The employee petitions to vacate and set aside an Award on Stipulation, served and filed March 6, 1990, on the basis of a substantial change in condition since the time of the stipulation.  Concluding the employee has established good cause, we grant the petition.

The employee worked as a housekeeper and janitor for Mesabi Regional Medical Center.  She sustained an admitted Gillette^[2] injury culminating in November 1987.  The employee began treating with Dr. R.E. Freeman, a neurosurgeon, on November 5, 1987, when she was referred for low back and lower extremity pain.  A mylogram/CT scan revealed a herniated disc at L3-4, a very small extradural defect at L2-3, and minimal central disc bulging at L5-S1.  Dr. Freeman performed a left L3-4 laminotomy and discectomy on December 8, 1987.

On January 27, 1988, Dr. Freeman noted the employee had done remarkably well since the surgery, although she still had some occasional back discomfort which he believed would gradually resolve with time.  On February 24, 1988, Dr. Freeman reported the employee was gradually improving with physical therapy, and anticipated she would eventually have an excellent result.

In April 1988, because the employee continued to have pain with activity, Dr. Freeman ordered an MRI scan to ensure there were no missed lesions.  The April 22, 1988, scan showed mild to moderate dehydration of the discs from L2-3 to L5-S1 with mild multi-level facet degenerative disease.  There was no evidence of a recurrent herniation or nerve root impingement.

A functional capacities evaluation (FCE) was completed on or about April 19, 1988.  Restrictions included standing for 60 minutes, sitting for 60 minutes, and unlimited walking - - with regular breaks - - and occasional bending, stooping and crawling.  The employee could push/pull occasionally up to 64 pounds and frequently up to 49 pounds, carry up to 25 pounds occasionally and up to 17 pounds frequently, lift up to 28 pounds occasionally and up to 19 pounds frequently.  The employee was unable to return to her work with the employer and, in February 1989, sought rehabilitation assistance.  In March 1989, the employee obtained a job at Allstate Leisure Products.

The employee was seen by Dr. Paul Wicklund at the request of the employer and insurer.  In his report dated August 5, 1988, Dr. Wicklund diagnosed resolved low back pain following an L3-4 laminectomy and discectomy.  He opined the employee had reached maximum medical improvement and was capable of returning to light duty work.  Dr. Wicklund assigned a 9 percent permanent partial disability which the employer and insurer eventually paid.

The employee last saw Dr. Freeman prior to the stipulation on July 19, 1989.  The employee’s findings on examination remained unchanged.  Dr. Freeman recommended the employee leave her job at Allstate as the physical demands of the job were outside her work restrictions and aggravated her back.  Rehabilitation services were reinitiated and in October 1989 the employee began a new job search.  During this same time, on October 3, 1989, the employee filed an application for Social Security Disability benefits.  The employee continued to search for work and on December 15, 1989, had an interview for a part-time clerk/sales position with Video USA.  On January 9, 1990, the employee notified her qualified rehabilitation counselor (QRC) that she had accepted the job and was scheduled to begin working at noon on January 10, 1990.

The employee filed a claim petition on October 29, 1989, seeking ongoing rehabilitation/retraining benefits and temporary wage loss benefits including, in the alternative, permanent total disability benefits.  The parties reached a settlement agreement and on January 10, 1990, executed a Stipulation for Settlement.  The stipulation provided for a lump sum payment of $60,000.00 to the employee, less attorney fees, in return for a full, final, and complete settlement of any and all claims for workers’ compensation benefits except reasonable, necessary, and causally related medical expenses.

