JULIE A. HARTZELL, Employee/Petitioner, v. STATE OF MINN., DEP’T OF TRIAL COURTS, SELF-INSURED, Employer/Respondent.

The employee petitions this court to vacate an award on stipulation, served and filed July 3, 1995, asserting that cause exists pursuant to Minn. Stat. § 176.461 on the basis of a substantial change in medical condition. The employee also asserts that the benefits paid under the settlement agreement were disproportionate to the degree of her disability. Finding that the employee has not shown a substantial change in her medical condition causally related to the work injury, we deny the petition to vacate the stipulation for settlement.

Employee Julie Hartzell was employed as a court reporter for the self-insured employer, Ramsey County District Court/State of Minnesota, when she sustained injuries as a result of being struck by a motor vehicle on February 22, 1990. The self-insured employer admitted injuries to the employee’s left knee and hip, and denied injuries to the employee’s right leg, right hip, low back, and psychological injuries.

Prior to the February 22, 1990, work injury, the employee had a complicated medical history. In 1982, she was diagnosed with chronic pain behavior.^[1] She had previously treated for chronic back, neck, and pelvic pain.^[2] On October 30, 1986, the employee was injured in a non-work-related motor vehicle accident, which resulted in neck, shoulder, low back, left hip and left leg symptoms. In 1988, her treating physician, Dr. Jack Bert, referred her to pain specialist, Dr. Matthew Monsein.^[3] Dr. Monsein recommended an inpatient chronic pain rehabilitation program and a psychological assessment.^[4] During the June 1989 psychological assessment, the employee reported chronic pain in her neck, shoulder, and low back, dating back to her October 1986 motor vehicle accident. She also reported that her pain affected her job performance.^[5] Based on Dr. Monsein’s recommendations, the employee participated in the rehabilitation program in July 1989.

On February 22, 1990, the employee was struck by a car while walking across the street from one work site to another.^[6] Immediately after the accident, she walked to the courthouse and then walked to Ramsey County Hospital to work at a commitment hearing.^[7] After the hearing, the employee went to the Ramsey County Medical Center ER, where she reported left knee pain from the accident. The next day, the employee saw Dr. Bert, who noted in clinic visit notes that the employee “sustained a twisting injury to the left knee.” Dr. Bert also noted that his examination of the employee was unremarkable, and diagnosed a left knee contusion.^[8] He ordered an MRI, which was read as normal.^[9] A first report of injury was completed. The first report stated the injured body parts as the left knee and left hip.

On March 5, 1990, the employee saw Dr. Monsein and reported that her knee was better, but that she had left hip pain.^[10] She appeared at the examination using crutches, but was able to continue working full-time as a court reporter. Dr. Monsein noted that there was no tenderness or spasm in her low back area, and that she had full range of motion of the left hip without increased pain. Dr. Monsein diagnosed left hip strain, probable left SI strain, and chronic pain syndrome. Over the next five months, the employee did not receive any medical treatment for her left knee and left hip. On August 31, 1990, the employee was seen by Dr. Bert for reported left ankle pain and ankle clicking.^[11] Dr. Bert’s clinic notes state that the examination and an x-ray were both normal and that there was no evidence on examination of ankle clicking.

On March 29, 1991, the employee saw Dr. Bert, reporting that her lower leg was going numb.^[12] Dr. Bert referred the employee to neurologist, Dr. Neil Dahlquist, for an evaluation that was scheduled in July.^[13] On May 15, 1991, Dr. Monsein diagnosed chronic left hip strain, chronic pain syndrome, and chronic cervical strain.^[14] Dr. Monsein recommended physical therapy.

The employee was evaluated by Dr. Dahlquist on July 26, 1991.^[15] Based on a physical examination of the employee and a review of an EMG which was read as negative, Dr. Dahlquist concluded that his neurological findings of the employee were unremarkable. He therefore recommended physical therapy as well as a close follow-up with Dr. Monsein.

