RANDI DANIELSON, Employee/Petitioner, v. CLAIROL, INC., and UTICA MUT. INS. CO., Employer-Insurer, and MN DEP=T OF HUMAN SERVS., Intervenor, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 20, 2004

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where, since the time of the award, the employee=s ability to work had not changed at all, where her diagnosis had changed very little, where any increase in her permanency rating was minimal and without clear documentation or other support, and where any more costly and extensive medical care than may have been anticipated had not been proved causally related to the alleged work injury and had been at any rate left open for payment under a medical request pursuant to the stipulation, the employee did not show good cause for vacating her 1989 award on stipulation on grounds that she had experienced a substantial change in her condition.

 

VACATION OF AWARD - MISTAKE.  Where it was clear that supplementary benefits were expressly at issue at the time of settlement, where a portion of the employee=s settlement proceeds was expressly designated as representing supplementary benefits and there was no evidence that this amount was ever intended to represent specific weekly compensation or anything other than a compromised amount, and where all parties were represented by counsel and the employee offered no evidence that any were actually Amistaken@ as to what was at stake, the employee did not show good cause to vacate her 1989 award on stipulation on grounds of mistake because the parties may not have detailed in their stipulated agreement every element of the employee=s potential entitlement to supplementary benefits.

 

Petition to vacate denied.

 

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

 

Attorneys: Arnold M. Bellis, Attorney at Law, Bloomington, MN, for the Petitioner.  John T. Thul, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Respondents.  Michael Schoff, MN Dep=t of Human Servs., St. Paul, MN, for the Intervenor.  Lorelei Hoyer, Special Compensation Fund, St. Paul, MN, for the Special Compensation Fund.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee petitions this court to vacate an award on stipulation served and filed May 24, 1989, on grounds of mistake and substantial change in condition.  Concluding that the employee has not shown good cause to vacate the award, we deny  the employee=s petition.

 

BACKGROUND

 

On February 9, 1983, Randi Danielsen sustained what she has alleged to be a work-related injury to her low back and her neck while moving a twelve-foot ladder at a Target store in the course of her part-time employment as a merchandiser with Clairol, Inc.  Ms. Danielsen [the employee] was forty-two years old at the time and was earning a weekly wage of $100.00.  The employee completed her workday on the date of her alleged injury, and she returned to work for one more day before informing her manager that she was in too much pain to work.  Subsequent examination revealed a lack of reflexes in the left ankle and positive findings on straight leg raising tests, and a CT scan on March 7, 1983, revealed a herniated disc at L5-S1 on the left and a Aprominent central disc@ at L4-L5.  On March 17, 1983, based on these findings after anti-inflammatory medications proved ineffective as treatment, orthopedic surgeon Dr. Joseph Bocklage diagnosed a herniated disc and performed a laminectomy and discectomy at L5-S1 of the employee=s lumbar spine.  About two years later, on May 26, 1985, neurologist Dr. Thomas Murphy diagnosed, in addition to chronic radicular low back pain secondary to degenerative disc disease, chronic neck pain radiating to the right arm and chronic headaches secondary to that neck pain.  The doctor ordered a myelography, and on May 31, 1985, under a diagnosis of cervical spondylosis at C5-6 with cervical pain and radiculopathy, the employee underwent a discectomy and fusion at C5-6 of her spine, performed by neurosurgeon Dr. Richard Siebert.  On August 22, 1985, the employee was evaluated for physical therapy by therapist Susan Ramsdell, who noted that the employee presented with decreased range of motion and complaints of bilateral pain throughout her neck and back that radiated into all four extremities.

 

On October 2, 1986, the employee wrote to Clairol, Inc. [the employer], explaining the details of her alleged work injury on February 9, 1983, and claiming that she had reported it to her manager on the date it happened, and a first report of injury was filed on December 1, 1986.