The employee returned to Dr. Freeman on May 23, 1990, reporting persistent, intermittent back discomfort into the hips.  Dr. Freeman recommended conservative treatment in view of the employee’s relatively stable neurological findings.  On June 20, 1990, the employee was seen for severe back pain by Dr. B.T. French at her primary care clinic.  She had limited straight leg raising on the left due to back pain, but was otherwise neurologically intact.  Dr. French prescribed Robaxin, a muscle relaxant, and Tylenol compound for pain.  A CT scan from L3 to L5-S1, on June 22, 1990, showed a herniated disc at L3-4 on the left displacing the L3 nerve root, along with some facet joint hypertrophy and foraminal stenosis bilaterally.  By June 25, 1990, Dr. French noted the employee was doing much better on her current medications and stated, in a letter to Dr. Freeman, that the employee had sufficiently recovered to return to work on June 29, 1990.  The employee returned to Dr. Freeman on July 27, 1990, at which point he continued the employee’s prescription for Robaxin and recommended facet blocks at L3-4 and L4-5 which were performed on July 31, 1990.

On October 5, 1990, the Social Security Administration issued a determination finding the employee eligible for Social Security Disability benefits, retroactive to November 30, 1987, based on chronic low back pain associated with tingling and numbness in the lower extremities and depression.  The employee continued to work ten to twenty hours a week at the video store.

By the spring of 1992, Dr. Freeman concluded the employee’s condition was worsening and a repeat MRI scan was ordered.  The June 10, 1992, scan showed the previously noted disc herniation at L3-4 and a new finding of a left-sided disc herniation at L2-3 impinging on the left L2 nerve root.  The employee continued to receive conservative treatment from Dr. Freeman for chronic, intermittent low back pain and occasional bilateral leg pain.

In mid-July 1997, the employee was seen in the emergency room reporting excruciating back pain and sciatica.  She was seen in follow-up by Dr. Freeman on August 6, 1997.  On examination, the employee had positive straight leg raising on the left.  Dr. Freeman ordered an MRI scan and prescribed Ultram, a non-narcotic pain medication.  The radiologist concluded that, compared with the previous June 1992 MRI scan, there was now sufficient abnormality at L2-3 to cause significant compression of the left L3 nerve root and potentially the left L2 nerve root.  Dr. Freeman performed a left L2-3 decompression and discectomy on September 2, 1997.  During the surgery, scarring was noted at the site of the previous surgery as well as a recurrent disc herniation far laterally.

The employee reported improvement following the surgery with ongoing intermittent low back pain.  In a letter dated October 27, 1997, Dr. Freeman maintained the second surgery was related to stress placed on the L2-3 level by the employee’s previous surgery at L3-4.

Dr. Freeman released the employee to return to work half days on December 1, 1997.  The employee returned to her job at the video store, but reported increasing difficulty performing work activities.  The doctor ordered a new FCE which was completed February 3, 1998.  The new restrictions included standing 6 hours, sitting 8 hours, and walking 6 hours occasionally - - with regular breaks.  The employee was restricted from any balancing, bending, stooping, or crawling, and could squat, crouch or kneel only occasionally.  On April 6, 1998, the employee told Dr. Freeman she did not feel she could continue to work at the video store.  Dr. Freeman pointed out there would be very little for her in the job market if she could not find a way to modify her current employment.  The employee did not, apparently work at the video store after May 1998.

Dr. Freeman continued to see the employee periodically for chronic intermittent lumbar pain, providing conservative treatment consisting primarily of prescriptions for non-steroidal anti-inflammatories, muscle relaxants, and non-narcotic pain medications.  From August 9, 1999, to July 27, 2000, the employee worked part-time, nine to fifteen hours a week, doing light housekeeping for the elderly, but had to quit because of her back.

On March 12, 2001, the employee returned to Dr. Freeman reporting pain extending from the thoracolumbar area into her legs down to her knees.  A repeat MRI scan showed marked facet arthropathy with some scarring at L2-3 with a recurrent disc herniation that narrowed the left L2-3 neural canal, and degenerative arthropathy at L3-4 with evidence of scarring and a recurrent disc herniation on the left.  In a letter dated June 14, 2001, Dr. Freeman stated he believed the employee’s worsening condition was a direct result of the previous surgeries.

