AUDREY L. GROSHONG, Employee/Petitioner, v. THE LIGHT DEPOT, and MINNESOTA ASSIGNED RISK PLAN, Employer-Insurer, and BARRETT AG SERVS., SELF-INSURED/UNITED AGRI PRODS. (UAP), Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 4, 2005

 

No. WC04-279

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where there was no evidence of a significant change in diagnosis or any significant change in the employee=s ability to work, the employee failed to establish good cause to vacate based on substantial change in her medical condition.

 

Petition to vacate awards on stipulation denied.

 

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

 

Attorneys:  Luke M. Seifert, Quinlivan & Hughes, St. Cloud, MN, for the Petitioner.  Randee Held, Mahoney, Dougherty and Mahoney, Minneapolis, MN, for the Respondents.  Mark A. Kleinschmidt, and Ted A. Johnson, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee petitions this court to vacate awards on stipulation filed on February 25, 1997, and February 25, 2003, based on a substantial change in medical condition.  Finding no basis to vacate the awards, we deny the petition.

 

BACKGROUND

 

The employee, Audrey Groshong, age 58, began working for The Light Depot in 1991.  The employee claims that on August 21, 1995, and September 11, 1995, as a result of lifting and bending at work, she sustained injuries to her lumbar spine, thoracic spine, and right and left shoulders.  The Light Depot and its insurer, Minnesota Workers= Compensation Assigned Risk Plan, denied primary liability for the employee=s claimed injuries.

 

According to the medical records and summary of the employee=s deposition testimony submitted to this court, the employee=s medical history includes earlier treatment for back symptoms dating back to 1963.  She has treated with Dr. Peter Schmitz, orthopedist, since at least 1979 for her back condition and also for bilateral carpal tunnel syndrome, shoulder pain, and surgeries to her left ankle and right knee.  In June and July 1995, the employee reported significant pain in her midback region, noted after bending, twisting and stooping.  At that point, Dr. Schmitz prescribed a back brace, anti-inflammatory medication and physical therapy. The employee again consulted Dr. Schmitz following her claimed work injuries, reporting low back pain and pain extending into her left leg.  In September 1995, after her alleged injuries, Dr. Schmitz diagnosed low back pain with radiculitis, and admitted the employee to the hospital for a five-day stay, for medical management of her symptoms.  In October 1995, the employee returned to part-time work for The Light Depot.

 

On July 11, 1996, Dr. Gary Wyard conducted an independent medical examination of the employee, and diagnosed bilateral L5-S1 spondylolisthesis.  Dr. Wyard determined that the employee had no objective findings that would relate her condition to her employment, and that she had not sustained any permanent disability as a result of her work activities.  By contrast, in a report dated December 10, 1996, Dr. Schmitz concluded that the employee=s employment at The Light Depot contributed to her thoracic and lumbar spine condition and he assigned restrictions, including no repetitive bending, twisting or stooping and a lifting limit of 15 pounds.  Dr. Schmitz assigned permanency ratings of 5% permanent partial disability of the whole body relative to her thoracic spine and 7% permanent partial disability of the whole body relative to her lumbar spine.

 

In February 1997, the employee entered into settlement with The Light Depot and its insurer.  By that point, based on their denial of primary liability for the employee=s claimed injuries, The  Light Depot and its insurer had paid no benefits to the employee.  The settlement indicated that the employee was then claiming entitlement to temporary total or temporary partial disability benefits continuing from August 21, 1995; rehabilitation assistance; medical expenses; and permanency benefits based upon the following ratings for permanent partial disability of the whole body: 21% related to her lumbar spine, 2.5% related to her thoracic spine, and 3% related to each of her shoulders.^[1]  In exchange for a payment of $12,500.00, plus payment to various intervenors, the employee agreed to a full, final and complete settlement of all claims for workers= compensation benefits, other than the employee=s claim for payment of future medical expenses which remained open.  Under the terms of the settlement agreement, The Light Depot and its insurer maintained their denial of primary liability against future claims.  The stipulation was approved by a compensation judge, and an Award on Stipulation was issued on February 25, 1997.

 

The employee began working Barrett Ag Services/United Agri Products (UAP), self-insured employer, in January 1997.  She was working there at the time of the 1997 settlement, and continued working there until October 18, 1997.  The employee subsequently claimed that she sustained a work-related Gillette injury to her low back on her last day of employment with UAP, October 18, 1997.  She noticed increased low back symptoms after standing or sitting for long periods of time at work, and felt that her back pain was worse in October 1997 than it had been when she began working for UAP in January 1997.  UAP denied primary liability for the employee=s claimed Gillette injury.

 

The employee has not worked since October 1997, except very briefly.  On January 19, 1999, by award issued by the Social Security Administration, the employee was determined to be totally disabled as of October 18, 1997, and has received Social Security Disability Income (SSDI) since April 1998.^[2]

 

Since 1999, the employee has undergone multiple surgeries to her low back; those surgeries were related to her spondylolisthesis at the L5-S1 level and a herniated disc at the L2-3 level.  Her first surgery was on January 19, 1999, when Dr. Richard Salib performed surgery on the employee in the nature of a decompression and fusion with placement of titanium cages at the L5-S1 level.  On May 27, 1999, Dr. Salib performed a decompression surgery at the L2-3 level, and in July 1999, after a re-rupture of the L2-3 disc, performed another decompression surgery.^[3]  On November 29, 1999, the employee underwent further surgery in the nature of an exploration and revision of the posterolateral fusion at the L5-S1 level, including implementation of a pedicle fixation device at the L5-S1 level, and a bone graft; Dr. Salib also performed that surgery.

