DOUGLAS FRANKLIN, Employee/Petitioner, v. KURT MFG. and SAFECO INS. CO., Employer-Insurer, and INGENIX SUBROGATION SERVS./PREFERRED ONE CMTY. HEALTH PLAN, MINNEAPOLIS CLINIC OF NEUROLOGY, and ALLINA HOSPS. AND CLINICS/ABBOTT NORTHWESTERN HOSP., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 31, 2005

 

No. WC04-259

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where the pre-settlement and post-settlement medical records and the affidavits and memorandum submitted by the employee do not show any substantial or significant change in the employee=s condition subsequent to the Award on Stipulation issued September 27, 2002, the employee=s petition to vacate the award must be denied.

 

Petition to vacate denied.

 

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

 

Attorneys: Michael J. Sauntry, Collins, Buckley, Sauntry & Haugh, St. Paul, MN, for the Petitioner.  Richard C. Nelson, Arthur, Chapman, Kettering, Smetak & Pikala, 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 September 27, 2002, based on a substantial change in medical condition not anticipated at the time of the settlement.  We conclude the petitioner has failed to establish good cause, and deny the petition to vacate the award.

 

BACKGROUND

 

The employee-petitioner, Douglas Franklin, worked as a department manager for the employer, Kurt Manufacturing.  He sustained a personal injury to his right knee on November 24, 1999, and a personal injury to his mid-back on December 27, 1999.  The employee alleged additional injuries to his neck, shoulders, right and left upper extremities, low back, and left and right lower extremities as a result of these incidents.  Also, as a result of polio as an infant, the employee had little or no muscle strength in the left leg and residual weakness in the right leg, and was dependent upon crutches to get around.  The employer and its workers= compensation liability insurer, Safeco Insurance Company, admitted liability for the right knee and mid-back injuries and paid various workers= compensation benefits.

 

The employee initially treated with Dr. David Fey, Orthopaedic Consultants, who noted pain, weakness and buckling of the right knee, low back irritation, mid-thoracic pain, and tingling and numbness between the shoulder blades.  Dr. Fey treated the employee conservatively, including a referral for physical therapy.  The physical therapist noted, on March 10, 2000, the right knee Afrequently gives out causing patient to fall@ and the employee reported difficulty with walking, going up stairs, and pain when getting out of a chair.  (Er Ex. I.)  On March 30, 2000, Dr. Fey additionally diagnosed left wrist carpal tunnel syndrome, and the physical therapist noted the employee had new complaints of headaches and cervical pain.  On May 8, 2000, Dr. Fey referred the employee to Dr. Thomas Murphy at the Minneapolis Clinic of Neurology for further evaluation and treatment.

 

At the employee=s initial visit on June 7, 2000, Dr. Murphy stated the employee had Adeveloped neck pain, upper back pain, and headaches that are now present on a daily basis.  He denies any radiation of pain or numbness into either extremity, but his pain is definitely worse with use of the arms.  He is no longer able to balance and walk on his crutches as he could before.@  Dr. Murphy additionally observed the employee Ahas been having problems with the right leg giving way in a painless fashion.  This has happened over the last four to five months . . . and it occurs about every other day.@  (Er Ex. H.)  Dr. Murphy recommended a right knee brace, referred the employee for MRI and EMG studies, and prescribed additional physical therapy.  The scans revealed a left paracentral herniated disc at C4-5 and degenerative changes throughout the mid-thoracic spine.  EMG and nerve conduction studies on June 20 and August 17, 2000, were consistent with bilateral carpal tunnel syndrome.

 

On August 14, 2000, the employee began working with Jay Tracy, R.N., PA-C,  in a pain management program at the Minneapolis Clinic of Neurology.  In his progress notes, PA-C Tracy noted the employee=s musculoskeletal involvement was a significant problem.  The employee=s bilateral carpal tunnel syndrome appeared aggravated by the use of his crutches, and he described difficulty getting in and out of chairs, bed, car, bath/shower, putting on and taking off shoes, pants, shirts and jackets, and difficulty standing and walking.

