DEANNA L. HURLEY, Employee/Petitioner, v. DUNGARVIN MINN., LLC, and TRAVELERS INDEM. CO. OF AM., Employer-Insurer/Respondents.

The employee petitions to vacate an Award on Stipulation, served and filed December 17, 2013, on the ground of a substantial change in medical condition. We grant the petition.

On November 8, 2009, and January 23, 2011, Deanna L. Hurley, the employee, sustained work-related injuries to her lumbar spine while working as a residential coordinator in a group home for Dungarvin Minnesota, LLC, the employer. The employee was diagnosed with low back pain and left leg radiculopathy. A May 7, 2011, MRI scan indicated degenerative disc disease from L3 to L5 with some encroachment on the left L4 nerve ganglion. In January 2012, Dr. Manuel Pinto at the Twin Cities Spine Center recommended lumbar fusion surgery. Dr. Stefano Sinicropi at Midwest Spine Institute agreed in May 2012.

The employee underwent an L3-5 anterior/posterior fusion surgery, performed by Dr. Sinicropi, on June 28, 2012. The employee started physical therapy in August 2012 and returned to part-time work with restrictions in September 2012. The employee experienced increased back pain and was taken off work on October 3, 2012. In December 2012, the employee was treated with left L5-S1 injections for sacroiliac pain by Dr. Mark Yamaguchi. On January 8, 2013, the employee was treated with additional injections in the lumbosacral area.

The parties reached a partial settlement and a partial stipulation for settlement was approved by an award on stipulation served and filed January 24, 2013, resolving an underpayment of wage loss benefits, out-of-pocket expenses, attorney fees, penalties, and medical expenses for various intervenors.

The employee continued to treat for left lumbosacral pain, and underwent physical therapy. After a trial in July 2013, Dr. Yamaguchi recommended a spinal cord stimulator. As part of the preparation for the stimulator implantation surgery, an MRI scan was performed on August 5, 2013, in order to insure that there was adequate spacing for the device to be implanted. The MRI scan showed broad based central posterior disc herniations at T8-9 and T7-8. On September 10, 2013, the employee had a spinal cord simulator implanted by Dr. Lynn Miller. During the procedure, a T7-8 bilateral hemi-laminectomy was performed in order to decompress the epidural space.

After an x-ray indicated that one of the stimulator leads was out of place, a revision surgery was recommended and was performed by Dr. Miller on October 22, 2013. In November 2013, the employee experienced excruciating thoracic spine pain. She was treated with nerve blocks and medication and referred to a chiropractor. On December 16, 2013, the employee treated at Midwest Spine with Matthew Hawkins, a certified physician’s assistant working with Dr. Sinicropi. At that time, the employee’s diagnoses were chronic back pain, chronic left thoracic pain, and left anterior chest wall pain with radiation into the abdomen, questionably from thoracic radiculopathy. The employee was referred to a pain clinic and remained off work for scheduled injections. The employee was off work through February 1, 2014.

The employee received temporary total disability benefits through November 30, 2013. The parties then entered into a full, final, and complete settlement, except for future medical treatment, with $55,000.00 paid to the employee and $13,000.00 paid to the employee’s attorney. The stipulation for settlement was approved by an award on stipulation served and filed on December 17, 2013. The stipulation also stated that the payment amount represented a compromise of the present day value of the employee’s potential entitlement to permanent total disability benefits. At the time of the settlement, the employee claimed that she was not at maximum medical improvement, that she was entitled to ongoing temporary total disability benefits through the 130 week cap, that she was entitled to yet unrated permanent partial disability benefits, as well as ongoing rehabilitation and medical expenses. The employee also claimed if she was released to work, she would be working at a sedentary position at potentially less than full time with permanent restrictions entitling her to temporary partial disability. The employee did not claim entitlement to permanent total disability benefits. The employer and insurer indicated at the time of settlement that if the employee was unable to find employment within her restrictions or was not released to return to work, she would be entitled to permanent total disability benefits. The employer and insurer, however, also specifically stated in the stipulation that the employee “will eventually be released to return to work with restrictions and she may well find employment at or near her pre-injury wage.”^[1]

After the settlement, the employee continued to experience back pain. The employee reported some relief after being treated with transforaminal epidural steroid injections in January 2014, and was referred to Dr. Sinicropi for a surgical consultation. In February 2014, Dr. Sinicropi noted that the employee had a central disc protrusion at T7-8 and an extruded disc herniation at T8-9, and recommended a thoracic discography. The employee underwent the discography on April 15, 2014, with Dr. Louis Saeger at Greenway Surgery Center. The discography indicated that the employee had concordant pain, degeneration, internal disc disruption, and an annular tear at T8-9. Dr. Sinicropi recommended anterior and posterior fusion at T7-9. On July 11, 2014, the employee underwent a T7-9 anterior and posterior fusion surgery. The employee had physical therapy from August through October 2014.