In August 1991, the employee underwent an evaluation at Family Physical Therapy. A two-week course of physical therapy was recommended and upon completion of the program the employee would be released to a home exercise program.^[16] By her last session, the physical therapist noted that the employee was reporting increased pain and therefore the therapist recommended reevaluation by a physician.^[17]

The employee returned to see Dr. Dahlquist on September 5, 1991, reporting an increase in pain since the July visit.^[18] Dr. Dahlquist again noted that he did not observe anything abnormal in his reexamination of the employee, and recommended continued care by a pain specialist. The employee saw Dr. Monsein again on September 23, 1991, and he recommended more physical therapy, but notes from follow up appointments with Dr. Monsein on April 27, 1992, and June 16, 1992, indicate that the employee had not been back to physical therapy and was experiencing severe pain across her low back and into her legs.^[19] Dr. Monsein’s diagnoses following the June 16, 1992, appointment included possible low back strain, somatization/conversion type disorder, and chronic pain syndrome. The employee scheduled an appointment with Dr. Dahlquist’s associate, Dr. Craig Hyser, which took place on June 19, 1992. The employee reported pain shooting from her coccygeal region into her legs, and popping pain in her hips. Dr. Hyser identified no neurological deficits and recommended continued treatment with Dr. Monsein.^[20]

In May 1993, the employee was seen again by Dr. Bert, who performed an injection into her left greater trochanter.^[21] The injection provided minimal short-term relief. Within four months post injection, the employee reported numbness in the coccyx region.^[22] On October 22, 1993, Dr. Bert indicated that the employee was describing symptoms of “bizarre dysesthesias” in both legs, which he suspected was “secondary to her mental status.”^[23] He recommended the employee be reevaluated by Dr. Dahlquist. Dr. Dahlquist reevaluated the employee on November 3, 1993, and noted that his examination of the employee was unremarkable. He recommended the employee continue to see Dr. Monsein, as there was nothing else to offer from a neurologic standpoint.^[24] During this time, the employee began a physical therapy program at Midway Hospital.^[25]

The employee was seen by Dr. Bert on December 21, 1993. At that examination she reported she had been attending physical therapy and had two sessions remaining. She also stated that she had been off work from early November until the second week of December, and that she wanted to return to work with a five to ten pound lifting restriction, as well as no repetitive bending or stooping, with alternate sitting and standing. Dr. Bert agreed that these restrictions were reasonable. He recommended continued treatment with Dr. Monsein, and advised the employee that he had “absolutely nothing further to offer from a treatment standpoint.”^[26] The employee returned to work in January 1994.^[27]

On June 8, 1994, the employee began treating with Dr. Harry Robinson at the University of Minnesota.^[28] She reported hip pain with popping, and leg numbness. A CT scan showed narrowing of both SI joints with possible body bridging in the anterior inferior joint space. X-rays were also completed, and revealed mild and asymmetric bilateral sacroiliitis, worse on the left. Dr. Robinson recommended that the employee undergo an injection into her SI joint, which was performed on June 23, 1994. On July 19, 1994, she reported minimal, short-term relief. Dr. Robinson noted that the employee had “multiple somatic complaints which are not explained by the post-traumatic degenerative arthritis of the SI joint.”^[29] Dr. Robinson would not recommend surgery at that point in time, and referred the employee back to her primary care physician. The employee saw Dr. Robinson again on September 27, 1994, reporting that she had severe pelvic pain. He ordered additional x-rays.^[30] The October 4, 1994, x-rays showed degenerative arthritis of both SI joints, consistent with the June 1994 CT scan.^[31]

On November 2, 1994, Dr. Andrew Leemhuis examined the employee at the request of the employer and insurer.^[32] He opined that the employee’s February 22, 1990, work injury resulted in a bruised knee and that she “may have had a strain of her hip.” He placed the employee at maximum medical improvement, and stated she needed no work restrictions or further medical care or treatment. He noted that the employee was “convinced” that she needed a fusion of her sacroiliac joints, but he further stated that “this is actually not going to change the picture.” Dr. Leemhuis’s report containing the maximum medical improvement opinion was served on the employee and her attorney on November 14, 1994, and filed at the Department of Labor and Industry on November 15, 1994.

