The employee petitions to vacate an award on stipulation served and filed March 31, 2000, on the grounds of mutual mistake and an unanticipated substantial change in medical condition.  We conclude the employee has not established good cause under Minn. Stat. § 176.461 and the petition is denied.

The employee has filed a Petition to Vacate an Award on Stipulation issued March 31, 2000.  The employee contends that, with respect to his low back condition, there was a mutual mistake at the time of the settlement and there has been a substantial change in his medical condition which could not have been reasonably anticipated.  Accordingly, the employee claims he has established cause to vacate the award under the provisions of Minn. Stat. § 176.461.

The earliest work injury relevant to the employee’s petition occurred on November 10, 1992, when Jeffrey Langland was employed by Minnesota Express making deliveries of bulk mail.  The employee injured his low back while lifting a pallet.  The employee treated initially with his family doctor and received physical therapy.

The employee began treating with Dr. Richard Salib at the Institute for Low Back Care for his work injury in July 1993; he continued to treat periodically with Dr. Salib for the next ten years.  In July 1993, Dr. Salib’s exam was negative except for pain with forward bending.  A CT scan showed minimal posterior bulging at L5-S1.  Dr. Salib diagnosed “non-specific low back pain” and recommended an MRI to identify further treatment options.  The MRI showed lumbar degenerative disc disease at the L5-S1 level with an annular tear.  There was no pathologic disc protrusion and no nerve root compression.  Dr. Salib recommended that the employee either live with the problem or have a facet joint injection at L5-S1.

On August 24, 1993, Dr. Salib issued a report that indicated the employee was at maximum medical improvement [MMI] and that rated his permanent partial disability at 7% under Minn. R. 5223.0070, subp. 1.A.(3)(a) for a healed sprain with rigidity or muscle spasms at a single level.  Dr. Salib also noted that the employee was able to return to his former employment and he set no work restrictions for the employee.

In September 1993 the employee had the nerve block recommended by Dr. Salib and he reported a “moderate degree of improvement” when he saw Dr. Salib in October 1993.  No further treatment was recommended at that time by Dr. Salib other than use of a lumbosacral support belt.

The employee did not return to employment at Minnesota Express, but instead went to work for Willknight in the summer of 1993.  The company manufactured agricultural sprayers and the employee worked for about a year as a press operator and then worked the balance of his employment there as an assembler.

The employee’s second work-related injury to his low back was at Willknight on April 27, 1994.  He made an effort to catch an 80-pound die that was falling out of a rack and in doing so, felt immediate pain in his low back.  He described the pain as occurring in the same area of the back where he had experienced pain after his 1992 injury.  The employee saw his family doctor and was placed on light duty until June 1994.

In September 1994, the employee returned to Dr. Salib for the first time since October 1993.  He reported his April 1994 injury to Dr. Salib and told him that he had physical therapy done at the direction of his family doctor.  Dr. Salib noted that the physical examination showed “no evidence of disc herniation” and he recommended a second facet nerve block.  The nerve block was done in December 1994 and the employee reported in his follow up appointment with Dr. Salib in January 1995 that he had minimal improvement from the procedure.  Dr. Salib also commented at that visit that the employee was not a candidate “for surgery at this time.  I told him he is just too young to think about a fusion for the type of pathology that he has.”  The employee did not see Dr. Salib again until October 1996.

The employee sustained an additional injury at Willknight on November 21, 1995.  In trying to stabilize a boom on a rack, he injured his back and left shoulder.  He treated with his family physician, Dr. Dennis Peterson, who diagnosed myofacial pain and provided him with ibuprofen.

In February 1996, Dr. Peterson indicated the employee was at maximum medical improvement with no permanent partial disability from the November 1995 injury.  The employee continued to complain of left shoulder symptoms however and he was referred to Dr. Daniel Buss, an orthopedist, for further care.  Dr. Buss’s records are not part of the record before this court but he apparently diagnosed a rotator cuff injury.

When the employee returned to Dr. Salib in October 1996, he reported that since the November 1995 injury, his low back pain, which had been limited to the right side of his low back, was now present on the left side as well.  Dr. Salib diagnosed “chronic low back pain secondary to disc degeneration and facet syndrome” and recommended an MRI.  There was no substantial change shown on the MRI and Dr. Salib recommended an additional facet nerve injection.  It does not appear that the injection was done until April 1998.

An additional injury to the left shoulder occurred on April 29, 1997, at Willknight.  The employee was pulling on a boom to install a spring when he felt a pull in his left shoulder.  The employee testified in a 1999 deposition that his injury was diagnosed as a rhomboid strain by Dr. Peterson.  The employee advised an independent medical examiner, Dr. Peter Daly, in June 1999 that his pain from the April 1997 resolved by the fall of 1997.

