GERILYNN L. WALBRIDGE, Employee/Appellant, v. NORTHERN HYDRAULICS, and COMPCOST, Employer-Insurer, and MEDICA/HEALTHCARE RECOVERIES, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 22, 2004

 

No. WC04-184

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge=s decision regarding the nature and extent of the employee=s work injury.

 

REHABILITATION - RETRAINING.  Substantial evidence, including expert vocational opinion, supported the compensation judge=s conclusion that retraining was not reasonably required to restore the employee=s lost earning capacity.

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  The employee=s alleged improvement following a 1996 determination of maximum medical improvement (MMI) did not constitute good cause to vacate the MMI decision.

 

Affirmed.

Petition to vacate denied.

 

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

Compensation Judge:  Jennifer Patterson

 

Attorneys: John J. Horvei, Attorney at Law, New Brighton, MN, for the Appellant.  Jay T. Hartman, Heacox, Hartman, Koshmrl, Cosgrief & Johnson, P.A., St. Paul, MN, for the Respondents.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s findings as to the nature and extent of the employee=s work injury and from the judge=s denial of temporary total disability and retraining benefits.  In the alternative, the employee petitions this court to vacate a 1996 adjudication as to the date she reached maximum medical improvement from her work injury.   We affirm the judge=s decision and deny the petition to vacate.

 

BACKGROUND

 

The employee was born in 1965, graduated from high school in 1983, and worked at a number of entry-level, often short-term jobs before beginning employment with Northern Hydraulics [the employer], the employer involved in the current claim.  During her earlier employment, the employee sustained at least two work-related injuries.  The first of these injuries occurred when the employee fell on some steps while employed as a receptionist for a law firm in January of 1988.  She subsequently received chiropractic and other conservative care for low back symptoms.  The second injury, this time to her upper extremities, occurred on May 7, 1994, while the employee was employed in an assembly job by Plastics Industries.  Symptoms noted in the employee=s medical records following this injury included numbness, swelling, weakness, and tremors in both arms.^[1]

 

The employee was hired by the employer in October of 1994 to work as a cashier, but she was also assigned to the warehouse, where she unloaded trucks, performed inventory and pricing work, and stocked shelves, among other duties.  Her initial wage at this job was $7.00 an hour, with a later raise to $7.50.  According to payroll records, the employee sometimes worked overtime.

 

In March of 1995, during an examination by Dr. William Call in connection with her injury at Plastics Industries, the employee was complaining of hand pain, swelling, numbness, and other extremity symptoms, all of which she reported had begun a few weeks after she started work for Plastics Industries.  Dr. Call discontinued his examination after ten minutes, writing that he could Anot get a valid orthopedic upper extremity examination@ because of the employee=s pain complaints.  He recommended that the employee be evaluated by a rheumatologist Aout of the workers= compensation system@ and also by a pain practitioner.

 

On September 11, 1995, the employee was seen by Dr. Ronald Tarrel, D.O., for evaluation of bilateral upper extremity pain.  The report from Dr. Tarrel=s initial evaluation describes the employee=s injury at Plastics Industries and resulting treatment and also refers to an incident at the employer herein, in May of 1995, in which the employee purportedly reinjured her wrists lifting in the warehouse.  Dr. Tarrel also wrote as follows:

 

Review of systems is significant for night sweats, unexplained fever, chills, trouble falling asleep, trouble waking early, poor appetite, and excessive fatigue, all related to her chief complaint.  She has had a history of ringing in the ears and altered blood pressure.  She has felt palpitations when under stress and has had occasional chest pain.  She has a heart murmur and may have had rheumatic fever as an infant.  She admits to a history of pneumonia and bronchitis.  She has had stomach pain from medications.  She admits to joint pain, swelling of  the joints, back and neck pain, and leg cramps.  She has had trouble concentrating, numbness, weakness, muscle cramping, tremor, balance problems, dizziness, and muscle weakness all related to her chief complaint.  She has a history of hay fever and has had depression, excessive worry, anxiety, and mood swings.

 

On examination, Dr. Tarrel noted Amoderate tissue texture change in the posterior cervical and upper back regions,@ ordered an EMG to evaluate suspected carpal tunnel syndrome, and took the employee off work.  When the EMG was normal, Dr. Tarrel diagnosed chronic tendinitis.