On November 14, 1994, the employee’s deposition was taken. At the deposition, she testified that she and Dr. Robinson had discussed the possibility of SI fusion surgery on the left, and that she believed she would benefit from the procedure.

On March 14, 1995, the employee saw Dr. Robinson and requested repeat injections to her SI joint. She reported that she had experienced significant relief from the injection she received in July 1994, but that she had noticed a slow recurrence of symptoms.^[33] These statements were contrary to statements in medical records from the summer and fall of 1994.^[34] The employee underwent an additional SI joint injection on March 24, 1995.

In July 1994, the employee filed a claim petition seeking intermittent temporary total disability benefits, as well as medical benefits.^[35] The claim petition was amended to include permanency claims of 6% for the left hip, 3.5% for the low back, and 2% for the left knee.^[36] Approximately one year later, the parties entered into a stipulation for settlement, which resolved the employee’s claims on a full, final, and complete basis leaving open medical expenses related to the left knee and left hip, in exchange for a lump sum payment of $7,000.00.^[37] An award on stipulation was served and filed on July 3, 1995. At the time of the settlement and award, the employee was working full-time and had no work restrictions.^[38]

A few months following the settlement, the employee was seen by Dr. Robinson, and she reported pain in the left pelvis region.^[39] A CT scan was ordered, which showed no significant change in the SI joint since the previous CT scan.^[40] Dr. Robinson also ordered a repeat injection, so as to determine whether the SI joint was the source of the employee’s pain. The doctor noted that if the pain was coming from the joint, the employee would be a possible candidate for sacroiliac arthrodesis. The employee reported that the injection resulted in a significant decrease in her symptoms, and on November 7, 1995, Dr. Robinson recommended a fusion of the left SI joint. He opined that the degenerative changes in the SI joint were caused by, or at least severely aggravated by, the February 22, 1990, injury.^[41] On January 12, 1996, the employee underwent a left SI joint fusion surgery, performed by Dr. Robinson.^[42] After surgery, she reported that her pain had resolved. In April of 1997, the employee reported that while she still had occasional numbness and parasthesias in her right leg, this was bearable.^[43]

On June 3, 1997, the employee saw Dr. Robinson and reported that she had been in a car accident on May 15, 1997, which had led to neck stiffness and radicular pain into her left shoulder.^[44] She returned on August 5, 1997, and reported that since the May 1997 car accident, she had had right buttock pain.^[45] A CT scan of her lumbar spine showed mild disc bulging without neurologic encroachment.^[46]

On February 10, 1998, the employee reported to Dr. Robinson that she had been in a snowmobile accident weeks earlier, which resulted in numbness and tingling in her SI joint region. In September 1998, Dr. Robinson indicated that the employee could continue working full-time, but that she should decrease her carrying of heavy files.^[47] When the employee saw Dr. Robinson again on February 9, 1999, she stated that she had been in another car accident in December 1998, resulting in neck pain as well as pain in her buttocks. In May 1999, she reported numbness in her low back relative to the December 1998 accident.

On June 18, 1999, the employee underwent an anterior cervical discectomy and fusion at the C5-6 and C6-7 levels, performed by Dr. Kirkham Wood and Dr. Kydee Sheetz at Fairview University Medical Center.^[48]

Neither party submitted medical records relative to the time period from early 2000 to mid-2005. A May 31, 2005, record indicates that the employee had been off work due to stress at her job, and that she was struggling with recovery from her 1999 neck surgery, psychosocial stressors, and sleep issues.^[49] The employee has not worked since 2006.

In the fall of 2008, the employee began treating with Dr. John Stark, who diagnosed severe bilateral sacroiliac pain, worse on the left. He ordered a CT scan, which showed left lateral recess at L4-5 and possible bilateral recess stenosis at the same level on the left. The scan also showed that the tip of the screw from her SI joint fusion was touching the S1 foramen. In October 2008, the employee underwent a decompression laminectomy at the L4-5 level, as well as a screw adjustment to her SI joint fusion. She was seen by Dr. Stark in May 2009, and reported ongoing symptoms in her left hip, but resolution of her back and buttock pain.

