KRISTINA FRANZEN-DERRICK, Employee/Petitioner, v. LIFE LINE SCREENING OF AM. and CHUBB GROUP OF INS. CO., Employer-Insurer/Respondents.

JANUARY 4, 2019

No. WC18-6160

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the evidence is not sufficient to support an unanticipated substantial change in condition, the employee’s petition to vacate the award on stipulation is denied.

    Determined by:
  1. Sean M. Quinn, Judge
  2. David A. Stofferahn, Judge
  3. Gary M. Hall, Judge

Attorneys: Raymond R. Peterson, McCoy Peterson, Ltd., Minneapolis, Minnesota, for the Petitioner. D. Jeffrey Pricco, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, Minnesota, for the Respondents.

Petition to vacate denied.



The employee petitions to vacate an Award on Stipulation filed on October 28, 2009. Because the employee has failed to show an unanticipated substantial change in her medical condition causally related to her work injury, we decline to grant the petition.


Pre-existing medical issues

Before suffering her work injury, Kristina Franzen-Derrick, the employee, had complaints of pain in her spine, chronic pain, and issues with misuse of pain medication.

On April 9, 2004, the employee saw Dr. David Von Weiss at Park Nicollet Clinic, complaining of pain throughout the spine and potentially fibromyalgia, reported as intense pain in her back from the neck all the way down to the low back and radiating into the thigh. He prescribed anti-inflammatories and over-the-counter pain medication. On May 20, 2004, the employee saw Dr. Von Weiss for flank pain potentially due to kidney stones, fibromyalgia, and chronic low back pain. She requested additional help for pain management as anti-inflammatories were not particularly helpful. She was prescribed narcotic pain medication, but was required to complete a pain contract in light of numerous prior visits at a different clinic for narcotic pain medications. Subsequent drug screening from the May 20, 2004, visit with Dr. Von Weiss was positive for marijuana, and he advised her that he would not be prescribing additional narcotic pain medication. On June 14, 2004, the employee saw Dr. Von Weiss for low back pain. Noting her history of opioid use and positive drug screening for marijuana, he refused to prescribe additional narcotic pain medication.

The work injury and surgery

On July 24, 2004, the employee suffered an admitted injury working for Life Line Screening of America, the employer. While lifting ultrasound equipment into a van, she felt neck pain. The pain did not subside. On August 31, 2004, the employee underwent a C6 corpectomy, a C5-6 discectomy on the right, and a discectomy on the left side at C6-7, performed by Dr. Jeffrey Dick.

Post-injury medical care and other injuries

On November 23, 2004, the employee saw Tricia Wallentine, P.A., at Park Nicollet for, among other things, depression. She was encouraged to continue with anti-depression medications and to stop smoking. On March 27, 2005, the employee was seen at Fairview Ridges Hospital with low back pain after lifting a suitcase off a baggage claim at the airport. On April 17, 2005, the employee saw Dr. Larik Woronzoff-Dashkoff at Park Nicollet with complaints of low back pain which had become worse over the past few days, and concerns about an upcoming airline trip. She was prescribed narcotic pain medication.

On December 8, 2004, Dr. Paul Cederberg completed a report after examining the employee at the request of the employer and insurer. He diagnosed the employee with an extruded disc at C5-6 with a history of pre-existing degenerative disc disease at C5-6 and C6-7, as well as a history of fibromyalgia. He opined that the surgery at C5-6 and at C6-7 was reasonable and necessary, and that the herniation for which she needed surgery at the C5-6 level was caused or aggravated by the 2004 work injury.

On August 3, 2005, the employee saw Dr. Joseph Perra, who suggested an implantable stimulator. Dr. Perra believed that if it was not successful, perhaps surgical fusion would be appropriate. He also encouraged smoking cessation. The employee wanted to go ahead with fusion surgery, but Dr. Perra encouraged the stimulator first.

In December 2005, the employee underwent surgery performed by Dr. Perra, which included a C5-7 cervical fusion and a right C7 hemi-laminectomy, and a few days later, the removal of the right C7 screw. During her hospital stay, the employee was evaluated by Dr. Matthew Monsein, who assessed chronic pain syndrome and opiate tolerance. He noted her high tolerance for narcotics and ordered an even higher dosage of medication.

