ISAAC KELLOGG, Employee/Appellant/Petitioner, v. PHOENIX ALTERNATIVES, INC., SELF-INSURED/NPIA, INC., Employer/Respondent, and HEALTHPARTNERS, SUMMIT ORTHOPEDICS, and UCARE, Intervenors.

The employee appeals the compensation judge’s finding that the parties’ stipulation for settlement did not leave open claims for medical expenses related to the sacroiliac joint. We affirm.

The employee also petitions to vacate an Award on Stipulation, served and filed December 19, 2012, based on a mutual mistake of fact or a substantial change in medical condition. We deny the petition to vacate.

On November 26, 2008, Isaac Kellogg, the employee, sustained an admitted injury to his lumbar spine while working in a maintenance position for Phoenix Alternatives, the self-insured employer. The employee was injured while moving a dumpster, resulting in an L4-5 disc herniation. The employee treated at Bloomington Lake Clinic on December 3, 2008, with low back pain. Examination indicated tender lumbar spine and tender right sacroiliac joint, and diagnoses were low back pain and sacroiliitis. The employee was treated with medication and an injection. On December11, 2008, the employee was taken off work and referred to a back specialist. The referral indicated that the employee had active low back pain and active sacroiliitis. By January 2009, the employee’s medical records from Dr. Kenneth Haycraft at Bloomington Lake Clinic indicate the employee’s sacroiliac joint was benign, but his low back pain continued. The employee underwent a micro-discectomy on March 13, 2009. The employee continued to experience low back pain, and eventually underwent a two-level fusion from L4 to S1, performed by Dr. Jeffrey Pinto at the Institute for Low Back and Neck Care (Institute) on February 7, 2011. A CT scan three months following the surgery showed that the fusion hardware, grafts, and implants were in good positions. By October 2011, the fusion was complete.

The employee continued to complain of persistent low back pain and numbness in his limbs. On February 23, 2012, the employee was treated for low back pain with bilateral L4, L5, and S1 hardware injections, with no relief. In April 2012, Dr. Pinto recommended chronic pain management and took the employee off work for six months. The employee continued to complain of ongoing symptoms.

In 2012, the employee filed a claim petition alleging permanent total disability. The parties began discussing settlement. The employee’s attorney submitted a demand letter which assumed a reduction of the employer’s permanent total disability exposure due to a presumed pending social security disability (SSDI) award. The employee’s SSDI application had been denied by the Social Security Administration but the denial was appealed. The parties then entered into a stipulation for settlement which included language to minimize any SSDI offset in October 2012. The employee asserted that he was permanently and totally disabled, while the employer claimed that the employee was capable of returning to work. The settlement closed out all claims from the November 26, 2008, injury “with the sole exception of future medical treatment of the Employee’s back (lumbar) only” in return for a lump sum payment of $80,000.00. (Appeal Ex. 5.) An award on stipulation was served and filed on December 19, 2012. At the time the stipulation was approved, the employee was 35 years old. The employee’s SSDI appeal was later denied.

In January 2014, the employee returned to Dr. Haycraft with continued pain. Dr. Haycraft indicated that he was also monitoring the employee’s other conditions, including sacroiliitis. On October 6, 2014, the employee treated at the Institute for bilateral sacroiliac (SI) joint pain, left greater than right. Dr. Eric Ekstrom recommended bilateral SI injections. He later read a January 16, 2015, CT scan as indicating bilateral SI joint arthropathy. SI joint injections were performed by Dr. Ekstrom on February 9, 2015. The employee experienced some relief and underwent additional bilateral SI joint injections on September 9, 2015, December 24, 2015, and January 29, 2016. An additional request for authorization of bilateral SI joint injections was denied by the employer as beyond the treatment parameters. In May 2016, the employee filed a medical request seeking approval for further SI joint injections. The employer objected based on the treatment parameters. After an administrative conference, a decision and order under Minn. Stat. § 176.106 was issued allowing the treatment as reasonable and necessary treatment for the employee’s back problems and permitting a deviation from the treatment parameters. The employer requested a formal hearing. The employee filed a medical request on September 12, 2016, for payment of medical expenses at the Institute, and the employer objected. The request for formal hearing and the medical request were consolidated for hearing.

On August 4, 2016, the employee was evaluated by Dr. Kristen Zeller at the employer’s request. Dr. Zeller noted that the employee had evidence of sacroiliac pelvic pain back to 2000 and that the employee’s 2008 work injury aggravated pre-existing conditions at L4-5 and also in the very low back and SI joint region. Dr. Pinto wrote a narrative report dated September 30, 2016, and opined that the employee’s SI condition and treatment were related to the employee’s 2008 work injury.

