CINDY RUSHMEYER, Employee/Petitioner, v. LYNGBLOMSTEN CARE CTR., SELF-INSURED/BERKLEY RISK ADM=RS, Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 31, 2008

 

No. WC08-122

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where she essentially satisfied all six of the factors for consideration identified in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), the employee demonstrated good cause to vacate her award on stipulation on grounds that she had undergone a substantial change in her condition, and her petition that the award be vacated on that basis was granted.

 

Petition to vacate award on stipulation granted.

 

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

 

Attorneys: Gregg B. Nelson, Nelson Law Offices, Inver Grove Heights, MN, for the Petitioner.  Mark A. Kleinschmidt and Whitney L. Teel, Cousineau McGuire, Minneapolis, MN, for the Respondent.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee petitions this court to vacate an award on stipulation served and filed August 2, 1989.  Concluding that the employee has shown good cause to vacate the award at issue, we grant the employee=s petition.

 

BACKGROUND

 

On or about January 6, 1987, Cindy Rushmeyer sustained a work-related injury to her lower back in the process of transferring a patient in the course of her work as a nursing assistant with Lingblomsten Home.  Ms. Rushmeyer [the employee] was twenty-five years old on the date of her injury and was earning a weekly wage of $212.00, and Lingblomsten Home [the employer] was self-insured against workers= compensation liability.  About five months later, on June 13, 1987, the employee sustained a second injury to her back, again in the process of transferring a patient in the course of her work for the employer.  She was on this date twenty-six years old and earning a weekly wage of $238.00.  The employer admitted liability initially for only the first injury but eventually for both of them, ultimately paying intermittent temporary partial disability benefits from July 9, 1987, through approximately April 28, 1989, temporary total disability benefits from September 11, 1987, through January 4, 1989, compensation for a permanent partial disability to 3.5% of the whole body, and various rehabilitation and medical expenses.

 

On January 26, 1988, the employee underwent a lumbar CT scan, which was read as revealing A[n]o evidence of disc herniation or bony stenosis.@  On February 1, 1988, the employee was examined by neurologist Dr. Steven Noran, who issued a working diagnosis of myofascial strain syndrome.  On February 29, 1988, after reexamination of the employee and reviewing her CT scan, Dr. Noran=s physician=s assistant, Lisa Howe, reported that there appeared to be no reason for any further diagnostic tests, that the employee was being released to return to work at light duty, and that she should continue in physical therapy.  When she returned in follow-up on March 18, 1988, the employee complained of an acute exacerbation of her low back pain, but she was nevertheless permitted to return to work to the extent that more appropriate light duty could be arranged.  On May 17, 1988, reporting that the employee=s back pain at work had been increasing, Ms. Howe noted that a functional capacities assessment was being ordered.

 

On June 27 and 28, 1988, the employee underwent a functional capacities assessment at Methodist Hospital, which resulted in an R-33 Functional Capacities Evaluation and an R-2 Rehabilitation Plan based on the employee=s job with the employer, both filed July 25, 1988.  The R-2 and R-33 indicated in part that the employee was able to return to her nurse=s aide job at A[l]ighter duty.  No beds no transfers,@ that she was able to lift and carry forty-five pounds Aoccasionally,@ which was glossed on the form to mean up to a third of her working hours, and that she was also able to bend or stoop, squat, crawl, climb to six feet, crouch, or kneel Aoccasionally.@  Dr. Noran reported that the employee=s condition was improved by July 18, 1988, but in a progress note dated October 12, 1988, he opined, in response to the R-33 and R-2, that Athere is no way in the world that [the employee] can continue working in her present job@ and that the R-33's indication that the employee could bend or stoop up to 33% of the time Ais absolutely preposterous as would be a lot of the other things that are on the R33 form.@

 

Near the end of 1988 or the beginning of 1989, the employee ceased working for the employer, evidently because it could not accommodate her restrictions, and she began alternative work as a home health nurse.  Dr. Noran=s progress notes for January 31, 1989, indicate that the employee=s low back had Aflared up completely@ again by that time, and physical therapy notes a week later, on February 7, 1989, indicate that the employee was at that time experiencing constant low back pain that occasionally radiated down her right leg to her knee, together with increased pain with forward bending and occasional tingling into her toes.  The therapist on that date diagnosed A[l]ow back lumbar strain,@ noting that the employee was having Amaximum problems@ doing her work as a part-time home health aide.  The record contains no new diagnosis from Dr. Noran or any other medical expert.

