DONALD PANTLIN, Employee/Petitioner, v. KRUEGER & ASSOCS. and EMPLOYERS INS. OF WAUSAU/LIBERTY INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 24, 2008

 

No. WC08-117

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where the employee showed a change in diagnosis and a loss of his ability to work since the time of a 1990 stipulation, the employee established a substantial change in medical condition sufficient to justify vacating the award.

 

Petition to vacate award on stipulation granted.

 

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

 

Attorneys: John T. Anderson, Minneapolis, MN, for the Petitioner.  Thomas F. Coleman, Cousineau McGuire, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee petitions to vacate a award on stipulation on the basis of a substantial change in medical condition.  We grant the petition.

 

BACKGROUND

 

On August 9, 1984, Donald Pantlin, the employee, age 37 at that time, sustained an admitted work injury to his lumbar and thoracic back while working for Krueger & Associates, the employer, which was insured for workers= compensation liability by Employers Insurance of Wausau, the insurer.

 

The employee=s medical history includes a nonwork-related low back injury in 1977.  He underwent a partial hemilaminectomy at the L4-5 vertebral level on March 14, 1977, and had experienced a good recovery from that surgery.  On April 17, 1985, as a result of his 1984 work injury, the employee underwent a L3-4 level laminectomy and discectomy, and remained off work entirely until 1988 or 1989.  The employer and insurer admitted liability and paid the employee temporary total benefits, temporary partial benefits, and medical and rehabilitation expenses.^[1]

 

The employee=s symptoms returned following his 1985 surgery.  On April 14, 1986, the employee consulted Dr. Richard Salib who diagnosed segmental instability at the L3-4, L4-5, and possibly L5-S1 levels; subarticular stenosis on the right at L4-5; lumbar degenerative disc disease; facet joint disease; mechanical low back symptoms discogenic; and status post decompression L4-5 in 1977 and decompression L3-4 in 1985.

 

On October 27, 1986, the employee underwent a lumbar spine MRI scan which indicated multilevel disc degeneration with post-operative changes at L3-4 and L4-5; small to moderate sized disc herniation at L5-S1 without neural compression or displacement; extensive end plate irregularity with post-surgical changes relating to discectomy; annular bulging and degenerative posterior osteophytic spurring; small central residual or recurrent herniation at L4-5; small central and left-sided disc herniation at L3-4 without compression or displacement.  An October 29, 1987, CT scan indicated severe disc space narrowing at L4-5, moderate disc space narrowing at L3-4, and mild disc space narrowing at L5-S1.  On December 8, 1987, the employee underwent an L3 to S1 lumbar fusion performed by Dr. Salib; on January 9, 1988, the employee underwent a follow-up procedure for removal of the surgical hardware.

 

In June 1988, while he remained off work, the employee underwent a functional capacities evaluation and, as a result of the test results, was assigned work restrictions on lifting, carrying, standing, walking, occasional bending, stooping, squatting, climbing, reaching, kneeling, balancing, pushing, and pulling.  It appears that the employee returned to work on a part-time basis in approximately May 1989; as a result, the employer and insurer began paying temporary partial disability benefits although a dispute later arose over the employee=s ongoing entitlement to temporary partial disability benefits.  In addition, on August 2, 1989, the employee filed a claim petition for 27.5% permanent partial disability and underpayment of temporary benefits, later amending that claim to include a claim for economic recovery compensation. 

 

In 1990, the parties entered into a full, final, and complete settlement of his claims for his low back injury, except for medical expenses related to his low back injury, in exchange for consideration of $28,000.00, which was approved by an award on stipulation filed on May 7, 1990.

 

In December 1992, the employee developed symptoms while working in another state for a different employer.  Dr. Salib concluded that the employee had sustained a work injury in December 1992 which was a superseding, intervening cause of his symptoms at the thoracic spine level.  The employee litigated a claim for this injury in Oregon, which was denied.

 

In May 1993, Dr. Salib noted that the employee had continued pain above the fusion site, and he opined that this was related to degenerative changes at the level above the fusion.  In June 1993, the employee returned to Minnesota and began working full time for General Pattern Company, in a light duty position which involved sanding and gluing. On July 16, 1993, the employee underwent MRI scans of the lumbar and thoracic spine.  The lumbar spine MRI detected extensive post-operative changes from L3-4 caudally, small central right recurrent/residual disc herniation at L4-5, and annular bulging at L5-S1 with no apparent nerve root impingement.  The thoracic MRI showed multiple level disc space narrowing and annular deformities, a T6-7 annular tear or small disc herniation on the left with mild cord contact, and a moderate T7-8 disc herniation on the left with mild cord flattening, and a T9-10 small to moderate sized right-sided disc herniation without definite spinal cord contact.

 

The employee developed increased low back and leg pain and stopped working for General Pattern in January 1994.  The employee sought treatment with Dr. Salib, reporting low back pain just above the fusion with pain radiating into the groin and hip.  Dr. Salib indicated that this problem was directly related to the employee=s work injury and surgery.  In 1995, the employee continued to report increased pain in his low back, legs, and feet.  The employee filed a new claim related to the 1984 work injury, seeking permanency and medical expenses related to his thoracic spine.  In 1996, in exchange for payment to the employee of $2,625.00, the parties entered into another stipulation for settlement, including an addendum stipulation, for a full, final and complete settlement of the employee=s claims for his thoracic spine injury related to his August 9, 1984, work injury; the employee=s claims for medical expenses related to his thoracic and lumbar spine injuries remained open.  That settlement was approved by an award on stipulation on May 22, 1996.

