The employee petitions to vacate an award on stipulation based on a substantial change in medical condition.  Finding no cause to vacate, we deny the petition.

The employee was working as a carpenter for Max Gray Construction, Inc. [the employer], on May 28, 2002, when he dislocated his left shoulder.  He was able to “relocate” the shoulder on his own.  An MRI performed at the Fairview University Medical Center-Mesabi on June 10, 2002, showed a labrum tear and a Hill-Sach’s lesion on the humeral head of the shoulder.  The employee underwent arthroscopic repair of the labral tear on October 8, 2002.

The employee treated with Dr. Leonard Jennings for this injury.  After the surgery, Dr. Jennings prescribed physical therapy.  When seen by Dr. Jennings on February 3, 2003, the employee was “mostly asymptomatic,” and the doctor released him to return to regular duty work on February 11, 2003.

The employee returned to Dr. Jennings on June 11, 2003, and reported that he had been working his regular job for many months and was doing a lot of overhead work.  Over the past few weeks, when working overhead, he felt “that his humerus is subluxing, or wanting to come out inferiorly.”  On exam, there was no evidence of any inferior instability, but the doctor noted, “he may be developing some stretching of the capsule, etc., with some subluxation.”  He recommended exercise and an MRI.

About a year later, on May 20, 2004, Dr. Jennings noted some signs of instability on examination.  An MR/arthrogram was completed on May 24, 2004, and showed postoperative changes consistent with the employee’s history of labral repair.  The findings also suggested a superior and possible posterior labral injury as well.  The anterior labrum was noted to be intact.

When the employee returned to Dr. Jennings on June 9, 2004, the doctor noted no obvious instability in the employee’s left shoulder.  The doctor reported that the MR/arthrogram findings suggested a possible superior and posterior labrum injury, but he did not see any indication for surgery “at this time.”

The employee was examined by Dr. Jack Drogt on June 23, 2004, for an independent medical examination.  Following the exam and a record review, Dr. Drogt opined that the employee had instability of the left shoulder that preexisted the 2002 work injury, with “possible previous dislocation,” followed by the 2002 work injury with dislocation.  He found no loss of range of motion and opined that the employee could work in “full duty capacity” but stated “all would be best served if [the employee] were to be able to limit to some degree, sustained use of his left arm at or above shoulder level.”

On May 11, 2005, Dr. Jennings examined the employee at the request of the workers’ compensation insurer, for evaluation of permanent partial disability.  Dr. Jennings rated the employee as having a 5% whole body impairment, pursuant to Minn. R. 5223.0450, subp. 4.A.(1)(c), for decreased range of motion.

When seen by Dr. Jennings on September 14, 2005, the employee reported increasing pain in the left shoulder, especially when working overhead.  The doctor noted that the employee had not been able to work since September 2, 2005.

The employee followed up with Dr. Jennings on September 28, 2005, at which time he was still having aches and pains, and the doctor could not sublux the employee’s shoulder.  He recommended another MR/arthrogram and further home exercise and kept the employee off work.  The studies, done that same date, suggested a possible undersurface injury of the rotator cuff .  Additional imaging failed to demonstrate evidence of rotator cuff or labral injury.

On October 14, 2005, Dr. Jennings treated the employee and noted that the MR arthrogram had not shown any severe pathology “that would require surgery at this time.”  He also noted, “[t]he only thing he is capable of right now would be sedentary to very light duty below shoulder height” and went on to recommend that “if [the employee] was a candidate for retraining,” he should work with his left arm below shoulder level and not too far from his body.

In December of 2005, the employee underwent a rehabilitation consultation with a qualified rehabilitation consultant, Kim Eisenhuth [QRC].  The goal of the rehabilitation plan was to monitor the employee’s medical condition and facilitate a return to physically suitable work.

The employee was reexamined by Dr. Drogt on February 23, 2006.  In his report of March 6, 2006, Dr. Drogt noted that the employee continued to report ongoing pain with certain activities, but he found the employee’s shoulder to be “quite benign” on examination, noting “no significant findings of instability or impingement, and he has normal range of motion.”  While Dr. Drogt again concluded that the employee could work in a full-time, full-duty capacity, he went on to state, “I would advise Mr. Benoit [to] limit activities as best as possible within the confines of the work activities required of him, and he should use caution when using his arm below shoulder level and avoid sustained use at or above shoulder level.”

