The employee has petitioned this court to vacate an Award on Stipulation served and filed October 20, 2003.  We find the employee has failed to establish cause pursuant to Minn. Stat. § 176.461 and deny his petition.

During his employment with NAPA Auto Parts between 1991 and 2001, Dennis Arbuckle sustained a number of work injuries.  The relevant injury here is an injury the employee sustained to his low back on December 1, 2000.  The employer and its insurer, Travelers Insurance Companies, admitted liability for the low back injury.

The parties entered into a stipulation in October 2003 that set out the parties’ positions and the agreement reached in the settlement.  The employee claimed permanent partial disability relating to the cervical spine, permanent partial disability of the right shoulder, and retraining in a program developed by his QRC.  The employee was receiving temporary total disability at the time of the agreement.  There was no claim for permanent partial disability connected to the lumbar spine injury.  The employer and insurer admitted the employee had a 7 percent permanent partial disability from his lumbar injury but disputed the extent of permanent partial disability for the cervical spine and right shoulder and also denied that the retraining plan was appropriate.  The Stipulation for Settlement provided for a full, final and complete settlement by the employee of all claims with the exception of medical expenses.  An Award on Stipulation was served and filed October 20, 2003.

The employee alleges in his petition to vacate that there has been a substantial and unanticipated change in his low back condition sufficient to constitute cause to vacate the settlement award.

After the December 2000 low back injury, the employee had a lumbar MRI scan taken on January 15, 2001, at the request of Dr. Rolf Hauck.  The scan showed a right-sided disc herniation at L5-S1 with nerve root impingement.  Dr. Hauck concluded after meeting with the employee that surgery was not warranted “at the present time.”

The last medical appointment for the employee regarding his low back before the settlement in October 2003 appears to have been with Dr. Paul Crowe in January 2003.  Dr. Crowe noted that the employee’s low back symptoms were not severe enough to consider surgery “at this time.”  The employee also had an epidural injection done at L5-S1 in August 2003.

After the settlement in October 2003, the employee saw Dr. Crowe on an intermittent basis, generally after a flare up of low back pain.  The records show follow-up visits with Dr. Crowe in September 2006, July 2008, and January 2010.  At the visit in 2010, it was noted by Dr. Crowe that the employee’s condition was stable.  In November 2011, the employee reported an increase in his back pain to Dr. Crowe.  Dr. Crowe determined at that time, with the employee agreeing, that the employee’s symptoms were not severe enough to consider surgery.  An MRI scan was done in April 2012.  There is no reference to any further visits with Dr. Crowe until March 2014.

The employee saw Dr. Crowe in March 2014 and reported that he continued to have low back pain that radiated down his right leg.  A prednisone taper was prescribed.  An increase in his low back and leg pain was reported on May 12, 2014, when he saw Dr. Crowe.  Another MRI was done on June 3, 2014, and following the MRI, Dr. Crowe recommended surgery, specifically “decompression with lateral recess right L5-S1.”  Dr. Crowe also took the employee off work as of July 14, 2014, with a note that the employee would not be able to return to work for 6 to 8 weeks following surgery.  In a chart note dated October 6, 2014, Dr. Crowe stated that, based on the MRI scan, “we will now plan to add right L3-4 and L4-5 levels to the decompression.”  The surgery was noted to be scheduled for November 15, 2014, but there are no records as to whether or not any surgery took place.

The Workers’ Compensation Court of Appeals has authority to set aside an award for cause under Minn. Stat. § 176.461.  Cause is defined in the statute and 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.”  The employee asserts this definition of cause as the basis for his petition.

The 2003 stipulation indicated that between 1991 and 2001, the employee sustained injuries to his “left foot, right knee, finger, low back, left thumb, neck and shoulder.”  The employee alleges only that there has been a substantial and unanticipated change in his low back condition.  The substantial and unanticipated change to the low back condition referred to in the employee’s petition appears to be the increased symptoms and low back surgery referenced by Dr. Crowe in his chart notes.

The record presented to this court, however, does not disclose whether the surgery discussed by Dr. Crowe ever took place.  The most recent medical record is Dr. Crowe’s chart note dated October 6, 2014.  In Dr. Crowe’s chart note he indicates that surgery is “scheduled” for November 15, 2014.  There is no information as to whether or not surgery took place on that date or on some other date, the nature of the surgery if it occurred, and the result of the surgery including its effects on the employee’s symptoms and his ability to work.  The existence of additional symptoms resulting from a disc injury known before the settlement is not sufficient in this case to establish a substantial and unanticipated change in medical condition. See Fodness v. Standard Café, 41W.C.D. 1054 (W.C.C.A. 1989).

The employee, as the petitioner here, has the burden of establishing that there has been a change in condition sufficient to establish cause under the statute.  Groshong v. The Light Depot, 65 W.C.D. 349, 355 (W.C.C.A. 2005); Brist v. Fergus Falls Granite, Inc., No. WC14-5733 (W.C.C.A. Feb. 17, 2015).  Based on the record before us, we conclude the employee has failed to meet his burden.  The employee’s petition is denied.