 

Dr. Randall Norgard performed right carpal tunnel release surgery on November 14, 2000, and a left carpal tunnel release on February 21, 2001.  Home nursing care was prescribed following the surgery, to be provided by the employee=s wife, and a manual wheelchair was prescribed for mobilization.  Unfortunately, the employee=s general condition did not improve.  In a progress note dated April 11, 2001, Dr. Murphy reported,

 

[The employee] has had extensive treatment . . . with no significant improvement.  He has tried returning to work, even light-duty work, on several occasions without success.  He has had bilateral carpal tunnel releases performed, and that has helped the numbness and tingling in his hands, but he still has some pain in both arms, especially with use of his crutches.  In fact he finds it very difficult to stand or walk even short distances because of increased neck and upper back pain and arm pain.  He is spending more and more time in his wheelchair as a result of this pain.  He fatigues very easily and develops increased pain with activities of daily living.

 

(Er Ex. H.)  Dr. Murphy did not believe it was reasonable, at that point, for the employee to return to any type of work, and he encouraged the employee to apply for Social Security disability benefits.

 

Treatment notes in June 2001 reflect significant problems with neck pain, upper back pain and arm weakness apparently associated with the use of his crutches.  A four-wheel electric scooter was recommended and the employee was referred to Courage Center for assistive and adaptive devices and pool therapy.  On June 27, 2001, the employee=s arms gave out and he fell backwards while going up the steps into his house, severely bruising his upper leg.  On July 10, 2001, Dr. Murphy stated the employee=s arm pain, numbness and weakness impaired his ability to actively ambulate and he was using a wheelchair most of the time.  Dr. Norgard, on July 16, 2001, similarly noted progressive weakness in both hands and neck pain, stating, A[h]e has had to use a four wheel scooter around the house and at all times due to severe weakness of his hands.  He has been falling when he uses his crutches as his hand strength gives out.@ (Er Ex. F.)  By letter dated July 24, 2001, Dr. Murphy noted the employee=s upper back, neck, headaches, and hand and arm weakness had worsened.  The employee continued to have weakness in the right knee, was using a knee brace, and had limited walking ability.  The doctor again recommended use of a four-wheel scooter as even using the wheelchair flared up the employee=s upper back and neck pain.

 

 In a letter report dated November 14, 2001, Dr. Murphy diagnosed (1) neck pain and headaches and bilateral arm pain and paresthesias secondary to cervical strain and a cervical disc; (2) thoracic pain secondary to strain; (3) bilateral carpal tunnel syndrome; (4) low back pain secondary to strain; and (5) right knee pain due to the first injury.  Dr. Murphy stated:

 

[The employee] has had extensive treatment . . . and despite this, he had significant pain interfering not only with his ability to work but also with his ability to perform activities of daily living.  He has a difficult time exercising or doing any of his rehabilitation programs because of the significant pain; therefore, I think his prognosis for recovery is poor.

 

In my opinion, Mr. Franklin is not able to work at this time, and this is on a permanent basis.  He has significant weakness in both legs and now has significant pain and paresthesias in both arms interfering with the use of the arms.   . . . He has for years relied on upper body strength for mobility and now that has been jeopardized due to the neck and upper back injury with cervical strain and cervical disc.

*   *   *  

 

In my opinion, Mr. Franklin requires a motorized vehicle for transportation.  He has no leg strength from his long history of polio and now has significant problems in using his arms because of pain and paresthesias.  He has a great deal of difficulty even with using a standard manual wheelchair.  He would be at risk for falling should he continue to use his crutches, especially in light of the pain, paresthesias, and numbness in his arms.

 

(Er Ex. H.)