 

On September 26, 1995, Dr. Call issued another report in connection with the employee=s Plastics Industries= injury.  In that report, the doctor indicated that he had reviewed additional medical records, described as follows:

 

I have reviewed the further records . . . which indicate neck pain, headaches, dizziness, numbness and pain in the arms, legs and hands, twitching of muscles and joints, pain between the shoulders, all the result of an accident in which she states she started walking down stairs and her heel caught on a rug while working as a full time legal receptionist for Balvk and Anderson, Limited on 1-22-88.  She twisted around, caught herself with the railing and landed on her tailbone.  Had lower back pain, swelling, fevers, sweating, headaches, stiffness in the neck, soreness in the neck, shoulder pain, muscle spasm in the shoulder, numbness or pain in the arms, hands and fingers, cold hands, muscle spasms in the neck, shoulder, elbow and wrist pain, chest pain, shortness of breath and rib pain, all as a result of the reported accident on 1-22-88, well before she stated to work for Plastics Industries, Inc. in 1994.

 

*    *    *

 

She saw a chiropractor and treated with Dr. McKelvey at the Noran Clinic.  Dr. McKelvey clearly indicates as of 2-16-88 that she had noted numbness in the hands and feet plus numbness and tingling in the whole body.  She had pain extending into the left arm intermittently and a feeling of weakness in the arms and legs.  She was treated with physical therapy and a number of evaluations.

 

She had indicated to Dr. Michael Davis in independent medical examination of 6-30-88 with respect to the 1-22-88 Ainjury@ that she had never had any problems with her neck or back before.  Yet Dr. Davis mentions that copies of medical records were forwarded from the Duncan Chiropractic Clinic in St. Paul in which three years earlier the complaint was Athree weeks fell down the stairs - loose plastic on stairs. . ., one month ago fell on tailbone hauling hay.@  Her symptoms at that time in 1985 included Adiscomfort in the cervical, thoracic and lumbar spine, headaches, chest discomfort, numbness in her left hand.@

 

On September 29, 1995, Dr. Tarrel performed acupuncture, provided the employee with samples of Paxil, and spoke to the employee Aabout the possibility of a chronic pain syndrome.@  A few days later, on October 3, 1995, Dr. Tarrel wrote that the employee had been working but had reportedly not been allowed to work within her restrictions and had had an exacerbation Arelated to this and much stress.@  Finding Asignificant tissue texture changes@ on examination, Dr. Tarrel performed acupuncture and again took the employee off work.  On October 6, 1995, Dr. Tarrel repeated acupuncture treatment and indicated that if the employee Afail[ed] to note any significant response I would consider referral to a chronic pain program.@

 

Following an October 27, 1995, appointment, Dr. Tarrel again released the employee to work with restrictions, which were to be Afollowed absolutely,@ consisting of a 4-hour work day, mandatory 10-minute breaks each hour, light lifting, no heavy machine operation, and no repetitive bending or twisting.  The employer subsequently offered the employee light work, at a facility farther from the employee=s home, in early November of 1995,^[2] but the employee did not accept the offer, apparently based on Dr. Tarrel=s recommendation that she avoid operating a vehicle with a manual transmission, which was her only means of transportation.

 

In January of 1996, the employee underwent a chronic pain evaluation at the Sister Kenny Institute.  The examining physician, Dr. John Bowar,  noted, in part, that the employee did not have any neck problems per se and that she was taking Paxil due to frustration and anger.  His impression was chronic pain and Achronic pain syndrome secondary to overuse, chronic tendinitis of the forearm and wrist.@

 

The self-insured employer accepted liability for a bilateral upper extremity injury occurring on August 19, 1995, and paid various workers= compensation benefits.  In May of 1996, a hearing was held before Compensation Judge Karen Shimon to resolve the employer=s request to discontinue temporary total disability benefits based either on the employee=s refusal of suitable employment or the employee=s attainment of maximum medical improvement [MMI].