The employee was seen by Dr. Jennings again on May 3, 2006.  In his office notes of that date, Dr. Jennings noted, “[h]e has been working occasionally taking easier jobs.  He cannot really do regular carpentry work, heavy work, etc.”  His office note reflected that the employee continued to have a fair amount of problems with his left shoulder, including aches, pains, and weakness.  Dr. Jennings opined, “[h]e is not going to be able to keep doing the work he is doing.  He does need some retraining probably to get him into a better field that would be lighter work that he could continue doing.”

An R-3 Rehabilitation Plan Amendment was prepared by the QRC on June 16, 2006, “to monitor [the employee’s] medical condition, initiate a job search, and begin the investigation of retraining.”

The employee’s deposition was taken on July 28, 2006, at which time he testified that he performed carpentry work for different employers after May of 2002 and that the work he did tended to bother his shoulder but that his shoulder would return to its post-surgery condition after he quit working.  The employee further testified that Dr. Jennings had restricted his overhead lifting and suggested that he be retrained to “a different line of work.”

The employer and insurer did not sign the rehabilitation amendment, but, apparently, filed a rehabilitation response in August of 2006.

In the fall of 2006, the parties entered into a stipulation for settlement.  According to the agreement, the employee was contending, in part, that he had permanent restrictions as a result of the work injury that precluded him from returning to his pre-injury or other suitable gainful employment and which entitled him to rehabilitation and/or retraining benefits.  Under the terms of the settlement, the employee was paid $77,600.00 in full, final, and complete settlement of his claims related to the May 28, 2002, injury, except claims for medical expenses.  An award on stipulation was filed on October 12, 2006.

The employee was seen by Dr. Jefferson Davis on October 30, 2008, relating a history of having dislocated his left shoulder one month prior while lifting cinderblocks at home.  The employee also reported his shoulder repair by Dr. Jennings five to six years previous, with slipping thereafter but no dislocation.  Dr. Davis diagnosed recurrent left shoulder instability, ordered an MR/arthrogram, and took the employee off work.

An MR/arthrogram was performed on November 10, 2008, and showed “postsurgical and arthritic changes involving the labrum.”

The employee returned to Dr. Davis on November 13, 2008, at which time he noted minimal discomfort and that he was still off work.  Dr. Davis noted, “[t]his injury is most likely due to continued capsular laxity from his previous injury.”

When he returned to Dr. Davis on January 13, 2009, the employee reported that his shoulder still felt unstable and that he was still off work.  Dr. Davis opined that there was “a recurrent postoperative instability issue” and referred the employee to Dr. Jeffrey Klassen, for consideration of surgery.

The employee saw Dr. Klassen on February 23, 2009.  He indicated that he had experienced shoulder instability after his 2002 surgery but without formal dislocation until 2008.  Dr. Klassen diagnosed “left shoulder, recurrent instability,” which he felt represented a recurrence of the employee’s original injury and was “progressive of his postoperative symptomatology.”  The employee was to contact Dr. Klassen if he wished to proceed with surgery.

On March 9, 2009, the employee was examined by Dr. Robert Wengler.  It was Dr. Wengler’s opinion that the “recurrent dislocation that occurred in September of 2008 was consequential to the Bankart lesions that were persistent following the 2002 work-related incident.”  He recommended surgery but deferred to the “judgment of a shoulder specialist” as to what that surgery should be.  He went on to state that the employee was temporarily totally disabled “from sustained gainful employment as a construction carpenter,” that the employee had a 10% whole body impairment, pursuant to Minn. R. 5223.0450, subp. 2.B.(3), for recurrent dislocation after a surgical repair, and that the employee should be retrained for work that “does not require excessive or over the shoulder level use of the left upper extremity.”

The employee underwent a left shoulder arthroscopic revision Bankart reconstruction, performed by Dr. Klassen on June 4, 2009.

On August 7, 2009, the employee filed a petition to vacate the October 12, 2006, award on stipulation based on substantial change in condition.

The employer and insurer had the employee examined by Dr. Thomas Raih on October 7, 2009.  In his report dated October 20, 2009, Dr. Raih diagnosed shoulder instability dating back to “the mid 1980s.”  He agreed with Dr. Wengler’s recommendation that the employee limit overhead work because of his long history of shoulder instability but noted that this recommendation had also been made following the October 2002 surgery.  He further stated that permanency could not be ascertained until the employee had fully recovered from the June 2009 surgery.

