The employee petitions to vacate a stipulation for settlement which was the subject of an award served and filed October 10, 2001.  The employee alleges cause under Minn. Stat. § 176.461, in that there has been an unanticipated substantial change in his medical condition since the time of the settlement.  We conclude the employee has failed to establish cause.  The petition is denied.

Rory Antolak, the employee, sustained an admitted injury to his low back on January 30, 1998, while he was employed by Marigold Foods.

In March 1998, the employee came under the care of an orthopedist, Dr. John Dowdle.  After the first visit, Dr. Dowdle diagnosed degenerative disc disease at L4-5 and L5-S1 and a herniated disc at L5-S1.  Dr. Dowdle recommended a lumbar laminectomy and disc excision.  That procedure was done by Dr. Dowdle on March 26, 1998.

The employee continued to have low back pain but his leg symptoms were relieved by the surgery.  On June 17, 1998, Dr. Dowdle concluded the employee was at maximum medical improvement, was able to do his regular job, did not need further medical care, and had permanent partial disability of 11% based on Minn. R. 5223.0390, subp. 4.D. and D.2.

The employee returned to Dr. Dowdle in January 1999 with symptoms of increasing low back pain.  He was taken off work in February 1999 and a discogram was done, which was read as “positive 10/10, concordant at the 5-1 level.”  Dr. Dowdle recommended additional surgery and on April 26, 1999, performed an anterior lumbar fusion at L5-S1 with BAK instrumentation.

After the surgery, the employee continued to have what Dr. Dowdle described as “continued mechanical symptoms” and Dr. Dowdle recommended additional surgery.  A posterior facet fusion at L5-S1 was done on October 11, 1999.  The employee reported to Dr. Dowdle at follow-up exams that he continued to have low back pain.  The employee last saw Dr. Dowdle on December 2, 1999, at which time Dr. Dowdle was considering referring the employee for an IDET procedure at L4-5 and L5-S1.

The employee began treating with Dr. Francis Denis on December 13, 1999.  Dr. Denis diagnosed pseudoarthrosis at the L5-S1 fusion and discogenic pain at L4-5.  Dr. Denis recommended revision of the fusion.  On February 4, 2000, Dr. Denis performed surgery which was identified in the medical records as being “removal of BAK L5-S1 anteriorly, anterior spine fusion and posterior spinal reconstruction L4-S1 with CD instrumentation.”

When the employee saw Dr. Denis in follow-up on March 24, he complained of extreme pain down his left leg and into his left foot.  He was placed on Vicodin, Vistaril, and a Medrol Dose Pack.  When he returned on April 10, the employee still had significant pain but Dr. Denis thought he was progressing slowly.  The employee also reported on that date two instances of retrograde ejaculation.  Dr. Denis’ conclusion on the issue was that the employee “does not need to go and see a urologist quite yet.”

In May, the left leg pain was identified as occasional and Dr. Denis allowed him to return to work six hours a day for three days a week.  By August, there was no mention of leg pain in the records but the employee still had severe low back pain.  The CT scan showed pseudoarthrosis at L5-S1.  The employee continued to work six hours a day with a twenty pound lifting limit.  The employee was placed on prescriptions of Valium and Percocet.

On October 5, 2000, the employee was seen at North Memorial Hospital with a chief complaint of a painful left arm and shoulder.  After tests, the “working diagnosis consisted of venous thrombosis and/or cellulitis with lymphangitis.”  The employee was treated with heparin, an anticoagulant.  The history taken from the employee noted his 1998 work injury and subsequent surgeries as well as other conditions, including erectile dysfunction and retrograde ejaculation since the surgery in February 2000.  The admission summary also referenced the employee’s family history of clotting disorder with “two siblings with inferior vena cava filters and probably four siblings on Coumadin long-term anti-coagulation therapy.”  The admitting diagnosis included “depression as a result of his chronic back and disability status” and “neuro/circular changes of the lower extremities, probably on the basis of his previous back injury and multiple back surgeries.”

The employee began treating for neck and left shoulder pain in November of 2000 with Dr. Steven Trobiani.  He advised Dr. Trobiani that the onset of this pain was in January 1998.  Dr. Trobiani diagnosed “cervical discogenic pain syndrome” and prescribed a cervical epidural steroid injection at C6-7.  It was subsequently reported that the injection did not relieve the pain.