 

In a decision issued on July 16, 1996, Judge Shimon determined that the employer=s November 1995 job offer was not consistent with the employee=s restrictions but that the employee had reached MMI effective December 18, 1995, with service of a report by Dr. Chris Tountas.  The employer was therefore allowed to discontinue temporary total disability benefits 90 days after that date.  Both parties appealed, but the appeals were dismissed on procedural grounds, with no decision on the merits.

 

The employee continued to receive treatment from Dr. Tarrel on an as-needed basis.  In a September 5, 1996, report of work ability, Dr. Tarrel indicated that the employee was subject to Apermanent@ restrictions, but in the section intended to specify those restrictions, he simply wrote, Ano change.@  In the most recent report of work ability completed prior to September 5, 1996, dated May 16, 1996, Dr. Tarrel had indicated that the employee was subject to a 5 to 10 pound lifting limit and should engage in Aminimal@Afine manipulation/typing/keying.@  No restriction as to hours of work was noted.

 

In late December of 1996, the employee met with John Martin, a career rehabilitation counselor with the State of Minnesota Division of Rehabilitation Services, on referral from her then attorney.  At the intake interview, the employee wore a brace on her right hand and wrist, and Mr. Martin noted that the employee found it difficult to complete forms.  The report also indicates that the employee reported having Aboth carpal tunnel syndrome and tendinitis that affects both arms.@  Immediately, even prior to vocational and psychological testing, Mr. Martin began focusing on retraining.  According to a February 12, 1997, AIndividualized Written Rehabilitation Program@ report, the plan was for the employee to attend classes to enable her to obtain employment in the field of Aarchitectural technology,@ with course work to be completed in three years.  The employee took general education classes at Century College, almost exclusively on a part-time basis, from March of 1997 until May of 1999, and then attended Anoka Hennepin Technical College, for architectural drafting, or computer-aided design [CAD], again part time, from August of 1999 to May of 2001, when she obtained her degree.  The employee testified that the school work was hard on her upper extremities and that she attended school part time because she could not physically tolerate a full-time class load.  Tuition and certain expenses were paid through various grants and aid programs.  The employee did not work or look for work at all while in school.

 

The employee continued to receive treatment from Dr. Tarrel throughout her training; treatment modalities included 48 physical therapy sessions over two years, medication, and use of a Tens unit.  On May 28, 1998, Dr. Tarrel noted, as he had on several previous occasions, that there  had been no significant change in the employee=s condition but that the employee continued to undergo physical therapy, which Dr. Tarrel referred to as participation in the AChronic Pain Program at Bethesda Hospital.@  Dr. Tarrel=s report of this date also reflects his understanding that the employee was a full-time student at that point, and he Areiterated@Apermanent@ work restrictions of a 4-hour work day, light lifting, no heavy machine operation, no repetitive neck twisting or bending, and minimal keyboard work.  At other points, Dr. Tarrel restricted the employee from all employment.

 

Also during the employee=s training, in October of 1997, the matter came before  Compensation Judge Jennifer Patterson for resolution of a dispute over whether the August 1995 work injury was temporary or permanent and whether treatment the employee received after November 28, 1995, had been reasonable and necessary.  In a decision issued on December 5, 1997, Judge Patterson concluded, in part, that the employee=s 1994 injury at Plastics Industries was temporary and that the employee=s August 1995 injury at the employer had Apermanently aggravated and accelerated bilateral arm overuse syndrome which first appeared in June 1994.@  Noting that the employee was not then claiming a work injury to her neck, thoracic spine, or shoulders and that Apain clinic@ treatment costs had been reserved for later proceedings, the judge concluded that other disputed treatment --that is, other than the noted chronic pain treatment and any treatment exclusively for neck, shoulder, and thoracic spine symptoms--was reasonable and necessary.  More specifically, the judge found that, A[a]s supported by the opinion of Dr. Tarrel, the employee has needed the disputed treatment for the diagnoses of bilateral forearm, wrist and hand overuse syndrome and chronic pain syndrome@; however, in her memorandum, the judge did not discuss the issue of chronic pain syndrome, concluding only that Athe employee needed all of the disputed care to treat her bilateral overuse syndrome in the forearms, hands and wrists.@  In any event, no appeal was taken from this decision.