The employer and insurer object to the employee’s petition to vacate.

Pursuant to Minn. Stat. § 176.461, this court may vacate an award for cause, which is defined as a mutual mistake of fact, newly discovered evidence, fraud, or a substantial change in medical condition “that was clearly not anticipated and could not reasonably have been anticipated at the time of the award.”  In the instant case, the employee contends that the October 2006, award on stipulation should be vacated on the basis of a substantial change in medical condition.

A number of factors are relevant when evaluating whether there has been a substantial change in the employee’s medical condition, including

The employee did not address the question of change in diagnosis in his memorandum of law in support of his petition to vacate; however, at oral argument, he contended that the employee has now been diagnosed with unstable shoulder, a condition of which he was unaware at the time of the settlement.  However, the medical records submitted in connection with the petition to vacate reflect that Dr. Drogt had diagnosed unstable shoulder prior to the settlement.  In addition, in his deposition taken on October 8, 2009, the employee testified that his initial 2002 shoulder surgery had been intended to treat symptoms of instability and looseness and that at the time of his settlement in October of 2006, he was still having those symptoms when his shoulder was in certain positions.  Finally, no doctor has stated that there has been a change in the employee’s diagnosis since the settlement.  The employee has not demonstrated a change in diagnosis.

In his memorandum of law, the employee contended that, when he resolved his claim, he understood that his shoulder condition should not present an impediment to future employment.  The medical records, however, suggest otherwise.  Specifically, in his office note of May 3, 2006, Dr. Jennings stated, “He is not going to be able to keep doing the work he is doing.  He does need some retraining probably to get him into a better field that would be lighter work that he could continue doing.”  The employee was working with a QRC at that time, and on June 16, 2006, the QRC amended the employee’s Rehabilitation Plan to “begin the investigation of retraining so that Mr. Benoit might return to physically, suitable work.”  Further, in his deposition of July 28, 2006, the employee testified that Dr. Jennings had restricted his overhead lifting and suggested that he be retrained.  The employee has not established a change in ability to work.^[1]

The employee also contends that he has sustained additional permanent partial disability since the time of the stipulation for settlement.  Dr. Wengler has rated the employee as having a 10% whole body impairment as a result of his work injury.  The employee’s permanency at the time of the stipulation for settlement was 5%.  Generally, a minor increase in an employee’s permanent partial disability rating does not demonstrate a substantial change in the employee’s condition.  Van Vickle v. Action Moving Servs., slip op. (W.C.C.A. Jan. 2, 1997).  We are not persuaded that an additional 5% represents a substantial increase in permanency.

Also, Dr. Wengler assigned the 10% rating prior to the employee’s June 2009 surgery. Subsequent to that surgery, Dr. Raih opined that it would be premature to rate permanency until the employee had fully recovered from that procedure.^[2]

The employee’s primary argument is that he reasonably relied on the assurances of his doctor, prior to settlement, that he would not need further surgery and that he could continue to work as a carpenter.  The need for more extensive and costly medical care than initially contemplated is a factor to be considered.  However, the fact that the employee underwent surgery, standing alone, does not necessarily justify vacation of an award.  Miedema v. Brown Group, Inc., slip op. (W.C.C.A. Apr. 22, 1996).  And, while no additional surgery had been recommended at the time of the stipulation for settlement, the employee had been experiencing ongoing problems with his left shoulder at that time, and Dr. Jennings had noted on June 9, 2004, and again on October 14, 2005, that surgery was not indicated “at this time,” suggesting that surgery might be indicated at some time in the future.^[3]

Finally, the employee points to the “relatively modest sum,” $77,600, for which his case was settled, as evidence that the parties did not intend to settle a claim “that will require retraining or could result in permanent total disability.”^[4]  Again, we are not persuaded.  In the stipulation for settlement, the employee specifically claimed that, “as a result of his injuries, he has been precluded from returning to his pre-injury or other suitable gainful employment and is therefore entitled to rehabilitation and or retraining benefits, now and in the future.”  As such, the employee’s possible need for retraining was clearly contemplated at the time of the settlement.  Finally, the employee has submitted no evidence indicating that he is permanently and totally disabled.

We conclude that the employee has failed to establish a substantial change in his medical condition that was “clearly not anticipated and could not reasonably have been anticipated at the time of the award.”  We therefore deny the petition.