By early 2002, the employee was being prescribed Celebrex, Flexeril, and Percocet, Darvocet, or Vicodin for pain control.  In April 2003, Dr. Freeman retired and the employee’s care was transferred to her family physician at the Duluth Clinic in Hibbing.  In August 2003, the employee requested a referral to a neurosurgeon due to worsening pain.  The employee was seen by Dr. Scott Dulebohn on December 10, 2003.  The doctor recommended a diagnostic workup to narrow the source of the employee’s pain.  A diagnostic lumbar discography from L1-2 through L5-S1 was performed on May 21, 2004.  The employee had concordant pain at four levels, with three - - L2-3, L3-4, and L5-S1 - - showing significant morphological abnormalities.  Dr. Dulebohn concluded that surgery was not an option and suggested that a stimulator might provide some pain relief.  Dr. Dulebohn opined that the injury in 1987 and subsequent surgery in 1997 were related and the employee’s continuing back problems were also related to the 1987 injury.

On October 1, 2004, the employee began treating with Dr. Mary Grahek, a family physician at the Duluth Clinic, Hibbing, who continued to prescribe Celebrex, Flexeril, and Darvocet.  On October 12, 2005, the employee was seen at the Pain Center Clinic in Duluth.  The doctor noted Darvocet no longer helped and the employee was now taking Lortab, a combination of acetaminophen and hydrocodone.  A Duragesic patch was added for extended pain control.  The employee reported doing markedly better with the patch although her pain was still not completely controlled.

In December 2006, the employee reported difficulty getting the Duragesic patch to stay on and she was experiencing an increase in pain.  She was referred back to the Pain Center Clinic where Dr. David Nelson started the employee on 15 mg of MS Contin, a time-release formulation of morphine, twice daily.  Shortly thereafter, the employee had a significant flare-up with severe back and leg pain.  Dr. Grahek increased the dose of MS Contin to 30 mg twice daily.

In November 2007, the employee complained of significant back pain and again requested referral to a neurosurgeon.  A new MRI scan on November 19, 2007, suggested some worsening of the employee’s lumbar spine disease.  The employee was eventually evaluated by Dr. Manuel Pinto at the Twin Cities Spine Center on May 25, 2008.  Spinal x-rays showed a spondylolistheses at L4 on L5 on flexion.  Dr. Pinto read the November MRI scan as showing evidence of significant disc derangement at L2-3 and L5-S1, severe foraminal stenosis at L5-S1, and moderate left foraminal stenosis at L2-3 and L3-4 along with facet arthritis at L2-3, L3-4, L4-5 and L5-S1.  The doctor agreed surgery was not indicated, but believed the employee would benefit from an epidural steroid injection.  The injection was performed by Dr. Nelson at the Pain Center Clinic on July 10, 2008, and provided significant relief.  The employee was continued on MS Contin 30 mg and Lortab for breakthrough pain.

From August 2008 to October or November 2009, the employee worked as a foster grandparent at a day care center in the infant room, three days a week for 6 hours.  She lost the job due to the amount of time she missed from work, primarily for non-back related conditions.  The employee continued to maintain adequate pain control, with occasional flare-ups of her chronic back pain, with two to three epidural steroid injections per year and ongoing use of MS Contin and Lortab.

In November 2012, Dr. William Fleeson completed an independent medical examination on behalf of the employee.  Dr. Fleeson took a history from the employee, reviewed the employee’s medical records, and examined the employee.  By report dated November 14, 2012, Dr. Fleeson noted that at the time of the 1987 injury, there was only one significantly abnormal lumbar level at L3-4.  Although the employee had pain following the surgery, the 1988 FCE showed relatively strong residual physical capabilities.  Subsequent symptoms, physical examinations, and imaging studies, Dr. Fleeson asserted, reflect continued worsening at the operated level and the adjacent levels.  Also demonstrated, he stated, is correspondingly diminishing physical capabilities.  The employee had a second surgery at an adjacent level in 1997.  By 2001, Dr. Fleeson stated, the employee’s imaging studies revealed the presence of significantly worse pathology, including scarring, disc space collapse, facet hypertrophy, and nerve root compression.  By this point, Dr. Fleeson maintained, the employee had clearly developed additional spine pathology more widespread and more limiting than it had been a decade earlier.  Dr. Fleeson concluded that

On December 27, 2013, Dr. Mark Larkins completed a medical records review at the request of the employer and insurer.  In Dr. Larkins’ opinion, the employee has chronic mechanical low back pain secondary to the natural progression of degenerative changes at multiple levels in the lumbar spine.  The doctor stated he would have given the employee the same diagnosis in March 1990.  It was Dr. Larkins’ opinion that there is no causal connection between the injury of November 1987 and the employee’s current condition and diagnosis.