 

In January of 2001, the employee underwent MRI scans of her shoulders and her cervical spine, for investigation of continuing neck and bilateral arm pain.  The cervical MRI was normal; the MRI of the employee=s shoulders revealed mild degenerative changes.

 

Following completion of her degree in May of 2001, the employee obtained full-time work in CAD technology paying well in excess of the wage she was earning at the time of her August 1995 injury with the employer.  In January of 2003, nearly two years after receiving her degree, the employee filed a claim petition, seeking temporary total disability benefits for various periods of unemployment through March of 2004, retroactive approval of retraining, and various medical benefits, as a result of her bilateral upper extremity condition as well as alleged injuries to her neck, upper back, and shoulders, chronic pain syndrome, and depression.  The employer denied liability for the alleged neck, thoracic, and shoulder injuries as well as the alleged depression and chronic pain syndrome, alleged that the employee was not entitled to retroactive approval of retraining, and alleged that no additional temporary total disability benefits were payable given that the employee had reached MMI in December of 1995, per Judge Shimon=s 1996 decision.

 

The matter came on for hearing, again before Judge Patterson, on February 11, 2004.  Evidence submitted at hearing included various medical records; the reports and deposition testimony of Mr. Martin; the reports and deposition testimony of Dr. Tarrel; the report and deposition testimony of Dr. Simonet, the employer=s independent medical examiner; and the reports of David Berdahl, the employer=s vocational expert.

 

In a decision issued on April 12, 2004, Judge Patterson concluded that the employee had not sustained a work-related injury to her neck, thoracic spine, or shoulders; that the employee had not developed a consequential depression due to her work injury; that the employee=s August 1995 work injury Adid not permanently change@ the employee=s preexisting chronic pain syndrome; that the employee was not entitled to retroactive approval of retraining; that, given Judge Shimon=s earlier MMI determination, the employee was not entitled to additional temporary total disability benefits; and that the employer was entitled to a credit for overpayment of temporary total disability benefits beyond the 90-day post-MMI period.  The compensation judge therefore denied the employee=s claims in their entirety.  The employee appeals and, in the alternative, petitions this court to vacate Judge Shimon=s 1996 decision regarding the date of MMI.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1 (2004).  Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate."  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

1.  Nature and Extent of the 1995 Work Injury

 

Two physicians gave deposition testimony expressing opinions regarding the nature and extent of the employee=s 1995 injury at the employer.  Dr. Tarrel, the employee=s treating physician, testified that the 1995 work injury had resulted in a chronic cervical strain, a permanent overuse injury to both arms, chronic pain syndrome, and depression.  In contrast, Dr. Simonet, the employer=s expert examiner, testified that the employee did not have any cervical, upper back, or shoulder injury related to her work activities with the employer and that, while the employee was suffering from chronic pain syndrome, that condition was not causally related to her work injury.  The compensation judge expressly accepted the opinion of Dr. Simonet on these issues, concluding that the employee had not injured her neck, upper back, or shoulders in the course and scope of her employment with the employer and that the employee=s chronic pain syndrome predated her 1995 work injury with the employer and had not been permanently affected or aggravated by that injury.  As for the employee=s claim for depression, the compensation judge cited Dr. Tarrel=s testimony that the depression was an aspect of the employee=s chronic pain syndrome, and she denied the claim on that basis.

 

On appeal, the employee argues primarily that the compensation judge erred in accepting the opinion of Dr. Simonet, in that Dr. Simonet based his opinion on an alleged lack of objective findings in the employee=s medical records, when, according to the employee, the employee=s extensive physical therapy records, which were not provided to Dr. Simonet, did in fact contain references to objective findings.  We are not persuaded that the judge=s decision on this issue is clearly erroneous or unsupported by the record as a whole.

