RICHARD C. FROVIK, Employee/Petitioner, v. HIGH TECH TUNE, INC., and UNIVERSAL UNDERWRITERS INS. CO., Employer-Insurer, and CENTER FOR PAIN MGMT., ST. CLOUD HOSP./CENTRACARE HEALTH SYS., CENTRAL MINN. NEUROSCIENCES, FAIRVIEW NORTHLAND MED. CTR., and ANESTHESIA ASSOCS. OF ST. CLOUD, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 3, 2013
No. WC12-5525
HEADNOTES:
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the employee has not provided sufficient evidence to establish a substantial change in his underlying diagnoses, a change in his ability to work, additional permanent partial disability, unanticipated medical care, conditions, or treatment, or a causal relationship between the injury covered by the settlement and his current condition other than what would have been reasonably been anticipated at the time of settlement, the employee’s petition to vacate the award on stipulation is denied.
Petition to vacate award on stipulation denied.
Determined by: Hall, J., Cervantes, J., and Milun, C.J.
Attorneys: Howard S. Carp, Fishman, Carp, Bescheinen, Bolter & Van Berkom, Minneapolis, MN, for the Petitioner. Whitney L. Teel, Cousineau McGuire, Minneapolis, MN, for the Respondents.
OPINION
GARY M. HALL, Judge
The employee petitions this court to vacate an award on stipulation served and filed on March 9, 2006. Concluding that the employee has not shown good cause to vacate the award at issue, we deny the employee’s petition.
BACKGROUND
On November 2, 1999, the employee, Richard Frovik, sustained a personal injury to his left hip, back, and left leg as a result of a motor vehicle accident. The employer, High Tech Tune, Inc., and its insurer initially denied primary liability. They contended that the employee’s motor vehicle accident did not arise out of or in the course of his employment, and they specifically asserted that the employee’s car accident occurred during a personal deviation from his employment.
The parties later reached a settlement agreement in 2000, and the employer and insurer admitted primary liability. The employer and insurer paid workers’ compensation benefits to the employee, and he received his statutory limit of temporary total disability benefits in August 2002. He received some temporary partial disability benefits as well between July 2000 and October 2000.
In the meantime, the employee received a settlement from a third-party lawsuit related to his motor vehicle accident. The parties to the workers’ compensation matter settled a subrogation claim in May 2001.
The parties also reached settlement agreements relating to permanent partial disability amounts on separate occasions, through which the employee has been paid six percent permanent partial disability and then an additional 31 percent permanent partial disability.
The employee last worked on April 6, 2001. He began receiving Social Security disability benefits in 2003.
The parties began discussing a full, final, and complete settlement in April 2005. In a letter dated April 22, 2005, the employee’s attorney indicated that the employee was interested in approaching a full, final, and complete settlement “leaving medicals open.” The employee’s attorney indicated that “it appears unlikely that Rick is going to return to work anytime soon.” In a letter dated December 1, 2005, the employee’s attorney indicated that the employee wanted to leave home improvements open as a possibility because he was having “a very difficult time ambulating.” The employee’s attorney also indicated that if the employee “has more hip surgery it is quite possible that he may need a ramp at some point.”
The parties reached a settlement agreement in early 2006. The employee was paid $90,000 in exchange for a full, final, and complete settlement of his claims. Certain treatment options were closed, including psychological treatment and chiropractic care, but future claims for medical care and treatment relating to the employee’s November 1999 injury remained open subject to defenses. The Office of Administrative Hearings filed an award on stipulation approving the settlement agreement on March 9, 2006.
The record shows that the employee had a complicated medical history prior to his settlement in 2006. On his 1999 date of injury, the employee underwent a closed reduction of his left hip, and he later had arthroscopic surgeries in June 2000 and April 2001. He was diagnosed with avascular necrosis of the left hip, and he underwent a total hip replacement in August 2001.
On October 23, 2001, Dr. Matthew Monsein evaluated the employee and diagnosed him with the following:
1. Status post 3 left hip surgeries;
2. Peroneal palsy foot drop;
3. Neuropathic pain, causalgia versus reflex sympathetic dystrophy;
4. Depression/anxiety.
Dr. Monsein recommended admitting the employee into a pain program.