 

On June 19, 1989, the parties filed a stipulation for full, final, and complete settlement of all claims by the employee for future Aindemnity,@ permanency, rehabilitation, and retraining benefits stemming from her work injury of January 6, 1987, and from any work injury on June 13, 1987.  At the time of the stipulation, the position of the employee was in here-pertinent part as follows:  (1) that she was entitled to ongoing temporary partial disability benefits as a result of her work injuries; (2) that she might be entitled to future temporary total disability benefits as a result of those injuries; (3) that she had not yet reached maximum medical improvement [MMI] with regard to either of those injuries; and (4) that she was entitled to ongoing rehabilitation assistance related to those injuries.  The employer=s position at the time was in part as follows:  (1) that the employee had not, after all, sustained any permanent partial disability as a result of either the admitted January injury or the alleged June injury and had therefore received an overpayment of permanency benefits to the extent of 3.5% of the whole body; (2) that the employee had no work-injury-related restrictions and so, pursuant to Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987), was not entitled to any further wage replacement, rehabilitation, or medical benefits; (3) that there had, in fact, been a substantial overpayment of such benefits; and (4) that the employee had reached MMI with regard to her work injury with service of a medical report to that effect on December 16, 1988.  Pursuant to the stipulation for settlement, the employee was paid $7,000.00 in settlement of all future indemnity and permanency claims, $2,000.00 in settlement of all future rehabilitation and retraining claims, and $255.00 in settlement of all necessary costs for preparation of her workers= compensation claim, and her attorney was reimbursed $250.00 in Heaton attorney fees^[1] for his work in obtaining rehabilitation assistance for the employee.  An award on this stipulation for settlement was issued and filed on August 2, 1989.

 

On March 8, 1990, the employee began treating with chiropractor Dr. Donald Jensen, to whom she reported a history of headaches, hip pain, and pain down her legs into her feet.  By April 13, 1990, Dr. Jensen reported the employee=s back and leg pain to be improved and her progress to be satisfactory.  On April 26, 1990, he completed a physician=s report, certifying the employee=s diagnosis to be chronic lumbosacral strain-sprain, that Dr. Noran had rated her permanent partial disability at 3.5% of the whole body,^[2] and that further medical care was still necessary.  On May 25, 1990, he reported that the employee had responded favorably to treatment, but by November 16, 1990, he was reporting that the employee Aseems to have plateaued and does not improve a great deal,@ noting that Aif she does not receive treatment her symptoms exacerbate a great deal.@  Dr. Jensen eventually ordered a CT scan of the employee=s lumbar spine, which was conducted on February 8, 1991, and was read to reveal an annular bulge at L5-S1 without neural impingement, moderate foraminal stenosis at L5-S1 with impingement on the L5 nerve root, mild narrowing of the left L5-S1 intervertebral nerve root canal without neural impingement, and a minor annular bulge at L4-5 without neural impingement.  On October 7, 1993, Dr. Jensen wrote to the employer=s liability administrator, requesting authorization to continue the employee=s passive treatment beyond the twelve weeks permitted under the Minnesota Treatment Parameters,^[3] on grounds that, while not likely to be curative, ongoing chiropractic care was Athe only means by which [the employee] can gain symptomatic relief and continue to be employed.@  The employee continued to treat with Dr. Jensen until about May of 1994, when she moved with her family from the Twin Cities to Hinckley.

