KATHLEEN A. TIFFANY, Employee/Petitioner, v. THIELEN BUS LINES, INC., and STATE FUND MUTUAL INS. CO., Employer-Insurer.

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 27, 2004

HEADNOTES

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where the employee submitted evidence of worsening mid- and low back symptoms, new treatment for the mid- and low back, and MRI scans showing degenerative changes in the mid- and low back subsequent to a full, final and complete settlement, specifically referencing only the cervical spine and left shoulder, there is a sufficient prima facie showing of a change in condition to vacate the award on stipulation.

Petition to vacate granted.

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

Attorneys: Martin T. Montilino, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Petitioner.  Mark S. Lorentzen, Lynn, Scharfenberg & Associates, Minneapolis, MN, for the Respondents.

OPINION

THOMAS L. JOHNSON, Judge

The petitioner seeks to vacate and set aside an award on stipulation, served and filed May 30, 2002, based on a substantial change in medical condition.^[1]  Concluding the petitioner has established good cause, we grant the petition to vacate the award.

BACKGROUND

Kathleen A. Tiffany, the petitioner, was employed as a bus driver by Thielen Bus Lines, Inc., insured for workers= compensation purposes by State Fund Mutual Insurance Company.  On January 2, 2001, the petitioner (the employee) sustained an admitted personal injury when she slipped and fell down steps while exiting a bus, landing on her back and left shoulder.

The employee was seen by a doctor later that day, who prescribed Tylenol #3.  The next day, she followed up with Dr. Thomas Gross, her primary care physician, complaining of neck pain, left shoulder discomfort, and soreness when taking a deep breath.  On examination, Dr. Gross noted tenderness over the neck, left scapula and rib cage.  His diagnosis was multiple contusions and strain.  The employee was taken off work and prescribed nonsteroidal anti-inflammatory medications and physical therapy.

The employee received treatment from Jeffrey F. Bittner, D.C., between January 5 and 8, 2001.  Dr. Bittner noted complaints of neck, left upper thoracic and lumbar spine pain and tenderness, and diagnosed a cervical and lumbar strain/sprain.  He referred the employee back to Dr. Gross for evaluation of a possible cervical disc herniation.  In a Physician=s Report dated January 8, 2001, Dr. Bittner indicated the employee had no permanency and needed no further treatment.

An MRI scan of the cervical spine, taken February 23, 2001, was negative, showing no evidence of any disc protrusion or stenosis.  On April 2, 2001, the employee was evaluated by Dr. Seth Rosenbaum, a physical medicine specialist, at the request of Dr. Gross.  The employee described primarily bilateral neck and left scapular pain, as well as pain in the left shoulder going down the arm.  Dr. Rosenbaum=s assessment was injuries to the neck and left shoulder with pain and myofascial trigger points.  In a follow-up evaluation on May 17, 2001, Dr. Rosenbaum again assessed injuries to the cervical spine and left shoulder.  The doctor released the employee to return to work with restrictions of no lifting over ten pounds, occasional bending and twisting, and no reaching above the shoulder with the left arm.  The employee was restricted from driving bus and could drive no more than two hours per day in a non-commercial vehicle with no bending or rotation of the neck.

The employee failed to respond to conservative treatment and on July 30, 2001, was examined by Dr. Patrick F. Hergott.  Dr. Hergott found no evidence of neurological deficits, diagnosed a cervical strain/sprain and deconditioning syndrome, and continued physical therapy.  The employee returned to light-duty work on August 29, 2001.

The employee continued to complain of pain in her neck, scapular region and arm, and was seen by Dr. Alexander on October 16, 2001.  The doctor noted a normal neurologic examination.  An EMG of the upper extremity was normal.  The employee was discharged from physical therapy on October 31, 2001, with an essentially normal objective examination, but continuing complaints of pain.  Dr. Hergott continued the employee=s work restrictions, allowing driving of a Suburban up to five hours per day.

On December 17, 2001, Dr. Mary Dunn conducted an independent medical examination.  The employee was then complaining of cervical and scapular pain and discomfort.  Dr. Dunn diagnosed chronic cervical pain, status post cervical strain related to the employee=s work injury of January 2, 2001.  The doctor concluded the employee had subjective complaints of cervical pain, not substantiated by objective findings, and opined the employee had reached maximum medical improvement (MMI) as of October 31, 2001, with no permanent partial disability, no need for restrictions and no need for further treatment.

In March and April 2002, the employee participated in a chronic pain rehabilitation program at Abbott Northwestern Hospital.  In a functional capacities evaluation (FCE) dated April 19, 2002, Dr. Matthew Monsein imposed restrictions of minimal reaching above shoulder level with the left arm, occasional bending/stooping, and occasional lifting or carrying up to ten pounds.  He further concluded the employee would not be able to return to bus driving.  By report dated April 25, 2002, Dr.  Monsein diagnosed a cervical and shoulder strain.  He concluded the employee would reach MMI on about June 1, 2002, and assigned a 3.5 percent permanency rating for the cervical spine and 13 percent for the left shoulder.

On January 9, 2002, the employer and insurer filed a notice of intent to discontinue benefits (NOID) on the ground the employee was released to return to work with no restrictions, relying on Dr. Dunn=s IME report.  In a decision issued February 14, 2002, a compensation judge at the Office of Administrative Hearings allowed the discontinuance.  The employee then filed an Objection to Discontinuance on March 25, 2002, alleging ongoing entitlement to temporary partial disability benefits.  The employer and insurer filed a second NOID on April 12, 2002, seeking discontinuance of temporary total disability benefits on the basis the employee was 90 days post MMI as of April 9, 2002.  The parties then entered into a stipulation settling the employee=s claims for workers= compensation benefits on a full, final and complete basis, and an Award on Stipulation was served and filed on May 30, 2002.

