LORETTA R. (SCHNEIDER) DIDRIKSON, Employee/Petitioner, v. JAY LITMAN CONSTR. and MINN. ASSIGNED RISK PLAN, Employer-Insurer/Respondents, admin’d by RTW, Inc.

The employee petitions to vacate the Award on Stipulation served and filed on February 25, 1992, based on a substantial change in condition. We grant the petition.

On July 12, 1988, Loretta R. (Schneider) Didrikson, the employee, sustained a low back injury as she lifted a heavy box while working as a painter for Jay Litman Construction, the employer. The employee initially underwent chiropractic treatment with no improvement, then treated with her primary care physician, Dr. Barbara Hemenway. Dr. Hemenway took the employee off work and prescribed medication.

In October 1988, the employee sought treatment for low back pain with Dr. William Fleeson, who referred the employee for physical therapy. Later that month, Dr. Fleeson ordered a lumbar spine MRI scan, which indicated mild bulging of the annulus at L3-4, a contained disc herniation at L4-5, and anterior bulging of the annulus at L5-S1. The employee continued to attend physical therapy. In January 1989, Dr. Fleeson recommended a work hardening program, which the employee did not complete. In July 1989, the employee returned to Dr. Fleeson, reporting increased low back symptoms. An August 1989 lumbar spine MRI scan indicated circumferential bulging of the annulus fibrosa at L3-4 and at L4-5, with a contained herniated nucleus pulposi, but no significant nerve root compression. The employee underwent a laminectomy at L3-4 and L4-5 with disc removal at L3, performed by Dr. Peter L. Boman on October 1, 1989. In February 1990, Dr. Boman wrote that he anticipated that the employee would reach maximum medical improvement on April 26, 1990, and rated the employee’s low back condition at 11 percent permanent partial disability for single level surgery under Minn. R. 5223.0070, subp. 1.B(2)(b).

The employee reported that her symptoms returned and worsened after the surgery. On June 29, 1990, the employee began a work hardening program. A July 1990 lumbar spine MRI scan report indicated minimal central disc bulging at L3-4, laminectomy defect with central disc protrusion at L4-5, and minimal disc protrusion at L5-S1. The work hardening program was discontinued and physical therapy scheduled. Additional surgery was not recommended at that time. In June 1991, the employee began treating with Dr. James Ogilvie, who recommended another lumbar spine MRI scan, which indicated similar results from 1990 except a somewhat larger L5-S1 disc herniation. Dr. Ogilvie commented that the employee would like to avoid surgery, but that she may benefit from a discectomy. The employee continued physical therapy.

A compensation judge held that the employee had reached maximum medical improvement in April 1990 in a decision issued on November 8, 1991; the employee appealed that decision to this court. While the appeal was pending, the employee was released to light duty work with restrictions by Dr. Ogilvie and was working with a rehabilitation consultant. By January 1992, the employee was conducting a full-time job search and exploring an on-the-job training program with a florist.

The parties entered into a full settlement except for medical expenses with a lump sum payment of $56,000.00 to the employee in February 1992. At the time of the settlement, the employee claimed that she was entitled to ongoing temporary total disability benefits and that she was not at maximum medical improvement. The employer and insurer claimed that there was work available for the employee, that she was not entitled to temporary total disability benefits, and that she was at maximum medical improvement. As part of the settlement, rehabilitation services were discontinued. The settlement was approved by this court and the pending appeal was dismissed on February 25, 1992. After the 1992 settlement, the employee was not able to work at the florist position since it was beyond her restrictions. The employee resumed treatment for low back and left leg pain in 1994 and has experienced worsening symptoms. The employee was able to perform some part-time work after the settlement but has not worked since July 1995.

In January 1996, the employee was treated for cardiomyopathy with an irregular heartbeat and an enlarged heart. In February 1997, the employee treated with Dr. Ogilvie for back and leg pain. Dr. Ogilvie assessed degenerative disc disease with radicular pain in the L5-S1 distribution and recommended steroid injections. He noted that non-operative treatment would continue due to the employee’s cardiomyopathy and young age. In February 1997, the employee received physical therapy for upper thoracic joint restrictions, upper back and neck myofascial tightness, and bilateral upper extremities dural tension.

