LISA J. BURCALOW, Employee/Petitioner, v. TWEETEN LUTHERAN HEALTH CARE CTR., and FARM BUREAU MUT. INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 11, 2005

 

No. WC04-252

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.   Based upon a change in the employee=s diagnosis due to the worsening of her reflex sympathetic dystrophy condition,  a change in her ability to work, her increased level of permanent partial disability, the extensive medical treatment the employee has undergone and the causal relationship between the employee=s current condition and her work injury, the employee has shown a substantial change in medical condition sufficient to justify vacating the award on stipulation.

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where there was medical evidence that the employee=s right arm reflex sympathetic dystrophy (RSD) condition had spread to other extremities, the employee was not required to demonstrate that her other extremities had five of the eight requirements of RSD, listed in the permanent partial disability schedules, to demonstrate  sufficient cause to vacate a stipulation for settlement on the basis of substantial change in condition.

 

Petition to vacate granted.

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

 

Attorneys:  James M. Sherburne, Minneapolis, MN, for Petitioner.  Gerald M. Linnihan and Jana O=Leary Sullivan, Jardine, Logan & O=Brien, Lake Elmo, MN, for Respondents.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee petitions to vacate an award on stipulation on the basis of mutual mistake of fact and substantial change in medical condition.  We grant the petition.

 

BACKGROUND

 

On July 10, 1999, Lisa Burcalow, the employee, injured her neck, back, right shoulder, and right arm when lifting a patient while working as a nursing assistant at Tweeten Lutheran Health Care Center, the employer, which was insured for workers= compensation liability by Farm Bureau Mutual Insurance Company, the insurer.  The employer and insurer paid various workers= compensation benefits, including temporary total and temporary partial disability benefits, rehabilitation assistance, and medical expenses.  The employee was treated with medication and physical therapy.

 

On October 20, 2000, the parties entered into a stipulation for a full, final, and complete settlement, with medical expenses left open, in the amount of $22,500.00, which was approved in an award on stipulation served and filed on November 21, 2000.  In the stipulation, the parties agreed that the employee had sustained injuries to her neck, back, right shoulder, and right arm.  At the time of the settlement, the employee had been diagnosed with a cervical strain, reflex sympathetic dystrophy (RSD) in her right arm, and depression.  The employee had been assigned  a 3.5% permanent partial disability rating for her cervical strain condition, but had not been rated for her right arm RSD condition.  In addition, at the time of the settlement, the employee was working on a part-time basis and was being paid temporary partial disability benefits.  A doctor=s report in August 2000 indicated that the employee could perform sedentary or light capacity work.

 

Following the settlement, the employee continued to treat for her symptoms.  In February 2001, the employee was referred to Dr. Sanjiv Jindia, a specialist in pain management treatment.  Dr. Jindia evaluated the employee and diagnosed reflex sympathetic dystrophy of the right upper extremity, and recommended stellate ganglion blocks, which did not provide symptomatic relief.  In June 2001, Dr. Jindia inserted a continuous cervical epidural catheter for treatment of the employee=s right arm symptoms, which the employee reported provided relief for only a few days.  Dr. Jindia has also prescribed numerous medications for pain.

 

In December 2001, the employee reported her usual pain in her right shoulder and neck and also pain in her left arm and left leg.  In January 2002, the employee reported increased pain spreading to her left arm and legs.  Dr. Jindia diagnosed AComplex regional pain syndrome, i.e. RSD of the right upper extremity with possible spreading to the other extremities.@  In May 2002, Dr. Jindia noted on examination that both of the employee=s upper extremities were cool to the touch, as was the right lower extremity.  The employee was treated with a right lumbar sympathetic block and a left stellate ganglion block.  Additional injections, including trigger point injections, were administered later that month, in July 2002, and in November 2002.  In December 2002, the employee was treated at an emergency room for pain with myofascial trigger point injections.  Further injections were administered in February 2003, March 2003, May 2003, August 2003, February 2004, April 2004, and June 2004.  In February 2004, the employee reported improvement, and that she still had pain but not as severe.  The employee continued to take pain medication.

 

In a November 2003 report, Dr. Jindia opined that the employee=s RSD had spread to her left upper extremity and to her right lower extremity and Amore recent office visits indicate that she now has this chronic pain syndrome affecting all four of her extremities.@  Dr. Jindia advised that the employee=s condition had substantially changed since the settlement, that it was causally related to her work injury, and that the employee was not currently employable.  In an April 19, 2004, report, Dr. Jindia rated the employee=s right arm RSD condition as 15% disability of the whole body and indicated that the employee met the requirements for a permanent partial disability rating for the right upper extremity only, under the definition in the schedule.  See Minn. R. 5223.0410, subp. 7A, 5223.0540, subp. 1B; Minn. R. 5223.0400, subp. 6, 5223.0540, subp. 1B.