The employee had a discogram done at Dr. Salib’s recommendation in June 1998.  It was read as showing a posterior annular tear at L4-5 and a minimal partial thickness tear to the left at L3-4.  The discogram did not include the L5-S1 level. Dr. Salib recommended continued conservative care.  In a September 1998 report to the employee’s attorney, Dr. Salib rated the employee’s permanent partial disability.  He continued to find 7% permanent partial disability for the 1992 injury and he added an additional 3% for the 1995 injury, finding a second level of impairment in the low back. Dr. Salib deferred placing any work restrictions until a functional capacities evaluation was conducted.

The employee had arthroscopic subacromial decompression surgery on his left shoulder by Dr. Buss in July 1998.  At some point, Dr. Buss apparently stated the employee as having reached MMI and placed a limit of lifting no more than 3 pounds over the shoulder level.  There is no record of further treatment to the left shoulder.

At Dr. Salib’s recommendation the employee went through a spine rehabilitation program in early 1999.  He reported to Dr. Salib in April 1999 that the program had little effect on his functional level.  Dr. Salib recommended intradiscal electrothermal treatment (IDET) at the L4-5 level. Dr. Salib also released the employee to work at a light exertional level – no lifting over 20 pounds and sitting with changes in position every 30 minutes.

In a deposition taken in 1999 the employee testified to his understanding of the (IDET) procedure that was being recommended.  He stated the IDET procedure would prevent a worsening of his condition and was an option to avoid fusion surgery.  The employee said he was told that if he had fusion surgery, there was a 50% chance that he would not be able to work again.  He also testified that his pain was at an 8 on a ten point scale and that his pain had increased in intensity since his 1992 injury.

The employee was evaluated by Dr. Peter Daly for an independent medical exam on June 10, 1999.  Dr. Daly disagreed with the recommendation for an IDET because there were no long-term studies to substantiate its effectiveness.  Dr. Daly commented that the employee “may be a candidate for a fusion at some point if his symptoms become completely disabling.”

The employee also had an IME performed by Dr. Jerry Reese on July 28, 1999.  Dr. Reese diagnosed degenerative disc disease at multiple levels and concluded that the 1992, 1994, and 1995 injuries all contributed to the employee’s current disability.  Dr. Reese agreed with Dr. Salib’s permanent partial disability rating and agreed also with the work restrictions Dr. Salib had placed on the employee.  Dr. Reese did not believe the employee was a candidate for an IDET procedure or any type of surgery.

The parties entered into settlement negotiations in early 2000.  Before the agreement was approved, the employee had additional medical appointments.  The employee saw Dr. Salib on three occasions in March 2000.  Dr. Salib continued to recommend the IDET procedure he had previously discussed.  The employee was also seen by Dr. Lon Lutz for an IME on March 13, 2000.  Dr. Lutz diagnosed multilevel degenerative disc disease and concluded that additional diagnostic studies were necessary before an IDET procedure would be appropriate.

The parties entered into a Stipulation for Settlement which was the subject of an award issued on March 31, 2000.  The parties to the agreement were the employee, Minnesota Express/Minnesota Assigned Risk Plan/Berkley for the November 10, 1992, injury; Willknight/State Fund Mutual for the April 27, 1994, and November 21, 1995 injuries; and Willknight/American International Group for the April 28, 1997, injury.  In the Stipulation, the employee asserted his claims as being for temporary total and partial disability benefits, an additional 3% permanent partial disability benefits, and additional medical expenses.  The agreement called for payment of medical expenses and $35,000.00 for a full, final complete settlement of all claims, except for future non-chiropractic medical expenses.

The employee testified that he was laid off from his employment at Willknight after the 1997 injury.  He was unemployed for a period and than began working part-time in January 1999 for West Central Tribune in the mailroom.  In May 1999, he continued to work for West Central Tribune but also started working for West Central Chemical, weighing bulk chemical tanks.  The number of hours he worked is not set out in the record. He was laid off from the chemical company job in July 1999. When and why he left the job at the Tribune is not in the file. In his affidavit accompanying the Petition to Vacate, the employee stated he was working at Super America when the settlement took place.  In a 2009 deposition, the employee testified that his last employer was Somody Supply, doing stock work. The employee stopped working just before his 2000 IDET procedure and has not returned to employment since then.

The employee had an IDET procedure performed by Dr. Salib at the L5-S1 level on August 30, 2000.  The employee did not report any improvement in his follow-up exam on October 6, 2000, and, in fact, stated that he now had lateral and posterior numbness in his left leg which had worsened over the preceding month.  He also had pain in his left foot and rated his overall pain as 9 on a 10 point scale.  No improvement was noted in the employee’s condition when he returned to see Dr. Salib in December 2000.

