the award on stipulation.

 

The employee acknowledges that the third factor, an increase in permanent partial disability, is of less consequence in this particular situation, in that his worsened condition and decreased ability to work are more significant factors for the court to consider.  At the time of the award, Dr. Kelly had rated the employee as having a 25% whole body impairment or 35% impairment of the spine.  Dr. Fielden assigned a rating of 10% of the spine, and both opinions were cited in the stipulation for settlement.  The employee has submitted no medical report substantiating any increase in his permanent partial disability since the award on stipulation.

 

The fourth factor in Fodness, the necessity of more costly and extensive medical care than initially anticipated, has little effect on the employee=s petition to vacate.  Under the terms of the settlement, the employee=s claim remained open for payment of reasonable and necessary medical expenses causally related to his work injury.  The record does not contain any reports of medical treatment for the employee=s low back between 1985 and 2001, although the employee advises that he had several recurrences of his symptoms while working in the late 1980s and early 1990s, which led to treatment on a short-term basis by chiropractors in Idaho and North Dakota.  Treatment since 2001 has been primarily diagnostic with physical therapy and medications prescribed.  For purposes of considering whether a substantial change in the employee=s condition has occurred, it is noted that the employee=s physicians continue to prescribe conservative treatment as they did at the time of the award.

 

The employee argues that he has satisfied the fifth Fodness factor, arguing that there is a causal relationship between his injury and current worsened condition.  The employee submitted medical records in support of his argument that his current condition is causally related to his admitted 1982 work injury, and the employer and insurer do not dispute a causal relationship between the employee=s injury and his current low back condition.

 

The employee also argues that the Fodness factors are simply thatBfactorsBand are not criteria that must be met entirely in order to substantiate a petition to vacate an award on stipulation.  The employee argues that the dramatic deterioration of his ability to function due to pain caused by his work injury, and the direct relationship to the decrease in his ability to work, both point to a vacation of the stipulation for settlement.

 

Given that the employee has not had a change in diagnosis, no substantial change in his ability to work, and no additional permanent partial disability since the award on stipulation, and given that the employee=s claim for medical expenses was left open under the settlement, we do not find a substantial change in the employee=s medical condition which would constitute good cause to set aside the award on stipulation in this case.  The employee=s motion to set aside the award is denied.