 

We note initially that, while Dr. Simonet was apparently not provided with the physical therapy records at issue, his deposition clearly indicates that he was aware that the employee did in fact undergo extensive physical therapy.  As for the records themselves, which were submitted at hearing, we would observe that they are largely handwritten, often indecipherable, and in fact contain few references to findings that are clearly objective, other than intermittent references to scapular Awinging.@  In any event, Dr. Simonet=s failure to review the physical therapy records was for the compensation judge to weigh, and we cannot say that this arguable deficiency in background information was fatal to Dr. Simonet=s opinion.  Also, as the compensation judge noted, none of the physicians who have examined the employee documented any objective findings, with regard to the employee=s shoulders, neck, or upper back, with the exception of Dr. Tarrel, who repeatedly found Atissue texture changes.@  While the compensation judge could have accepted Dr. Tarrel=s explanation regarding the meaning and objective nature of this finding,^[3] the judge was equally entitled to accept Dr. Simonet=s testimony, which was based on his medical school training, residency, practice in the community, and review of the literature, that Athere is no such thing as tissue texture changes as . . . a physical examination finding that has any meaning in a medical diagnosis.@

 

Similarly, the compensation judge was well within her discretion in concluding that minor degenerative changes noted in MRI scans of the employee=s shoulders were not work-related:  Dr. Simonet testified that the changes were due to the normal aging process, not trauma, and even

Dr. Tarrel did not necessarily believe that the employee=s ongoing shoulder complaints were related to these changes.  As for the issue of chronic pain syndrome, the compensation judge was entitled to accept Dr. Simonet=s opinion that the employee had developed that condition prior to her August 1995 work injury and that the work injury had no lasting effect in that regard.  Dr. Tarrel was already considering the possibility of chronic pain syndrome in September of 1995, less than two months after the employee=s injury, and Dr. Simonet indicated that the term Achronic@ by definition applies to a condition that has lasted more than six months.  Also, as the compensation judge noted, none of the prior litigation in this case specifically determined whether or not  the employee=s August 1995 work injury had permanently aggravated her chronic pain syndrome.  As such, the compensation judge=s current decision on the issue is not inconsistent with any prior adjudication nor did it otherwise violate principles of res judicata.

 

Most of the remainder of the employee=s arguments on the issue of causation are based on allegations that the compensation judge Aignored@ evidence supporting the employee=s position, that the judge was simply looking for ways to deny the employee=s claim, and that the judge=s reasoning was faulty.  Again, we are not persuaded.  The judge=s sixteen-page decision reflects a thoughtful analysis of the evidence and contains reasonable explanations for the judge=s conclusions.  We see nothing to support the employee=s repeated allegations of improper bias. 

 

From an appellate perspective, this case clearly hinges on the judge=s choice between  conflicting expert opinions.  Because we cannot say that the judge erred in accepting the opinion of Dr. Simonet over the opinion of Dr. Tarrel, we affirm her decision as to the nature and extent of the employee=s work injuries.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

2.  Retraining

 

The parties stipulated at hearing that the employee=s weekly wage on the date of her work injury was $320.  In denying the employee=s retraining claim, the compensation judge concluded that the employee had not made a diligent search for work prior to starting school, that  there were available jobs within the employee=s restrictions that would have paid similar wages to what she had been earning in her job with the employer, and that the employee had not shown that retraining was necessary to restore any injury-related loss of earning capacity.^[4] In reaching these conclusions, the compensation judge relied in part on the report of David Berdahl, the employee=s vocational expert.^[5]

 

On appeal, the employee argues that the judge=s job search finding is unsupported by substantial evidence given the employer=s failure to provide the employee with rehabilitation assistance.  We are not persuaded.  Although a lack of rehabilitation assistance may be relevant to the issue, whether a job search has been reasonable and diligent is, in the end, a question of fact.  SeeRedgate v. Sroga=s Standard Service, 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  In the present case, the compensation judge was justified in concluding that the employee=s job search consisted largely of making several phone calls a week prior to her first contact with Mr. Martin in late December of 1996.  Mr. Berdahl reported that the employee=s job logs did not reflect a Aserious@ job search effort, and even Mr. Martin conceded that he would have expected more from a client of his in terms of looking for work.  Given the record as a whole, we cannot conclude that it was unreasonable for the compensation judge to have found the employee=s job search insufficient.