In November 2000, the employee also treated for his neck and shoulder pain with Dr. Neil Henry at the Jackson Street Medical Clinic.  In the November 24 chart, Dr. Henry noted that the employee was also being treated for depression and was on Zoloft for this condition.  The employee “stated that his outlook was very much brighter after being placed on this medication.”  The record does not indicate when the employee began this prescription or which provider prescribed it for him.

On January 29, 2001, Dr. Denis met with the employee to discuss surgery which was scheduled for the next day.  The chart note indicates that two other spine physicians who had seen the employee had recommended against surgery.  Those records are not in evidence.  Dr. Denis asked the employee if he “could continue as presently with his symptomatology.”  Dr. Denis also “gave the patient a potential risk of this new operation to fail in about 40% of the cases due to the repeat nature of the surgery and his smoking.”  The decision was made nevertheless to continue with the proposed surgery.

On January 30, 2001, the employee had surgery on his low back.  Dr. Denis performed “anterior spinal fusion and posterior spinal reconstruction L4-5 with CD instrumentation.”  The employee called Dr. Denis on February 23, 2001, to report that he continued to have back pain with shooting pains down his left leg.  He had been given a leg brace previously and stated that he was wearing it full-time at that point.  He was given prescriptions for Oxycontin, Vicodin and Flexeril.

Dr. Trobiani saw the employee for his cervical pain on March 22, 2001.  The history he took on that date was that the employee had undergone a three-level fusion from L3 to S1.  Dr. Trobiani doubled the dosage of the Oxycontin prescription and it was noted that the employee was entering a chronic pain program at the Sister Kenny Institute.

The records from Sister Kenny Institute are not in the record but the record contains a functional capacities evaluation (FCE) done at the Sister Kenny Institute on August 25, 2001.  The FCE placed restrictions of occasional lifting and carrying up to ten pounds with position changes.  The employee was released to return to work as of August 6, 2001, at four hours per day for two to three days a week.

The employee had continued to work at Marigold Foods since his work injury in January 1998.  By July 2001, he had been paid 104 weeks of temporary total disability.  He had also been paid intermittent temporary partial disability and 16% permanent partial disability for the lumbar condition.

The parties entered into a stipulation which was the subject of an award on October 10, 2001.  The settlement dealt with the employee’s admitted low back injury of January 30, 1998, as well as his claim that his cervical and left shoulder problems were the result of a work injury at Marigold on November 22, 2000.  The employee claimed entitlement to ongoing temporary partial disability benefits or, in the alternative, permanent total disability benefits based on the insubstantial and sporadic nature of his current earnings.  He also claimed 33% permanent partial disability for the lumbar spine condition and 10% for the cervical spine based on ratings from Dr. Robert Wengler.  The employer and insurer denied liability for those claims and denied primary liability for the cervical injury.  The employee was also claiming payment for treatment received at Minnesota Advanced Pain Specialists (MAPS) and MAPS was a signatory to the stipulation.  There are no records from MAPS in the material before this court.

The settlement provided for a final closeout of all claims, including medical, related to the claimed 2000 cervical injury.  All claims except for certain medical expenses connected to the 1998 injury were resolved as well.  The employee was paid $124,900.00.  The stipulation contains a paragraph in which the payment was characterized as a reduced payment which took into account the employer and insurer’s right to reduce payments of permanent total disability benefits under Minn. Stat. § 176.101, subd. 4, because of the employee’s receipt of Social Security disability benefits.  The settlement also provided for the employee’s resignation from employment at Marigold.

Subsequent to the settlement, the employee worked part-time as a driver for Master Transfer from May 2, 2002, through October 10, 2002.  He was also employed as a driver by Chisago County from November 19, 2002, until he was terminated on April 24, 2003.  He also worked part-time for two weeks for R & R Contractors.  The dates and hours worked for these employers are not in the record.  The employee indicates in his affidavit attached to the petition that his employment in each case ended because he was physically unable to do the work.  The record also contains a letter from the Social Security Administration advising that the employee would receive disability benefits beginning in December of 2001.

The employee returned to see Dr. Denis in February 2002 for his back pain.  It was noted that he was on Methadone.  Dr. Denis concluded the employee had a solid fusion without any evidence of significant degeneration at the levels above.  In September 2002, when he returned to see Dr. Denis again, Dr. Denis recommended treatment at a pain clinic.