This court has jurisdiction to set aside an award on stipulation upon a showing of good cause.  Minn. Stat. §§ 176.461 and 176.521, subd. 3.  For cases involving a stipulation entered into prior to 1992, case law identified four grounds which could constitute “good cause” including a substantial change in the employee’s condition.  Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993); see, e.g., Stewart v. Rahr Malting Co., 435 N.W.2d 538, 41 W.C.D. 648 (1989).  Cause sufficient to justify setting aside an award on the grounds of a change in the employee’s condition exists where there is evidence of a substantial deterioration in the employee’s condition or significant additional disability since the time of the settlement and a showing of a causal relationship between the injury covered by the award and the employee’s present condition.  Davis v. Scott Moeller Co., 524 N.W.2d 464, 51 W.C.D. 473 (Minn. 1994).  In determining whether a substantial change in the employee’s condition has occurred, various factors may be considered 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 anticipated; and (5) a causal relationship between the injury covered by the settlement and the employee’s current condition.  Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (WC.C.A. 1989).

At the time of the stipulation for settlement, the employee had undergone a one-level laminectomy and discectomy at L3-4.  There was no evidence of any significant defect at any other level of the lumbar spine.  While the employee had persistent low back pain with some occasional paresthesia into the left leg, Dr. Freeman believed her symptoms would gradually resolve with time and anticipated she would eventually have an excellent result from the surgery.  The employee’s findings remained stable and there was no evidence on imaging studies of any recurrent herniated disc or nerve impingement.

Subsequent to the March 6, 1990, Award on Stipulation, in June 1990, the employee experienced a flare-up of pain.  A repeat CT scan revealed a recurrent herniated disc at L3-4 displacing the left L3 nerve root along with some facet joint hypertrophy and foraminal stenosis bilaterally.  The employee’s pain subsided, but by the spring of 1992, the employee’s symptoms were noticeably worse.  A repeat MRI scan showed the previously noted disc herniation at L3-4 and a new finding of a left-sided disc herniation at L2-3 impinging on the left L2 nerve root.

The employee continued to treat conservatively with Dr. Freeman for chronic, intermittent low back pain with occasional bilateral leg pain.  In mid-July 1997, however, the employee experienced severe back and leg pain.  An MRI scan showed significant worsening at the L2-3 level with compression of the left L3 and possibly left L2 nerve root.  Dr. Freeman performed a left L2-3 decompression and discectomy on September 2, 1997.  Scarring was noted at the site of the previous surgery at L3-4 as well as a recurrent disc herniation far laterally.

The employee’s back improved for a short time following the second surgery, but has gradually worsened over the years.  The employee’s current diagnoses include moderate to severe facet and disc degeneration at L2-3 and L3-4, segmental instability at L4-5, nerve root impingement, multi-level foraminal stenosis, epidural fibrosis, and chronic pain syndrome.  The employee is not a candidate for surgery, and pain control is provided by epidural steroid injections two to three times a year and MS Contin, a time release formulation of morphine.

The employer and insurer argue, relying on the report of Dr. Larkins, that the employee’s underlying diagnosis has remained essentially unchanged since March 6, 1990, that is, chronic low back pain secondary to the natural progression of degenerative changes at multiple levels of the lumbar spine.  Whether or not there has been a change in the employee’s underlying diagnosis, the medical records do reflect a substantial change in the employee’s specific diagnoses and significant deterioration in the employee’s low back condition since the stipulation for settlement.