 

Prior to her move to Hinckley, the employee evidently worked at at least two jobs requiring essentially no lifting, including a cashier job at a Budget Power and a job stocking electrical cords at a Wal-Mart.  After her move to Hinckley, she worked for several years at other relatively light duty jobs, first doing homemaking tasks at a home for mentally handicapped adults, then similar work for an agency serving elderly clients in-home, then cashier work again at another Wal-Mart, and then cashier work at Grand Casino.  Over the course of this time she apparently treated primarily with chiropractor Dr. Kyle Hams.

 

On about July 20, 1999, the employee sought treatment from Dr. Larry Brettingen, complaining of severe back pain and an inability to sit, stand, walk, or even sleep normally, subsequent to lifting a small cabinet with a friend the day before.  Upon examination and positive findings on straight leg raising tests, Dr. Brettingen diagnosed herniated disc syndrome with nerve entrapment and prescribed medication.  When the employee=s symptoms were not much improved by August 10, 1999, Dr. Brettingen ordered an MRI scan and restricted the employee to half time work.  The scan was conducted on August 24, 1999, and was read to reveal mild degenerative changes to the mid and lumbar spine, together with disc bulges at L2-3, L3-4, and L5-S1, but no disc herniation or significant spinal stenosis.  Dr. Brettingen subsequently prescribed physical therapy, and, when she was showing good progress by September 28, 1999, Dr. Brettingen permitted the employee to return to working six hours a day.

 

On December 9, 1999, in reply to a letter from the employee=s attorney, Dr. Hams opined that the employee=s treatment at his center had been related to the employee=s work injury of 1987 and had been reasonable and necessary to keep the employee gainfully employed and relatively pain free.

 

On April 7, 2000, the employee was examined by low back specialist Dr. Maria Zorawska, who concluded that the employee=s complaints of right buttock and right lower extremity pain were of Auncertain etiology at this time@ and that her Alow back pain could be due to degeneration in the facet joints and discs.@  Upon subsequent review of the employee=s MRI films with a radiologist, and the radiologist=s finding of foraminal stenosis with nerve root compression at L5-S1, with possible herniated disc or lateral spinal stenosis, Dr. Zorawska prescribed an L5 nerve root injection with cortisone.  On May 16, 2000, the employee underwent another lumbar MRI scan, upon the order of Dr. Zorawska.  The scan was read to reveal (1) degenerative changes at L2-3, L3-4, and L4-5, all with internal degeneration and posterior bulge but no canal or foraminal stenosis and no abnormal nerve root departure, and (2) more severe degenerative changes at L5-S1, with a bulge and loss of height in the disc at that level, together with some narrowing of the lateral foramina on the right and possible irritation of the right L5 nerve.  The employee saw Dr. Zorawska=s colleague Dr. Charles Burton on May 19, 2000.  Dr. Burton reported that the employee had undergone a nerve block on April 21, 2000, which had temporarily relieved her right leg pain, but that, since the nerve block, she had begun to notice pain radiating into her left leg as well.

 

At some point apparently near the end of 2000, the employee ceased working for Grand Casino because she could no longer find work there within her restrictions, and eventually, at some point in 2001, she applied for and began receiving Social Security disability benefits.  About this same time, on January 9, 2001, the employee saw orthopedic surgeon Dr. Manuel Pinto for a recommendation as to options for treatment of her low back pain and bilateral radicular symptoms which were apparently growing ever more severe.  After taking a history and examining the employee, Dr. Pinto diagnosed multilevel degenerative disc disease and L5-S1 disc herniation with nerve compression, and he ordered discograms from T12 down to the sacrum.  On the discograms, conducted on January 19, 2001, the employee demonstrated concordant low back pain at all but one of the spinal levels where disc morphology was abnormal.  In follow-up on February 1, 2001, Dr. Pinto diagnosed symptomatic lumbar disc disease at L2-3 and L5-S1, with significant disc abnormalities also at L4-5.  Although the degenerated condition of the employee=s spine increased the risks of surgery, Dr. Pinto explained to the employee that, given the long duration and severity of her symptoms, surgical treatment was a reasonable option.  He recommended fusion both at L2-3 and from L4 to S1, with discectomy and exploration of the right S1 nerve root also at L5-S1, and the employee elected to proceed with that surgery.