 

On July 17, 1987, in a letter to the employer, Dr. Murphy rated the employee=s permanent partial disability at 25% of the cervical spine and 25% of the lumbar spine, relating both to the employee=s alleged work injury on February 9, 1983.  On September 8, 1987, also in a letter to the employer,^[1] Dr. Siebert reported that the employee continued to be subject to chronic low back and bilateral leg pain and to chronic neck and mostly right arm pain, all of which Dr. Siebert also related to the employee=s February 9, 1983, alleged work injury, noting, however, that the employee had had a history of a low back injury about three years prior to that incident, apparently related to carrying a basket of laundry.  Dr. Siebert, too, rated the employee=s permanent partial disability at 25% of the cervical spine and 25% of the lumbar spine. 

 

On March 7, 1988, the employee underwent another CT scan, this of the thoracic as well as lumbar spine, which revealed no abnormalities in the thoracic region but, in addition to the laminectomy at L5-S1, some symmetric bulging of the L4-5 disc and some smaller protrusion of the L3-4 disc.  The following month, on April 18, 1988, internist Dr. Rafael Guerrero, who had treated the employee intermittently since 1983 for problems related to her medications and her psychological state, diagnosed the following: (1) chronic lower back pain radiating into both legs, right greater than left, secondary to discogenic disease, status post lumbar laminectomy in March 1983; (2) chronic neck and right arm pain, secondary to disc degeneration at C5-6, with posterior osteophytes, status post anterior discectomy and fusion of C5 and C6; and (3) gastric ulcer, secondary to the Indocin that the employee had taken for her conditions.  Dr. Guerrero opined that the employee would need continuous help with housekeeping chores and would require continuous medical treatment.  On July 5, 1988, the employee filed a claim petition, alleging entitlement to temporary total disability benefits continuing from February 10, 1983, and to compensation for a 25% permanent partial disability of her cervical back and for a 25% permanent partial disability of her lumbar back, based on a work injury to her back on February 9, 1983.  On August 12, 1988, the employer denied all liability for such an injury.

 

On October 18, 1988, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Michael Davis.  Dr. Davis recounted the employee=s report of an incident in September 1981 when she experienced low back pain handling a laundry basket.  He reported also that a lumbar CT scan at that time, on October 16, 1981, had revealed moderate disc bulges at L3-4 and L4-5 but no evident herniation.  AOn the basis of the information available,@ Dr. Davis rated the employee=s permanent partial disability at 25% of the spine, including both the neck and the low back conditions, and this disability he apportioned 60% to the employee=s February 1983 injury and 40% to preexisting problems.  Dr. Davis concluded that there was also probably some emotional overlay magnifying the employee=s symptomatology and that the physical therapy that the employee was engaged in could be discontinued in two or three weeks, after which no additional treatment would be indicated, although the doctor did recommend that the employee avoid repetitive bending, twisting, overhead work with her hands, lifting of more than fifteen pounds, and sitting or standing in one position for more than two hours.

 

On January 25, 1989, the employee acknowledged in deposition testimony that she had neither worked nor looked for work anywhere since her alleged work injury in February of 1983.  On April 11, 1989, she was examined for the employer and insurer also by physiatrist Dr. Gary Athelstan, who opined in his report on April 20, 1989, that the employee was currently totally disabled from employment, Adue to a combination of severe chronic pain and emotional problems@ dating back to her alleged work injury.  On April 28, 1989, osteopathic physician Dr. Roland Bateman, who had treated the employee at the Courage Center for about a year, essentially agreed, testifying by deposition that the employee was not capable of engaging in even sedentary gainful employment, subject to her diagnosis of post-surgical failed back syndrome, muscle injury, myofascial disease and pain, and depression.

 

On May 4, 1989, the employee, the Special Compensation Fund [the Fund], the Minnesota Department of Human Services [the intervenor], and the employer and insurer entered into a stipulation for settlement of the employee=s claims stemming from the alleged work injury on February 9, 1983.  At the time of the stipulation, the employee was contending in part as follows:  that her alleged injury had resulted in her development of certain emotional problems; that she had

