KATHY L. MARICLE, Employee/Petitioner, v. FARMSTEAD FOODS, and SELF-INSURERS SEC. FUND, c/o SEDGWICK CLAIMS MGMT. SERVS., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 21, 2005

 

No. WC04-282

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  The evidence offered in this case demonstrates a substantial change in the employee=s medical condition sufficient to warrant vacation of the 1991 Award on Stipulation.

 

Petition to vacate granted.

 

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

 

Attorneys:  Robert M. Maus, Baudler Baudler Maus & Blahnik, Austin, MN, for the Petitioner.  Jeffrey G. Carlson and Joshua T. Brinkman, Brown & Carlson, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee has petitioned to vacate an Award on Stipulation, served and filed July 31, 1991, alleging that there has been a substantial change in her medical condition which constitutes cause pursuant to Minn. Stat. ' 176.461.  The petition is granted.

 

BACKGROUND

 

The subject of the stipulation between the parties was an injury to the right shoulder and cervical spine which the employee alleged to have sustained on September 25, 1989.  On that date, the employee, Kathy Maricle, was employed as a laborer by the employer, Farmstead Foods, in its pork processing plant in Albert Lea, Minnesota.

 

The Stipulation for Settlement was signed by the parties in July 1991, and an Award on Stipulation was served and filed on July 31, 1991.  The stipulation recites that the employee was claiming entitlement to periods of temporary total and temporary partial disability benefits, as well as entitlement to 7% permanent partial disability for the injury to her cervical spine.  The employee had previously been paid 3% permanent partial disability for her right shoulder condition.  The employer denied liability for the employee=s cervical condition and denied the employee=s claim for wage loss and permanent partial disability.^[1]

 

In the stipulation, the employee agreed to settle all claims related to her September 25, 1989, injury on a full, final and complete basis with the exception of medical treatment related to her shoulder condition.  In return, the employer paid $20,000.00, from which attorney fees were deducted, and paid the employee=s outstanding bill at Noran Neurological Clinic.  As medical support for the parties= positions, the stipulation referenced the report of Dr. Lawrence Farber dated December 30, 1990, and the report of Dr. Mark Engasser, dated May 6, 1991.

 

In his medical report of December 30, 1990, Dr. Farber referred to previous reports which he had sent to the employee=s attorney.  Dr. Farber indicated that the EMG, apparently done in November 1990, was normal and that the CT scan Ashowed a bulging disc at C5-6.  There was nothing surgical in nature.@  Dr. Farber recommended a muscle toning program through the YMCA and provided work restrictions of no lifting over 15 to 20 pounds, no frequent lifting, twisting, turning, or bending motions of the neck, no working up over her head or being in the same position for long periods of time.  Dr. Farber further stated, AI think in terms of prognosis, I think my limitations and exercise needs pretty well cover that.@  Dr. Farber related this condition to the employee=s employment at Farmstead Foods and provided a rating of 7% permanent partial disability pursuant to Minn. Rule 5223.0070, subp. 2.A(3)(a).^[2]

 

The employee was evaluated by Dr. Mark Engasser on behalf of the employer on May 2, 1991.  Dr. Engasser concluded the employee had sustained injuries to her shoulder and cervical spine as the result of her repetitive work activity.  He diagnosed right shoulder anterior subacromial impingement syndrome and myoligamentous strain cervical spine.  Dr. Engasser=s opinion was that the employee was entitled to a rating of 3% for her shoulder condition, but he did not believe that the employee had sufficient findings on examination to support a rating of permanent partial disability for the cervical spine.  Dr. Engasser provided work restrictions of no lifting over 40 pounds.  He did not believe the employee was a surgical candidate or that she needed any further medical care other than a home program of range of motion and strengthening exercises.

 

According to the affidavit filed by the employee with her petition to vacate, at the time of the settlement she was employed at Burger King.  For the calendar year of 1991 she earned $2,878.03.  In 1992 she did not work, was employed 1993 to 1996, did not work in 1997, and then worked in 1998, 1999 and 2000.  Her last employment was delivering newspapers.  The employee indicates in her affidavit that she stopped working in 2000 because of pain in her neck, right shoulder, right arm and hand and that she has not worked since that time.

 

The medical records do not show any treatment for her shoulder and cervical condition after the settlement until January 25, 2002, when she consulted at Albert Lea Regional Medical Group for right shoulder pain.  The employee indicated that she had shoulder surgery in 1990 and had been treating with a chiropractor for shoulder pain over the last couple of years.  An MRI of the right shoulder, done on February 1, 2002, was read as showing impingement and rotator cuff supraspinatus tendon.  The MRI of the cervical spine showed herniated discs at the C5-6 and C6-7 levels.  It was recommended that the employee see a specialist for further treatment.

 

The employee was seen at the Spine Center at Mayo Clinic, first going there in February 2004.  Another MRI was recommended which was done on March 2, 2004.  That MRI showed worsening of her spondylosis since 2002 and moderate central stenosis as well as moderate left-sided foraminal stenosis at C5-6 and C6-7.  The employee transferred her care to Dr. David Beck in Mason City, Iowa, for consideration of surgery.  On June 18, 2004, the employee had an anterior discectomy and anterior cervical fusion done at levels C5-6 and C6-7.