 

The employee filed a claim petition on August 29, 2000, a request for retraining on September 26, 2000, an amended claim petition on September 28, 2001, and on October 9, 2001, a Medical Request, seeking, among other things, wage loss benefits, a motorized scooter, referral to a second neurosurgeon, and water pool therapy.  A second amended claim petition on December 21, 2001, additionally sought permanent total disability benefits, permanent partial disability benefits, and payment for nursing services provided by family members for November 14 to 30, 2000, and from February 21, 2001 and continuing.  The employer and insurer denied liability for anything other than a temporary right knee contusion and a temporary mid-back sprain.

 

Following extended negotiations, the parties signed a Stipulation for Settlement in July 2002.  The parties agreed the employee had been permanently and totally disabled since July 24, 2000, and the employer and insurer agreed to pay ongoing permanent total disability benefits.^[1]  The employer and insurer additionally agreed to purchase or pay for a four-wheel scooter, the installation of two electric chair lifts in the employee=s home, a light wheelchair for use in the garage and car, and a driving evaluation at Courage Center, to pay $5,250.00 in satisfaction of the employee=s claims for a hot tub with railings, pool therapy (with or without an assistant), bathroom fixtures, a tub railing, a hand-held shower, grab bars and leg lifts, and to pay $8,399.47 in outstanding medical bills.  The employee agreed to a close-out of his claims for an exercise bike, mileage reimbursement, outstanding prescription expenses, and nursing services provided by family members in exchange for the employer and insurer=s agreement to waive their claim for an overpayment of benefits.  The  Afull, final and complete@ settlement specifically closed-out Anursing or attendant care or services by family members and/or custodial nursing services (of any type or nature, whether in-patient, out-patient or in-home)@ and Aremodeling of a residence.@  (Stip. for Settlement, & XVII.)  The settlement was approved by a compensation judge, and an Award on Stipulation was issued on September 27, 2002.

 

DECISION

 

On August 30, 2004, the employee filed a Petition to Vacate Award, asserting as grounds a substantial  unanticipated change in medical condition.  This court=s authority to vacate an award on stipulation is governed by Minn. Stat. '' 176.461 and 176.521, subd. 3, requiring Acause@ to set aside an award.  In change of condition cases, Acause@ sufficient to justify vacating an award requires a showing by the employee that subsequent developments exist that establish the employee=s condition has substantially worsened.  Davis v. Scott Moeller Co., 524 N.W.2d 464, 466, 51 W.C.D. 472, 474 (Minn. 1994); Franke v. Fabcon, Inc., 509 N.W.2d 373, 377,  49 W.C.D. 520, 525 (Minn. 1993). The statute further requires a showing that the change in condition was Aclearly not anticipated and could not reasonably have been anticipated.@  Minn. Stat. ' 176.461(4); Franke at 377, 49 W. C.D. at 525.  In other words, to reopen an award, there must be a Achange, for better or worse, in a claimant=s physical condition.@  Id. at 376, 49 W.C.D. at 524.  The inquiry in change of condition cases looks back on events, and compares the employee=s condition as it was at the time of settlement with the employee=s condition at the time of the petition to vacate.  The focus of the inquiry is on whether a change has occurred and whether the change is substantial or significant (and if there is causation).  Davis at 466-67, 51 W.C.D. at 475; Franke at 376-77, 49 W.C.D. at 525.  Only where substantial, unanticipated additional disability has occurred since the award was made is the court justified in setting the award aside.  See, Turner v. Federal Reserve Bank of Minneapolis, 298 Minn. 161, 167, 213 N.W.2d 414, 418 (1973) (cited in Franke at 377, 49 W.C.D. at  525).

 

The employee alleges that, since the settlement, his condition has deteriorated to the point that he does not feel safe being alone and that his present condition was not anticipated at the time of the settlement.  He seeks nursing or attendant care during the day, either by his wife or an outside organization, to prevent falls and to help him up when he does fall, as well as ramps for the deck and garage to enable him to get in and out of the house without transfers.  While sympathetic to the employee=s situation, we are not persuaded that there has been a substantial change in the employee=s disability since the settlement.