On May 3, 2006, the employee underwent a CT scan of the cervical spine, which showed a solid fusion from C5-7. On June 29, 2006, the employee reported to Dr. John Clark at Park Nicollet with complaints of acute back pain for two and a half weeks with no specific injury. The employee was prescribed narcotic pain medication. On July 7, 2006, the employee had an EMG and nerve conduction study done at Noran Neurological. The results were normal. On July 18, 2006, Dr. John Decker of Apple Valley Medical Clinic diagnosed the employee with chronic pain syndrome and depression due to her condition. He recommended additional anti-depressants. On July 25, 2006, the employee underwent an MRI of the neck, which showed a minor disc bulge at the C4-5 level, with a solid fusion from C5-7. On July 26, 2006, the employee was seen at Noran Neurological for her persistent neck pain and constant occipital headaches. Testing showed no significant issue. The doctor noted the employee was disappointed nothing was found to be objectively wrong with her. He felt she needed a comprehensive pain clinic. On August 10, 2006, the employee reported to Dr. Ann Strong at Park Nicollet with worsening low back pain. She was prescribed narcotic pain medications.

Dr. Cederberg completed a second report on October 3, 2006, after re-examining the employee at the request of the employer and insurer. He diagnosed the employee with disc herniation at C5-6 and a history of C5-7 fusion with pseudoarthrosis. He opined that her fusion at C5-6 was due to the July 2004 work injury but the fusion at C6-7 was due to pre-existing degeneration of the neck. He stated that treatment with anti-depressant medication appeared to be reasonable, although he had no opinion as to whether depression was related to her neck injury, and that a chronic pain program was not needed as she was under reasonable control with Vicodin and Cymbalta. He also indicated the employee had reached maximum medical improvement (MMI), had a 17 percent permanent partial disability rating for her neck, and could work at the light-sedentary level with no use of her arms overhead, no holding her neck in a static position for more than 15 minutes, and no lifting more than 20 pounds. The employer and insurer paid the employee for the 17 percent rating.

On October 25, 2006, the employee saw Dr. Perra for a chronic pain consultation. She was said to have suffered headaches of unknown etiology, was status post two-level fusion, was not experiencing a significant amount of neck pain, had a history of hand and finger color changes of uncertain etiology, and had increased depression.

On November 20, 2006, Dr. Thomas Gratzer issued a report after examining the employee at the request of the employer and insurer. Dr. Gratzer diagnosed the employee with an adjustment disorder with depressed mood and related the adjustment disorder to her July 2004 work injury. He also found she had reached MMI relative to her adjustment disorder and needed no additional medical care. He placed no limitations on her from a psychiatric perspective. As part of that examination with Dr. Gratzer, the employee took an MMPI test with Dr. Marvin Logel. Dr. Logel interpreted the MMPI test as suggesting somatoform disorder and personality disorder with dependent features. He went on to state that the employee might also have a depressive disorder, anxiety disorder, and a psychophysiological gastrointestinal disorder.

On December 22, 2006, the employee was seen by Dr. John Decker for low back pain two days after having lifted a 40-pound container of cat litter out of her car.

The employee underwent a three-day functional capacity evaluation (FCE) in January 2007, showing she was capable of working at the light-sedentary level, with restrictions of lifting and carrying up to 20 pounds occasionally and overhead lifting up to 10 pounds occasionally. She was capable of standing and/or walking 7-8 hours out of an 8-hour work day. On February 19, 2007, Dr. Perra reviewed the FCE and agreed with the recommended physical restrictions.

On April 26, 2007, the employee underwent an MRI of the neck, which showed a stable fusion from C5-7.

On June 6, 2007, the employee was admitted to Fairview Ridges Hospital for concerns of hypoxia following an accidental oxycodone overdose. She denied being suicidal, but took “a handful” of OxyContin because she was hurting. She later clarified she did not take the pills all at once, but over time. She was discharged from the hospital the next day after her symptoms were under control.

On July 27, 2007, the employee was seen by Dr. Monsein for a chronic pain consultation. She was found to have had three neck surgeries, chronic pain, chronic pain syndrome, and chronic opioid use. Steroid injections were recommended but she was not interested in that treatment. Dr. Monsein advised the employee to stop long-term use of opioids.

On December 20, 2007, the employee reported for pre-operative examination and was assessed with neck pain and major depressive disorder. The employee then underwent surgical removal of instrumentation of hardware at C6-7 by Dr. Perra. On January 25, 2008, Dr. Perra limited the employee to lifting and carrying 10-15 pounds on an occasional basis as well as occasional bending, twisting, kneeling, squatting, overhead reaching, stair-climbing, sitting, and standing. He noted that the employee was able to work, but might have some difficulty working due to pain issues. She was to receive pain management at Medical Advanced Pain Specialists (MAPS). On April 18, 2008, the employee was evaluated at MAPS for potential implantable therapy as a treatment option. On May 14, 2008, the employee underwent cervical medial branch blocks bilaterally at C3, C4, and C5. On May 28, 2008, the employee was seen at MAPS for ongoing management of persistent pain including medication management.

On February 25, 2009, Dr. Scott Benson responded to a letter from the claims adjuster. He diagnosed the employee with cervicalgia associated with increasing spasms and chronic tension headaches, and opined that his findings on examination were consistent with the employee’s 2004 work injury. He also recommended she be referred to a pain clinic because of her ongoing pain symptoms.