 

The employer denied liability for the surgery, and on May 17, 2001, Dr. Pinto testified by deposition, in part that the employee=s continuing back problems began with her two work-related injuries in 1987.  He acknowledged that his only findings on first examining the employee were that she had pain with extension and some very slight sciatic tension signs on the left side.  He testified further, however, that the results of the employee=s subsequent discogram indicated that surgery was a reasonable and necessary option, though still an elective one, in that the success rate for the surgery among people with the employee=s degenerative condition was no more than eighty-six to ninety percent.  Over the employer=s objection on foundational grounds, Dr. Pinto opined that the need for the surgery at issue was the result of the employee=s work injuries in January and June of 1987.  He testified that, although he knew of no formal research on the issue, A[c]ommon sense would say if you have a disc that looks abnormal to start with that it would be easier to damage it.@  He testified also that a person with the employee=s condition is predisposed to occasional flare-ups.  On cross-examination, Dr. Pinto acknowledged that, when he first examined her, the employee was not in any acute distress, had no obvious spinal deformity, and had only mild or minimal tenderness in her low back.  Near the end of his cross-examination, Dr. Pinto indicated that he did not know whether both the L2-3 level and the L5-S1 level of the employee=s spine were traumatically affected by her two work injuries in 1987.

 

On May 30, 2001, the matter came on for hearing before compensation judge Jeanne E. Knight, over the issues of whether the employee=s medical treatment was reasonable, necessary, and causally related to her work injuries and whether the proposed multi-level back surgery should be approved.  At the hearing, the employee testified in part that she had had ongoing problems with her low back since 1987, and, in reliance on both Dr. Pinto=s and an independent medical examiner=s conclusion that it was reasonable and necessary, the compensation judge, in her July 30, 2001, findings and order, awarded the nonsurgical treatment at issue.  With regard to the surgery, the judge also awarded payment for the proposed fusion recommended by Dr. Pinto.  The employer appealed from Judge Knight=s decision, and, by a decision filed April 17, 2002, this court affirmed the judge=s conclusion that both the past nonsurgical treatment at issue and the proposed surgical treatment at issue were causally related to the employee=s work injuries and should be paid for by the employer.

 

The following year, apparently on August 7, 2002, the employee underwent the fusion surgery recommended by Dr. Pinto, and by January 14, 2003, she was feeling much improved.  She was continuing to do well as of April 8, 2003, although by that time she was beginning to experience some right lower extremity pain, which Dr. Pinto supposed was consequent to some nerve root irritation.  By August 12, 2003, the employee was having spasms of increased intensity in her right lower extremity, and Dr. Pinto prescribed a trigger point injection and medications.  On September 17, 2003, the employee underwent a lumbar myelogram with a postmyelogram CT scan.  The scan was read to reveal lateral stenosis with compression of the nerve root at L5-S1, mild canal stenosis at L3-4 without neural compromise, mild to moderate canal stenosis at L2-3 without neural compromise, a mild annular bulge, fusion hardware, and incomplete arthrodesis of the facet joints at L4-5, and degenerative changes in the sacroiliac joints.

 

On November 29, 2004, the employee underwent another discogram from T12 down to L5, followed by a lumbar MRI scan.  The studies were read to reveal abnormal morphology at T12-L1, with concordant pain at that level, together with abnormal morphology and concordant pain from L1-2 through L4-5, with disc degeneration or dehydration at all of those levels.  Dr. Pinto discussed the studies with the employee on February 8, 2005, and, noting that Ait certainly appears as though she has degenerated significantly above the fusion,@ they agreed that the employee should hold off on any further surgery for the time being.

 

On March 3, 2005, the employee began treating with Dr. Ashref Jeeva, whom the employee had also seen once about a year earlier, who diagnosed chronic degenerative disc disease and depression secondary to chronic back pain and prescribed medication.  Straight leg raising tests were negative on March 31, 2005, but the employee nevertheless reported that she had constant pain down her right leg.  The employee was in no significant distress a month later, on April 28, 2005, but she continued to report radicular symptoms going down her right leg to her toes, and Dr. Jeeva diagnosed chronic back pain with radiculopathy and continued the employee=s pain medications.