In June 2003, the employee returned to Dr. Rosenbaum with continuing complaints of cervical and left arm pain, and complaints of pain in the left chest area and the low back into the pelvic area.  On examination, the doctor noted multiple myofascial trigger points in the lower chest wall and thoracic and lumbar paraspinal muscles.  Dr. Rosenbaum=s assessment was multilevel spinal injuries with increased myofascial dysfunction but no apparent change in the underlying spinal injury.

In July 2003, the employee sought treatment from Randy Maland, D.C.  The employee reported aching pain in the middle and low back and legs as well as chronic pain in the neck and shoulder.  Dr. Maland diagnosed chronic cervical and shoulder sprain/strain and thoracic and lumbar sprain/strain.  He referred the employee for an MRI scan of the thoracic spine and to Abbott Northwestern for therapeutic injections.  The scan, taken July 22, 2003, showed mild Scheuermann=s changes, a small disc protrusion to the right at T6-7 abutting the ventral surface of the spinal cord, annular bulging at T7-8, and a right posterolateral disc herniation at T10-11 indenting the thecal sac but not compressing the cord.

The employee was seen by Dr. Monsein at Abbott Northwestern on August 4, 2003.  The doctor concluded the employee=s clinical findings were more consistent with a musculoligamentous injury, although he agreed the thoracic spine MRI findings could be consistent with some of the employee=s mid- and low back pain.  Dr. Monsein referred the employee to Dr. Maria Zorawska at the Institute for Low Back and Neck Care for further evaluation.

The employee was seen by Dr. Zorawska on August 6 and 27, 2003.  The employee complained of neck, upper back and low back pain, as well as left chest and leg pain since the January 2, 2001 work injury. Dr. Zorawska noted chronic pain behavior, tenderness over the paraspinal muscles in the upper and lower back and both buttocks, and a normal neurologic examination.  An MRI scan of the thoracolumbar spine, taken August 6, 2003, revealed small disc herniations on the right at T10-11 and on the left at T11-12 without cord or nerve root impingement, and mild facet arthropathy bilaterally at L4-5 and L5-S1 without spondylolisthesis or significant stenosis.  Dr. Zorawska diagnosed mechanical and myofascial pain in the upper and lower back, and prescribed physical therapy and facet joint injections in the lower lumbar spine.  By letter report dated November 10, 2003, Dr. Zorawska opined the employee likely herniated one or several discs in the fall on January 2, 2001, and that the low back pain could be referred pain from the herniated discs at T10-11 and T11-12, as well as a result of the arthritis at L4-5 and L5-S1.  On December 30, 2003, the employee filed a petition to vacate the Award on Stipulation based on a substantial change in medical condition.  The employer and insurer object to the petition.

DECISION

This court=s authority to vacate an award on stipulation is governed by Minn. Stat. '' 176.461 and 176.521, subd. 3.  An award may be set aside if the employee makes a showing of good cause, including Aa substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated.@  Minn. Stat. ' 176.461(4).  A number of factors may be considered in determining whether an award should be vacated based on a substantial change in condition, including 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 than initially anticipated, and whether there is a causal relationship between the employee=s changed condition and the personal injury.  Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).

The employee asserts there has been a significant change in her diagnosis since the March 30, 2003, Award on Stipulation.  She maintains her diagnosis and the focus of treatment at the time of the settlement was a cervical and left shoulder strain.  Since then, she contends, MRI scans of the thoracic and lumbar spine have revealed herniated discs at three levels in the thoracic spine and arthritis in the lower two levels of the lumbar spine.  While continuing to experience cervical, left shoulder and arm pain, medical records beginning in June 2003, additionally reflect complaints and findings of pain, tenderness, muscle tightness and triggerpoints in the mid- and lower back and into the buttocks and legs.  The employee has received treatment for the mid- and lower back, including therapeutic and diagnostic injections and physical therapy.  Approval for additional therapy was requested but denied by the employer and insurer.  Work restrictions were provided by Dr. Zorawska on October 6, 2003, which allow lifting up to 20 pounds, but impose new limitations including stretching and positional changes every 30 minutes when sitting, and stretching or resting every hour when standing or walking, no twisting and limited bending.  By report dated November 10, 2003, Dr. Zorawska opined the employee=s herniated discs at three levels in the thoracic spine could be related to the fall on January 2, 2001.  The doctor further opined the employee=s upper back pain is likely musculoligamentous, that the upper and lower back pain is related to the fall, and the low back pain may additionally reflect referred pain from the lower two thoracic discs as well as arthritis in the employee=s lower lumbar levels.

On March 2, 2004, the employee filed a medical request seeking payment of bills incurred at the Redwood Area Hospital after the settlement and approval for additional physical therapy.  In its medical response denying liability, the employer and insurer asserted,

The employee=s admitted injury was to the cervical spine with the employer and insurer maintaining a denial of primary liability as to the left shoulder.  Physical therapy treatment is noted to be for the upper back and lower back . . . .  Therefore, the employee=s Medical Request is not related to the work-related injury of January 2, 2001.  Please see the attached Stipulation for Settlement which notes that the injury is to the employee=s cervical spine with no mention of the thoracic spine or lumbar spine.

It is clear from this statement and a careful review of the Stipulation for Settlement that the parties contemplated only an injury to the cervical spine and a disputed left shoulder injury at the time the stipulated settlement was concluded.  We believe the employee has submitted evidence sufficient to Aestablish that evidence of subsequent developments exists 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).  We, accordingly, grant the petition to vacate the Award on Stipulation of May 30, 2002.^[2]