DAVID L. BLACK, Employee/Petitioner, v. HONEYWELL, INC., SELF-INSURED/SEDGWICK CMS, Employer, and MN DEP=T OF HUMAN SERVS., Intervenor, and SPECIAL COMPENSATION FUND.

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 5, 2004

HEADNOTES

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  The evidence offered in this case demonstrates a substantial change in the employee=s medical condition sufficient to warrant vacation of the 1991 award on stipulation.

Petition to vacate granted.

Determined by Stofferahn, J., Wilson, J, and Pederson, J.

Attorneys: Robert C. Falsani, Falsani, Balmer, Peterson & Quinn, Duluth, MN, for the Petitioner.  Michael J. Patera, Michael J. Patera, Chartered, Buffalo, MN, for the Respondents.

OPINION

DAVID A. STOFFERAHN, Judge

The employee has petitioned to vacate an award on stipulation, alleging that there has been a substantial change in his condition which constitutes cause pursuant to Minn. Stat. ' 176.461.  The petition is granted.

BACKGROUND

David Black, the employee, sustained a number of work injuries to his back at Honeywell between August 5, 1980 and September 24, 1984.  In 1990, the parties settled the employee=s claims for permanent partial disability to the extent of 10.5 percent of the whole body.  In 1991, the parties entered into a stipulation for settlement closing out on a final basis the employee=s claims for temporary total disability compensation, temporary partial compensation, permanent total compensation and rehabilitation services arising out of the employee=s injuries at Honeywell in return for payment of $29,000.  Claims for permanent partial disability and medical expenses were not affected by the settlement which was the subject of an award issued December 2, 1991.  In 1994 and 1996, this court considered petitions by the employee to vacate the settlement.  Those petitions were denied.^[1]

Before the 1991 settlement, the employee treated at the University of Minnesota Orthopedic Clinic for his back condition.  On March 6, 1990, the employee reported increased low back pain with tingling in the left leg when sitting, standing and with activity.  On examination, he had diffuse tenderness in the lumbosacral spine, good range of motion and negative straight leg raising.  The impression was of Anon-specific low back pain, chronic.@  Physical therapy was prescribed.  The employee returned to the clinic on January 24, 1991, and saw Dr. Timothy Garvey.  Dr. Garvey concluded that the employee was doing reasonably well with non-operative care and recommended a home care program.  Dr. Garvey completed a Functional Capacities Evaluation form, R-33, on February 13, 1991, and allowed the employee to work with restrictions of no lifting over 35 pounds, frequent lifting up to 10 pounds, and occasional bending. 

The employee had also received rehabilitation services before the settlement.  In his initial report of February 7, 1991, his QRC, Don Loscheider, reported that the employee had left his employment with Honeywell in 1985 and was currently going to school full-time and working as a bus driver part-time.  The employee began job search in May 1991, focusing on the areas of full-time driver, machine operator, and mechanical repair.  The rehabilitation file was closed in September 1991 when the parties settled the employee=s claims. 

The employee consulted for the first time with Dr. Garry Banks at Midwest Spine Institute on December 27, 1993.  The employee reported back pain which had increased about three months previously and which had caused him to stop working.  The employee complained of low back pain which radiated to his buttocks, hips, and both legs to the feet.  After diagnostic testing, Dr. Banks recommended surgery.  Surgery was done on March 3, 1994; an anterior-posterior spinal fusion T11-L2, anterior discectomies T11-L2, posterior decompression T11-12, and posterior instrumentation T10 to L2. 

In his report of January 12, 1995, Dr. Banks stated that the employee was totally disabled after the surgery until August 24, 1994, when he was released to work on a half day basis with a lifting restriction of 10 pounds.  At the time of the January visit Dr. Banks increased the lifting restriction to 20 pounds and indicated a permanent partial disability of 27.5 percent of the whole person.  Dr. Banks restated these restrictions in a workability form completed on February 6, 1996.

The employee noted increasing low back pain thereafter and treated with Dr. Banks who diagnosed L4-5 disc degeneration and lumbar strain.  The employee was treated with medication and physical therapy.  In November 1997, Dr. Banks noted that, despite this treatment, the employee=s symptoms were increasing, and he discussed with the employee the possibility of further surgery.  Surgery was performed on February 6, 1998.  Dr. Banks did an anterior-posterior fusion at L4-5 with instrumentation.  In a recheck examination on July 10, 1998, Dr. Banks noted that the employee had noted improvement of his lumbar pain, was not using pain medications, and was able to walk with the use of a cane.  Dr. Banks stated at that time that the employee should remain off work permanently. 