 

In November 1999, Dr. Wyard again examined the employee and again concluded that the employee=s condition was unrelated to her employment with The Light Depot.  He determined that the employee=s disc herniation at the L2-3 level was related to a 1998 incident at home, and that her employment at UAP resulted in, at least, a temporary aggravation of her preexisting developmental condition of spondylolisthesis at the L5-S1 level.

 

In January 2000, the employee filed a claim petition, seeking benefits against The Light Depot for the alleged 1995 injuries and against UAP for the alleged 1997 injury.

 

On April 26, 2000, Dr. Robert Hartman conducted an independent medical examination of the employee, and concluded that the employee=s multi-level degenerative spondylosis in the lumbar spine and her L5-S1 spondylolisthesis predated her employment at UAP.  He concluded that the employee=s work activities with The Light Depot permanently aggravated her underlying condition at the L5-S1 vertebral level, and apportioned her need for treatment at 75% to her pre-existing condition and 25% to the employment activities at The Light Depot.  Dr. Hartmann assigned a rating of 12% permanent partial disability of the whole body relative to her 1999 fusion surgery, and advised that the employee was not a surgical candidate at that time due to her failed back condition and lack of significant improvement following multiple operations.

 

In a letter to the employee=s counsel dated May 2, 2000, Dr. Salib addressed  the issues of whether the employee=s surgeries were related to the employee=s work activities at The Light Depot.  He concluded that the employee=s work for The Light Depot aggravated her pre-existing condition of spondylolisthesis at the L5-S1 level and had resulted in a Gillette injury.  Dr. Salib  concluded that although the employee=s fusion surgeries at the L5-S1 level were causally related to her work activities at The Light Depot, her disc herniations and surgeries at the L2-3 level were unrelated to her work.

 

At Dr. Salib=s referral, the employee consulted Dr. David Nelson at Medical Advanced Pain Specialists in August 2000.  He diagnosed the employee as having Apersistent multiple level pain with lumbar radicular pain and failed back syndrome.@  Dr. Nelson recommended chronic pain management treatment for the employee.  In September 2000, the employee participated in a pain rehabilitation program at St. Cloud Hospital. As part of her evaluation for that program, she underwent a psychophysiological evaluation and was diagnosed with an adjustment disorder with depressed mood along with chronic mechanical low back pain.

 

In September 2000, at Dr. Schmitz=s referral,  the employee obtained an additional orthopedic opinion from Dr. Garry Banks.  She underwent additional radiographic studies and discography in the thoracic and lumbar spine.  Dr. Banks ultimately recommended that the employee continue with the back rehabilitation program and pain management therapy, and recommended against further surgery or injections for pain relief.

 

In 2002, the parties negotiated a settlement and finalized a stipulation for settlement.  The stipulation for settlement indicated that the employee was then claiming that she was permanently and totally disabled as a result of her injuries sustained while working for both The Light Depot and UAP; that she had sustained additional permanent partial disability than had previously been rated;^[4] and that she had incurred additional medical expenses as a result of her claimed injuries.  In exchange for a payment of $11,500.00 made by UAP, self-insured, plus payment to various intervenors issued by UAP and by The Light Depot and its insurer, the employee agreed to a full, final and complete settlement of all claims for workers= compensation benefits related to her claimed 1997 injury, including a close-out of future claims against UAP for medical expenses.  Under the terms of the settlement, the employers and insurer maintained their denial of primary liability against future claims.  After a delay in obtaining final agreement from various intervenors, the stipulation was approved by a compensation judge and an Award on Stipulation was issued on February 25, 2003.

 

By affidavit, the employee described her symptoms at the time of the second settlement as including low back pain radiating into her left leg, with toe and heel numbness; inability to sleep at night due to back pain; occasional numbness in her entire left leg; intermittent numbness in her right big toe; and increased shoulder discomfort.

 

The parties submitted no medical records documenting any treatment between October 2000 and the 2003 award.  In a letter dated December 13, 2003, Dr. Schmitz provided his opinion that the employee has had a substantial change in her medical condition, specifically a new paracentral disc protrusion at the L2-3 level, which Awould result in an additional permanent partial disability as well as more extensive medical care.@  He determined that Aher injuries have definitely contributed to her current problems and there is definitely a causal relationship.@

 

On September 16, 2004, the employee underwent additional surgery at the L2-3 vertebral level; that surgery was described as a Aredo@ of the left L2-3 hemilaminotomy, foraminotomy and microdiskectomy.  On October 6, 2004, the employee filed an application to set aside the 1997 and 2003 awards on stipulation based upon a substantial change in medical condition.  Both employers and the insurer filed objections to the employee=s application to set aside the awards.