been temporarily totally or permanently totally disabled since February 10, 1983; that she had sustained, consequent to the alleged injury, a 25% permanent partial disability of her back related to her neck and a 25% permanent partial disability of her back related to her low back; and that she had incurred related medical expenses.  The intervenor=s position at the time of the stipulation was that it had paid to or on behalf of the employee medical expenses in the amount of about $55,000.00 as a result of the alleged February 9, 1983, injury and was entitled to full reimbursement.  At the time of the stipulation, the position of employer and insurer, which had so far not paid any benefits, was as follows: that the employee had not sustained a work-related injury on the date alleged; that they had not received statutory notice of any such injury; that the employee=s claimed emotional problems were not in any way related to such an injury; that the employee had not been temporarily totally or permanently totally disabled since February 10, 1983; that the employee was subject to no more than a total of 25% permanent partial disability of the back, related to her neck and low back combined; that the claimed medical expenses were not related to, or reasonable and necessary to cure or relieve the effects of, the alleged injury; and that they were not liable for any type of payment of any kind to any party to the stipulation.

 

The stipulation for settlement provided that the employee would accept from the employer and insurer a lump sum of $116,500.00 in full, final, and complete settlement of all except medical expense claims stemming from the alleged February 9, 1983, work injury.  The stipulation provided further that that amount was Adeemed to represent compensation for $53,250.00 in temporary total/permanent total disability benefits, plus compensation for $53,250.00 in corresponding supplementary benefits, plus compensation for $10,000.00 in permanent partial disability benefit of the back.@  The employee further stipulated in part that she did not desire the job-search assistance of a QRC or any other rehabilitation or retraining benefits.  The stipulation also provided that the intervenor would accept from the employer and insurer $20,000.00 in full, final, and complete settlement of all of its claims other than claims for future medical expenses related to the alleged February 9, 1983, work injury.  The stipulation also provided that the employer and insurer would pay, provide, or reimburse all Areasonable and related@ medical expenses arising out of the alleged February 9, 1983, work injury.  Finally, the Fund agreed to reimburse the employer and insurer $53,250.00, Awhich represents reimbursement for the supplementary benefits described.@  The stipulation was submitted for approval by a compensation judge, and on May 24, 1989, an award on the stipulation was issued.  The following year, in October of 1990, the employee, the employer and insurer, and the Fund entered into another stipulation for settlement, pursuant to which the employee was paid $15,000.00 in full, final, and complete close-out of all future claims for psychological or psychiatric treatment related to the employee=s alleged February 1983 work injury, and an award on that stipulation was filed October 31, 1990.

 

Subsequent to receiving her awards on stipulation, the employee continued to experience back symptoms, and on December 16, 1992, she underwent a lumbar MRI scan.  In addition to multilevel lumbar degenerative disc disease, the scan was read to reveal a large central disc herniation at L4-5 with marked compression of the thecal sac, but there was no evidence of residual or recurrent disc protrusion at the site of the L5-S1 earlier laminectomy.  Apparently immediately following her MRI scan, the employee returned for about four years to her native Norway, where she received various medical treatments, for which the employer and insurer refused to pay.  In 1996 the employee moved back to live with her sister in New York, where she apparently underwent a cervical MRI scan that was read to reveal a diffuse disc bulge at C6-7 and a mild Asharp angled kyphotic angulation@ at C4-5.^[2]  On October 21, 1997, the employee also underwent a lumbar MRI scan, which was read to reveal degenerative changes at multiple disc levels from L2-3 through L5-S1, with several of the discs bulging, with impingement on the thecal sac most significant at L2-3.  On January 2, 1998, the employee was evaluated by New York neurosurgeon Dr. Erico Cardoso for multiple cervical and low back complaints.  Lumbar x-rays were ordered and were conducted on January 7, 1998, and were read to reveal severe spurring, with disc narrowing at L2-3 and L5-S1.  On July 27, 1998, the employee petitioned for vacation of her May 24, 1989, Award on Stipulation, but on November 2, 1998, having failed to receive anticipated supporting documents, she withdrew her petition, and the petition was dismissed without prejudice.  On May 19, 1999, after undergoing a neuropsychological examination and being cleared for surgery by Dr. Roland Parker, the employee underwent an anterior discectomy with fusion at L2-3, performed by Dr. Cardoso.