The employee returned to Midwest Spine in May 2015, reporting significant aggravation of her thoracic and lumbar spine pain with chronic left leg pain. The employee’s spinal cord stimulator was reprogrammed and she underwent additional physical therapy. In July 2015, the employee reported persistent severe thoracic pain. On July 29, 2015, the employee received bilateral hardware site injections, which provided great relief, and hardware removal was recommended. On August 19, 2015, the hardware from the thoracic fusion surgery was removed by Dr. Sinicropi. The employer and insurer accepted liability and paid for the employee’s surgeries. The employee was noted to be permanently disabled secondary to her chronic pain syndrome by Dr. Sinicropi on August 31, 2015. The employee was referred to physical therapy for postoperative rehabilitation.

The employee continued to treat for left sacroiliitis and left hip pain. In September 2015, the employee treated for left hip and buttocks pain at Midwest Spine. Radiographs indicated left lateral and posterolateral acetabular bone spur and questionable fracture of the bone spur. The employee was assessed with greater trochanteric bursitis and sacroiliitis on the left and was treated with a left sacroiliac joint injections by Dr. Yamaguchi. On October 13, 2015, the physician’s assistant working with Dr. Sinicropi indicated that the employee’s symptoms and issues of left hip pain had been present from the time of the work injury and were work-related issues. In January 2016, the employee was treated for back, hip, and bilateral sacroiliac joint pain.

The employee had continued chronic pain following the surgical interventions and transfer syndrome from her lumbar fusion resulting in bilateral greater trochanteric bursitis and sacroiliitis. In April 2016, the employee underwent bilateral sacroiliac joint injections, which provided some relief, and bilateral greater trochanteric bursa injections, which did not provide relief. On May 23, 2016, the employee reported about two weeks of relief after the injections, but then her symptoms returned and seemed exacerbated. A CT scan of the lumbar spine revealed no issues with the lumbar fusion. The employee’s continued chronic pain symptoms in the lumbar spine were thought to be myofascial in nature. Chiropractic care and massage therapy were recommended and she was referred to a chronic pain program. On June 9, 2016, the employee was seen by Dr. Daniel Sipple at Midwest Spine for sacroiliac joint pain. Dr. Sipple recommended sacroiliac joint prolotherapy.

On May 23, 2016, the employee petitioned to vacate the December 2013 award on stipulation based on a substantial change in medical condition. On May 26, 2016, the employee underwent an independent medical examination with Dr. Nolan Segal. Dr. Segal noted that he did not have any of the employee’s medical records from before January 25, 2011. Dr. Segal opined that the employee’s ongoing thoracic spine treatment was not related to the January 2011 injury, that the sacroiliac condition was not related to the January 2011 injury, that the employee had not sustained a left hip injury, and that there was no evidence of trochanteric bursitis. The employer and insurer filed an objection to the petition on August 3, 2016.

The parties entered into a full, final, and complete settlement, except for future medical treatment, with $55,000.00 paid to the employee and $13,000.00 paid to the employee’s attorney, which was approved by an award on stipulation served and filed on December 17, 2013. At the time of the settlement, the employee was 44 years old and had been taken off work through February 1, 2014. The employee petitions to vacate the award on stipulation, claiming that she has shown a substantial change in medical condition since the time of the award and stating that she lives with chronic pain that has gotten worse and that she had expected to return to work after the settlement.

The Workers’ Compensation Court of Appeals has the authority to vacate an award on stipulation “for cause” under Minn. Stat. §§ 176.461, 176.521, subd. 3. “Cause” to set aside an award exists if (1) the award was based on a mutual mistake of fact, (2) there is newly discovered evidence, (3) the award was based on fraud, or (4) there is 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.^[2]

The party petitioning to vacate an award has the burden of proof to show such cause exists.^[3] A substantial change in an employee’s medical condition may be demonstrated by several factors, 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, a causal relationship between the work injury covered by the settlement and the employee’s current worsened condition, and the contemplation of the parties at the time of the settlement.^[4] When evaluating a petition to vacate, this court compares the employee’s condition at the time of the settlement award to the employee’s condition at the time the petition was filed.^[5] "[T]he basic concern in determining whether sufficient cause exists to set aside an award is to assure a compensation proportionate to the degree and duration of disability."^[6]

The employee argues that she has shown a substantial change in medical condition since the time of the award on stipulation, claiming that she has experienced a change in diagnosis, additional permanent partial disability, and more extensive medical care which was causally related to the work injuries. The employee also claims that the parties had contemplated that she would return to work after the settlement but that she is now permanently and totally disabled. The employer and insurer argue that the employee has not shown a substantial change in medical condition that was unanticipated. The employer and insurer assert that the employee’s additional treatment, which was paid for by the employer and insurer, did not change her diagnoses. They also claim that the employee’s lack of ability to work has not changed since the time of the settlement and that she does not have additional permanent partial disability, or at most only two percent additional permanency. The employer and insurer do not admit liability for a sacroiliac joint condition, and claim that the parties did not fully expect the employee to return to work.

