GEORGE R. BOYINGTON, Employee/Petitioner, v. HIRSCHBACH MOTOR LINES, INC., and ST. PAUL TRAVELERS f/k/a AETNA COMMERCIAL INS. DIV., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 28, 2005

 

No. WC05-199

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where permanency and medical expenses remained open, and there was no evidence that the employee was unable to continue working at the job he had held since the settlement, good cause to vacate was not established.

 

Petition to vacate award on stipulation denied.

 

Determined by: Wilson, J., Rykken, J., and Pederson, J.

 

Attorneys: David R. Ludwigson, Ludwigson Law Office, White Bear Lake, MN, for the Petitioner.  Richard C. Pranke, John G. Ness & Associates, St. Paul, MN, for the Respondents.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee petitions to vacate an award on stipulation filed on October 5, 1990, based on a substantial change in condition.  We deny the petition.

 

BACKGROUND

 

The employee sustained a work-related injury to his back on April 22, 1987, while working for Hirschbach Motor Lines, Inc. [the employer].  On August 24, 1987, the employee began treating with Dr. Lowell Baker, who diagnosed low back and right lower extremity radicular pain secondary to a L2-3 central herniated disc with secondary severe central spinal stenosis.  The employer and its workers= compensation insurer admitted liability for the injury and paid wage loss benefits and medical expenses.  In early 1989, the employee found work as a milk truck driver.

 

In the fall of 1990, the parties entered into a stipulation for settlement.  At that point, the employee was still receiving conservative treatment from Dr. Baker, who had noted in July of 1990 that the employee was working and that his symptoms were controlled with medication.  The stipulation for settlement indicated that the employee was claiming impairment compensation for a 14% permanent partial disability, future temporary partial disability benefits, and attorney fees.  The employer contended that the employee had returned to work at a wage equal to or greater than his wage on the date of injury, no later than June 12, 1989.  Under the terms of the settlement, the employee was paid $9,750.00, in full, final, and complete settlement of all claims, excluding permanency over 14% and reasonable and necessary medical expenses.  When the employee returned to Dr. Baker on October 2, 1990, the doctor noted that the employee=s symptoms persisted but were helped by medications.  He also indicated that the employee was still working and that he should be rechecked in December of 1990.  An award on stipulation was filed on October 5, 1990.

 

Dr. Baker=s office notes from 1991 reflect that the employee=s Alow back seems worse,@ and by January of 1992, the employee=s right leg had begun going out, causing him to fall, and he was taken off work.  The employee was released to return to work on April 3, 1992, but he continued to treat with Dr. Baker and continued to complain of right leg pain and weakness.  In September of 1993, the employee reported that his right leg had gone numb all the way to the foot.  An MRI performed in March of 1994 showed a central and right-sided herniation at L1-2, a right-sided herniation with a free fragment at L3-4, with moderate central spinal stenosis, and severe degeneration at L4-5, with moderate central stenosis.  The employee was then referred to a neurosurgeon, Dr. Thomas Bergman.  On April 18, 1994, the employee reported to Dr. Bergman that he was pain free and symptom free with the exception of weakness in the right leg.  Dr. Bergman noted, however, that the employee had a very significant right foot drop, and he advised that, if the employee=s symptoms returned or his right leg weakness increased, surgery should be considered.

 

The employee continued to treat conservatively with Dr. Baker until July of 2004, when he was seen on an emergency basis complaining of severe bilateral lumbosacral pain radiating into the bilateral hips and proximal thighs.  Another MRI was performed on August 7, 2004, which Dr. Bergman interpreted as showing severe central stenosis at L2-3 and L3-4, moderate stenosis at L4-5 with severe left L4-5 foraminal stenosis and left L4 nerve root impingement, and a central disc herniation at L1-2 with moderate central stenosis.  Dr. Bergman recommended surgery, and the employee underwent a L1-2 bilateral laminectomy and discectomy, and L2-5 lumbar laminectomy and complete left L4 foraminotomy, on December 2, 2004.  According to the operative report, findings included Avery very severe spinal stenosis at all lumbar levels L2-3, L3-4 and L4-5.@  The employee was released to Atry@ to return to work on March 13, 2005.  However, he was taken off work a few weeks later, on April 6, 2005, and was not released to work again until July 5, 2005.

 

On June 14, 2005, the employee petitioned to vacate the 1990 award on stipulation based on a substantial change in condition.  The employer and insurer object.

 

DECISION

 

A number of factors may be considered in determining whether an award should be vacated based on a substantial change in condition, including:

 

(a)        a change in diagnosis;

(b)        a change in the employee=s ability to work;

(c)        additional permanent partial disability;

(d)        the necessity for more costly and extensive medical care/nursing services than

initially anticipated; and

(e)        the causal relationship between the injury covered by the settlement and the

employee=s current worsened condition.

 

Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).  For awards issued before July 1, 1992, the change in condition need not be unanticipated.  Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).

 

The employer and insurer do not dispute that the employee has had a change in diagnosis since the issuance of the award on stipulation.^[1]   With regard to the issue of a change in the employee=s ability to work, the employer and insurer maintain that the employee was released to return to work within 32 months after a successful surgery and that, Aif there has been a >substantial change in medical condition,= it has been for the better.@  However, the relevant comparison is between the employee=s current ability to work and his ability to work at the time of the settlement.  In the present case, the employee was working and was not claiming wage loss benefits at the time of the award, whereas he was off work due to his back condition when he filed the petition to vacate.  However, about a month later, the employee was again released to work.

 

The employer and insurer appear to concede that the employee has had an increase in permanent partial disability but state that the employee is Afree to make a claim for additional permanent partial disability.@  We agree that increased permanency is less important when permanent partial disability benefits are left open under the award.  Similarly, where medical expenses are not closed out by the award that the employee is seeking to vacate, this court will put less emphasis on an employee=s need for more costly and extensive medical care than initially anticipated.  Burke v. F & M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996).  In the present case, the employee underwent surgery, but the employer and insurer apparently paid for that treatment.  As for the issue of causation, in a May 31, 2005 report, Dr. Baker stated that the employee=s 1987 work injury is a substantial contributing cause of his present worsened condition.

 

As stated above, there is no dispute regarding a change in diagnosis, the employee has arguably established a change in his ability to work, and the employee has provided evidence as to causation.  However, another consideration in evaluating a petition to vacate is the extent to which the settlement precludes the employee from seeking benefits to which he might otherwise be entitled.  That is, just what does the employee stand to gain by vacation?  In the current case, the employee=s claims for additional permanent partial disability and medical expenses remain open under the terms of the stipulation for settlement.  The only other claims mentioned in the petition and the reply memorandum were claims for temporary total disability benefits--for 45 weeks over a 15-year period--and for rehabilitation services.  However, there is no evidence that the employee is currently unable to work in the job he has held for the past 16 years.  Prospective or anticipated changes do not provide a basis for vacation.  Battle v. Gould, Inc., 42 W.C.D. 1085 (W.C.C.A. 1990).  Under all the circumstances, we conclude that, at this time, good cause to vacate the settlement has not been established, and we deny the petition.