In February 2001, when he saw the employee again, Dr. Salib noted bilateral leg pain and numbness.  The employee rated his pain at 8 or 9 out of 10.  Dr. Salib recommended a repeat discogram to determine if fusion surgery at one or two levels should be performed.  After the discogram was done, Dr. Salib, at an appointment on April 27, 2001, recommended a two level anterior posterior fusion surgery at L4-5 and L5-S1 with instrumentation.  This surgery was done by Dr. Salib in July 2001.

A chart note from August 17, 2001, indicates the employee was “feeling better day by day.”  When the employee returned to see Dr. Salib on January 21, 2002, he reported he was still experiencing back and leg pain and he was walking with a cane.  It was felt that the employee was experiencing muscle irritation from some of the hardware installed during the fusion surgery.  On February 8, 2002, Dr. Salib reported that the employee was doing well until he slipped and fell.  The hardware was removed later in 2002.  The employee continued to report continuing back and leg pain with no improvement.

The last chart note from Dr. Salib in the record is dated June 20, 2003.  Dr. Salib stated

The employee participated in a chronic pain program at Sister Kinney Institute.  In a discharge report dated November 7, 2003, Dr. Matthew Monsein noted some changes in medication made during the program.  He also concluded that the employee was able to return to work only on a “part-time basis for some type of light or sedentary work” with a 10 to 12 pound lifting limit.

The employee was evaluated by Dr. John Dowdle on behalf of SFM Mutual on May 8, 2009.  The employee advised Dr. Dowdle that he had constant low back and right leg pain.  The pain level was between 6 at its best and 10 at its worst on a 10 point scale.  The employee reported being able to sit or stand no more than 30 minutes.  He was receiving no treatment for his back, other than the use of Motrin, but was continuing a home exercise program.  Dr. Dowdle concluded that the employee’s diagnosis had not substantially changed from 1999, that he was capable of work with lifting up to 30 to 35 pounds, and that the employee’s current disability was the result of degenerative disc disease and not the 1992, 1994, or 1995 work injuries.

In the affidavit accompanying his petition, the employee states that he is unable to do even minimal lifting; he is not able to lift a gallon of milk without intense pain.  He is unable to work now but was able to be employed full-time at the time of the settlement.  The employee has apparently been on Social Security disability benefits since some time in 2001.

This court’s jurisdiction to set aside an award is established by Minn. Stat. § 176.461.  An award may be vacated for “cause,” identified in the statute as being limited to: 1) a mutual mistake of fact; 2) newly discovered evidence; 3) fraud; or 4) 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.  The employee claims he is entitled to vacate the 2000 stipulation and award on the basis of a mutual mistake and on the grounds that there has been an unanticipated substantial change in his medical condition.  We consider each of these arguments in turn.

The employee claims that at the time of the settlement there was a mutual mistake as to the nature and severity of his injury.  According to the employee, the possibility of fusion surgery and resultant disability was not fully appreciated by any of the parties.  All parties assumed the employee would be able to continue working when that has not proven to be the case.

In order to find a mutual mistake of fact constituting grounds to vacate a settlement, there must be a showing of mutuality, the misapprehension of the parties must have to do with a fact, and the mistake must be documented as of the date of the settlement.  Shelton v. Schwan’s Sales Enters., 53 W.C.D. 110 (W.C.C.A. 1995); Pomije v. Minnesota Valley Ag. Coop., No. WC05-104 (W.C.C.A. May 2, 2005); Oredson v. Mesabi Electronics, No. WC06-128 (W.C.C.A. Aug. 28, 2006); Murphy v. Northwest Sheetmetal Co., No. WC07-102 (W.C.C.A. May 2, 2007); Curtis v. Ballard Ready Mix, No. WC07-137 (W.C.C.A. Sept. 5, 2007).

In this case, the employee’s belief or hope, whether reasonable or not, that his medical condition would not deteriorate is not a fact which existed at the time of the settlement.  Further, there is no showing that this belief was mutual or shared by the parties.  Finally, there is no language in the stipulation as to the expectations the parties might have had concerning the employee’s future employability or as to his future medical care.

The employee’s position on this point is essentially part of his claim that there has been a substantial and unanticipated change in his medical condition.  The employee has not established cause under the statute on the basis of a mutual mistake.

In considering whether there has been a substantial and unanticipated change in medical condition, this court has generally applied the criteria set forth in Fodness v. Standard Cafe, 41 W.C.D. 1054 (W.C.C.A. 1989).  The Fodness factors are: 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 previously anticipated; 5) causal relationship.  These factors will be reviewed in the present case.

As the employee acknowledges, there has been no change in his diagnosis since the time of settlement.  The diagnosis at that time was multilevel degenerative disc disease.  No other diagnosis is found in the medical records generated since then.