The employee claims that her condition has expanded to the thoracic spine since the settlement. At the time of settlement, the employee had been assessed as having chronic left thoracic pain and thoracic radiculopathy, and nerve blocks had been recommended as treatment. An August 5, 2013, MRI had shown broad-based central posterior disc herniations at both T8-9 and T7-8. The employer and insurer argue that the employee’s thoracic condition was being treated before the settlement, citing the MRI and the thoracic bilateral hemi-laminotomy at T7-8. These procedures, however, were performed as part of the employee’s treatment for her low back injury. Before the stimulator implantation, the employee was being treated for low back pain. The MRI was performed in order to insure that there was adequate spacing for the stimulator implantation. The T7-8 bilateral hemi-laminectomy was performed during the implantation procedure in order to decompress the epidural space. After the implantation in September 2013, the employee experienced excruciating thoracic spine pain. She was treated with nerve blocks and medication, and was referred to a chiropractor.

After the settlement in December 2013, the employee continued to experience back pain and was treated with transforaminal epidural steroid injections, which provided some relief. In February 2014, Dr. Sinicropi noted that the employee had a central disc protrusion at T7-8 and an extruded disc herniation at T8-9, and recommended a thoracic discography. The discography indicated that the employee had concordant pain, degeneration, internal disc disruption, and an annular tear at T8-9. On July 11, 2014, the employee underwent a T7-9 anterior and posterior fusion surgery. While the employee was receiving some thoracic spine treatment at the time of the stipulation, there was no indication at the time of settlement that the employee would require extensive thoracic treatment such as a fusion. The employee has shown a change in diagnosis for her thoracic spine.

The employee also asserts that her current medical treatment for her sacroiliac joint and hip is causally related to her work injury. The employer and insurer point out that sacroiliac joint dysfunction was noted in July 2013. The employee was also treated with a sacroiliac injection in December 2012. The physician’s assistant working with Dr. Sinicropi indicated that the employee’s symptoms and issues of left hip pain had been present from the time of the work injury and were work-related issues. While the employer and insurer have not admitted liability for the employee’s sacroiliac condition, this does not appear to be a new diagnosis.

At the time of the settlement, the employee was not working, and had not been working since October 2012. A work-ability form indicated that the employee was off work from December 16, 2013, through February 1, 2014, and the employee indicated that she expected to return to work. Dr. Sinicropi opined that the employee was permanently and totally disabled as of August31, 2015.

The employee asserts that she is entitled to additional permanent partial disability for the thoracic fusion surgery. The employer and insurer note that there has been no additional permanent partial disability rating by a doctor and that the employee was already compensated for some permanent partial disability for the spinal cord stimulator. While the parties disagree on which rule is applicable in this case, thoracic spine fusions are rateable for permanent partial disability.^[7]

Where medical expenses are left open by the stipulation for settlement, this court has stated that the need for additional medical care carries less weight in determining whether a substantial change in medical condition has occurred.^[8] However, the court has also noted that the need for more costly and extensive medical care remains useful evidence on whether there has been a substantial change in the employee’s medical condition,^[9] especially when the medical treatment was not anticipated.^[10] In this case, there is no dispute that the employee has undergone more extensive medical care since the award on stipulation.

The employer and insurer have admitted liability for the employee’s thoracic condition, but not for all of the more recent treatment for that condition. The employer and insurer’s IME, Dr. Segal, opined that the employee’s sacroiliac condition was not related to the January 2011 injury and that the employee had not sustained a left hip injury. The physician’s assistant working with Dr. Sinicropi indicated that the employee’s symptoms and issues of left hip pain had been present from the time of the work injury and were work-related issues.

The employee claims that she expected to return to work in six months after the first fusion surgery, but that her condition has worsened and that she has chronic back pain, cannot look for work, walks with a cane, and is being treated for depression and anxiety. At the time of the settlement, the employee was not claiming permanent total disability benefits, and she was off work only through February 1, 2014. In the settlement agreement, the employee asserted that if she was released to return to work it would be in a sedentary position with permanent restrictions and possibly part time. The employer and insurer argue that while they were hopeful, they were not confident that the employee would return to work. In the stipulation, they noted that if the employee was unable to find employment within her restrictions or was not released to return to work, she would then be entitled to permanent total disability benefits. The stipulation also stated that the payment amount represented a compromise of the present day value of the employee’s potential entitlement to permanent and total disability benefits. The employer and insurer, however, also specifically stated in the stipulation that the employee would eventually be released to return to work with restrictions and could find employment at or near her pre-injury wage. The parties appear to have contemplated that the employee would be able to return to work in some manner at the time of the stipulation.

The employee has shown a change in diagnosis of the thoracic spine, additional thoracic spine fusion surgery which may be rated for permanent partial disability, the need for more extensive medical care than was anticipated, and an admitted causal relationship of the thoracic spine condition to her work injury. The employee has also shown that at the time of the settlement, the parties both contemplated that the employee would return to work. Under these circumstances, it is not certain that the employee has received compensation proportionate to the degree and duration of her disability. The evidence submitted supports the employee’s claim that she has sustained a substantial change in medical condition, which was clearly not anticipated and could not reasonably have been anticipated at the time of the award, sufficient to justify vacation of the award on stipulation. We therefore grant the employee’s petition to vacate the award on stipulation, served and filed December 17, 2013, on the ground of a substantial change in medical condition.