In June 1997, the employee was found to be disabled and eligible for social security disability benefits as of March 1995, due to her cardiomyopathy as documented by left ventricular diastolic, extreme fatigue, and shortness of breath, which required the employee to rest several times per day and made her incapable of sustaining any work activity. The employee’s impairments of back pain secondary to degenerative disc changes and surgery, as well as anxiety with panic attacks, relieved by medication, were noted as severe but found not to meet the disability requirements. The employee’s cardiac impairment met the disability requirements.

Dr. Ogilvie noted that the employee’s chronic cardiomyopathy had improved and that she could again consider surgical options in April 1999. An August 1999 lumbar spine MRI scan included findings of a small central disc protrusion at L5-S1, nuclear degeneration, disc space narrowing, right paracentral disc protrusion, small caudally sequestered disc protrusion at L4-5, and mild to moderate bilateral facet hypertrophy of L3-4 through L5-S1 without significant central or lateral spinal stenosis. In March 2000, the employee described chronic neck pain, stiffness, and fibromyalgia to her family practitioner. A June 29, 2000, lumbar spine MRI scan showed degenerative disc disease and a central disc bulge at L4-5 with no significant spinal canal or neural foraminal stenosis.

In April 2001, the employee began treating with Dr. Hal Heyer at a pain center. Dr. Heyer treated the employee with multiple epidural steroid injections and sacroiliac injections from 2001 through 2003. In May 2001, Dr. Ogilvie recommended an IDET procedure and discogram from L3-4 to L5-S1. In April 2003, the employee was treated for anxiety. Her history included cardiomyopathy and back issues which were treated with Lortab (hydrocodone-acetaminophen) at four tablets per day. In 2003, the parties litigated Dr. Ogilvie’s recommendation of a discogram for evaluation of an IDET procedure, as well as the employee’s claims for pool therapy and acupuncture. After a hearing on March 25, 2003, the compensation judge denied the discogram, adopting Dr. William G. Akins’ opinion that it would not be effective treatment for the employee. The judge also denied the pool therapy and acupuncture as not reasonable and necessary. This decision was not appealed.

The employee continued to be treated with lumbar epidural and sacroiliac injections in 2004. In May 2004, the employee was evaluated for physical therapy and reported upper thoracic and lower cervical pain. The employee had additional lumbar epidural and sacroiliac injections about every three months from 2005 through 2009, with about ten weeks of relief after an injection.

In August 2008, the employee indicated interest in pursuing surgical intervention. Dr. Heyer recommended another lumbar spine MRI scan, which the employee underwent on August 25, 2008. This scan was interpreted as showing scarring in the soft tissues dorsal to the lumbar region, normal lumbar alignment, no fracture, disc space narrowing and mild lateral recess stenosis at L4-5, but no disc herniation or nerve root compromise.

After another injection on November 13, 2009, the employee experienced a severe reaction to the medication. After that episode, she was no longer treated with injections. The employee underwent physical therapy for mid back and left shoulder girdle pain, neck pain, and headaches in 2009 and 2010. In May 2011, the employee treated for lower thoracic pain. The employee underwent physical therapy for neck and upper back pain in October and November 2011 and was also treated with Lortab and Tylenol.

The employee treated for headaches related to back and neck pain in 2012 and underwent a four-week SpineX physical therapy program from June 28 through July 25, 2012, which she found helpful for her fibromyalgia and low back pain. In October 2012, the employee experienced a flare-up of her back and neck pain after operating a computer. Additional physical therapy was planned. On October 13, 2012, the employee reported numbness; she was assessed with dystonia and referred to neurology. The employee returned to Dr. Heyer in November 2012 and was treated with Neurontin. In July 2013, Dr. Heyer noted that the employee was trying to avoid surgery due to her cardiomyopathy condition and continued medication, which included Lortab according to the medication list in her medical records in May 2014. Dr. Heyer continued to treat the employee with medication in August 2014.

