The employee has petitioned this court to vacate and set aside an award on stipulation, served and filed November 6, 1985, based on a substantial change in his medical condition since the time of the award.  Finding sufficient cause to vacate, we grant the employee’s petition.

On November 22, 1982, James H. Zobel, the employee, sustained an admitted injury to his low back while employed by Littfin Lumber Company, insured by Lumbermen’s Underwriting Alliance.  The employee began treating with Dr. Gary Wyard, an orthopedic surgeon, on November 26, 1982.  A CT scan in January 1983 showed bilateral spondylolysis and a 15% spondylolisthesis of L5 on S1.  The employee did not improve with conservative treatment and on March 4, 1983, Dr. Wyard performed a posterolateral fusion from L4 to the sacrum.

By December 1983, Dr. Wyard concluded the employee had a solid fusion, and released the employee to work 8 hours per day with restrictions.  The employee was given permanent restrictions on January 5, 1984, of no lifting over 50 pounds, limited stooping, squatting and twisting, and flexibility in standing.

On April 27, 1984, Dr. Wyard noted the employee’s x-rays showed a mature fusion.  The employee was doing fairly well, although he continued to have some low back discomfort if he was too active.  Dr. Wyard assigned a 25% permanent partial disability rating of the back.  The employee had a qualified rehabilitation consultant (QRC), but had not obtained employment within his restrictions.

On May 10, 1985, the employee stated he was doing very well, and did not have any of the pain or discomfort he had previously experienced.  In August 1985, Dr. Wyard noted the employee had worked something out with the help of his QRC and was returning to school to obtain a degree in tool and die making in the near future.

In October 1985, the parties entered into a stipulation for settlement.  The employee claimed a 25% permanent partial disability for the back, and sought approval for retraining.  The employer and insurer denied the employee was entitled to payment of permanency at that time, and contended the retraining program was not necessary and that proper job placement had not been undertaken.  The employee agreed to accept $16,406.25, less attorney fees, as a full, final and complete settlement of his claims for permanency as a result of the November 22, 1982, injury.  The employee also received $28,593.75, less attorney fees, as a full, final and complete settlement of any and all claims for workers’ compensation benefits as a result of the November 22, 1982, injury, including all wage loss benefits and retraining and/or rehabilitation benefits.  Future reasonable, necessary, and causally related medical expenses were left open.

The employee did undergo retraining, receiving a certificate in CNC tool and die making.  He then went to work for Hutchinson Technologies, Inc., in 1990 or 1991.  The employee’s job at Hutchinson involved considerable keyboard work, and in the fall of 1999 he was diagnosed with bilateral carpal tunnel syndrome.  Carpal tunnel release surgeries were performed in November and December 1999.  The employee’s symptoms persisted, and he was assigned permanent restrictions of no firm grasping, twisting, or bending of the wrists.  The employee returned to work for Hutchinson Technologies from January 2000 through April 20, 2000, when he was laid off as part of a significant downsizing by the company.  The employee settled his workers’ compensation claims against Hutchinson Technologies on a full, final and complete basis in September 2005.

In November 2001, the employee was seen by Dr. Robert Heeter, an orthopedic surgeon, reporting increasing pain in his low back.  MRI and CT scans obtained in December 2002 showed a solid fusion and only mild stenosis.  The employee returned to Dr. Heeter on April 10, 2003, who referred the employee to Dr. Richard Salib at the Institute for Low Back and Neck Care.

When seen by Dr. Salib on April 28, 2003, the employee reported worsening back pain over the past couple of years.  Dr. Salib reviewed the MRI and CT scans and suspected the employee’s pain was caused by increased stress and mobilization at the L5-S1 segment.  Dr. Salib recommended a diagnostic facet injection at L5-S1 which was apparently not performed.

Between 2000 and 2005, the employee worked in a series of apartment maintenance jobs.  After 2005, he obtained only two jobs, both of which were in 2007.  He was unable to continue in either job.

The employee returned to Dr. Salib on October 20, 2008, complaining of progressively worsening low back and bilateral leg pain.  A new MRI scan showed obvious degeneration at L3-4 and a defect in the pars interarticularis at L5-S1 causing foraminal compression of the left L5 nerve root.  A CT scan revealed a nonunion of the previous fusion.  Dr. Salib recommended a three-level posterior anterior fusion from L3 to S1 with pedicle fixation and repair of the pseudoarthrosis at L5-S1.  The surgery was performed on February 11, 2009.

The surgery initially relieved the employee’s leg symptoms and the employee’s fusion appeared to be solid by July 2009.  He continued, however, to experience low back pain and was prescribed Oxycontin and Percocet for pain control.  In April 2010, the employee returned to see Dr. Salib.  The doctor noted the employee continued to have significant low back pain and was chronically addicted to narcotics.  Dr. Salib recommended removal of the fusion hardware.  The surgery was performed on September 29, 2010, but did not provide significant relief.  During this time the employee applied for Social Security disability benefits which he eventually received in 2011, backdated to January 2010.

