ROSEMARY BERG, Employee/Petitioner, v. MAPLEWOOD CARE CTR. and LIBERTY MUT. INS. CO., Employer-Insurer, and ALLINA ASPEN MED. GROUP, PHOENIX CTR. PAIN SERVS., HEALTHPARTNERS SPECIALTY CTR., HEALTHPARTNERS ST. PAUL CLINIC, and REGIONS HOSP., Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 21, 2015

No. WC15-5827

HEADNOTES

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where the petitioner has not shown that any new symptoms after fusion surgery were causally related to the surgery and where the fusion surgery was not reasonable and necessary medical treatment, the petitioner has not shown a substantial change in medical condition and the petition to partially vacate the award on stipulation is denied.

Petition to vacate award on stipulation denied.

Determined by:  Milun, C.J., Stofferahn, J., and Hall, J.

Attorneys:  Joel C. Monke, Attorney at Law, Woodbury, MN, for the Petitioner.  Jaclyn S. Millner, Law Office of Thomas P. Stilp, Golden Valley, MN, for the Respondents.

 

OPINION

PATRICIA J. MILUN, Chief Judge

The employee petitioned to partially vacate an award on stipulation based on a substantial change in medical condition.  After reviewing the Findings and Order of Compensation Judge Cheryl LeClair-Sommer from an evidentiary hearing at the Office of Administrative Hearings on referral from this court, we deny the petition.

BACKGROUND

As stipulated by the parties, Rosemary Berg, the petitioner, was employed by Maplewood Care Center, the employer.  The employer was insured for workers’ compensation liability in Minnesota by Liberty Mutual Insurance Company.  On June 24, 2011, the employee sustained a personal injury that arose out of and in the course of her employment with the employer.  The employer and insurer admitted liability for an injury to the low back that was temporary in nature.  The employee received treatment for this condition, and her treating physician recommended low back fusion surgery in 2012.

Based on their contentions, the parties agreed to a full, final, and complete settlement of any and all claims, including consequential injuries and medical expenses for twelve months following the surgery.  An Award on Stipulation was filed on October 29, 2012.

On July 30, 2014, the employee filed a petition with this court to partially vacate the award on stipulation based on a substantial change in medical condition, claiming that she had new symptoms that developed after the surgery which required more extensive medical care that could not have been anticipated at the time of the settlement.

In a decision served and filed December 5, 2014,[1] which is incorporated herein by reference, this court referred the matter to the Office of Administrative Hearings for a hearing on the issues of 1) whether the employee’s work injury was a substantial contributing factor to her pre-surgical condition, 2) whether the medical treatment at issue, including the fusion surgery and post-fusion medical treatment, was reasonable and necessary; and 3) whether the work injury was a substantial contributing factor to the employee’s current, post-surgical condition and her condition at the time of the settlement.

An evidentiary hearing was conducted at the Office of Administrative Hearings on March 13, 2015.  The compensation judge issued her Findings and Order on April 28, 2015.  The compensation judge found:

            Subsequent to the Stipulation for Settlement, the employee underwent a fusion surgery performed by Dr. Mendez at the L4-5 and L5-S1 vertebral levels on December 7 and 8, 2012.  As a result of wound infections, two further surgeries were necessary for debridement.[2]
            While the employee did report left lower extremity radiating symptoms prior to the fusion surgery, the employee developed left foot drop in the months following the fusion surgery.  According to the opinion of Dr. Wyard, the employee developed this new symptom after the fusion, although the diagnosis or cause is not really explicable.  No physician has been able to point to an exact cause of the left foot drop.[3]
            The employee reported symptoms in the left leg prior to the settlement and fusion surgery.  Her post-fusion complaints to the left leg include reports of weakness.  The EMG findings after the fusion surgery show perineal involvement, which has not been really fully determined as related to the fusion surgery, according to Dr. Wyard.  Dr. Mendez concluded that the left leg symptoms of left foot drop are a result of the fusion surgery based upon the development of those symptoms after the fusion surgery. . . .[4]