On August 1, 2016, the employee filed a petition to vacate the February 1992 Award on Stipulation. The employee was 58 years old at the time the petition was filed. The employer and insurer objected. The employee testified in her affidavit, signed on December 15, 2014, that her pain had spread and worsened dramatically and that she was not a surgical candidate due to her cardiomyopathy.

Dr. Kristen Zeller evaluated the employee at the employer and insurer’s request on November 17, 2016, and reported the results in a December 5, 2016, report. Dr. Zeller opined that the employee had not sustained an injury to her thoracic spine on July 12, 1988, or as a result of her lumbar spine treatment. Dr. Zeller noted that the employee has fibromyalgia, and has had low back pain since 1983. Dr. Zeller indicated that these examination findings would be consistent with sacroiliac or pelvic instability which preexisted the 1988 injury. Dr. Zeller further opined that the employee’s narcotic medications were not prescribed within guidelines, she was at high risk for addiction, she had not shown improved pain relief, and she should be tapered off all narcotics. Dr. Zeller stated there was no indication of a need for any further medical treatment related to the 1988 work injury, the employee had not shown a substantial change in medical condition since 1992, and her more recent complaints were consistent with fibromyalgia and aging.

In a March 9, 2017, report on the employee’s condition, Dr. Heyer opined that the employee has “degenerative disc disease, disc protrusions of her lumbar and thoracic spine with probably failed back syndrome secondary to surgery” all related to her 1988 injury. He also opined that the employee would continue to need pain medication, possibly a dorsal column stimulator or a narcotic pump, or maybe even fusion surgery. Dr. Heyer stated that the employee’s condition has substantially changed with increasing pain and rated the employee at 18 percent permanent partial disability for her lumbar and thoracic spine.

In support of her petition, the employee submitted an MRI lumbar spine scan performed on April 25, 2017, which indicated chronic adhesive arachnoiditis changes at L5-S1. The report from this scan indicated arachnoiditis at L5-S1 with lateral positioning of intrathecal roots to the dura. The employee also submitted a report from Dr. Heyer indicating he had diagnosed the employee with arachnoiditis, which he described as “a non-treatable, chronic pain condition that will not improve.”

In response, the employer and insurer submitted a supplemental report by Dr. Zeller. Dr. Zeller reviewed the employee’s lumbar spine scans and stated that the employee’s symptom of low back pain did not fit with the typical clinical findings of arachnoiditis, which include burning leg pain or radicular symptoms in the legs and significant clumping of the nerves on a scan. Dr. Zeller opined that the scarring near the L4-5 or L5-S1 levels would have occurred at the time of the 1989 surgery and that it did not constitute a substantial change in the employee’s condition since 1992.

This court’s authority over petitions to vacate is governed by Minn. Stat. §§ 176.461 and 176.521, subd. 3. An employee must demonstrate good cause for the court to exercise this authority.^[1] The burden of proving “good cause” rests with the party petitioning to vacate an award.^[2] For awards on stipulation issued prior to July 1, 1992, such as the stipulation at issue here, "good cause" is limited to: 1) mistake; 2) newly discovered evidence; 3) fraud; or 4) substantial change in condition.^[3] The petitioner is not required to show that the substantial change in condition was clearly not anticipated and could not reasonably have been anticipated in such cases.^[4] The vacation of awards on stipulation is allowed to assure compensation proportionate to the degree and duration of an employee’s disability.^[5] While not unlimited, this court is accorded wide discretion in determining whether to vacate an award, and in making that determination, “fairness is the overriding principle.”^[6]