In August 2011, the employee was referred to Advanced Pain Management for a chronic pain evaluation.  In October 2011, the employee was seen by Dr. Rupinder Singh with complaints of low back and bilateral leg pain.  Over the course of several months, the employee underwent caudal epidural steroid injections, transforaminal epidural injections, and facet joint injections.  In January 2012, Dr. Singh diagnosed lumbosacral facet joint pain and lumbar postlaminectomy syndrome.  More advanced pain treatments including a spinal cord stimulator, medial branch blocks, and radiofrequency procedures were discussed.

On November 7, 2012, the employee filed a petition to vacate the November 6, 1985, award on stipulation.  The employer and insurer objected.

This court’s authority to vacate an award on stipulation is governed by Minn. Stat. §§ 176.461 and 176.521, subd. 3.  To vacate an award, the petitioning party must show good cause.  For awards issued before July 1, 1992, cause for vacation of an award on stipulation includes a substantial change in condition.  The inquiry is limited to the extent of improvement or worsening of the employee’s condition; the change in condition need not be unanticipated.  Franke v. Fabcon, Inc., 509 N.W.2d 373, 40 W.C.D. 520 (Minn. 1993).

A number of factors may be considered in determining whether a substantial change in medical condition has occurred including a change in diagnosis, a change in the employee’s ability to work, additional permanent partial disability, the necessity of more costly and extensive medical care than initially anticipated, and a causal relationship between the injury covered by the settlement and the employee’s current condition.  Fodness v. Standard Café, 41 W.C.D. 1051, 1060-61 (W.C.C.A. 1989).

1.  Change in diagnosis.  At the time of the settlement in 1985, the employee had undergone fusion surgery from L4 to the sacrum with good results.  Imaging taken in 2008 revealed significant degeneration at L3-4, a defect in the pars interarticularis at L5-S1 causing foraminal compression of the left L5 nerve root, and nonunion of the previous fusion.  The employee underwent a three-level posterior anterior fusion from L3 to S1 with instrumentation on February 11, 2009 and hardware removal surgery on September 29, 2010, without significant relief.  The employee continues to experience chronic pain in the low back and legs.  The employee has established a change in diagnosis since the 1985 award on stipulation.

2.  Change in ability to work.  At the time of the 1985 settlement, the employee had been released to return to work and was seeking retraining; the employer and insurer opposed retraining stating that it was not necessary and that proper job placement had not been undertaken.  The employee did, in fact, complete the retraining and worked for Hutchinson Technologies for about ten years.  After the employee was laid off from Hutchinson in April 2000, he continued to work in apartment maintenance through 2005.  The employee has not worked since 2007 when he worked only briefly and sporadically.  The employee has shown a change in his ability to work.

The employer and insurer argue, however, that the change in the employee’s ability to work is due to his 1999 bilateral carpal tunnel injury and not attributable to the 1982 injury.  They assert the employee became permanently totally disabled as a result of the 1999 injury and it would be wrong to vacate the 1985 settlement and not vacate the 2005 settlement.  The present petition to vacate refers only to the 1985 settlement and that is the only petition before the court.  Whether the 2005 award on stipulation should be vacated is not at issue in this petition.  This court has no authority to vacate a stipulation that neither party has petitioned to vacate.  Buganski v. Onan Corp., 338 N.W.2d 586, 589, 36 W.C.D. 172, 176 (Minn. 1983); Pantlin v. Krueger & Assocs., 68 W.C.D. 426 (W.C.C.A. 2008); see also Holm v. Country Manor Nursing Home, No. WC10-5141 (W.C.C.A. Mar. 10, 2011).

3.  Additional permanent partial disability.  No evidence was submitted by the employee providing a current permanent partial disability rating.  We observe, however, that the employee has clearly sustained additional impairment as a consequence of his worsened low back and leg condition, including two additional surgeries, following the settlement.

4.  Need for more costly and extensive medical care.  Where, as here, medical expenses are left open by the stipulation for settlement, the need for additional medical care carries less weight in determining whether a substantial change in medical condition has occurred.  Burke v. F & M Asphalt, 54 W.C.D. 363, 368-69 (W.C.C.A. 1996).  However, this court has also stated that, even where medical expenses are left open, the need for more costly and extensive medical care remains useful evidence bearing on whether there has been a substantial change in the employee’s condition.  See e.g., Hughes v. Medcor, Inc., 69 W.C.D. 258, 269 (W.C.C.A. 2009).  There is no dispute the employee has incurred substantial medical costs since the award on stipulation.

5.  Causation.  The employer and insurer conceded at hearing that, for the purposes of the petition to vacate, there is sufficient evidence of a causal relationship between the November 22, 1982, low back injury covered by the award on stipulation and the employee’s current low back and leg condition.

Finally, the employer and insurer contend the employee failed to serve the petition to vacate on the Special Compensation Fund.  The only parties to the October 1985 stipulation for settlement were the employee, Littfin Lumber Company, and Lumbermen’s Underwriting Alliance, now represented by Sedgwick Claims Management.  Service of the petition to vacate was not, therefore, required on the Fund.  The Special Compensation Fund and other potential parties will have an opportunity to defend their interests upon vacation of the award and the filing of a claim petition.

We conclude the employee has established a substantial change in condition since the time of the award, and grant the employee’s petition to vacate the November 6, 1985, award on stipulation.