The employee saw Dr. Denis again in April 2004 with complaints of increasing low back pain as well as pain in his right buttock.  Ultimately, the employee had surgery done by Dr. Denis on July 14, 2004.  It was described in office notes as “posterior spinal reconstruction L3-4 and decompression for his stenosis.”  When seen by Dr. Denis in follow-up in October 2004, the employee continued to have low back pain but had “rid himself” of leg pain.  He was on Percocet.  Dr. Denis recommended that the employee come out of his brace and begin physical therapy.  Dr. Denis also recommended that the employee be placed on antidepressants and stated, “I believe that his mental status is directly related to his chronic pain and long ordeal.”  The employee continued to have low back pain and right buttock pain when he saw Dr. Denis again in April 2005.

In July 2006, the employee was hospitalized and treated for deep venous thrombosis in his left leg.  The employee stated his symptoms began when he was receiving acupuncture treatment for his low back and leg pain from a chiropractor.  He had pain after a needle was placed in his left leg behind his knee.  The employee was treated in the hospital with heparin and Coumadin and was discharged after a couple of days.  The discharge summary notes that the employee was also on Oxycontin and fentanyl and also notes “a strong family history of recurrent DVT’s.”

The employee returned to Dr. Denis on May 3, 2007.  The employee had continuing low back pain without radiation into his legs.  Dr. Denis recorded that the employee was on “an increasing amount of narcotics including fentanyl patches and Oxycontin.”  The employee had apparently seen “Dr. Stark in consultation and Dr. Stark has recommended possible injection of his SI joints and removal of the instrumentation.”  Dr. Denis agreed with the recommendation.  There is no record of treatment by Dr. Stark and the employee did not return to Dr. Denis until December 14, 2009.  In May 2007, Dr. Denis referred the employee to a urologist, Dr. John Heller, for evaluation of urinary/sexual dysfunction.  After testing, Dr. Heller concluded in his letter to Dr. Denis of June 28, 2007, that “he probably has an uninhibited neurogenic bladder related to his multiple lumbar spine problems.”  The employee was given trial prescriptions.  There is no indication of additional urologic treatment in the record.

The employee was seen for chronic pain evaluation by Dr. John Cronin, a licensed psychologist.  He saw Dr. Cronin on a number of occasions between March and July 2008 and Dr. Cronin wrote a report with his conclusions on July 28, 2008.  Dr. Cronin stated “this patient reports no prior history of mental health issues.”  There is no indication that Dr. Cronin reviewed the records from Johnson Street Medical Clinic or any treatment record from MAPS or Sister Kenny Institute, other than a report from Dr. Monsein which appears to be dated July 26, 2001.  That report is not in the record.  Dr. Cronin concluded the employee had “pain disorder associated with both psychological factors and a general medical condition” and “dysthymic disorder.”  Dr. Cronin further concluded that the employee’s psychological symptoms were related to his January 30, 1998, work injury.  Dr. Cronin did not address the role, if any, of the claimed 2000 cervical injury.

The employee also treated from April 2008 to August 2008 with Dr. Lon Lutz.  On April 30, Dr. Lutz performed medial branch block injections at L5, S1, S2, and S3.  Dr. Lutz commented that there was “greater than 75% improvement in symptoms at 30 minutes post procedure.”  The same procedure was done on May 14.  The employee reported to Dr. Lutz that he had improvement in his symptoms for several hours from the initial injections.  Based on the employee’s response, Dr. Lutz concluded on May 14 that the employee was “an excellent candidate for radiofrequency denervation.”

Dr. Lutz performed a four level rhizotomy of the medial branch on June 13, 2008.  In follow-up on August 6, 2008, the employee reported to Dr. Lutz that his “left-sided symptoms have improved somewhat.  He continues to have axial pain, and now it appears to be more on the right side than the left.”  Dr. Lutz suggested diagnostic injections on the right side medial branches at L5-S3.  That procedure was done on August 13 and the employee reported 75% improvement in symptoms 30 minutes after the procedure.  There is no record of any further treatment with Dr. Lutz.