The employee began treating with Dr. Brian Larson in July 2009 for hip pain. He recommended an injection and believed she may be a candidate for total hip replacement. A July 29, 2009, injection provided relief, and the hip replacement was recommended. On October 20, 2009, the employee underwent a left hip arthroplasty, which was performed by Dr. Scott Marston.^[50]

On May 4, 2010, the employee was seen by Dr. Stefano Sincropi for an evaluation of her cervical spine.^[51] On January 3, 2011, Dr. Sincropi performed a disc replacement at C4-5 and removal of hardware at C5-7.^[52] The employee underwent a left shoulder arthroscopy and labral debridement and acromioplasty on October 21, 2011, with Dr. John Cragg at Lakeview Medical Center.^[53]

By letter dated June 18, 2013, Dr. Marston, who had performed the employee’s 2009 hip replacement surgery, issued a causation opinion stating that the February 22, 1990, injury was a contributing cause of the employee’s hip arthritis and the need for replacement. He further stated that the employee was not in need of any restrictions relative to her left hip.^[54]

At the request of the employee’s attorney, Dr. Robert Wengler issued a report dated May 12, 2016. It was Dr. Wengler’s opinion, based on an examination of the employee and review of her medical records, that her SI joint, low back, and left hip conditions were causally related to her February 22, 1990, injury. He provided permanency ratings of 24.5% for the low back and 8% for the left hip.^[55] In a subsequent letter dated August 30, 2016, he opined that the employee is permanently and totally disabled.

In 1997, this court considered a petition to vacate the July 3, 1995, award on stipulation on the basis of a substantial change in medical condition. By decision dated April 10, 1997, the employee’s petition was denied for failure to show good cause.^[56] Specifically, the court determined that the employee failed to show a change in diagnosis, a change in ability to work, or additional permanency. The court noted that before the signing of the stipulation for settlement, the employee’s SI joint fusion surgery had been discussed with her doctor several times and she believed she would benefit from the procedure, and as such, the surgery was anticipated at the time of settlement.

On February 3, 2017, the employee again filed a Petition to Vacate the July 3, 1995, Award on Stipulation, citing a substantial change in medical condition. We deny the petition for the reasons stated below.

The WCCA has statutory authority to set aside an award “for cause,” when the agreement was based on one or more of the following: 1) a mutual mistake of fact, 2) newly discovered evidence, 3) fraud, or 4) 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.^[57] The employee claims a substantial change in her medical condition has occurred since the time of the award that was clearly not anticipated and could not reasonably have been anticipated at the time of the award.

To set aside an award based on a substantially changed medical condition, a petitioner must not only prove that there has been a substantial change in the employee’s medical condition, but must also prove (1) that the change was clearly not anticipated; and (2) that the change could not reasonably have been anticipated.^[58] When considering whether there has been a substantial change in medical condition, the court generally applies the factors set forth in Fodness v. Standard Cafe.^[59] These factors are applied in a manner consistent with the statutory requirement that the change was clearly not anticipated, and the change could not reasonably have been anticipated at the time of the award.^[60] As the petitioner, the employee has the burden of establishing that there has been a change in condition sufficient to establish cause under the statute.^[61]

At the time of the settlement, the employee was diagnosed with bilateral sacroiliitis and mild degenerative joint disease of the left hip.^[62] In his May 12, 2016, report, Dr. Wengler gives a diagnosis of bilateral sacroiliac joint disease and degenerative osteoarthritis of the left hip. In his June 18, 2013, letter, Dr. Marston also provided a diagnosis of left hip osteoarthritis. We consider Dr. Wengler’s and Dr. Marston’s stated diagnoses as a continuation and worsening of symptoms rather than an actual change in diagnosis.^[63] The employee was also diagnosed with chronic pain syndrome before the 1990 work injury. That diagnosis continued to be the working diagnosis throughout a timeline that included the work injury, the settlement agreement, and two petitions to vacate. Under the facts and evidence in this case, the diagnoses by Dr. Wengler and Dr. Marston do not establish a change in condition to support vacating the settlement.^[64]