A hearing was held on December 16, 2016. At the hearing, the employer raised a defense based on its interpretation of the language of the stipulation for settlement, contending that SI joint injections were not treatment of the lumbar back and were therefore closed out by the award on stipulation. At the beginning of the hearing, the compensation judge put on the record some procedural and factual stipulations which the parties had addressed before going on record. The parties agreed that the employee had sustained an admitted injury to his lumbar spine and that the judge had “the authority to look at the Stipulation for Settlement that was served and filed on December [19], 2012, for the historical background on any factual foundations and legal foundations . . . in order to decide [the] issues.” (T. 6.) Both parties agreed this was a fair representation of what was discussed before going on record.

In opening statements, the employee set out the issues as whether the treatment in January 2016 at the Institute was causally related to the work injury, and whether the additional bilateral SI joint injections proposed by Dr. Pinto were reasonable and necessary. The employer set out the issues as whether treatment to the bilateral SI joint was closed out by the prior stipulation, whether it was reasonable and necessary treatment, and whether it was prohibited under the treatment parameters in Minn. R. 5221.6200, subp. 5 (limiting treatment to two injections). Both parties acknowledged that these were the issues as they understood them. The employee did not object to the interpretation of the stipulation argument based on surprise or lack of notice.

In Findings and Order served and filed January 17, 2017, the compensation judge found that the stipulation for settlement closed out treatment for the employee’s SI joint condition. The employee appeals.

On March 16, 2017, the employee filed a petition to vacate the December 19, 2012, award on stipulation, alleging mutual mistake of fact and unanticipated substantial change in medical condition. The employee argues that a mutual mistake of fact was made regarding the parties’ expectation that he would receive SSDI benefits. The employee also asserts that no medical records before the stipulation for settlement show a diagnosis of an SI joint condition and that he has since been diagnosed with a bilateral SI joint arthropathy and treated with SI joint injections, indicating an unanticipated substantial change in medical condition.

The employee’s appeal and the petition to vacate are addressed separately in the decision below.

On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1(3). Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

The compensation judge concluded that the stipulation for settlement in this case closed out all medical treatment, except for the lumbar spine, and because the SI joint injections were not treatment of the lumbar spine, they were closed out by the stipulation. The employee argues on appeal that the compensation judge erred by expanding the issues of the expedited hearing to include the interpretation of the stipulation defense asserted by the employer and, in the alternative, that the judge’s interpretation of the stipulation was erroneous.

The employee argues that the scope of the expedited hearing before the compensation judge was limited to the issues set forth in the medical request and response and addressed at the administrative conference, citing Minn. R. 1420.2150, subp. 2.C. The employee contends that he did not agree to expand the issues to include the employer’s defense that the stipulation for settlement closed out the treatment at issue and that he was unfairly prejudiced when the employer raised the issue during the hearing. He argues that the matter must therefore be remanded for a new hearing.

As noted by the employer, an expansion of the issues is allowed by agreement of the parties with permission of the compensation judge under Minn. R. 1420.2150, subp. 3. The employer specifically raised this defense at the hearing and the employee argued against it by stating that the employer’s argument, that the stipulation precludes the injection treatment, was weak because the treatment was related to the work injury. The employee had ample opportunity to object to this defense after it was raised, but did not. The compensation judge did not expand the issues being decided but rather allowed an additional defense to an issue before him. Therefore, the judge did not improperly expand the scope of the hearing. See Gordenier v. Original Mattress Factory, 74 W.C.D. 283, 296-97 (W.C.C.A. 2014); Olenchak v. Wenzel Plumbing & Heating, 65 W.C.D. 290, 295 (W.C.C.A. 2005) (where the employee did not object to the statement of issues set out by the employer and argued the employee’s position on those issues, it was not improper for the compensation judge to decide those issues).

The stipulation for settlement closed out medical treatment except for “future medical treatment of the Employee’s back (lumbar) only . . . .” The compensation judge found that the treatment at issue was for the SI joint and concluded that the SI joint was not part of the lumbar spine. The employee asserts that the compensation judge’s interpretation of the stipulation language was erroneous, claiming that the parties intended to limit future medical expenses to treatment causally related to the 2008 work injury. He argues that the judge erred by separating the SI joint injections from treatment of the low back, and that there was no medical evidence offered as to such a distinction. The employee argues that the contract is ambiguous, and that the fact that the employee paid for several such injections in the past constitutes extrinsic evidence that suggests that medical treatment of this kind was intended to be left open. The employer responds that the language of the stipulation was clear and unambiguous, and the fact that the employer paid for prior SI joint injections does not constitute a waiver of its defenses for further such treatment.