 

Beginning on September 16, 2005, the employee began treatment for her low back problems for a little over a year with Dr. Brian Niskanen, during which time her symptoms changed little.  On October 7, 2005, she was examined for the employer by psychiatrist Dr. Scott Yarosh, for an assessment as to the causal relationship between her intractable pain complaints and her 1987 work injuries.  In his report on November 4, 2005, upon examination and certain testing of the employee and review of her lengthy medical history, Dr. Yarosh concluded that the perpetuation of the employee=s pain syndrome was due primarily to her chronic use of narcotic medications and to her underlying personality style, as Aa passive individual who looks to the outside for explanations and may harbor some anger toward her previous employer although it was not inherently obvious in the interview.@

 

By letter ATo Whom It May Concern@ at the employee=s attorney=s office on February 16, 2006, Dr. Niskanen opined that the employee=s current regimen of pain medication Adoes allow her good pain control, and is really quite reasonable, especially in light of the limited use of narcotics.@  It was Dr. Niskanen=s further opinion that the employee=s prognosis in terms of pain control was Areally quite good,@ but he referred to Dr. Pinto questions as to Aher ability to undergo rehabilitation and increase her ability to move about, as well as the original work injury and subsequent surgery and their contributions to her current pain.@

 

The issue of the reasonableness, necessity, and permissibility of the employee=s pain medications under the treatment parameters came on for hearing before compensation judge Nancy Olson on March 2, 2006.  By findings and order filed May 4, 2006, the compensation judge concluded that the employee=s pain complaints were credible, that she Aexperienced disabling pain due to her low back condition caused by the injury,@ and that the cost of the pain medications at issue was compensable.  The employer appealed from these conclusions of the judge, and by a decision filed December 20, 2006, this court affirmed.  As of February 9, 2007, the employer had paid to or on behalf of the employee, not counting attorney fees, a total of $14,021.44 in monetary benefits^[4]

 

On February 6, 2008, the employee filed a petition to vacate her August 2, 1989, award on stipulation on the following grounds:  (1) that she und undergone a substantial change in medical condition that was not anticipated at the time of her stipulation for settlement; (2) that there had been a mutual mistake of fact regarding the significance and scope of her work injury, her related loss of earning capacity, and her related medical condition and recovery; and (3) that there had been a unilateral mistake of fact regarding the scope and extent of her work injury and the effect that it would have on her future earning capacity and need for medical care.

 

On March 5, 2008, the employee testified by deposition, in part that she had been receiving social security disability benefits since 2001, when she left employment with Grand Casino because, she explained, there was no longer any job for her there within her restrictions.  She testified further that she had not been employed since leaving the casino, that she had for a while received unemployment compensation after leaving the casino, and that she had not looked for work since going on social security disability benefits in 2001.  She testified further that, since June of 2000, she had slipped and fallen three times as a result of her right leg giving out and that she had needed to seek medical treatment for resulting injuries.  She testified that these falls had resulted in temporarily increased low back pain, but not in any new symptoms or damage to her fusion and that the employer had paid for her related treatment, except for her prescribed medication.

 

On March 21, 2008, the employee was examined for the employer by orthopedic surgeon Dr. Paul Wicklund.  In his report on March 31, 2008, after taking a history of the employee and conducting a review of her medical records, Dr. Wicklund concluded in part that the employee=s January 6, 1987, thoracic back strain had Anothing to do with her current low back condition.@  He concluded that the employee did not require further medical care or treatment, that she was not a surgical candidate, and that certain restrictions that she did require were related not to her January 1987 work injury but to her subsequent back problems.  In a subsequent report dated April 7, 2008, Dr. Wicklund concluded, upon review of additional medical records, that the employee was capable of working, that there had not been a substantial change in her physical condition since June of 1989 or by reason of her August 2002 surgery, and that there had also been no significant change in her subjective complaints of pain.