 

In a report of August 23, 2004, sent to the employee=s attorney, Dr. Beck diagnosed C5-6, C6-7 spinal stenosis secondary to disc herniation.  He provided a rating of 14% permanent partial disability pursuant to the AMA Guidelines but gave no restrictions.  With regard to causation, Dr. Beck stated AI believe that her work at Farmstead Foods causing the onset of her neck pain, which is now gone from her surgery, is a substantial contributing factor to the disc herniations described above.@

 

On October 4, 2004, the employee filed a petition to vacate the 1991 Stipulation, arguing that there was cause to do so in a substantial change in her medical condition.  The employer has objected to the petition.

 

Subsequently, the employee filed a medical report of November 29, 2004, from Dr. Keith Bengtson who had seen the employee at Mayo Clinic.  Dr. Bengtson indicated that the employee would have work restrictions which would enable her to work on a sedentary to light level with no overhead activities.  Dr. Bengtson further stated that Acausation of the employee=s multiple degenerative problems is very difficult to address.@

 

DECISION

 

The Workers= Compensation Court of Appeals has authority to set aside an award on stipulation for cause.  Minn. Stat. ' 176.461, Minn. Stat. ' 176.521, subd. 3.  Cause includes a substantial change in the employee=s medical condition.  Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).  The question for this court is whether the employee here has established a substantial change in her condition from the time of the settlement in 1991 to the time of the filing of the petition to vacate in 2004.

 

In considering whether there has been a substantial change in condition, this court generally considers the factors set out in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).  The Fodness factors include:

1.  A change in diagnosis;

2.  A change in the employee=s ability to work;

3.  Additional permanent partial disability;

4.  A necessity for more costly and extensive medical care than essentially anticipated;

5.  A causal relationship between the injury covered by the settlement and the covered condition.

 

The employee has established a change in diagnosis with regard to her cervical condition.  At the time of the settlement, Dr. Farber diagnosed a bulging disc at C5-6 and Anothing surgical in nature.@  He rated the employee=s permanent partial disability under the section for a healed cervical strain or sprain.  Dr. Engasser diagnosed a myoligamentous cervical strain.  The current diagnosis, according to Dr. Beck, is C5-6 and C6-7 spinal stenosis secondary to disc herniation at those levels.

 

The employer argues that the employee=s symptoms did not change between the settlement and the time of the surgery, thus indicating no change in diagnosis.  In support of its position, the employer cites a number of medical records in which the employee refers to cervical pain which had persisted without significant change since the time of her injury in 1989. However, the existence of long-term symptoms does not necessarily lead to a conclusion that there has not been a change in the employee=s diagnosis. There is no evidence that any provider in 1991 was of the opinion that the employee=s cervical condition involved two level stenosis with associated disc herniation.

 

The employer also argues that even if there has been a change in diagnosis, it has been a change for the better so that this factor is not met, citing to this court=s decision in  Countryman v. Firefly Casino, slip op (W.C.C.A. Dec. 6, 2004). The employer misconstrues the decision in Countryman.  This court, while noting a change in diagnosis, found that the surgery received by the employee had improved her ability to work.  We did not establish a general rule that medical treatment which improves the employee=s symptoms obviates a consideration of whether there has been a change in diagnosis.  Such a rule would penalize an employee with a worsened condition who seeks treatment to relieve that condition.  This we decline to do.

 

A closer question is whether the employee has established a change in her ability to work.  It is true, as the employer argues, that the employee was working part-time at the time of the settlement and that in 2004 Dr. Beck placed no restrictions on the employee=s use of her cervical spine, suggesting that her ability to work has improved since the surgery.  However, at the time of settlement, the employee=s restrictions allowed her to work overhead on a limited basis or to work with no lifting over 15 to 20 pounds.  Dr. Engasser would have allowed her to lift up to 40 pounds.  Dr. Bengtson, in his November 2004 report, restricted the employee to light or sedentary lifting with no overhead work.

 

The third Fodness factor is additional permanent partial disability.  Dr. Farber rated the employee=s cervical condition at 7% of the whole body.  While the employee has apparently not yet reached maximum medical improvement from the effects of her recent surgery and a final rating of permanent partial disability may not yet be appropriate, a two-level anterior fusion surgery would result in a significant increase from the earlier rating.

 

The stipulation at issue closed out all medical care for the employee=s cervical condition.  At the time of the settlement, Dr. Farber opined that the employee=s cervical condition was non-surgical and that appropriate treatment would be a toning program.  There is no indication in the records that the treatment received by the employee, a two-level anterior discectomy and fusion, was ever contemplated by the parties or by any doctor.  Finally, Dr. Beck provides the requisite causal connection between the employee=s work injury and her current condition.

 

 A petition to vacate is addressed to the sound discretion of this court and Athe statutory objective for which this discretion is invested is to assure compensation proportionate to the degree and duration of disability.@  Monson v. White Bear Mitsubishi 663 N.W.2d 534, 539, 63 W.C.D. 337, 344 (Minn. 2003).  We conclude cause exists to vacate the Award on Stipulation served and filed July 31, 1991.  The employee=s petition is granted.