The employee petitions to vacate an award on stipulation issued January 9, 2001.  Finding that the employee has failed to establish an unanticipated substantial change in condition, we deny the petition.

Shirley Bartz, the employee, sustained a work injury on June 12, 1997, while employed as a certified nursing assistant at Meadow Lane Healthcare, a nursing home.  Her primary duties were to assist the residents with personal care needs and, while doing so, she injured her low back helping a resident transfer from a bed to a wheelchair.  The employee saw Dr. Gregory Lee at Benson Chiropractic Center on June 14, 1997.  Dr. Lee took the employee off work and began providing chiropractic treatment.  She treated with him until the beginning of August when she went to her family medical clinic. She was diagnosed there as having an acute back strain and was provided with pain relievers and muscle relaxants and released to return to work with a 25-pound lifting limit.  The employer and its insurer accepted liability and paid the employee temporary total disability benefits from June 12, 1997, through August 20, 1997.

The employee was evaluated on behalf of the employer and insurer by Dr. Jack Drogt on October 10, 1997.  Dr. Drogt found an indication of degenerative disc disease in the lumbar spine in the radiographic reports but he did not believe those radiographic findings were related to her pain complaints.  It was his opinion that the employee had a lumbar pain syndrome without an objective basis and that the June work injury was a temporary aggravation of her underlying condition.

The employee was referred to an orthopedist, Dr. Paul Iverson, by her family physician. She saw Dr. Iverson on January 23, 1998.  His chart notes from that visit are not in the record.  In a letter of April 14, 1998, found in the file of the Social Security Administration, Dr. Iverson stated that an MRI showed “a fairly significant disc at L5-S1.”  No MRI report is in the record before us but Dr. Drogt, in a follow-up report in September 1998, stated that the MRI showed degenerative disc disease from L3 to S1 and a moderate disc herniation at S1 with nerve rootlet displacement.

In November 1997, the employee filed an application for social security disability and, after an administrative hearing, was awarded benefits in August 1998 which were retroactive to June 12, 1997.  The decision made note of the employee’s planned surgery and stated that a review might be done to reconsider the award after surgery. There is no indication in the record as to whether or not such a review was ever done.

The employee had surgery done by Dr. Iverson in November of 1998.  The surgical records are not in evidence, but in subsequent records, the surgery was described as a right-sided laminectomy.  The employee noted some improvement after the surgery, and states in her affidavit that she was released to part-time work by Dr. Iverson.  The number of hours the employee was allowed to work and any restrictions set by Dr. Iverson are not in the record.^[1]  The employee was paid temporary total disability from November 9, 1998, through August 1, 1999.  The employee apparently had vocational rehabilitation assistance at some point after her surgery but did not return to any employment.

The parties settled the employee’s workers’ compensation case in December 2000, and an award on stipulation was issued on January 9, 2001.  There are no medical records in the record concerning any care or treatment from the surgery to the date of the settlement.^[2]  The employer and insurer paid $9,375.00 for a full settlement of all claims except for non-chiropractic medical care.  The stipulation also indicates that permanent partial disability of 11% had previously been paid.

In the affidavit supporting her petition to vacate, the employee states that she began providing light housekeeping for her father and brother in October 2001 but stopped those services in September 2003 because her back was getting progressively worse. The employee’s medical records after the settlement begin in December 2003, with a visit to her family practice clinic where an assessment was made of “recurrent L5-S1 injury with exacerbation.”  A lumbar MRI was done on December 24, 2003, and was read as showing a large disc protrusion or fragment at the L4-5 level and a recurrent disc at the L5-S1 level.

The employee was referred back to Dr. Iverson and saw him on February 5, 2004.  He concluded that further treatment was appropriate but told the employee he no longer did back surgery.  The employee then saw Dr. Sunny Kim at Central Minnesota Spine Center on July 27, 2004.  According to Dr. Kim’s chart notes of that date, the insurer had denied liability for the employee’s current condition.  On September 2, 2004, Dr. Kim performed microdiscectomies at L4-5 and L5-S1.