 

In its response on April 9, 2008, to the employee=s petition to vacate, the employer denied that the employee had undergone a substantial change in medical condition since her award on stipulation and denied that there had been any mutual or unilateral mistake of fact warranting vacation of the August 2, 1989, award on stipulation.

 

DECISION

 

This court's authority to vacate a compensation judge=s award is found in Minnesota Statutes '' 176.461 and, with regard to settlements, 176.521, subdivision 3.  An award may be set aside if the petitioning party makes a showing of good cause to do so.  Good cause has long been held to exist if "(a) the award was based on fraud; (b) the award was based on mistake; (c) there is newly discovered evidence; or (d) there is a substantial change in the employee's condition."  Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989).  These bases were codified in slightly different language in a 1992 amendment of Minn. Stat. ' 176.461, that the supreme court has indicated applies only to awards postdating the July 1, 1992, effective date of the amendment.  See Franke v. Fabcon, Inc., 509 N.W.2d 373, 377, 49 W.C.D. 520, 525 (Minn. 1993).

 

The employee in this case has petitioned this court to vacate the award at issue on grounds either that it was based on a mistake or that she has undergone a substantial change in her condition.  In Fodness v. Standard Cafe, 41 W.C.D. 1054 (W.C.C.A. 1989), this court identified a number of factors that it considers in deciding whether to vacate an award based on a substantial change in condition.  These factors included the following:  (1) changes in the employee's diagnosis; (2) changes in the employee's ability to work; (3) the development of any additional permanent partial disability; (4) the necessity of more costly and extensive medical or nursing care than was anticipated; (5) the causal relationship between the work injury and the worsening of the condition; and (6) the contemplation of the parties at the time of the award.  In the present case, the employee has essentially satisfied all six of the factors for vacation based on a substantial change in condition as identified in Fodness.

 

On February 1, 1988, prior to the stipulation here at issue, Dr. Noran diagnosed the employee=s condition as a myofascial strain syndrome, and on February 29, 1988, his physician=s assistant reported that the employee=s January 26, 1988, CT scan had revealed an essentially normal low back, with only very minimal hypertrophic changes of the facet joints at L5-S1, the radiologist having read the scan as revealing A[n]o evidence of disc herniation or bony stenosis.@  By February 7, 1989, the employee=s condition appears to have deteriorated somewhat, and her physical therapist diagnosed A[l]ow back lumbar strain,@ but the record contains no new diagnosis by Dr. Noran or any other medical expert.  On April 26, 1990, subsequent to the award on stipulation that is here at issue, Dr. Jensen diagnosed chronic lumbosacral strain-sprain, and in February of 1991 he diagnosed also moderate foraminal stenosis at L5-S1, with impingement.  By July 20, 1999, eight years later, Dr. Brettingen was diagnosing herniated disc syndrome with nerve entrapment, although that diagnosis was apparently not confirmed on the employee=s August 24, 1999, MRI scan, but by April of 2000 Dr. Zorawska was diagnosing foraminal stenosis with nerve root compression and possible herniated disc or spinal stenosis at L5-S1.  On January 9, 2001, Dr. Pinto diagnosed multilevel degenerative disc disease and L5-S1 disc herniation with nerve compression, and a CT scan on September 17, 2003, revealed lateral stenosis with compression of the L5-S1 nerve root, mild stenosis at L3-4, mild to moderate canal stenosis at L2-3, mild annular bulge and incomplete arthrodesis of the facet joints at L4-5, and degenerative changes in the sacroiliac joints.  On March 3, 2005, Dr. Jeeva diagnosed chronic degenerative disc disease and depression secondary to chronic back pain, noting a month later, on April 28, 2005, that the employee had radicular symptoms down her right leg to her toes.  We conclude that the employee=s medical record more than adequately documents a clear and progressive deterioration in the employee=s medical condition since the August 1989 date of her award on stipulation, from myofascial strain syndrome with no radiological evidence of disc herniation or bony stenosis prior to the award to multilevel degenerative disc disease, disc herniation with nerve compression, stenosis, incomplete arthrodesis, and degeneration in the sacroiliac joints - - all radiologically confirmed - - subsequent to the award.