The most recent medical information is from December 14, 2009, when the employee returned to see Dr. Denis.  Dr. Denis’ chart note indicates the employee was last seen in May 2007.  The employee had ongoing low back pain.  He told Dr. Denis that his right buttock and leg had been relieved by radiofrequency ablation.  He had no buttock or leg pain.  He walked a mile a day and noticed increased pain in his low back and up into his thoracic spine with activity.  He was using Oxycontin and fentanyl for pain relief as prescribed by Dr. Lutz.  On exam, Dr. Denis described the employee as being “somewhat in mild discomfort.”  A solid fusion from L4 to sacrum was shown on x-rays and Dr. Denis did not believe further surgical intervention was necessary.

The employee filed a petition to vacate the 2001 settlement and award on January 4, 2010.  The employer and insurer have objected to the petition and request its dismissal.

This court’s jurisdiction to set aside an award is established by Minn. Stat. § 176.461.  An award may be vacated for cause, defined in the statute as being limited to:

In considering whether there has been a substantial and unanticipated change in medical condition, this court has generally looked at criteria set out on our decision in Fodness v. Standard Cafe, 41 W.C.D. 1054 (W.C.C.A. 1989).  The Fodness factors are:

By the time of the settlement in 2001, the employee had undergone five surgeries on his lumbar spine.  The last surgery before the settlement, done by Dr. Denis on January 30, 2001, is identified as “anterior spinal fusion and posterior spinal reconstruction L4-5 with CD instrumentation.”  The last spinal surgery, done by Dr. Denis on July 14, 2004, involved a continuation of the fusion to the L3-4 level.  The employee does not argue in his memorandum that there has been a change in diagnosis with regard to the lumbar spine.  The medical records indicate that both before and after the settlement, the employee’s status was that of a lumbar spine condition with multi-level anterior/posterior fusion and instrumentation.

In his petition, the employee argues that there has been a change in diagnosis because he alleges that he now has additional conditions: depression, chronic pain syndrome, urinary/sexual dysfunction, and thrombosis.  We find, however, that the employee was treated for each of these conditions before the settlement in 2001 and they do not constitute a change in diagnosis.

With regard to the diagnosis of depression, the employee saw his family doctor at the Johnson Street Medical Clinic in Robbinsdale, Dr. Neil Henry, on November 24, 2000.  The chart note from that visit indicates that the employee was being treated for his neck and shoulder pain and that “also being treated is his depression.”  Later, the chart note provides that the employee “does note that his attitude is much brighter since being placed on Zoloft.  He is appreciative of this medication which has enabled him to have a brighter outlook.”  The hospital records from North Memorial in October 2000 also contain a diagnosis of depression.  Dr. Cronin, in his July 28, 2008, report diagnoses depression but, as we have noted earlier, did not appear to have been aware of the pre-settlement treatment.

The medical records submitted in support of or in opposition to the petition do not disclose when the employee began treating for depression before the settlement and from which medical provider he received this treatment.  For purposes of this decision, however, it is clear that depression is not a new diagnosis since the time of settlement.  In the absence of explanatory records, we are also unable to ascertain if the depression as evaluated by Dr. Cronin represents a change in that condition from the time of settlement.

The employee also treated for chronic pain syndrome before the settlement in 2001.  Dr. Trobiani, in his March 22, 2001, follow-up note, states that the employee is “looking toward entering the chronic pain program at Sister Kenny and I think this will be an appropriate measure.”  The employee apparently participated in the program because the FCE from August 2001 was from Sister Kenny.  Also, MAPS was a party to the stipulation and the stipulation indicates the employee received treatment from that facility.  There are no records from Sister Kenny or from MAPS available for review so we are unable to determine whether there has been a change in the employee’s diagnosis of chronic pain syndrome since the time of settlement.

The employee was hospitalized in 2006 for deep venous thrombosis and at least at that time, attributed his condition to acupuncture he was receiving for his low back.  The discharge summary noted the employee’s family history of blood clots.  The employee was also hospitalized for possible thrombosis in October 2000.  The record does not demonstrate that this condition represents a change in diagnosis.

Finally, the employee’s urinary/sexual dysfunction was noted by Dr. Denis in May 2000 and was referenced as one of his illnesses when he was hospitalized for his clotting disorder in October 2000.  There is no evidence of any change in this condition from that time to the present.  We do not find any diagnosis from the present which was not considered before the settlement.