In making his determination, the compensation judge cited Tomford v. Mark’s Welding, Inc., 74 W.C.D. 247 (W.C.C.A. 2014), where this court held that the sacroiliac joint “is not part of the lumbar spine, nor is it even directly connected to the lumbar spine. Rather, it is the joint between the sacrum, the triangular bone below the lumbar vertebrae, and the ilium, the main bone of the pelvis.” Id. at 253 (citing Dorland’s Illustrated Medical Dictionary 1343, 1593 (29th ed. 2000)). Because the treatment was for the SI joint, and not for the lumbar spine, the compensation judge determined that the treatment was closed out by the unambiguous language of the stipulation. A stipulation for settlement is a contract and whether a contract is ambiguous is a question of law. See Current Tech. Concepts v. Irie Enters., 530 N.W.2d 539, 543 (Minn. 1995). A contract is ambiguous where its language is reasonably susceptible to more than one interpretation. Brookfield Trade Ctr., Inc., v. Cnty. of Ramsey, 584 N.W.2d 390, 394 (Minn. 1998). In this case, the stipulation for settlement closed out medical treatment except for “future medical treatment of the Employee’s back (lumbar) only . . . .” We agree with the compensation judge’s determination that this term of the stipulation was not ambiguous.

In addition, the employer’s payment for earlier SI joint injections does not waive its defenses for additional treatment. Generally, the payment of benefits does not constitute a waiver of the right to later assert defenses to those benefits. Minn. Stat. § 176.221, subd. 1; Parker v. Univ. of Minn., 66 W.C.D. 373, 377 (W.C.C.A. 2006), summarily aff’d (Minn. Oct. 2, 2006); Kingbird v. Anderson Fabrics, 63 W.C.D. 237, 243 (W.C.C.A. 2002), summarily aff’d (Minn. Mar. 27, 2003). Substantial evidence supports the compensation judge’s finding that the parties’ stipulation for settlement did not leave open claims for medical expenses related to the SI joint. Accordingly, we affirm the compensation judge’s denial of these claims.

The Workers’ Compensation Court of Appeals has the authority to vacate an award on stipulation “for cause.” 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. Minn. Stat. § 176.461; see also Franke v. Fabcon, Inc., 509 N.W.2d 373, 376, 49 W.C.D. 520, 523 (Minn. 1993).

The party petitioning to vacate an award has the burden of proof to show such cause exists. Groshong v. The Light Depot, 65 W.C.D. 349, 355 (W.C.C.A. 2005); see also Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989). "[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 the disability." Krebsbach v. Lake Lillian Coop. Creamery Ass'n, 350 N.W.2d 349, 353-54, 36 W.C.D. 796, 801 (Minn. 1984). The employee argues that there was a mutual mistake of fact and that there has been a substantial change in the employee’s medical condition that justifies vacation of the award on settlement.

This court has held that a mutual mistake occurs when the opposing parties both misapprehend some material fact at the time of settlement. Shelton v. Schwan’s Sales Enters., 53 W.C.D. 110, 113 (W.C.C.A. 1995), summarily aff’d (Minn. Sept. 5, 1995). In considering whether there has been a mutual mistake by the parties, “the inquiry focuses on what the situation was and what was known about it at the time of the settlement.” Franke, 509 N.W.2d at 377, 49 W.C.D. at 525. The employee claims that a mutual mistake of fact occurred because the parties settled the case under the assumption that the employee would receive SSDI benefits, which did not occur. The employee cites Deines v. Custom Log Bldgs., No. WC09-150 (W.C.C.A. Aug. 17, 2009), where a petition to vacate was granted where there was an issue regarding the coordination of the employee’s SSDI benefits, which were being paid, and the workers’ compensation benefits. In that case, however, the employer and insurer did not oppose the petition to vacate and the employee was receiving SSDI benefits at the time of the settlement. In this case, the employee’s argument focuses on the possibility of the employee receiving SSDI after the settlement and does not relate to any misapprehension of facts known at the time of the settlement. There was no mutual mistake of fact at the time of the settlement.

The employee also contends that his SI joint condition constitutes an unanticipated substantial change in his medical condition. 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. Fodness v. Standard Cafe, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989) (citations omitted). When evaluating whether a substantial change of medical condition has been shown, this court compares the employee’s condition at the time of the settlement award to the condition at the time the petition was filed. See Virnig v. Carley Foundry, Inc., slip op. (W.C.C.A. Nov. 14, 2000).

The employee claims a change in diagnosis based on his SI joint condition, asserting that the employee’s medical records do not address such a condition until after the December 2012 award on stipulation. A week after the 2008 injury, however, the employee’s examination indicated tender right SI joint and his diagnoses included sacroiliitis. The employee’s December 11, 2008, referral to a back specialist indicated that the employee had active sacroiliitis. While the employee’s treatment for the work injury has focused on the low back, the more recent treatment of the SI joint does not indicate a change in diagnosis.

The employee has been off work since December 2008; there has been no change in ability to work since the settlement. While there is medical evidence that the recent SI treatment was causally related to the employee’s work injury, the treatment has been limited to bilateral SI joint injections, some of which were paid for by the employer. The additional medical care has not been very costly or extensive. The employee has also not shown entitlement to any additional permanent partial disability. At the time of the settlement, the parties clearly limited additional medical treatment to treatment of the lumbar spine. The employee has not shown a substantial change in medical condition that was clearly not anticipated.

We therefore deny the employee’s petition to vacate the December 19, 2012, Award on Stipulation.