 

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).

 

In this case, the employee asserts that there is cause to set aside the 1997 and 2003 awards on stipulation due to a substantial change in her medical condition since the 2003 award.  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).

 

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)).  The medical documentation submitted by the employee in support of her petition consists of a letter from Dr. Schmitz, dated December 16, 2003, treatment notes from Dr. Schmitz=s clinic, Northern Orthopedics, dated October 31, 1979, through March 7, 2000, and medical records attached to the stipulations for settlement.  The employee later supplemented her exhibit by submitting records related to her 2004 surgery; additional medical records were submitted by UAP.

 

 In her petition, the employee argues that in order to properly present her case for trial, it is necessary that both awards on stipulation be vacated.  However, her petition focuses solely on the changes in the employee=s medical condition, since the time of the 2003 award, that were clearly not anticipated and could not reasonably have been anticipated at the time of that award.  See Minn. Stat. ' 176.461.

 

Change in Diagnosis and Causal Relationship

 

The employee contends that there has been a change in her diagnosis since the 2003 award on stipulation.  By the time of that award, the employee had undergone two surgeries at the L2-3 vertebral level and two surgeries at the L5-S1 level, had been diagnosed with a major depressive disorder, and had undergone chronic pain management treatment.  The employee contends that her symptoms in her back, both legs, and upper back and shoulders have worsened since the 2003 award on stipulation, that the type of medication she takes has changed over time, and that her stress and pain have caused her to suffer from depression, for which she still seeks treatment.

 

According to the employee=s testimony, however, she has been prescribed antidepressant medication since approximately 1998.  In addition, her current low back pain and related symptoms as described in her affidavit and deposition appear to be similar to and are focused in the same areas where the employee experienced pain and symptoms at the time of her 2003 award on stipulation.  And, although the employee has undergone an additional surgery in 2004 at the L2-3 level, the only difference in her diagnosis since the second award on stipulation is that she underwent this additional surgery.  The record includes no current medical opinion that causally relates the employee=s 2004 surgery to her work injuries.  Indeed, Dr. Salib and Dr. Wyard earlier provided opinions that the employee=s disc herniations and surgeries at the L2-3 level were unrelated to her employment.  We cannot conclude that there has been any change in the employee=s diagnosis since her 2003 award on stipulation, nor is there evidence of a causal relationship between the 2004 surgery and the employee=s claimed injuries.

 

Change in Ability to Work

 

The employee acknowledged that even before she entered into the 2002 settlement she was permanently and  totally disabled from employment.  The employee alleges that she has less functional ability than she had at the time of that settlement and the related award on stipulation.   However, she has not worked since approximately November 1997 and has been awarded Social Security Disability Income since October 1997 based on an assessment of permanent total disability.  The employee acknowledges that she considered herself to be permanently totally disabled at the time of the second settlement.  We conclude, therefore, that the employee has not established any significant change in her ability to work since the 2003 award on stipulation.

 

Additional Permanent Partial Disability

 

By the time of the 2003 award on stipulation, Dr. Schmitz had assigned a rating of 23% permanent partial disability to the whole body, relative to the employee=s low back and her surgeries, including fusion surgeries.  On the issue of whether the employee has been sustained any additional permanent partial disability since the 2003 award on stipulation, the record contains no medical opinion assessing the employee=s current level of permanency and no indication of whether she has sustained any additional permanent partial disability beyond the amount assigned by Dr. Schmitz in 2000.  Because of the employee=s complex medical history, without a current assessment of her permanency we cannot conclude whether the employee has sustained any additional permanency since the time of the 2003 award on stipulation.  We therefore conclude that the employee has not established any change in the level of permanent partial disability since that award.

 

Medical Care

 

The employee also contends that, since the 2003 award, she has undergone more costly and extensive medical care than originally anticipated, including her surgery in 2004.  It appears that this additional surgery reasonably could have been anticipated at the time of the second settlement, given that the surgery was described as a Are-do@ of the surgeries earlier performed at her L2-3 vertebral level, including removal of scar tissue from those earlier surgeries.  In addition, this court has held that Athe need for additional surgery does not, in and of itself, necessarily compel the conclusion that there has been a substantial change in the employee=s medical condition.@ Meidema v. Brown Group, slip op. (W.C.C.A. April 22, 1996), citing Burke v. F-M Asphalt, slip op. (W.C.C.A. Feb. 27, 1996); Sondrol v. Del Hayes & Sons, Inc., 43 W.C.D. 367 (W.C.C.A. 1990).  We cannot conclude that the employee=s post-award medical treatment has been more costly and extensive that was initially anticipated at the time of the 2003 award on stipulation.

 

After review of the exhibits submitted by the parties, including the medical reports in the record, we conclude the employee has failed to establish good cause to vacate the 2003 award on stipulation.  As to the 1997 award on stipulation, the employee has presented no argument in her petition that her medical condition has substantially changed since the 1997 award on stipulation, and the employee=s petition provides no grounds for vacation of the 1997 stipulation for settlement.  Therefore, the employee=s petition to vacate the Awards on Stipulation of February 25, 1997, and February 25, 2003, is denied.