Given the record, we conclude there has not been a showing of a change in diagnosis since the settlement.

As of the date of the stipulation, the employee was performing light duty work for the employer less than eight hours a day and less than five days a week.  The employee was awarded Social Security disability benefits as of December 2001, a determination based on medical records dating from before the settlement.  While the employee contends he is now unable to work and that this represents a substantial change in his situation, we find little evidence of employability at the time of the settlement.  The employee had apparently been seen by a QRC before the settlement, but there are no rehabilitation reports in the record.  We read the employee’s unsuccessful attempts at part-time employment in 2002 and 2003 as evidence that a return to employment was not plausible at the time of settlement.

We do not find a substantial change in the employee’s ability to work since the time of the settlement.

The stipulation states that the employee was claiming 33% permanent partial disability for his lumbar spine.^[1]  The rating was provided by Dr. Robert Wengler who apparently saw the employee some time prior to the settlement.  Dr. Wengler’s report is not in the record so the basis of his opinion cannot be determined.  The employer and insurer have paid 16% permanent partial disability for the lumbar spine and, according to the stipulation, this payment was based on reports from Dr. Dowdle and Dr. Mark Fischer.  Those reports are not in the record as well.

Dr. Denis rated the permanent partial disability from the lumbar spine in 2005, arriving at an assessment of 38%.  Dr. Denis used Minn. R. 5223.0390, subps. 4 and 5, in his rating and the employer and insurer in their response to the employee’s petition argue that Dr. Denis made a mistake in his calculations.  From the numbers alone, however, there would appear to be an increase of 5% permanent partial disability from 2001 to 2005, but whether that numeric increase represents an actual change in condition is not clear from the record.

Dr. Cronin, in his July 28, 2008, report, evaluates the employee as having 32% permanent partial disability due to his depression.  As noted earlier, however, Dr. Cronin did not appear to have been aware of the employee’s treatment for depression before the settlement.  There is no basis then to conclude that his rating of permanent partial disability for depression represents an increase from the time of settlement.

In the memorandum supporting his petition, the employee listed some of the various medical procedures he has undergone since the time of the settlement.  In response, the employer and insurer point out that medical expenses relating to the employee’s lumbar injury were left open by the settlement and that, in such a situation, this court has held that less emphasis is to be placed on this factor.  Burke v. F & M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996); Bell v. Flower City, No. WC09-160 (W.C.C.A. Dec. 14, 2009).

We note, in addition, that there is no showing in the record that any of this treatment could not have been reasonably anticipated at the time of settlement.  With particular regard to the lumbar spine, Dr. Denis advised the employee before the surgery in January 2001 that there was a 40% chance of failure.  Clearly, the employee’s condition has required extensive medical care both before and after the settlement.  We find little in the record to support a conclusion that the treatment after the settlement could not have been anticipated.

There is little question that the employee’s current low back condition is the result of his 1998 work injury.  The employee also claims the diagnoses of chronic pain syndrome, depression, thrombosis, and urinary/sexual dysfunction are related as well.  The employer and insurer deny a causal relationship for these latter conditions.  We have previously discussed, however, that these conditions existed before the settlement and do not represent a change in diagnosis.  Given our conclusions on that point, the causation of these conditions is not significant in considering this present matter.

Given the evidence in this case, we find this factor to be especially significant.  By the time of the settlement, there had been five surgeries performed on the employee.  His treating surgeon had advised him that there was a 40% chance that the most recent surgery would fail.  The employee had been treated for chronic pain and depression, and he had discussed with his doctor urinary and sexual dysfunction felt to be related to his numerous lumbar surgeries.  The employee’s primary treatment at the time of settlement was long-term use of narcotic pain relievers.  The employee had been paid 104 weeks of temporary total disability benefits.  Although the employee was working on a limited basis for the employer, his attorney had advised the attorney for the employer and insurer that the employee was likely to be permanently totally disabled and the case should be evaluated on that basis.  It is fair to say that the parties contemplated a situation in the future in which the employee would be unable to work and in need of further medical care.  The employee’s present situation is the one contemplated by the parties at the time of settlement.

We conclude the employee has failed to establish a substantial change in his medical condition since the time of settlement and has failed to establish that any change in condition could not have been reasonably anticipated at that time.  The petition to vacate is denied.