PATRICIA A. SLETTEN n/k/a/ PATRICIA DAMANN, Employee/Petitioner, v. MODEL CLEANERS LINEN SERV., INC., and STATE FUND FIRE & CASUALTY CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 11, 2003

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  The employee provided evidence of a significant change in diagnosis, in her ability to work, of additional perma­nency, of more costly and extensive medical care than anticipated, and a causal connection between her current disability and the work injury, sufficient to establish cause to vacate the February 26, 1988 Award on Stipulation.

 

Petition to vacate granted.

 

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

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The petitioner seeks to vacate and set aside an Award on Stipulation served and filed on February 26, 1988, based on a substantial change in medical condition.  We conclude the peti­tioner has established good cause, and grant the petition to vacate the award.

 

BACKGROUND

 

Patricia A. Sletten, the petitioner, worked for Model Cleaners Linen Service, Inc., then insured by State Farm Fire & Casualty Company.  The employee contended she sustained a personal injury on February 19, 1986, arising out of and in the course of her employment.  The employer and insurer denied liability.  The employee earned a weekly wage of $160.00.

 

In March 1986, the employee was hospitalized for complaints of low back and right leg pain.  A CT scan of the lumbar spine showed bulging discs at L3-4 and L4-5, without evidence of impingement and a disc extrusion at L5-S1 causing neural impingement.  A lumbar myelogram showed a defect at L5-S1 on the right pushing on the S1 nerve root and mild disc bulging at L3-4 and L4-5.  In March 1986, Dr. Daniel Schmelka, a neurosurgeon, removed an extruded disc fragment at L5-S1 on the right side.  In May 1987, Dr. Robert A. Wengler rated an 11 percent whole body disability.^[1]  In October 1987, Dr. R. H. N. Fielden concluded the incident on February 19, 1986 was a substantial contributing cause of the employee=s need for surgery and also rated an 11 percent whole body disability.  The parties then entered into a stipulation settling all the employee=s claims for workers= compensation benefits on a full, final and complete basis, with the exception of reasonable and necessary medical expenses which the employer and insurer agreed to pay.  An Award on Stipulation was filed on February 26, 1988.

 

In April 1999, the employee returned to see Dr. Schmelka complaining of an increase in pain in March when she bent over to reach into the refrigerator.  Dr. Schmelka referred the employee to Dr. Charles Guernsey who provided epidural steroid injections.  In November 2000, the employee saw a rheumatologist, Dr. James Lassard.  The doctor reviewed x-rays and an MRI scan and diagnosed possible S1 radiculopathy causing low back pain.  A lumbar MRI scan on May 9, 2001, showed a large central to left paracentral herniated disc at L2-3 causing severe central stenosis and moderate to severe central stenosis at L4-5.^[2]  The employee then saw Dr. Zoltan Mocsary, a neurologist, who examined the employee and reviewed a 2000 MRI scan.  The doctor felt the employee=s stenosis was quite significant and merited a surgical opinion.  The employee returned to see Dr. Schmelka who concluded the employee had two problems:  a herniated disc at L2-3 and stenosis at L4-5.  On May 25, 2001, Dr. Schmelka performed a laminotomy, foraminotomy and hemifacetectomy, and a removal of a large extruded disc at L2-3.  The employee returned to see Dr. Schmelka in October 2001 with complaints of continuing left leg pain resulting in difficulty sleeping, walking and weight bearing.  The doctor opined the employee had a claudicating-type syndrome and scheduled another surgery.  On October 30, 2001, Dr. Schmelka performed a hemilaminectomy at L4 and L5 with decompression of the L4-5 disc.

 

Following her March 1986 surgery, the employee was totally disabled for a period of time and then released to work with a forty-pound lifting restriction.  Apparently, she was laid off by the employer because there were no jobs available within the employee=s restrictions.  In December 1986, the employee obtained a job as an inventory clerk and worked intermittently as a seasonal employee at Gourmet Rice Plant and also worked doing grocery store inventory.  For several years in the late 1980s and early 1990s, the employee worked as a waitress and a cook at various restaurants.  In 1997, the employee obtained work as an assembler at Team Industries in Bagley, Minnesota, a company that assembled transmissions and gear selectors for snowmobiles.  She worked on a press and was on her feet the majority of her work day, but, apparently, the lifting on the job was minimal.^[3]  The employee left this job in May 2001 and has not since returned to work.  The employee qualified for Social Security Disability benefits effective September 2001.

 

In August 2002, Dr. Duane F. Person examined the employee at the request of her attorney.  Dr. Person diagnosed herniated discs at L5-S1 and L2-3 and spinal stenosis at L4-5 and L5-S1.  The doctor opined these conditions were substantially caused by the February 19, 1986 personal injury and resulted in the surgeries in May and October 2001.  Finally, Dr. Person rated a 30 percent whole body disability under Minn. R. 5223.0390, subp. E.(1), (2), (3) and (4).^[4]  The employee underwent a functional capacity evaluation in October 2002 and a vocational evaluation by Jack H. Casper in December 2002.  Mr. Casper concluded the employee was permanently and totally disabled from any and all substantial gainful work activity as a result of her 1986 personal injury.