 

A November 6, 2001, MRI scan of the employee=s lumbar spine indicated a solid fusion with no residual stenosis or neural compression at the post-operative levels, mild L2-3 disc degeneration with moderate stenosis, moderate disc degeneration at L1-2 with mild retrolisthesis and disc bulging, and flattening of the ventral thecal sac without central stenosis.

 

In January 2002 the employee stopped working due to his low back symptoms.  On January 28, 2002, Dr. Salib opined that the employee was totally disabled from work.  A January 28, 2004, MRI scan indicated a solid fusion, transitional degeneration at L2-3 with moderate stenosis, moderate dehydration, and light retrolisthesis at L1-2 without significant protrusion.  In February 2004, the employee treated with Dr. Salib, indicating dysesthesia, numbness and tingling in his feet.  Dr.Salib opined that the employee was developing degenerative changes above his fusion and also spinal stenosis.  A December 7, 2005, MRI scan indicated mild central stenosis at L1-2, slight progression of stenosis at L2-3, and mild disc degeneration at L3-4 with stenosis.  In 2006, the employee underwent cervical decompression surgery for a nonwork-related injury.  In July 2007, Dr. Salib noted that the employee had developed spinal stenosis in his lumbar spine adjacent to his fused vertebral levels, which is common after a fusion.  He also opined that the employee will likely need additional surgery, that the employee is permanently totally disabled, and that he will remain so even if additional surgery is satisfactory.

 

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).  For awards issued before July 1, 1992, cause for vacation of an award on stipulation includes a substantial change in condition, with the inquiry limited to the extent of improvement or worsening of the injury; the change in condition need not be unanticipated.  Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).  For awards issued after July 1, 1992, under Minn. Stat. ' 176.461, cause to set aside an award exists if 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.  Id.  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 argues that he is only petitioning to vacate the 1990 stipulation for settlement which addressed his low back injury and therefore that he need not prove that the change in condition was unanticipated.  The employer and insurer argue that the 1996 stipulation for settlement for the thoracic injury must also be vacated and therefore that the employee must show that the change in condition was clearly not anticipated and could not reasonably have been anticipated at the time of the award.  The employee has only petitioned to vacate the 1990 stipulation for settlement; neither party petitioned to vacate the 1996 stipulation for settlement.  We cannot vacate a stipulation that neither party has petitioned to vacate.  Whether the 1996 stipulation for settlement also needs to be vacated is not at issue in this petition.  This court has no authority to issue advisory opinions, Herrly v. Walser Buick, Inc., 47 W.C.D. 670, 675 (W.C.C.A. 1992), and therefore we will only address the employee=s petition to vacate the 1990 stipulation.

 

The employee argues that there has been a substantial change in his medical condition related to his low back injury.   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). Under the standard for awards on stipulation issued before July 1, 1992, the employee does not need to prove that the change in condition was unanticipated.

 

As to the issues of causation and whether the employee=s diagnosis has changed, two of the factors cited to in Fodness, the employer and insurer do not dispute that the employee=s current low back condition is causally related to his 1984 work injury.  At the time of the settlement, the employee had recovered from his three-level fusion in 1985.  Dr. Salib=s records indicate that over the years following that surgery, the employee developed symptoms related to degenerative changes at the levels above the fusion and spinal stenosis.  MRI scans in 2001, 2004, and 2005 indicated progression of stenosis at L1-2 and L2-3.  The employee=s medical records document a change in his diagnosis since the 1990 award.

 

On the issue of whether there has been a change in the employee=s ability to work since 1990, there is evidence in the record that the employee=s ability to work has lessened.  While the employee received approximately 235 weeks of temporary total disability from his injury in 1984 through 1990, during that time he underwent two surgeries, including a three-level fusion and hardware removal and remained disabled following recovery from his surgeries.  At the time of the settlement, the employee had been able to return to work.  From January 1990 through January 2002, he was able to work full time in various jobs for varying lengths of time.  As of January 2002, Dr. Salib concluded that the employee is totally disabled, which represents a change from the time of the award in 1990.  The employee has satisfied that particular Fodness factor.

 

The employee has arguably satisfied the Fodness factor concerning the necessity of more extensive medical care than was anticipated, as his medical records show that Dr. Salib anticipates that the employee will need additional surgery.  It is unclear at this point, however, whether the employee satisfies the final Fodness factor, relating to an increase in permanent partial disability.  While Dr. Salib has diagnosed spinal stenosis, which could entitle the employee to an additional permanency rating, Dr. Salib has not yet assigned the employee any additional permanent partial disability.

 

"[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 the employee=s 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 employee=s diagnosis now includes spinal stenosis, and the employee=s symptoms have increased and have become severe.  At the time of the settlement, the employee was working.  Since January 2002, the employee has not worked and Dr. Salib has opined that the employee is totally disabled from working.  Dr. Salib also has indicated that the employee will likely require additional back surgery.  Based upon these factors, the employee has shown a substantial change in medical condition sufficient to justify vacating the award on stipulation.  We grant the petition.