The employee began treating with Medical Advanced Pain Specialists (MAPS) on July 17, 2002. By that time, the employee had undergone numerous additional treatments, including multiple lumbar sympathetic nerve blocks and epidural steroid injections. The employee was evaluated for consideration of a spinal cord stimulator or other implantable device. In August 2003, the employee underwent placement of a spinal cord stimulator with Dr. David Schultz at MAPS. On October 29, 2003, Dr. Schultz performed surgical implantation of spinal cord stimulation epidural leads.
On February 18, 2004, the employee underwent removal of migrated epidural leads and implantation of new leads.
The employee underwent a revision of the spinal cord stimulator at MAPS on April 20, 2004. Around that time, the employee’s doctors at MAPS were encouraging the employee to continue to follow up with a psychologist. MAPS determined that the employee was not a candidate for their ongoing chronic pain program.
The employee then underwent another procedure to revise and adjust his spinal cord stimulator in August 2004.
The employee also continued to treat for his back and hip issues before his settlement was finalized in March 2006. For example, in September 2005, the employee treated at Midwest Internal Medicine for “acute and chronic low back pain.” He was referred back to Minneapolis Clinic of Neurology, and their treatment note from September 27, 2005 states that the employee “has a complex history of a hip fracture, avascular necrosis of the left hip, left hip replacement, left peroneal nerve damage, spinal cord stimulator implantation, narcotics dependency and significant anxiety . . . .” It was specifically noted, on September 27, 2005, that the employee “presents to the office today with complaints of severe low back pain which he characterizes as pain in the spinal cord itself, similar to the sensation of an epidural needle hitting the cord (which he has experienced in one of his multiple procedures).”
The employee had a CT scan of the mid and low back in January 2006 at Mercy Hospital. The scans showed degenerative changes at T10-11, postoperative changes at T12, related to the stimulator, and a central and left paracentral disc protrusion at L4-5, “with resultant contact and slight flattening of the anterior and anterior left aspect of the thecal sac at the L4-5 level.”
After the March 2006 settlement, the employee continued to treat with narcotic medications. The parties eventually went to a hearing in 2010 relating to the employee’s medication usage. The compensation judge found that the employee sustained an injury to his left hip, back, and leg as a result of his November 1999 motor vehicle accident. The compensation judge noted that the employee had been taking high doses of narcotic medications since shortly after the accident. He was also continuing to smoke marijuana while being prescribed narcotic medications. Therefore, the compensation judge found that the employee had disqualified himself from being a candidate for prescribed narcotic pain medication, and continuing with narcotic medications was not medically appropriate for the employee.
The employee went on to have additional surgical procedures as well, including revisions of his spinal cord stimulator. These treatments were also disputed by the employer and insurer, and an independent medical examiner, Dr. Paul Biewen, opined that the procedures would not be reasonable and necessary and did not have a strong likelihood of helping the employee. The parties, nonetheless, resolved the outstanding bills related to the procedures as a part of a 2011 stipulation for settlement.
The employee now petitions this court to vacate the 2006 award on stipulation.
DECISION
The employee argues that good cause exists to vacate the award on stipulation because he has had a substantial change in his medical condition. The employee indicates that since his settlement, he has suffered a significant increase in pain level, including his lumbar spine. He has had spinal cord stimulators implanted, and he states that “one of these stimulators was placed on the wrong side of his body and remains implanted to this day.” The employee asserts that although he has had over ten spinal surgeries, three of these “in the last year for implant improvement,” he continues to have significant leg pain and he falls down regularly. Ultimately, the employee argues that “he had no idea that he was going to require multiple spine surgeries as a result of his work injury, including surgeries for implants.” The employee also argues that both he and his current treating physician, Dr. David Parker, will testify at hearing that they could not have anticipated the problems that have occurred since the settlement in 2006.
Minn. Stat. §§ 176.461 and 176.521, subd. 3, govern this court’s authority to vacate an award. A party must show good cause in order for this court to vacate an award. Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989). The burden of proof rests with the party seeking to vacate the settlement. Groshung v. The Light Depot, 65 W.C.D. 349, 355 (W.C.C.A. 2005).
Cause to vacate an award includes “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.” Minn. Stat. § 176.461(b)(4). A number of factors are relevant when evaluating whether there has been a substantial change in the employee’s medical condition, including:
1. A change in diagnosis;
2. A change in the employee’s ability to work;
3. Additional permanent partial disability;
4. The necessity of more costly and extensive medical care than initially anticipated;
5. The causal relationship between the work injury covered by the settlement and the employee’s current worsened condition; and
6. The contemplation of the parties at the time of the settlement.
Fodness v. Standard Cafe, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989) (citations omitted). These so-called “Fodness factors” must be applied in a manner consistent with the requirement that the change be one that was clearly not anticipated and could not reasonably have been anticipated. See Powell v. Abbott Northwestern Hosp., slip op. (W.C.C.A. Aug. 17, 1995); see also Soeffner v. McGuire’s Motor Inn, 40 W.C.D. 21, 22 (W.C.C.A. 1987) (medical proof that condition was unanticipated is necessary to show substantial change in medical condition).