The employee’s central argument in his petition is that at the time of the settlement he was capable of working with restrictions and was employed.  Since his fusion surgery, he has been unable to work, has been placed on Social Security disability, and has constant pain so that he is incapable of sustained physical activity of any kind.  He states that this change in his employability could not have been reasonably anticipated.

We do not find the evidence on this point, however, to be supportive of the employee’s claim.  Dr. Salib, the doctor who performed the IDET procedure and the fusion surgery and who treated the employee for 10 years, provided his opinion as to the employee’s ability to work at different points in time.  In April 1999, Dr. Salib completed a form titled “Report of Workability” on which he indicated that the employee was capable of light work - carrying and level lifting of 20 pounds frequently, standing and walking with stretching or resting every 1 hour, and sitting with stretching and positional changes every 30 minutes.  In June 2003, the last time he saw the employee, Dr. Salib completed the same form and again indicated that the employee was capable of light work.  The only change reflected on the form was that Dr. Salib recommended allowing the employee to stretch or rest every 30 minutes instead of every hour in standing or walking.

Dr. Dowdle, who saw the employee for an IME in 2009, concluded that the employee was able to work with lifting restrictions of 30 or 35 pounds.  Dr. Timothy Garvey saw the employee in June 2006, apparently for an opinion on possible additional surgery.  On employment, Dr. Garvey stated, “I do see the patient of being capable of anything greater than light duty activity in the long run.”

Dr. John Merickel, a family practice doctor in Willmar, did a disability evaluation for the Social Security Administration on May 25, 2005.  The employee provided an extensive history in which he stated that he walked 3 to 5 days a week.  He did light housework and home exercises, but spent most of his time watching T.V.  The employee told Dr. Merickel that he used to do a lot of hunting and fishing, but was unable to do those activities much anymore.  Dr. Merickel concluded the employee would not be a candidate for heavy physical labor, would have to switch positions frequently, and would be able to do light lifting.

The employee saw his family doctor, Dr. Dennis Peterson, in June 2005.  Dr. Peterson noted that the employee “seems to be doing well” and was doing a lot of fishing.  In April 2008, the employee reported to Dr. Peterson that he had the onset of chest pain while walking up hills in the Black Hills when he was hunting.

The only doctor who does not agree that the employee was capable of light duty work was Dr. Monsein at Sister Kinney.  Dr. Monsein concluded in 2003 that the employee was able to work only on a part-time basis with a 10 to 12 pound lifting limit.

The employee’s description of his physical abilities at the time of his deposition in 1999 is not significantly different from the limitations he identified after his fusion surgery.  There is a question as to whether or not any inability to work can be said to be unanticipated.  By the time of the settlement in 2000, there was no substantial dispute as to the employee’s diagnosis.  Further, the doctors seemed to be in agreement that at some point in the future, based on the employee’s symptoms,  it was likely that the employee would require fusion surgery.  The employee himself acknowledged in his 1999 deposition that if surgery took place, there was at least a 50% chance of being unable to work.

Given the weight of the evidence, we conclude that that the employee has not established a change in his ability to work. Further, any change in his ability to work could reasonably have been anticipated at the time of the settlement.

There clearly has been a change in the extent of the employee’s permanent partial disability since the time of settlement.  The rating provided by Dr. Salib and agreed to by Dr. Reese was 10% for a two level healed sprain with continued objective findings.  A higher rating would be appropriate following an anterior posterior fusion surgery. However, the likelihood of fusion surgery at some point in the future was noted in the medical records and a resulting increase in permanent partial could reasonably have been anticipated as well.

At the time of the settlement, Dr. Salib was recommending an IDET procedure at a single level of the lumbar spine.  The record demonstrates, however, that well before the stipulation, the necessity of fusion surgery was being discussed by the employee’s health care providers.  Testing showed a full-thickness annular tear which might well require extensive medical care, including surgery, if the employee’s condition deteriorated.  Even the employee recognized in his 1999 deposition that the IDET procedure was being done to avoid the likelihood of surgery.

At the time of the settlement, there was no medical opinion that the employee’s back was stable or that he would not need further treatment.  The medical debate at that point was whether the IDET procedure should be done or whether invasive treatment should be postponed until the employee believed his symptoms were unbearable.  It is understandable that the employee hoped that his condition would not change, but it cannot be said that this change was unanticipated.

Considering the Fodness factors as a whole, we conclude the employee has not established that there has been a substantial change in his medical condition that could not have been reasonably anticipated at the time of the settlement.  The employee’s petition to vacate is denied.

After filing his petition to vacate, the employee entered into a stipulation of dismissal with Willknight/American International Group, the employer and insurer for the 1997 work injury.  The stipulation of dismissal sought to dismiss the petition to vacate as to the 1997 injury.  The other insurers objected to the stipulation.  Given our decision on the employee’s petition to vacate, this issue is moot and will not be considered.