 

On August 26, 2004, the employee petitioned to vacate the award on stipulation served and filed November 21, 2000, based upon mutual mistake of fact and a substantial change in medical condition.  The employer and insurer objected.

 

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).  Under the statute, Acause@ to set aside an award exists if (1) the award was based on a mutual mistake of fact, (2) there is newly discovered evidence, (3) the award was based on fraud, or (4) there is 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.  Franke v. Fabcon, Inc., 49 W.C.D. 514, 518, 509 N.W.2d 373, 376 (Minn. 1993).  The burden of proving Agood cause@ rests with the party petitioning to vacate an award.  Mehta v. Meldisco, slip op. (W.C.C.A. Oct. 26, 1995).

 

The employee first argues that there was a mutual mistake of fact at the time of the settlement.  AA mutual mistake of fact occurs when opposing parties to the stipulation both misapprehend some fact material to their intended settlement of a claim or claims.@  Shelton v. Schwan=s Sales Enter., 53 W.C.D. 110, 113 (W.C.C.A. 1995), summarily aff=d (Minn. Sept. 5, 1995).  In a mutual mistake case, Athe inquiry focuses on what the situation was and what was known about it at the time of settlement.@  Franke, 509 N.W.2d at 377, 49 W.C.D. at 525.  The employee argues that neither she nor the insurer=s representative with whom she negotiated the settlement anticipated that the employee would not be able to continue working, that the RSD would spread, and that the employee would become extremely depressed.  The employee relies on the deposition testimony of the insurer=s claim representative to support her contentions.  These arguments, however, focus on the employee=s condition after the settlement and do not relate to any misapprehension of facts known at the time of the settlement.

 

The employee also argues that there has been a substantial change in her medical condition.  In determining whether a substantial change in medical 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/nursing services than initially anticipated, 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).  These factors must be applied in a manner consistent with Minn. Stat. ' 176.461, which requires that the change in the employee=s condition be one that was Aclearly not anticipated and could not be reasonably anticipated at the time of the award.@  Powell v. Abbott-Northwestern Hosp., slip op. (W.C.C.A. Aug. 17, 1995); see also Soeffner v. McGuire=s Motor Inn, 40 W.C.D. 21, 22 (W.C.C.A. 1987) (medical proof that condition was unanticipated is necessary to show substantial change in medical condition).

 

"[T]he basic concern in determining whether sufficient cause exists to set aside an award is to assure a compensation proportionate to the degree and duration of the disability."  Krebsbach v. Lake Lillian Coop. Creamery Ass'n, 350 N.W.2d 349, 353-54, 36 W.C.D. 796, 801 (Minn. 1984).  When evaluating a petition to vacate, this court compares the employee=s condition at the time of the settlement award to her condition at the time of the filing of the petition.  See  Virnig v. Carley Foundry, Inc., slip op. (W.C.C.A. Nov. 14, 2000) (citing Clonkey v. Clusiau Sales and Rental, slip op. (W.C.C.A. Dec. 9, 1991)).  In this case, there is evidence that the employee=s diagnosis has changed due to her worsened RSD condition.  At the time of the settlement, the employee=s right arm RSD condition had not been rated.  By April 2004, the employee=s RSD in her right upper extremity had worsened to the point that  Dr. Jindia rated the employee=s right arm at the level of 15% disability of the whole body.  The employee=s diagnosis of RSD has since been expanded to include her left upper extremity and her right lower extremity.  Dr. Jindia also noted in November 2003 that Amore recent office visits indicate that she now has this chronic pain syndrome affecting all four of her extremities.@  Dr. Jindia also opined that the employee=s condition had substantially changed since the settlement, that it was causally related to her work injury, and that the employee was not currently employable.  The employee has demonstrated a change in her diagnosis since the 2000 award on stipulation.

 

The employee also argues that her ability to work has changed since the time of the 2000 award on stipulation, since she was working at that time but later became disabled from work.  We agree.  Even though the employee=s ability to work has been limited since her injury in 1999, the record as a whole demonstrates that there has been a change in her ability to work since the time of the settlement.

