VACATION OF AWARD—SUBSTANTIAL CHANGE IN CONDITION. Where the employee has shown a substantial change in medical condition since the time of a stipulation for settlement through a change in diagnosis, a change in ability to work, additional permanent partial disability, the need for more costly and extensive medical care, the admitted causal relationship between the employee’s additional medical treatment and her work injury, and the contemplation of the parties, the employee’s petition to vacate the award on stipulation is granted.
Attorneys: Jeremy R. Stevens and Grant M. Borgen, Bird, Jacobsen & Stevens, P.C., Rochester, Minnesota, for the Petitioner. Thomas L. Cummings and Keith R. Czechowicz, Jardine, Logan, & O’Brien, P.L.L.P., Lake Elmo, Minnesota, for the Respondents.
Petition to vacate granted.
GARY M. HALL, Judge
The employee petitions to vacate the award on stipulation served and filed March 30, 2006, on grounds of substantial change in medical condition that was clearly not anticipated. We grant the petition.
On July 4, 2004, Lori Titchenal, the employee, sustained a work-related injury to her shoulders and neck while working as a personal care attendant for Prairie River Home Care, the employer. The employer was insured for workers’ compensation liability by Farm Bureau Mutual Insurance Company. The employer and insurer admitted liability and paid various workers’ compensation benefits. In December 2004, a cervical spine MRI scan indicated a C5-6 disc herniation. On February 11, 2005, the employee underwent an anterior cervical discectomy and fusion at C5-6, performed by Dr. Gene E. Swanson. By April 2005, the employee was released for work with a 40-pound lifting restriction and the employee had returned to work for the employer. In November 2005, the employee was treated with an epidural injection. On December 13, 2005, Dr. Swanson noted that the employee continued to have midscapular and neck pain, but that she was at maximum medical improvement as of that day with restrictions including lifting up to 50 pounds occasionally and pushing/pulling up to 50 pounds.
On March 22, 2006, the parties agreed to a $10,000.00 settlement on a full, final, and complete basis with medical treatment expenses left open. An award on stipulation was served and filed March 30, 2006. The employee’s rehabilitation plan was closed before the settlement at the parties’ agreement. The closure document indicated that the employee was working for the employer at that time, but it is not clear how many hours the employee was working. A notice of benefits paid dated April 5, 2006, indicates that the employee was paid 11.5 percent permanent partial disability under Minn. R. 5223.0370, subp. 4.D and subp. 5.A for the employee’s condition and surgery in 2005.
In May 2008, the employee returned to Dr. Swanson for neck and shoulder pain. Dr. Swanson recommended physical therapy and conservative care. At that time, the employee was apparently working in a factory setting.
In January 2011, the employee had worsening symptoms and could not work for a period of time, and an MRI indicated that the employee had foraminal stenosis. On March 12, 2011, the employee was evaluated by Dr. Mark Larkins at the employer and insurer’s request. Dr. Larkins opined that the employee’s cervical condition at that time was related to her work injury and that her treatment to date, as well as a proposed fusion and decompression surgery at C6-7, were reasonable and necessary and causally related to her work injury. On May 2, 2011, the employee underwent a C6-7 anterior cervical discectomy with anterior interbody arthrodesis and fixation with hardware. The hardware from the 2005 surgery was removed as part of this procedure. The employee returned to part-time work after the surgery but experienced increased pain. As of October 2011, the employee began receiving social security disability benefits. By March 2012, the employee had permanent restrictions of working four hours per day at her own pace, up to three breaks per hour, and no lifting or carrying over ten pounds. The employee was unable to continue working her regular job and has not worked since August 2012.
The employee began treating with Dr. Jeremy L. Fogelson at the Mayo Clinic in November 2014. In February 2015, Dr. Fogelson recommended bilateral foraminotomy and fusion surgery at C7-T1, with a possible addition of C4-5. On February 20, 2015, the employee was again evaluated by Dr. Larkins, who agreed with Dr. Fogelson’s surgery recommendation and opined that the surgery was directly related to the employee’s work injury, but also opined that a diagnosis of chronic pain was premature. On May 15, 2015, the employee underwent a posterior spinal fusion surgery from C4 to T2 levels and bilateral C7-T1 foraminotomies, performed by Dr. Fogelson.
The employee was evaluated by Dr. R. Wynn Kearney, Jr., in June 2016. Dr. Kearney opined that the employee was permanently and totally disabled due to her continuing pain and rated the employee’s permanent partial disability at 39.5 percent, which included ratings for additional surgery, cervical and thoracic pain, and radicular syndrome. Dr. Kearney also stated that the two additional surgeries and the increased level of involvement to five levels of her spine since 2006 indicated a substantial change in the employee’s condition and is a direct consequence of her original injury.
On November 21, 2016, the employee filed a petition to vacate the 2006 award on stipulation based on a substantial change in medical condition that was clearly not anticipated.
This court has jurisdiction to set aside an award on stipulation upon a showing of cause. Minn. Stat. §§ 176.461 and 176.521, subd. 3. Cause, as defined in the statute, 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.” Minn. Stat. § 176.461(4). When applying these factors to the analysis of the case, this court compares the employee’s condition as it was at the time of the award with the employee’s condition at the time of the petition to vacate. See Davis v. Scott Moeller Co., 524 N.W.2d 464, 467, 51 W.C.D. 472, 475 (Minn. 1994). The primary purpose of allowing a vacation of an award is to assure compensation proportionate to the degree and duration of disability. Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 539, 63 W.C.D. 337, 344 (Minn. 2003).