 

The employee also contends that the compensation judge erred in accepting Mr. Berdahl=s opinion regarding the availability of physically suitable work paying a wage comparable to the employee=s preinjury wage, in that Mr. Berdahl did not offer any evidence of specific job openings and purportedly Aignored@ both Dr. Tarrel=s restrictions and unopposed evidence indicating that the employee had cooperated with the rehabilitation assistance provided by Mr. Martin.  These arguments have no merit.  Mr. Berdahl=s report clearly reflects that he was aware of and operating under the restrictions on upper extremity use imposed by Dr. Tarrel.  With regard to the ultimate issue, Mr. Berdahl reported that, given the employee=s preinjury occupational pattern of entry-level jobs, the employee did not reasonably require retraining, and he listed a number of occupational areas that he concluded would have paid the employee a comparable wage, such as certain jobs in the hospitality industry, retail work, customer service, and production.  Furthermore, Mr. Berdahl=s opinion about the potential pay in these jobs was supported by a labor market survey.  As for the employee=s complaint that Mr. Berdahl did not offer any evidence of specific job openings during the period of the employee=s time  in school, it is difficult see how this evidence could reasonably have been obtained when the employee did not request approval of retraining until six or more years after she began her school work and nearly two years after she completed her degree.  In any event, the cases cited by the employee in support of her arguments criticizing Ahypothetical jobs paying theoretical wages@ apply primarily to claims for temporary partial disability benefits, not retraining.  See, e.g., Wicklander v. Golden Age Health Care Ctr., 47 W.C.D. 596 (W.C.C.A. 1992).

 

We acknowledge that the employee was restricted to half-time work, or to no work,  by Dr. Tarrel, for at least portions of her time in school.  However, Dr. Tarrel was under the erroneous impression that the employee was a full-time student, and he testified at his deposition that the employee would have been capable of full-time work, within restrictions, had she not been in school.  Mr. Berdahl=s report supports the conclusion that the employee could well have obtained economically and physically suitable work had she looked for it, supporting the compensation judge=s conclusion that retraining was not reasonably required to restore the employee=s earning capacity.  There was evidence to the contrary, particularly the testimony of Mr. Martin, but it was, again, for the compensation judge to choose between the conflicting expert opinions in this matter.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  In addition, contrary to the employee=s suggestion, the employee=s entitlement to retraining was not established by the fact that the employer failed to provide the employee with a QRC, by the fact that the employer failed to file a ADisability Status Report@ with the department, or by the fact that the employee cooperated with the services provided by Mr. Martin.

 

Because substantial evidence in the record as a whole supports the judge=s denial of the employee=s request for retroactive approval of retraining, we affirm her decision on this issue.

 

3.  Petition to Vacate/MMI

 

In the alternative to her appeal, the employee petitions this court to vacate the July 16, 1996, determination of Compensation Judge Shimon that the employee reached MMI effective December 19, 1995, arguing, in effect, that the employee=s condition substantially improved following Judge Shimon=s decision.  Accordingly, the employee argues, additional temporary total disability benefits should be awarded.  We reject this argument.

 

In the most recent decision in this matter, Judge Patterson specifically determined that the employee=s overall level of functioning did not change after the MMI date determined by Judge Shimon.  While the evidence on this issue is conflicting, the record as a whole supports Judge Patterson=s decision in this regard.  We acknowledge that physical therapy records and Dr. Tarrel=s deposition testimony might support the conclusion that the employee experienced improvement during her two years of physical therapy, which ended in the summer of 1999.  At the same time, however, Dr. Tarrel=s office notes contain repeated references to the fact that the employee=s condition did not significantly change over time, and the record reasonably supports the inference that the employee is simply prone to periodic exacerbations, meaning that her symptoms tend to wax and wane.

 

More importantly, we find no evidence either of a mutual mistake of fact or the kind of substantial change in condition contemplated by Minn. Stat. ' 176.461, the statute governing vacations of awards.  The basic concern in deciding whether to set aside an award is to Aassure a compensation proportionate to the degree and duration of [the employee=s] disability.@  Landon v. Donovan Constr. Co., 270 N.W.2d 15, 16, 31 W.C.D. 135, 135 (Minn. 1978).  Vacating Judge Shimon=s MMI decision in the present case, based on alleged improvement in the employee=s condition, would not serve that aim.  The employee=s petition to vacate is in reality nothing more than impermissible collateral attack on Judge Shimon=s decision, eight years after issuance.

 

Finding no good cause, we deny the employee=s petition to vacate.