 

On March 8, 2000, the employee, still living in New York, was examined by neurologist Dr. Arthur Kay, who noted marked cervical muscle spasm and lumbar tenderness and ordered a cervical MRI scan.  The scan, apparently performed in April of 2000,^[3] evidently revealed the previous fusion at C5-6, together with spondylitic changes and midline disc bulging that was causing central canal stenosis at C4-5, but no spinal cord impingement was noted.  The employee=s treatment over the next year and a half was apparently ineffective, and near the end of 2001 the employee moved back to Minnesota, last seeing Dr. Kay on November 7, 2001.

 

On December 31, 2001, with the employee back in Minnesota, Dr. Kay reported ATo Whom It May Concern@ that the employee remained Ain constant and disabling pain with muscle spasms affecting her neck and lower back.@  He reported that, in September of 2000, he had diagnosed acute shingles, which he indicated was Acommon in people undergoing physical and emotional stress@ and which he reported had aggravated the employee=s neck symptoms.  The doctor indicated also in his report that a repeat cervical MRI scan on September 29, 2001, had again revealed the previous fusion at C5BC6 and spondylotic changes of the cervical spine causing a moderate degree of central canal stenosis, but this time there was apparently cord impingement at both C4-C5 and C5-C6.^[4]  Dr. Kay indicated also that, as of November 7, 2001, the employee had been taking Valium four times a day, Neurontin five times a day, Paxil twice a day, Meclizine at night, and Prevacid and Vicodin ES twice a day.  He concluded that further neurosurgical intervention into the employee=s problems would be of no benefit, that all of her physical and emotional problems stemmed from her 1983 work injury, that she was permanently and totally disabled, and that she had Abeen so for a considerable number of years.@

 

On April 16, 2003, the employee was seen in consultation by physiatrist Dr. Mark Thibault.  Upon physical examination of the employee, Dr. Thibault found in part no spasm in the neck, the upper back, the mid back, the low back or the gluteal musculature and no functional limitation, pain, crepitation, contracture, or even abnormality of muscle tone, atrophy, or abnormal movements in any of the employee=s extremities.  Dr. Thibault=s neurological examination of the employee also proved essentially normal, and he diagnosed multilevel cervical degenerative disc disease, chronic pain syndrome, multilevel lumbar degenerative disc disease, fibromyalgia syndrome, and deconditioning syndrome.  Dr. Thibault recommended that the employee increase her physical activity, and he prescribed pool therapy and an anti-depressant medication, but the employee declined to take the medication, choosing instead to continue on Vicodin and Valium.  The doctor indicated that he had no other treatment to offer.

 

On the same date as Dr. Thibault=s report, April 16, 2003, nearly a year and a half after last seeing the employee, Dr. Kay reported to the employee=s attorney that, Aas of the date of my December 2001 medical report,@ the employee=s permanent partial disability had increased from 25% to 35% with regard to both her neck and her low back.  He opined that this increase in permanent disability, together with various other complications that he identified in the employee=s condition, including

 

the need for the type of additional surgery she was required to undergo in May 1999 and the deterioration of her cervical spine syndrome since her settlement in 1989, together with her development of stress induced Ashingles@, encephalopathy, worsening headaches, increased muscle spasms in her neck, dizziness and unsteady gait, . . . could not have been clearly anticipated or foreseen at the time of her 1989 settlement.

 

He indicated further that the employee=s worsening conditions would require continuing treatment indefinitely into the future and that, due to the debilitating effects of her injury, the employee was, in the doctor=s opinion, Amuch older than her relatively young chronological age.@  Three months later, on July 10, 2003, Dr. Kay, diagnosing Asevere cervical and lumbar spinal disease,@ reported to the insurer that the employee was now so severely incapacitated that she had to use a wheelchair to get to her medical appointments and was in need of increasing her home medical care to eight hours a day, seven days a week.  On September 19, 2003, the employee once again petitioned this court to vacate her May 24, 1989, award on stipulation, on grounds that she has experienced a substantial change in her condition and/or that her 1989 award had been based on a mistake as to the parties= stipulated analysis and application of the employee=s entitlement to adjustment of benefits and supplementary benefits.^[5]