 

In a follow-up appointment on December 17, 2002, less than three months after the award on stipulation, Dr. Murphy noted the employee continued to have severe flare-ups of upper back/neck pain and headaches and spent most of the day in his wheelchair.  A month later, on January 10, 2003, the employee fell while using his crutches to transfer from his wheelchair.  The left tibia and fibula fractured, requiring surgical repair. The fall resulted from giving-way of the employee=s arms secondary to his chronic neck, back and arm pain and paresthesias. There is no allegation that the fracture itself resulted in any additional disability after it had healed.  The employee returned to Dr. Murphy on June 19, 2003.  The doctor noted the employee Afalls occasionally [due to] leg weakness & arms giving way with crutches.  Still [has] chronic HAs [headaches], neck, upper back pain.  Uses [wheelchair] much of the day.  Arms tingling - much of the time off & on.  . . . No new med. problems.@  (Attached Exs. to Ee. Pet. to Vacate.)

 

The employee asserts that at the time of the settlement his condition had been stable for some time and that he and his doctors assumed it would remain the same.  Since the settlement, the employee alleges, his condition has progressively worsened and he does not fall now because of his right knee problem, but because of lack of strength, pain and paresthesia in his arms as a result of a combination of his neck, back and carpal tunnel problems.  The employee states he now cannot walk even short distances without the fear of falling, and has a hard time even rolling his wheelchair because his back and neck flare up.  He asserts he now has a greatly decreased ability to perform most of the activities of daily living and a substantially decreased ability to use his crutches.  The employee states he is basically confined to his wheelchair now, and that all of these conditions and problems are a substantial change from his condition at the time the settlement was entered into.

 

In a letter report dated September 2, 2003, Dr. Murphy states he did not anticipate, in November 2001, that the employee would be unable to safely use his crutches for even short distances, and that the employee now requires additional medical devices and /or modifications to his home, and/or someone around full time to help with transfers above and beyond that which he anticipated at the time of the November 2001 report.  A careful review of the employee=s current condition, however, based on Dr. Murphy=s post-stipulation treatment notes and on the affidavits submitted by the employee, shows little or no significant change in the employee=s abilities and disabilities from his pre-settlement condition.

 

The medical records prior to the settlement show the employee was experiencing chronic neck and upper back pain, with tingling and numbness starting in the neck and shoulders and going down the arms, along with pain and paresthesias in both hands.  There are repeated references to falls due to loss of upper body and arm strength, to the fact that the employee found it Avery difficult to stand or walk even short distances because of increased neck and upper back pain and arm pain@ and to the fact the employee was Ausing a wheelchair most of the time.@  (Er Ex. H: April 11, 2001 and July 10, 2001.)  Dr. Murphy noted in his November 14, 2001, report that the employee Ahas a great deal of difficulty even with using a standard manual wheelchair.  He would be at risk for falling should he continue to use his crutches, especially in light of the pain, paresthesias, and numbness in his arms.@  The doctor further noted the employee had a difficult time exercising or doing any of his rehabilitation programs and his prognosis was, therefore, poor.  It is apparent from the pre-settlement medical records that the employee=s upper body, arm and leg conditions had gradually, and progressively, worsened over time, prior to the stipulation.  There is little difference between the employee=s pre- and post-settlement conditions, except, perhaps, some continuing loss of strength which could reasonably have been anticipated given his pre-settlement history and prognosis.^[2]

 

While, in retrospect, the employee may now regret his decision to close-out nursing services and additional remodeling of his house, we see no evidence of a substantial or significant worsening of his condition since the time of the settlement sufficient to vacate the Award on Stipulation.  While not unsympathetic to the employee=s circumstances, we must, accordingly, deny the employee=s petition to vacate and set aside the award.