 

Ever since her injury in July 1999, the employee has either been totally or partially disabled from work.  Immediately following her injury, she remained off work for one month.  She then returned to work for the employer, in a part-time secretarial position, between mid-August and December 1999, and then remained off work entirely between mid-December 1999 and early October 2000.  In October 2000, after moving with her family back to her home state of Louisiana, the employee returned to work for a previous employer, working as a cashier 25-30 hours per week.  At her deposition, the employee testified that she ultimately left her cashier position in December

2000 due to her medical condition.  She testified that AMy pain level was just getting too bad, and I was missing too much work.@  The employee has not worked since December 2000.

 

In his report of June 1, 2001, Dr. Jindia stated that A[b]ecause of her chronic pain problems and the resulting depression, she is unable to work at this time.@   By an award issued by the Social Security Administration dated July 25, 2003, the employee was found to be severely impaired due to her medical condition which was diagnosed as reflex sympathetic dystrophy of her right arm, affective disorder, adjustment disorder with mixed anxiety and depression, and chronic pain, and was awarded disability income benefits.  In his report of November 13, 2003, Dr. Jindia stated that AOur hope was with treatment [the employee] would become employable.  However, as her condition has obviously worsened, I do not think that she is currently employable in any capacity.@

 

The employer and insurer argue that by moving from Minnesota to Louisiana, the employee removed herself from the local and viable labor market and moved to a labor market where few employment opportunities exist.  We find that argument to be inapplicable to this case where the employee is physically unable to continue working.  At the time she entered into the settlement agreement, the employee was continuing to work on a part-time basis, even though she admits in her deposition testimony that she was experiencing difficulties working at that time because of her continued pain.  Currently the employee is physically disabled from work.  We conclude that, based on the record as a whole, including medical records and the employee=s deposition testimony, the employee has demonstrated that there has been a change in her ability to work since the time of the award on stipulation.

 

The employee has undergone much more extensive medical care since the settlement.  That treatment has included chronic pain management treatment, including multiple medications and stellate nerve blocks, and psychological and psychiatric treatment for the employee=s depression and related conditions.  However, under the terms of the settlement agreement, the employee=s claims remain open for medical expenses that are causally related to her injury, and it appears that the employer and insurer have continued to pay for the employee=s medical treatment.  As a result, this factor alone does not provide a basis for vacating the award on stipulation.  See Sovell v. Swift-Eckrich, Inc.,  62 W.C.D. 93, 105 (W.C.C.A. 2001), summarily aff=d (Minn. Feb. 19, 2002).

 

The employee argues that her level of permanent partial disability has increased since the award on stipulation in 2000.  At the time of the award, the employee had been assigned a rating of 3.5% permanent partial disability of the whole body, based on her cervical spine condition.  At that point, no doctor had assigned a rating relative to the employee=s RSD.  In his report of April 19, 2004, Dr. Jindia assigned a 15% permanency rating to the employee=s right arm RSD condition.  Although Dr. Jindia also diagnosed RSD in the employee=s upper left extremity and lower right extremities, he concluded that a permanent partial disability rating could not be assigned to those three extremities, because the employee met the requirements of the permanent partial disability schedule solely for her right arm.

 

For rating reflex sympathetic dystrophy, the schedule requires that five of the following conditions persist concurrently: edema, local skin color change of red or purple, osteoporosis in underlying bony structures demonstrated by radiograph, local dyshidrosis, local abnormality of skin temperature regulations, reduced passive range of motion in contiguous or contained joints, local alteration of skin texture of smooth or shiny, or typical findings of reflex sympathetic dystrophy on bone scan.  See Minn. R. 5223.0410, subp. 7A; Minn. R. 5223.0400, subp. 6.  Although it appears that there is no dispute that the employee=s worsened RSD condition is causally related to the employee=s injury, the employer and insurer argue that because the condition of the employee=s upper left extremity and lower extremities cannot be rated under the criteria of the permanency schedules, it cannot be considered a change in condition.  However, the medical records clearly show that the employee=s RSD condition has worsened since the time of the 2000 award on stipulation, and that her level of permanent partial disability has increased, at least based on the 15% rating now assigned to her right arm.^[1]

 

Based upon a change in the employee=s diagnosis due to the worsening of her RSD condition,  a change in her ability to work, her increased level of permanent partial disability, the extensive medical treatment the employee has undergone and the causal relationship between the employee=s current condition and her work injury, the employee has shown a substantial change in medical condition sufficient to justify vacating the award on stipulation.  We grant the petition.