The employee=s surgery resulted in pseudoarthrosis at the L4-5 level and revision surgery was done on January 4, 2001.  The existing hardware was removed, the fusion was revised  and additional instrumentation was implanted.  In his report of July 16, 2003, Dr. Banks stated that the employee last saw him in July 2001 and appeared to have a solid fusion.  Dr. Banks gave the employee permanent lifting restrictions of 10 pounds occasionally and a requirement of being able to change positions every 15 minutes.  Dr. Banks attributed the employee=s back condition to the employee=s work injuries. 

The employee  filed a petition to vacate the 1991 award on stipulation on October 30, 2003, alleging that there has been a substantial change in condition, a mutual mistake of fact, and newly discovered evidence, all of which constitute cause under Minn. Stat. ' 176.461 for this court to vacate the award.  The self-insured employer has objected to the petition, arguing that there was no mutual mistake of fact and that there has been no newly discovered evidence or substantial change in the employee=s condition. 

DECISION

The Workers= Compensation Court of Appeals has been granted authority to set aside an award on stipulation for cause.  Minn. Stat. ' 176.461, Minn. Stat. ' 176.521, subd. 3.  For the purposes of considering this matter, cause includes a substantial change in the employee=s condition from the time of the settlement.  Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).

The question for this court then is whether the employee has established a substantial change in his condition from the time of the settlement to the time of the filing of the petition to vacate in 2003.  The employer argues that there has been no substantial change in the employee=s condition since the time of this court=s last decision in 1996.  It is the employer=s position that the petition should be barred by the principles of res judicata.  Res judicata may apply in workers= compensation matters but it applies only to those issues actually litigated and decided in the previous proceeding.  Westendorf v. Campbell Soup Co., 243 N.W.2d 157, 28 W.C.D. 460 (Minn. 1976).  In the present case the employee is not seeking to relitigate the petition considered by this court in 1996.  The employee has had additional treatment by Dr. Banks since then and has presented evidence not considered by this court previously.  We conclude that res judicata does not bar the employee=s petition.  The relevant inquiry for this court is the employee=s condition at the time of the settlement in 1991 and his condition in 2003.  Virnig v. Carley Foundry, Inc., slip op. (W.C.C.A. Nov. 14, 2000). 

In considering whether there has been a substantial change in condition, this court has often applied the factors set out in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).  The Fodness factors include:

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 than initially anticipated; and

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

Each of these factors will be considered in the context of the present case.

Change in Diagnosis

At the time of the settlement, the last doctor the employee had seen for his work injuries was Dr. Garvey at the University of Minnesota Orthopedics Clinic whose impression was of chronic low back pain and posterior thigh pain.  Non-operative care was considered appropriate and there was no indication of disc involvement.  The employee=s current diagnosis, as set forth by Dr. Banks in his July 16, 2003 report, includes severe progressive T12-L2 disc degeneration with kyphosis and severe progressive L4-5 disc degeneration.

Change in Ability to Work

At the time of the settlement, the employee was working part-time and going to school full-time.  He was subject to restrictions which allowed him to lift up to 30 pounds occasionally.  At the time of the petition the employee=s treating doctor had placed restrictions on the employee of no lifting over 10 pounds and position changes every 15 minutes.  Dr. Banks concluded the employee was permanently totally disabled; the employee was not working and was receiving Social Security disability benefits.

Additional Permanent Partial Disability

While permanent partial disability claims are not foreclosed by the stipulation at issue, the question for consideration here is whether there has been a change in permanent partial disability which may indicate a substantial change in the employee=s condition.  In 1990, the employee=s claim for permanent partial disability was for 10.5 percent of the whole body and the employer=s position was that the employee had, at most, 3.5 percent disability from work injuries.  Dr. Banks, even before the 1998 and 2001 surgeries, concluded that the employee had sustained a 27.5 percent disability of the whole person.

Medical Care

We have held that this factor is of a limited utility where medical expenses are left open as they were in the present settlement.  Burke v. F&M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996).  However, a change in recommended medical treatment since the time of the settlement may still be a valuable indication of whether there has been a substantial change in the employee=s medical condition.  At the time of the settlement, the employee was not under active treatment for his work injuries and his most recent treatment had been medication and physical therapy.  Dr. Garvey had specifically stated that the employee=s condition was non-operative.  Since the settlement, the employee has had three surgeries involving anterior-posterior fusions with instrumentation. 

Causal Relationship

Dr. Banks opinion as set forth in his report of July 16, 2003 provides the requisite causal relationship between the employee=s condition at the time of the petition and his work injuries.  We note further that, at oral argument, the employee=s attorney asserted without contradiction that the employee=s surgeries in 1998 and 2001 were paid by the employer.

We conclude that the employee has shown a substantial change in his condition and has established cause to vacate the award on stipulation of December 2, 1991.  The employee=s petition is granted and the award on stipulation, served and filed December 2, 1991 is vacated.

In view of our determination, we will not address the alternate grounds for vacation argued by the employee.