 

DECISION

 

The employee contends there has been a substantial change in her medical condition since the February 1988 Award on Stipulation which justifies a vacation of the award.  She contends her diagnosis has changed, she is now unable to work and has sustained additional permanent partial disability and medical care, all of which was caused by or is related to her work injury.  The employer and insurer argue there has been no change in diagnosis and that any change in the employee=s ability to work is unrelated to her personal injury.  Finally, they contend Dr. Person=s rating of permanent partial disability is under the wrong schedule and that any additional permanent disability is unre­lated to the admitted injury.  Accordingly, the respondents request that this court deny the employee=s petition to vacate.

 

This court=s authority to vacate an award on stipulation is governed by Minn. Stat. '' 176.461 and 176.521, subd. 3.^[5]  An award may be set aside if the employee makes a showing of good cause, for which grounds may 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).  In this case, the employee claims good cause to vacate the Award on Stipulation based on a substantial change in medical condition.  Factors this court may consider in making this determination include a change in diagnosis, change in the employee=s ability to work, additional permanent partial disability, the necessity of more costly and extensive medical care and services than initially anticipated, and whether there is a casual relationship between the employee=s changed condition and the injury covered by the settlement.  Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).

 

The CT scan and myelogram performed in 1986 showed a defect at L5-S1 on the right impinging on the S1 nerve root and mild disc bulging at L3-4 and L4-5.  Dr. Schmelka operated on the employee to remove an extruded disc fragment at L5-S1 on the right side.  The MRI scan in May 2000 showed a herniated disc at L2-3 causing severe stenosis and moderate to severe central stenosis at L4-5.  In May 2001, Dr. Schmelka removed a large extruded disc at L2-3, and, in October, performed a hemilaminectomy at L4 and L5, with decompression of the L4-5 disc.  The L2-3 disc herniation is a new diagnosis since 1986, and the condition of the L4-5 disc has progressed from a bulging disc to stenosis.  The employee has established a change in her diagnosis.

 

Dr. Wengler and Dr. Fielden rated the employee with an 11 percent whole body disability in 1987.  Since then, the employee has undergone two additional surgeries to her low back.  Dr. Person rated the employee with a 30 percent whole body disability based on the current permanency schedules.  Admittedly, Dr. Person used the wrong permanent partial disability schedules.  However, presumably the employee does have additional permanent disability by reason of the two surgical procedures.  Further, the employee has undergone more costly and extensive medical care at different levels of her spine than initially anticipated. 

 

Following her 1986 injury, the employee was released to return to work with restric­tions.  Apparently, the employee worked for significant periods of time thereafter, including working as an assembler at Team Industries from 1987 through May 2001.  The employee contends she is now permanently and totally disabled based upon the vocational evaluation of Mr. Casper.  The employer and insurer, however, contend any change in the employee=s ability to work is unrelated to her personal injury.  During her functional capacity evaluation in October 2002, the employee gave a history of diabetes, a pinched nerve in her right elbow, a rotator cuff tear in her left shoulder, and quadruple heart bypass surgery in July 2000.  On testing, the FCE reflected the employee re­quired frequent rest breaks, was unable to perform shoulder and overhead lifting and was unable to reach above 50 degrees of shoulder flexion with her left arm.  The employer and insurer contend it is these conditions which limit the employee=s ability to work, not the work injury.

 

That the employee may have concurrent disability resulting from medical problems independent of the personal injury covered by the award does not limit this court=s jurisdiction to vacate an award.  See Bennett v. Hoiseth Motor Sales, 302 Minn. 534, 224 N.W.2d 148, 27 W.C.D. 604 (1974).  Ultimately, the question in change of condition cases is whether sufficient cause exists to justify vacating an award.  Cause exists upon a prima facie showing by the employee that evidence of subsequent developments exist which will establish that her condition has substantially worsened and that there is a causal relationship between the injury covered by the award and her present wor­sened condition.  Davis v. Scott Moeller Co., 524 N.W.2d 464, 51 W.C.D. 472 (Minn. 1994).

 

Based upon the medical evidence submitted, it appears the employee=s condition has significantly deteriorated since the award in 1988.  A vocational opinion from Mr. Casper concludes the employee is permanently and totally disabled.  Dr. Person causally related the employee=s current condition to the 1986 work injury.  We conclude the employee has established a substantial change in her medical condition sufficient to vacate the award on stipulation.  We, therefore, grant the employee=s petition to vacate the Award on Stipulation of February 26, 1988.^[6]  By this decision, this court makes no determination relative to the merits of any claim by the employee for additional compensation, including causation.  This remains subject to proof at a hearing before a compensation judge.