The employee asserts a substantial change in medical condition that was not anticipated based on several factors. The party seeking 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). A substantial change in the employee’s medical condition requires that the change in the condition occurred after the time of the award, was clearly unanticipated at the time of the award, and could not reasonably have been anticipated at the time of the award. Minn. Stat. § 176.461(4). Substantial change may be demonstrated by a number of factors such 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 than initially anticipated, the causal relationship between the work injury and the 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).
The employee claims a change in diagnosis based on the additional medical treatment and two additional surgeries, including a five-level fusion, compared to her one-level fusion at the time of the 2006 stipulation for settlement. The employer and insurer assert that the additional surgeries do not change the employee’s underlying diagnosis of status post cervical spine surgery at the time of the settlement. While the “need for additional surgery does not in and of itself, necessarily compel the conclusion that there has been a substantial change in [the] employee’s medical condition,” Sondrol v. Del Hayes & Sons, Inc., 43 W.C.D. 367, 368 (W.C.C.A. 1990), additional surgeries may be considered in determining whether there has been a change in diagnosis. Holm v. Country Manor Nursing Home, No. WC10-5141 (W.C.C.A. Mar. 10, 2011) (three additional surgical procedures, including additional fusion surgery, established a change in diagnosis).
Before the settlement, the employee underwent a cervical discectomy and fusion at C5-6. After the stipulation, the employee underwent a C6-7 anterior cervical discectomy with anterior interbody arthrodesis and fixation with hardware in 2011, then posterior spinal fusion surgery from C4 to T2 levels and bilateral C7-T1 foraminotomies in 2015. Dr. Kearney opined that the two additional surgeries and the increased level of involvement to five levels of her spine since 2006 indicated a substantial change in the employee’s condition. We conclude that the employee has shown a change in diagnosis.
The employee claims a change in ability to work because she has not worked since August 2012 and she has been assigned increased restrictions since the time of stipulation for settlement. The employer and insurer argue that the employee is currently released to work and that the change in frequency and duration of her ability to work is not sufficient to constitute a change in ability to work. At the time of the stipulation for settlement, the employee was released to work and was working for the employer within her restrictions of lifting up to 50 pounds occasionally and pushing/pulling up to 50 pounds. While the employee is still released to work, she has significantly increased permanent restrictions of working four hours per day at her own pace, up to three breaks per hour, and no lifting or carrying over ten pounds. Further, the employee has not been able to return to work since 2012. The employee has established a change in her ability to work.
At the time of the stipulation for settlement, the employee was entitled to 11.5 percent permanent partial disability, which was paid the week after the award on stipulation. In June 2016, Dr. Kearney rated the employee at 39.5 percent permanent partial disability after the additional surgeries, which includes permanent partial disability for cervical and thoracic pain and radicular syndrome. The employer and insurer assert that any claim for permanent partial disability based on cervical and thoracic pain or radicular syndrome is premature based on Dr. Larkins’ opinion. That opinion, however, was from March 2015, before the employee had her five-level fusion surgery. The employee has shown that she is entitled to additional permanent partial disability.
Where a stipulation for settlement leaves future reasonable and necessary medical expenses open and the employer and insurer have paid such expenses, this factor carries less weight in determining whether a substantial change has occurred since the settlement. Burke v. F-M Asphalt, 54 W.C.D. 363, 368-69 (W.C.C.A. 1996), summarily aff’d (Minn. May 30, 1996). Even where medical expenses remain open, however, the need for additional medical care remains useful evidence on whether there has been a substantial change in an employee’s condition. See Hughes v. Medcor, Inc., 69 W.C.D. 258, 269 (W.C.C.A. 2009). In this case, the expenses for the additional surgeries and medical treatment have been paid by the insurer, but the employee’s additional medical treatment has been extensive. At the time of the stipulation for settlement in 2006, approximately $47,000.00 in medical expenses had been paid by the insurer. Since the stipulation, an additional amount of about $165,000.00 in medical expenses have been paid. Although the employee’s claim remains open for medical expenses, the additional surgeries and medical treatment were more extensive than the parties anticipated at the time of the settlement, and we therefore conclude that the employee has satisfied this factor.
The employer and insurer do not dispute that the employee’s ongoing treatment for her cervical spine/shoulder injury is causally related to her work injury.
The employee claims that her change in condition was not anticipated since she was at maximum medical improvement with restrictions and able to return to work full time as of the time of settlement, but had not worked for several years at the time of the petition. She also argues that the amount of settlement, $10,000.00, indicates that she did not anticipate worsening of her condition to the point she would be disabled. The employer and insurer argue that the employee negotiated with the employer and insurer to leave medical expenses open, which shows that she anticipated a future change in her condition. They also argue that Dr. Larkins’ opinion supports that the employee’s current condition is a foreseeable, natural progression of her condition at the time of settlement. The employer and insurer note that the employee initialed statements in the settlement agreement indicating that she understood her condition could change and become substantially worse. While some progression of the employee’s back condition could reasonably have been anticipated, in this case the parties did not appear to have anticipated the extent of the employee’s post-settlement surgical treatment.
Given the employee’s change in diagnosis, change in ability to work, additional permanent partial disability, the need for more costly and extensive medical care, the admitted causal relationship between the employee’s additional medical treatment and her work injury, and the contemplation of the parties, the employee has shown a substantial change in medical condition. We therefore grant the employee’s petition to vacate the award on stipulation served and filed March 30, 2006.