TOD D. McCANNELL, Employee/Petitioner, v. CAL-INLAND, INC., and MINNESOTA WORKERS= COMP. ASSIGNED RISK PLAN, adm=d by BERKLEY RISK ADM'RS CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 8, 2004

 

                       

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where the employee failed to demonstrate a significant change in diagnosis or any significant change in his ability to work, and the employer and insurer paid the employee=s medical expenses for his surgery and an increased amount of permanent partial disability benefits, the petition to vacate the award on stipulation is denied.

 

Petition to vacate denied.

 

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

 

Attorneys: James B. Peterson, Falsani, Balmer, Peterson & Quinn, Duluth, MN, for the Petitioner. Julie A. Williams, Law Offices of Elizabeth Holden Hill, Minnetonka, MN, for the Respondents.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The petitioner seeks to vacate and set aside an Award on Stipulation, served and filed June 10, 1991, based upon a substantial change in medical condition.  Concluding the petitioner has not established good cause, we deny the petition to vacate the award.

 

BACKGROUND

 

Tod D. McCannell, the employee, sustained an injury to his low back on August 11, 1987, while working for Cal-Inland, Inc.  The employer and insurer admitted liability for the employee=s personal injury.

 

Following his injury, a CT scan of the employee=s lumbar spine showed a large disc extrusion at L5-S1.  The employee came under the care of Dr. Lynn Ault in December 1987, and ultimately underwent a right L5-S1 laminectomy.  In April, 1989, Dr. Ault stated his final diagnosis was a herniated lumbar disc for which he rated an 11 percent permanent partial disability and concluded the employee had then reached maximum medical improvement.  A functional capacity evaluation stated the employee could work eight hours a day subject to limitations on standing, walking, and occasional and frequent lifting.  Continuous lifting was not recommended.  The employer and insurer paid the employee for the 11 percent permanent partial disability rated by Dr. Ault.

 

In 1991, the parties entered into a settlement.  The employee was then claiming entitlement to ongoing temporary partial disability and retraining benefits.  In exchange for a payment of $18,000.00, the employee agreed to a close-out of all claims to the extent of an 11 percent permanent partial disability, and agreed to a full, final and complete settlement of all other claims for  workers= compensation benefits, except medical expenses which remained open.  An Award on Stipulation was filed on June 21, 1991.

 

Following the settlement, the employee retrained himself in the field of prosthetics and commenced working in that field in 1992.  In the fall of 2002, the employee=s low back condition worsened.  He was admitted to St. Mary=s Hospital in Duluth, Minnesota, on September 5, 2002, with severe back pain radiating into the right leg.  An MRI scan showed a recurrent disc herniation at L5-S1.  The employee was seen by Dr. Mark C. Glazier who performed a laminectomy at L5-S1.  The employee was off work from December 11, 2002, through February 3, 2003, because of the flare-up of his back problems and the resultant surgery.  Dr. Glazier released the employee to return to work subject to a 35 pound lifting restriction with no repetitive bending.

 

Dr. Paul Cederberg examined the employee in February 2004, at the request of the employer and insurer.  The doctor diagnosed a recurrent L5-S1 disc herniation secondary to the August 11, 1987, personal injury.  The doctor rated an additional five percent permanent partial disability[1] and released the employee to return to work with a 40 pound lifting restriction.

 

The employee petitioned to vacate the 1991 Award on Stipulation contending he had undergone a substantial change in his medical condition.  The employer and insurer oppose the request to vacate the stipulation.

 

DECISION

 

This court=s authority over petitions to vacate is governed by Minn. Stat. '' 176.461 and 176.521, subd. 3.  An employee must demonstrate good cause for the court to exercise this authority.  Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989).  Good cause to set aside an award includes a substantial change in the employee=s medical condition.  In determining whether a substantial change in the employee=s condition has occurred, this court may examine such factors as a change in diagnosis, a change in the employee=s ability to work, additional permanent partial disability, the necessity of more costly and extensive medical care, the causal relationship between the injury covered by the settlement and the current worsened condition and the contemplation of the parties at the time of the settlement.  Fodness v. Standard Café, 41 W.C.D. 1051, 1060-61 (W.C.C.A. 1989).

 

The employee suffered a recurrent disc herniation at the L5-S1 level and underwent a second laminectomy.  Dr. Cederberg=s diagnosis was recurrent L5-S1 disc herniation, status-post L5-S1 laminectomies.  Essentially, the only difference in the employee=s diagnosis is that he has undergone an additional laminectomy.

 

The employee=s medical expenses were approximately $12,000.00 which the insurer paid subject to the applicable fee schedule.  Dr. Cederberg rated an additional five percent permanent partial disability which was also paid by the insurer.  The employer and insurer concede the employee=s recurrent disc herniation and the need for surgery were substantially caused by the 1987 personal injury.

 

The employee was off work from December 11, 2002, through February 3, 2003, because of the recurrent back condition and surgery.[2]  Thereafter, the employee returned to work in the prosthetics field in which he has been working since 1992.  The current restrictions assigned by Dr. Glazier and Dr. Cederberg are not significantly more restrictive than those assigned in 1989.  We cannot conclude, therefore, the employee has established any significant change in his ability to work.

 

The employer and insurer have paid the employee=s medical expenses for the recent surgery and have paid an increased amount of permanent partial disability benefits.  The only benefits unpaid are approximately two months of temporary total disability benefits.  On balance, we conclude the employee has failed to establish good cause to vacate the stipulation.  The petition to vacate the Award on Stipulation of June 10, 1991 is denied.

 

 


[1]  Minn. R. 5223.0070, subp. 1.B.(3).

[2]  See Affidavit of Tod D. McCannell.