 

DECISION

 

This court's authority to vacate a compensation judge=s award is found in Minn. Stat. '' 176.461 and, with regard to settlements, 176.521, subd. 3.  An award may be set aside if the petitioning party makes a showing of good cause to do so.  Good cause has long been held to 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).  These bases were codified in slightly different language in a 1992 amendment of Minn. Stat. ' 176.461.  In that amendment, the mistake basis was further defined as Aa mutual mistake of fact,@ and the substantial change basis was defined as "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."  Id. (emphases added).  The supreme court has indicated that the statute's language as to foreseeability of the change in condition constitutes a modification in the law not applicable to awards on stipulation predating the July 1, 1992, effective date of the amendment of Minn. Stat. ' 176.461.  See Franke v. Fabcon, Inc., 509 N.W.2d 373, 377, 49 W.C.D. 520, 525 (Minn. 1993).  With regard to petitions based on mistake, pre-amendment case law appears not to have arbitrarily precluded vacation for mistakes of law as well as mistakes of fact, although unilateral mistakes appear to have fared less well as a basis, and this court made it clear that A[m]istake is easily pled but very difficult to prove.@  Sundvall v. Robert Carr Constr. Co., 46 W.C.D. 1, 9 (W.C.C.A. 1991).  We infer that cases based on mistake are governed by the same principle of applicable law as that articulated by the supreme court in Franke as governing cases based on substantial change in condition.  Therefore, because the award on stipulation here at issue preceded the 1992 amendment of Minn. Stat. ' 176.461, we apply the pre-1992 standards for vacation.

 

1.  Substantial Change in Condition

 

In Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), this court identified a number of factors that it considered, under the law then in effect, in deciding whether to vacate an award based on a substantial change in condition.  These factors included the following:  (1) changes in the employee's diagnosis; (2) changes in the employee's ability to work; (3) the development of any additional permanent partial disability; (4) the necessity of more costly and extensive medical or nursing care than was anticipated; and (5) the causal relationship between the work injury and the worsening of the condition.  Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).

 

The employee=s diagnosis has changed very little since the 1989 award on stipulation here at issue.  On April 18, 1988, about a year before the award, Dr. Guerrero was already diagnosing chronic radicular lower back and neck pain, both secondary to disc degeneration, with cervical osteophytes and the likelihood that the employee would need continuous medical treatment and help even with housekeeping chores.  About a year later, in April of 1989, just prior to the award at issue, Dr. Athelstan diagnosed severe chronic pain and emotional problems related to the employee=s neck and low back condition.  In that same month, Dr. Bateman diagnosed post-surgical failed back syndrome, muscle injury, myofascial disease and pain, and depression.  The employee=s diagnosis fourteen years later, at the time of her petition to vacate, was little different.  In April of 2003, a few months prior to that petition, Dr. Thibault diagnosed multilevel cervical degenerative disc disease, chronic pain syndrome, multilevel lumbar degenerative disc disease, fibromyalgia syndrome, and deconditioning syndrome. About the same time, in April and July of 2003 but based on examination of the employee a year and a half earlier, Dr. Kay did also diagnose central canal stenosis essentially from C2 through C7, with that stenosis moderately impinging on the spinal cord at C4-5, together with Adevelopment of stress induced >shingles=, encephalopathy, worsening headaches, increased muscle spasms in her neck, dizziness and unsteady gait.@  However, Dr. Kay=s diagnoses are largely undocumented by independent radiologists= reports or contemporaneous treatment or examination notes, and we conclude that Dr. Thibault=s diagnoses are both the most current and the best substantiated.