With respect to the employee’s ability to work, the employee has shown a change in her work status, but she has not shown by the evidence presented that any decreased ability to work is causally related to her February 22, 1990, work injury. Dr. Marston and Dr. Wengler both opined that the employee’s February 22, 1990, work-related injury was a substantial contributing factor to the development of her hip arthritis. However, in his June 18, 2013, letter, Dr. Marston indicated that the employee needed no restrictions from the standpoint of her hip, other than no running or jumping. At the time of the award on stipulation for settlement, the employee was working as a court reporter. She purportedly stopped working in 2006 and has not worked since. Dr. Wengler noted that the employee “left the profession [of court reporting] in 2006 because she is concerned about her competency.” The only medical record contemporaneous in time with the change in work status is from a May 31, 2005, appointment with Dr. Sally Berryman at Aspen Medical Group, which states the employee stopped working due to mental health issues attributable to personal issues and the separate injury to her neck.^[65]

In her affidavit, the employee states that her doctors and physicians have determined that she can no longer return to work, and that this is based on multiple medical conditions including her hip, low back, and neck. However, the employee has not submitted any medical records that would support a conclusion that any inability to work is related to her hip or her low back. The employee states she has been on social security disability since 2009, but no documents were submitted to address the basis for the award of SSDI. The evidence in the record is insufficient to support a causal connection between the employee’s February 22, 1990, work-related injury and any current disability.^[66]

The only evidence in the record of a doctor indicating that the employee cannot work is Dr. Wengler’s August 30, 2016, letter stating that the employee is permanently and totally disabled, but Dr. Wengler’s conclusion is reached without addressing the employee’s workability, and without providing an explanation for why he believes the employee is permanently and totally disabled. In Hudson v. Trillium Staffing,^[67] the Minnesota Supreme Court found that an inability-to-work opinion lacked foundation because “it did not explain the facts or reasoning underlying the conclusion that [the employee] could no longer work.” We believe the Hudson case is applicable here.

Even if the employee had made a clear showing that she is unable to work as a court reporter, the change in her ability to work requires a connection to the work injury.^[68] Here, there are no medical records submitted which show the employee was taken off work by her doctors due to her admitted work injury to the left hip or left knee. On June 18, 2013, Dr. Marston stated that “from the hip replacement standpoint there would be no specific restrictions other than no running or jumping and minimizing these types of high-impact activities for the longevity of the hip.” It is unclear whether these restrictions would prevent an individual from working as a court reporter. Given the medical opinion from Dr. Wengler coupled with the employee’s long-standing medical history, surgeries to the cervical spine and shoulder, and a pre-existing chronic pain diagnosis, the employee has not shown a causal relationship between an inability to work and her February 22, 1990, work injury.

The employee alleges that, at the time of settlement, the parties did not contemplate the deterioration of her physical condition or her inability to work beyond 2006. The employee argues she was working at the time and intended to continue to do so. She alleges that she did not contemplate needing further treatment or surgery, or that she would become permanently and totally disabled. As was noted by the WCCA in its prior decision, the employee was thinking about surgery at the time she entered into the stipulation for settlement. With respect to becoming permanently and totally disabled, the employee is correct in noting that she did not claim in the stipulation for settlement that she may be entitled to permanent and total disability benefits. However, the language in the stipulation for settlement points to a close out of this benefit in exchange for a lump sum settlement.

Finally, the employee argues that vacation of the award is appropriate because the $7,000.00 settlement amount is disproportionate to the degree of her disability, and is inadequate in light of her permanent total status. Again, without further evidence we cannot conclude that the employee is unable to work as a court reporter, or that any inability to work is causally related to her February 22, 1990, work injury.

The employee has not established a basis for cause to vacate the stipulation for settlement, and her petition is denied.