 

The change in the employee=s ability to work is perhaps less definite, but still evident.  Prior to her award on stipulation, the employee was working full time and had recently undergone a two-day functional capacities assessment that found her to be capable of lifting and carrying forty-five pounds and of performing most back-related functions up to a third of her working hours.  We grant that some of these latter findings were contrary to the employee=s doctor=s recommendation, but even when she was restricted to still lighter duty work a few months later, the employee remained, apparently, at work full time, as a home health aide.  Eventually, however, by August of 1999, about ten years after the award here at issue, the employee was restricted by her doctor to half time and then no more than six hours of work a day, and within about year after that, due presumably to her back problems, she qualified for social security disability benefits and has not worked since.  We conclude that the employee has demonstrated a substantial change in her ability to work since her award on stipulation.

 

At the time of the employee=s award on stipulation in August of 1989, the employee=s work-related low back condition was rated as a permanent partial disability to 3.5% of the whole body.  Thirteen years later, apparently in August of 2002, the employee underwent surgical fusion across three intervertebral levels at two locations of her lumbar spine.  We find no record of any physician=s formal rating of the employee=s permanent partial disability related to this surgery, but we take notice of the fact that the employee is clearly entitled to such a rating, and we impute one accordingly.  Minnesota Rules 5223.0070, subpart 1.D., provides for a 17.5% whole body rating for spinal fusion at a single lumbar vertebral level, with an additional 5% rating for each additional level.  The employee=s fusions at L2-3, L4-5, and L5-S1 would entitle her to a substantial increase in permanent partial disability over the 3.5% whole body disability with which she had been rated at the time of her stipulation for settlement.

 

By the date of the award on stipulation here at issue, the employee had been paid or was under order to be paid a total of $14,021.44 in monetary benefits related to her 1987 work injuries - - $5,021.44 in already paid disability benefits and $9,000.00 in settlement of all future disability and rehabilitation claims.  We find in the record no clear indication of the sum spent by the employer on medical expenses already by the time of the settlement, but by February 9, 2007, some eighteen years after the 1989 award, the employer had paid $123,041.70 in surgical and other ongoing medical expenses related to the employee=s work injuries, most of them presumably post-settlement expenses.  As indicated above, the employee=s last medical diagnosis at the time of her award was of myofascial strain syndrome, and there is no mention or other indication in her stipulation that the parties were contemplating a possible need for any surgical or other treatment for any more complicated or severe condition.  We conclude that the employee has demonstrated a necessity for more costly and extensive medical care than was anticipated at the time of the award on stipulation.

 

Causation of the employee=s ongoing and deteriorating low back condition and its treatment has several times already been the subject of litigation between the parties, in particular in the hearing before Judge Knight in May of 2001 and in the hearing before Judge Olson in March of 2006.  Each time the factfinder has found the employee=s ongoing condition and treatment compensable, and each time this court has affirmed the conclusion of the factfinder.  Those affirmed conclusions are now res judicata with regard to the causal relationship of the employee=s deteriorated condition to her 1987 work injuries, and the fifth of the Fodness factors is thereby satisfied.

 

As noted above, there was no mention in the parties= 1989 stipulation for settlement of any anticipation of the sort of deterioration that the employee=s low back has undergone, certainly not any mention of any foreseeable need for the sort of three-level fusion surgery that the employee has reasonably and necessarily undergone.  Nor does the size of the employee=s settlement award suggest that either party anticipated the potential severity of the employee=s injury-related problems.  We conclude that both parties appear to have contemplated a far simpler, less chronic, and less degenerative condition than the condition that has evolved.

 

Concluding that the employee has essentially satisfied all six of the factors identified in Fodness and has therefore shown good cause to vacate the award at issue, we grant the employee=s petition to vacate her August 1989 award on stipulation, on grounds that she has experienced a substantial change in her medical condition.  Because we are granting the employee=s petition to vacate the award on those grounds, we need not address her arguments that she is entitled to vacation of the award also on grounds that the stipulation at issue entailed a mutual or unilateral mistake.