 

Nor has the employee=s ability to work changed since her award on stipulation.  At the time of her award, the employee had not worked for over six years--since the first day following her alleged work injury in February 1983.  It was her own position at the time that she might well be permanently totally disabled, and she waived any assistance in finding employment.  Further, several doctors had either strongly implied or essentially concluded that she was permanently disabled from working.  These included internist Dr. Guerrero, who opined in April of 1988 that she would require continuous help even with housekeeping chores, physiatrist Dr. Athelstan, who opined in April of 1989 that she remained totally disabled, and osteopath Dr. Bateman, who testified a week later that she was not capable of even sedentary gainful employment.  Dr. Kay himself indicated that the employee had been permanently and totally disabled from working Afor a considerable number of years@ as of November 2001, and in April of 2003 Dr. Thibault concluded that the employee had Abeen completely disabled from any gainful employment since the [alleged] injury in 1983.@  As of the date of her petition to vacate in September of 2003, the employee had still never returned to work.  We find no material change in the employee=s ability to work.

 

It is true that the employee has offered Dr. Kay=s medical opinion that her permanent partial disability has increased from 25% to 35% of both her neck and her low back.   However, Dr. Kay does not specifically identify the bases for his increased rating, and, to the extent that it may have been based on a perceived increase in the employee=s functional disability, it is, as the employer and insurer have argued,  subject to challenge based on Dr. Thibault=s examination findings in April of 2003.  Even were the employee to be found subject to the increased permanency opined by Dr. Kay, we would not conclude under the facts of this case that that increase constitutes a change in condition substantial enough to contribute very substantially to any need for vacating the award on stipulation here at issue.

 

We acknowledge that the employee=s post-award surgery at L2-3, if causally related to her alleged work injury originally centered at L5-6, does constitute definitive additional costly medical care, particularly in combination with the additional home health care that the employee appears now to require.  However, the necessary causal relationship between that additional surgery and other treatment and the alleged work injury is contested.  Medical expenses were left open by the stipulation here at issue, but the employee has alleged in her reply brief that her direct requests of the employer and insurer for payment of medical costs have been unsuccessful.  It is unclear from the record just exactly which bills may have been paid and which have not, but, even should the employee prevail on a medical request for payment of this and all other post-award treatment expenses claimedBa formal remedy that she has apparently not yet attempted to avail herself ofBwe would not feel compelled to vacate her award on this basis.

 

The stipulation for settlement here at issue was a compromise of the interests of both parties.  Since the time of the award on that stipulation, the employee=s ability to work has not changed at all, her diagnosis has changed very little, any increase in her permanency rating is minimal and without clear documentation or other support, and any more costly and extensive medical care than may have been anticipated is, if it is proven causally related to the alleged work injury, compensable via a medical request without vacation of the award here at issue.  In light of these facts, we cannot conclude that the employee has demonstrated good cause to vacate her 1989 award on stipulation on grounds that she has experienced a substantial change in her medical condition.

 

2.  Mistake

 

The employee has also argued that the parties were mutually mistaken Ain the drafting of [the stipulation for settlement] in that they did not set forth the time period represented by adjustment of benefits, nor the time period represented by supplementary benefits.@  We are not persuaded that the employee has shown good cause to vacate her award on stipulation on this basis.

 

As we stated in Sundvall v. Robert Carr Constr. Co., 46 W.C.D. 1 (W.C.C.A. 1991),

 

A settlement is a compromise which reflects the risks inherent in litigation.  The fact that the employee settled for less than he [or she] might have received if he [or she] had been completely successful at trial is not evidence of a mistake which is grounds for vacating a settlement at some later date after the funds have all been spent and the employee has retained new counsel to "second guess" the wisdom of the earlier settlement.

 

Sundvall, 46 W.C.D. at 9 (emphasis in original).  Although the parties may not have detailed in their stipulated agreement every element of the employee=s potential entitlement, it is clear that supplementary benefits were expressly at issue at the time of settlement.  The parties were all represented by counsel, and the employee has offered no evidence that any were actually Amistaken@ as to what was at stake.  A portion of the employee=s settlement proceeds was expressly designated as representing supplementary benefits, and there is no evidence that that amount was ever intended to represent specific weekly compensation or anything else other than a compromise amount.  We cannot conclude that there occurred in this case any Amistake@ by the parties, either mutual or unilateral, such as would warrant our vacation of the award at issue.

 

The employee=s petition to vacate her May 24, 1989, award on stipulation is on all grounds denied.