Dr. Drogt did another IME of the employee on December 2, 2004.  In his report, Dr. Drogt stated that the reason for the employee’s recurrent pain in December 2003 was an incident of moving furniture to put up a Christmas tree at home.  This incident was apparently referenced in physical therapy notes but those notes are not in the record here.  It was his conclusion that, while the surgery in 2004 was appropriate, it was not related to the work injury in June 1997.  Dr. Drogt provided no opinion as to the employee’s ability to work.

In a report to the employee’s attorney in June 2005, Dr. Kim provided his opinion that the employee’s “current condition is substantially related to her work-related injury of June 12, 1997.”  Dr. Kim stated the employee would have an additional 11% permanent partial disability and also stated that the employee should be “limited to lifting no more than 15 pounds on an occasional basis, working four to eight hours a day.”

The employee returned to Dr. Kim in November 2005 with low back pain and bilateral leg pain.  Dr. Kim concluded the employee had “post-laminectomy low back pain syndrome.”  The employee had additional surgery done on March 30, 2006.  Dr. Kim performed a repeat decompression at the left L4-5 and right L5-S1 levels.  He also performed a fusion from L3 to S1 with instrumentation.  At a follow-up appointment on May 24, 2006, it was noted that the employee no longer had the severe low back and leg pain she had before the surgery, but on October 17, Dr. Kim stated the employee had “gone backwards since last seen” and he recommended a CT scan to check the fusion.  The CT scan did not provide conclusive evidence of solid fusion and Dr. Kim stated on November 1, that “delayed union may be the cause of her symptoms.”

Dr. Joseph Tambornino evaluated the employee for the employer and insurer on August 7, 2006, and prepared a report on that date.  Dr. Tambornino stated that the employee was not in need of surgery from the effects of her 1997 work injury because there was no documentation of physical signs on examination of lumbar nerve root syndrome.  It was Dr. Tambornino’s opinion that the June 1997 injury was a low back strain which would have resolved just as previous work-related low back strains had resolved.

The employee petitioned this court on June 6, 2006, alleging that good cause existed to vacate the January 2001 award under Minn. Stat. § 176.461.  The employee claimed that she has suffered an unanticipated substantial change in medical condition.  The employer and insurer have objected to the petition.

This court has been given jurisdiction to set aside an award upon of showing of good cause.  Minn. Stat. § 176.461.  Good cause is defined in the statute as including “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.”

In considering whether there has been a substantial change in condition, this court has used the analysis set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).  See, for example, Wright v. Ecolab, Inc., WC05-194 (W.C.C.A. Oct. 31, 2005) and Bresnahan v. Vicorp/Bakers Square, WC05-292 (W.C.C.A. Apr. 27, 2006).  In applying the analysis, the court considers the record to determine the employee’s condition at the time of settlement as compared to the condition at the time the vacation of the settlement is sought.  The potential change in condition is considered in the context of the diagnosis of the employee’s condition, the employee’s ability to work, the extent of permanent partial disability, and the nature of necessary medical care.  A central element in the analysis is whether the change in condition was unanticipated or “could not reasonably have been anticipated.”

Application of the Fodness factors presupposes that this court will be provided with sufficient evidence to compare the employee’s status at the time of the settlement with the condition at the time of the petition to vacate. The employee who seeks to vacate an award on the basis of an unanticipated substantial change in condition has the burden of presenting to this court the evidence which is necessary for a review to be made.

In considering the record here, we find insufficient information as to the employee’s condition at the time of the settlement.  There are no medical records from Dr. Iverson from before the settlement.  As a result, we do not know the 1998 surgery results, the work restrictions placed upon the employee after the surgery, and what future treatment might have been anticipated.  We have no medical records at all from the time of surgery to the time of the settlement and have no indication whether or not there was any medical care during that period.  There is a lack of information as to the employee’s employability at the time of the settlement.  In her affidavit, the employee indicates she was able to return to work after the 1998 surgery but that statement is contrary to the history she gave to Dr. Tambornino in 2006 that she was never physically able to return to work after her surgery.  While vocational rehabilitation services were provided, we have no information as to the QRC’s plan to return the employee to work, what restrictions were being followed in any job search, and whether there was a realistic possibility of the employee returning to gainful employment.

In the present case, we find the employee has failed to meet her burden of establishing an unanticipated substantial change in condition.  The petition is denied.