Prior to the January 1990 stipulation for settlement, the employee had restrictions, based on an April 1988 FCE, of standing and sitting for 60 minutes, with regular breaks, and occasional bending, stooping and crawling.  The employee obtained work at Allstate Leisure Products in March 1989.  She left his job in August 1989 when Dr. Freeman concluded the job exceeded her restrictions.  Rehabilitation services were reinitiated, and the employee interviewed for a part-time clerk/sales position with Video USA on December 15, 1989.  On January 9, 1990, the employee notified her qualified rehabilitation counselor (QRC) that she had accepted the job and was scheduled to begin working at noon on January 10, 1990.  Vocational records during January 1990 indicate the employee initially worked ten to fifteen hours per week at the video store.  The job was within the employee’s work restrictions.  The rehabilitation file was closed January 25, 1990, as the case had settled.

The employee also filed, on October 3, 1989, an application for Social Security Disability benefits.  By notice, dated December 5, 1989, the employee’s application for Social Security benefits was initially denied.  A hearing before an administrative law judge was not held until after the Award on Stipulation, on August 21, 1990.  In a decision issued October 5, 1990, the Social Security Administration found the employee eligible for Social Security Disability benefits, retroactive to November 30, 1987.  The administrative judge noted the employee was working at a video store approximately 10 hours a week, but found the employee’s work in 1989 was performed under special circumstances and that her monthly earnings did not exceed those considered to be substantial gainful activity under the Social Security Act.  The employee continued to work ten to twenty hours a week at the video store.

Following the second surgery on September 2, 1997, the employee was released to return to work half days on December 1, 1997, with her previous restrictions.  The employee reported increasing difficulties at work and a new FCE was completed on February 3, 1998.  The new restrictions limited sitting to 8 hours and standing to 6 hours with regular breaks, no balancing, bending, stooping, or crawling, and occasional squatting, crouching and kneeling.  On April 6, 1998, the employee told Dr. Freeman she did not feel she could continue working at the video store because she couldn’t tolerate the amount of standing required and could not do the bending and stooping necessary to get and replace videos on the shelf.  The employee did not work at the video store after May 1998.  Since that time, the employee has worked only twice for brief periods, and the medical records reflect diminishing physical capabilities.

The employer and insurer, again relying on Dr. Larkins, contend the employee remains capable of the same kind of very light duty or sedentary work that she was capable of at the time of the stipulation.  We conclude there is adequate evidence in the records submitted by the employee of a significant change in the employee’s ability to work and in her physical capabilities, generally, since the stipulation for settlement.

The employer and insurer, relying on Dr. Larkins’ opinion, assert the 9 percent permanent partial disability previously paid by the employer and insurer for a surgery at one level with excellent results is appropriate.  The employee has, however, undergone a second surgery since the stipulation, and the diagnoses relative to her lumbar spine condition have significantly changed.  Dr. Dulebohn assigned a 15 percent rating in 2005, and Dr. Fleeson concluded, while not providing a specific rating, that the employee is entitled to a significantly higher rating than that previously paid.

At the time of the settlement, the parties believed the employee would have a good result from her L3-4 discectomy and laminectomy and did not anticipate significant additional care in the foreseeable future.  The employee has since undergone a second surgery and has had considerable ongoing medical care and treatment over the 26 years since the settlement.  This factor has been factually established.

There is no dispute the employee’s first surgery was causally related to her admitted November 1987 work injury.  The employee’s treating neurosurgeons, Dr. Fleeson and Dr. Dulebohn, along with Dr. Freeman, opined the employee’s second surgery in 1997, and the gradual deterioration of the levels adjacent to L3-4, that is L2-3 and L4-5, including chronic pain, scarring, development of hypertrophic spurring and stenosis, instability, and bulging and recurrent herniated discs, are causally related to the 1987 lumbar spine Gillette injury.  Dr. Larkins disagreed, stating the employee’s need for the 1997 surgery and her current low back condition are the result of the natural progression of underlying degenerative disease at multiple levels, and are not causally related to the injury of November 1987, which was a herniated disc at L3-4.  The record sufficiently supports the employee’s claim of a causal relationship for the purpose of establishing good cause to vacate and set aside the stipulation.

We, accordingly, grant the employee’s petition to vacate and set aside the Award on Stipulation of March 6, 1990.