The employee claims that she has sustained a substantial change in condition sufficient to show good cause to vacate the stipulation for settlement. To establish cause sufficient to justify vacating an award on stipulation on the grounds of a change in condition, the petitioner must provide evidence that the “condition has substantially worsened, and that there is a causal relationship between the injury covered by the award and [the petitioner’s] present worsened condition.”^[7] In determining whether a substantial change in condition has occurred, this court may examine such factors as 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/nursing services than initially anticipated, the causal relationship between the injury covered by the settlement and the current worsened condition, and the contemplation of the parties at the time of the settlement.^[8] Applying the appropriate factors to an analysis of the case, the employee’s condition at the time of the award is compared with the employee’s condition at the time of the petition to vacate.^[9]

The employee asserts that she has shown a change in diagnosis. At the time of settlement in 1992, the employee had multi-level disc disease with bulging and small to moderate herniations. The employee claims that her lumbar spine condition has deteriorated drastically since that time and that she has a new diagnosis of arachnoiditis based on Dr. Heyer’s opinion.^[10] Expert opinions must have an adequate factual foundation to be admissible.^[11] In Hudson v. Trillium Staffing,^[12] the Minnesota Supreme Court emphasized that adequate foundation for an expert opinion is lacking when (1) “the opinion does not include the facts and/or data upon which the expert relied in forming the opinion,” (2) “it does not explain the basis for the opinion,” or (3) “the facts assumed by the expert in rendering an opinion are not supported by the evidence.”^[13] The opinion need only be based on “enough facts to form a reasonable opinion that is not based on speculation or conjecture.”^[14] The employee’s 2017 lumbar spine MRI scan report listed “chronic adhesive arachnoiditis changes at L5-S1 and arachnoiditis at L5-S1 with lateral positioning of intrathecal roots to the dura. Based on his review of this scan, Dr. Heyer diagnosed the employee with arachnoiditis, which he described as “a non-treatable, chronic pain condition that will not improve.” Dr. Heyer’s opinion has adequate foundation. The employer and insurer argue that the employee has only shown a gradual increase in symptoms and that her lumbar spine scans have not changed significantly, relying on Dr. Zeller’s opinion. Dr. Zeller noted scarring near the L4-5 or L5-S1 levels on the 2017 MRI scan, but opined that the scarring would have occurred at the time of surgery in 1989 and that this condition did not constitute a substantial change in condition since 1992. The employee’s lumbar spine scans from before the settlement in 1990 and 1991, however, do not mention scarring or arachnoiditis. We conclude that the employee’s diagnosis of arachnoiditis constitutes a showing of a change in diagnosis.

The employee’s ability to work has varied since the stipulation for settlement. In the stipulation, the employer and insurer claimed that work was available to the employee within her restrictions and the employee claimed entitlement to temporary total disability benefits. At that time, the employee was released to work with restrictions and she was conducting a job search. A training position with a florist was being considered, but was found to be outside the employee’s restrictions. The employee was able to work a few part-time jobs after the settlement, but has not been able to work since 1995.^[15]

Since the settlement, the employee has undergone more costly and extensive medical treatment which was casually related to her work injury. The employer and insurer point out that this treatment has been paid for by the insurer. While this court has noted that when 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 condition has occurred,^[16] this court has also stated 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 condition.^[17]

The employee claims that the causal relationship between the low back injury and her current worsened condition is undisputed. Dr. Heyer opined that the employee has “degenerative disc disease, disc protrusions of her lumbar and thoracic spine with probably failed back syndrome secondary to surgery” which are all related to her 1988 injury. The employer and insurer assert that some of the employee’s additional symptoms, such as headaches and thoracic pain, are not related to her 1988 work injury, and that the employee had leg pain at the time of the settlement, but they also admit that her ongoing condition and treatment was a continuation of her problems that existed at the time of the stipulation.

Considering the above factors, the employee has shown a change in diagnosis and, decades after the stipulation for settlement, has been unable to work and has needed more costly and extensive medical care that was causally related to her work injury. We conclude that the employee has shown a substantial change in condition since the time of the stipulation, demonstrating good cause to vacate the stipulation, and therefore grant the employee’s petition to vacate the award on stipulation served and filed February 25, 1992.