The compensation judge determined that the opinion of Dr. Mendez did “not adequately explain the EMG results and how the fusion may have resulted in those changes.”[5]  The compensation judge concluded:

The evidence fails to prove that the left foot weakness is a result of the fusion surgery.  Other potential diagnoses have been postulated that may potentially cause the left foot drop.  In addition, the medical records and reports fail to show that the employee has developed reflex [sympathetic] dystrophy of the left lower extremity or that this diagnosis is a result of the fusion surgery.  The opinions of Dr. Wyard were more persuasive than the opinions of the other health care providers.  This conclusion was also more persuasive considering the statement of Dr. Mendez on March 7, 2013, documenting no obvious focal weakness or numbness on examination.[6]

No appeal was taken from the compensation judge’s findings, and the matter was referred back to this court for determination of the petition to partially vacate the award on stipulation.

DECISION

The petitioner seeks to vacate the portion of the October 29, 2012, award on stipulation that closes out medical care, arguing that she has experienced a substantial change in her medical condition as a result of complications from the fusion surgery and also that her current condition and need for more extensive medical care could not have been anticipated at the time of the settlement.

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.[7]  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.”[8]  A number of factors are relevant when evaluating whether there has been a substantial change in the employee’s medical condition, including: change in diagnosis; change in the employee’s ability to work; additional permanent partial disability; necessity for more costly and extensive medical care than previously anticipated; and the causal relationship between the injury covered by the settlement and the employee’s current condition.[9]  The factors at issue in this case are causation and whether the medical treatment at issue was reasonable and necessary.  The burden of proof rests with the party seeking to vacate the settlement.[10]

In her memorandum, the compensation judge explains the bases for her findings on causation:

            The opinion of Dr. Wyard that the employee does not exhibit sufficient findings in the left lower extremity to diagnose reflex sympathetic dystrophy was persuasive.  No physician notes persistent or reproducible vascular, sensory, motor or skin changes to support their diagnosis of reflex sympathetic dystrophy.  The diagnosis of reflex sympathetic dystrophy appears to have been made by the treating physicians because they cannot explain the complaints involving the left lower extremity.  Without further objective findings to support their diagnosis, the opinion of Dr. Wyard was accorded greater weight on this issue.
            Further, the positive findings on EMG could not be completely explained.  The physicians suggest these findings were a result of the fusion surgery but cannot explain how that condition occurred as a result of the fusion.  Certainly the report of weakness in the left lower extremity was noted only months after the fusion surgery.  But mere appearance in time after the fusion surgery is not indicative of causation to the fusion surgery.  Dr. Wyard explained that the perineal involvement subsequent to the surgery cannot be explained and the reason for this result from the surgery is unclear.  The perineal neuropathy shown on the EMG can come from diabetes, laying on the extremity, or an injury to the nerve itself.  He explained that the clinical findings are inconsistent and invalid and the employee’s pain complaints so global as to make a diagnosis of the left leg problem difficult.  Dr. Wyard suggests that the employee’s left leg condition could be secondary to diabetic neuropathy or other physiochemical factors.[11]

We conclude that the petitioner failed to sustain her burden of proof that the post-surgical condition of left leg weakness and the diagnosis of reflex sympathetic dystrophy were the result of her work injury.  In addition, the evidence failed to show that the medical treatment was reasonable and necessary treatment of the work injury.  Therefore, we deny the petition to partially vacate the award on stipulation based on a substantial change in medical condition that could not have been anticipated at the time of the settlement.


[1] Berg v. Maplewood Care Ctr., No. WC14-5734 (W.C.C.A. Dec. 5, 2014).

[2] Finding 5.

[3] Finding 6.

[4] Finding 10.

[5] Id.

[6] Id.

[7] Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989).

[8] Minn. Stat. § 176.461(b)(4).

[9] Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).

[10] Groshong v. The Light Depot, 65 W.C.D. 349, 355 (W.C.C.A. 2005).

[11] Memorandum at 9 (footnote omitted).