The employee’s petition to vacate referenced a chart note from Dr. Parker relating to a visit on August 23, 2012. On examination, Dr. Parker referenced diffuse thoracic and lumbar tenderness, along with tenderness of the left hip and groin, and limited movement due to left hip, left leg, and low back pain. Dr. Parker assessed the employee with a history of multiple failed surgeries, chronic pain disorder, and “neuro stimulators x 2 with apparently poor placement.” The available medical records show that the employee had already undergone stimulator procedures by the time of the settlement in 2006. In addition, the employee was complaining of similar symptoms and already had a history of similar chronic pain issues, including his left hip, left leg, and low back by the time of the 2006 settlement. Furthermore, as Dr. Parker noted when he saw the employee in August 2012, the employee’s problems had been present “for 8 years.” The settlement took place during that eight year period.
After filing his petition, the employee submitted a February 2013 report from Dr. Parker, which indicates that neither the employee nor his providers could have been aware of the future medical problems from which he has suffered and continued to suffer. In particular, Dr. Parker opines that neither the employee nor his providers could have predicted failures relating to medical devices, including his stimulators, long-term problems related to pain management, or the need to adjust the employee’s stimulators. We are not persuaded by Dr. Parker’s opinion. The record shows that the employee underwent a trial and then implantation of the spinal cord stimulator in 2003, with multiple revisions and procedures relating to the stimulator in 2004, and multiple psychological evaluations and other examinations relating to the stimulator, all of which took place before the parties entered into the 2006 settlement. The employee and his providers certainly could have anticipated additional problems with his stimulators.
The remaining Fodness factors do not weigh in favor of vacating the 2006 award. For example, the employee last worked in April 2001. He has been receiving Social Security disability since October 2003. The employee’s attorney, even at the time of the settlement negotiations in 2005 and 2006, conceded that there was little chance that the employee would return to work. As such, the employee has not established a change in his ability to work. See Moulds v. WCI Freezer Div., slip op. (W.C.C.A. Dec. 10, 2001) (indicating that when an employee was not working at the time of settlement and has not returned to work since that time, he or she has not established a change in ability to work).
The employee has not provided any medical evidence of additional permanent partial disability.
The employee contends that his condition will require additional treatment or surgeries. However, any such additional treatment or expenses, including surgery, could have been reasonably anticipated at the time of the 2006 settlement,[1] and the parties agreed to leave future medical treatment and expenses open at that time. In fact, by the time of the settlement in 2006, the employee had undergone multiple revisions relating to the spinal cord stimulator, he was already relying on narcotic medication and other chronic pain treatments, any ongoing treatment was similar to the treatment he had already initiated before the settlement in 2006, and there was no medical opinion indicating that the employee was stable or that he would not need further treatment.
Based on our review of the record, there has been no change in the employee’s underlying diagnoses or treatment that could not have been anticipated at the time of the settlement in 2006. The complications cited by Dr. Parker, including those involving the stimulators and the chronic pain treatments, were not substantially different from the complications and treatment the employee was having before the 2006 settlement. It would have been reasonable to anticipate the employee’s ongoing complications and treatment at the time the award was issued in 2006. Furthermore, a revision surgery or additional procedure, such as the stimulator procedures involved here, does not “compel the conclusion” that there has been a change in diagnosis or medical condition. Sondrol v. Del Hayes & Sons, Inc., 43 W.C.D. 367, 368-69 (W.C.C.A. 1990).
The employee has not provided sufficient evidence to establish any of the following: a significant change in his underlying diagnoses since the settlement in 2006; a change in his ability to work; any additional permanent partial disability; any unanticipated medical care, conditions, or treatment; or a causal relationship between the injury covered by the settlement and his current condition other than would have been reasonably been anticipated at the time of the 2006 settlement. Therefore, the employee’s petition to vacate is denied.
[1] In fact, the employee’s attorney, in his December 1, 2005, letter regarding settlement negotiations, expressed concern that if the employee “has more hip surgery it is quite possible that he may need a ramp at some point.”