Stipulation for settlement

In October 2009, the parties signed a stipulation for settlement. The employee alleged headaches, chronic pain syndrome, and depression as a result of her 2004 work injury to her neck. In addition to claiming entitlement to medical benefits, wage loss benefits, and vocational rehabilitation benefits, the employee also alleged that she might become permanently totally disabled as a result of her injuries. The settlement resolved the employee’s claims on a full, final, and complete basis with some medical expenses left open, in exchange for the sum of $113,000.00, with $100,000.00 payable to the employee after attorney fees.

Post-settlement medical care and more injuries

On October 15, 2012, the employee underwent right shoulder arthroscopic surgery following a severe infection of the right shoulder. On October 26, 2012, the employee was seen at Fairview Ridges Hospital and kept overnight due to shoulder pain although without evidence of recurrent septic arthritis. She also had a secondary diagnosis of chronic pain associated with significant psychosocial dysfunction and some concern of ongoing narcotic drug seeking. On October 29, 2012, the employee reported to Fairview Ridges Hospital with right shoulder pain and fever. She was diagnosed with acute pain and sepsis of the right shoulder, chronic pain of the neck, chronic pain on opioid therapy, and a history of questionable opioid misuse and other chemical dependency issues.

On June 30, 2013, the employee reported to Fairview Ridges Hospital with abdominal pain, reported as “the worst . . . ever.” She reported the pain had been going on for months but had been worse in the past three days.

On June 24, 2014, the employee reported to Fairview Ridges Hospital with low back pain. She reported walking down a flight of stairs when her two dogs ran behind her causing her to fall backwards. X-rays were negative and the neurological exam was normal. The employee was informed she would not be given opioid medications. At this point, “the patient became very irate and actually was able to stand up briskly, lift up her purse, and change into her clothing without any ongoing appearance of distress.” (Ex. 7.) The emergency room doctor considered her to be engaging in significant drug seeking behavior.

On March 1, 2015, the employee was seen at the emergency room at Abbott Northwestern with complaints of back pain after slipping on ice. She also reported having previously smoked a half-pack of cigarettes per day but quit about two years ago, and that she currently uses illicit drugs including marijuana. She presented intermittently with tears, erratic behavior, and outbursts of anger. The employee was advised she would not be given pain medication and left the emergency room against medical advice.

On March 30, 2015, the employee underwent an MRI of her cervical spine showing mild stenosis and moderate disc degeneration, as well as severe right facet arthropathy and foraminal stenosis at C4-5, bilateral C3-4 facet arthropathy with mild foraminal stenosis, and severe C7-T1 disc space narrowing.

On April 22, 2015, the employee reported to Fairview Ridges Hospital for chronic low back pain. She reported a history of receiving narcotic prescriptions from one provider, but she was unable to get prescriptions presently due to a positive marijuana drug screen. The physician was uncomfortable giving her narcotics, but did prescribe Valium to help with sleep and muscle relaxation, as well as a Lidoderm patch. The next day, the employee reported to Fairview Ridges emergency room with back pain after moving storage totes around the house while not using proper lifting techniques. She was tearful and requested pain medication, insisting she had never had pain this bad before in her life. The doctor noted a review of records demonstrated similar symptoms in the past. Nevertheless, narcotic pain medications were prescribed. She was advised to not report to the emergency room in the future for narcotics. The day after, on April 24, 2015, the employee reported to Fairview Ridges Hospital with an acute new symptom of right-sided low back pain following lifting heavy boxes in her closet.

On April 30, 2015, the employee saw Dr. Perra and reported her low back was causing the most significant symptoms and was fairly incapacitating, but she was also having neck pain radiating into the arm and shoulder and sometimes into the hands and fingers. Dr. Perra reviewed the March 30, 2015, MRI which showed subluxation of C4 and C5, osteophytes and flattening of the contour of the thecal sac and cord at that level. He did not think that there was a good surgical option for her lumbar pain, but that a cervical decompression and fusion at C4-5 might be of some use. He did not feel any surgery was needed at C7-T1 and wrote, “We discussed [the] combination of instability and stenosis of this area [the cervical spine] probably relates to the symptoms here. It certainly could be contributing to low back symptoms.” (Ex. O, p. 147.)

Dr. Terry Hood issued a report after examining the employee at the request of the employer and insurer on July 27, 2015. He diagnosed the employee as suffering from multilevel degenerative disc disease of the cervical spine status post fusion surgery at C5-7, including hardware removal, and spondylolisthesis at C4-5, Grade I. He opined the 2004 work injury was a substantial contributing cause of the neck condition, which was permanent and would need ongoing treatment. He opined Dr. Perra’s recommended fusion at C4-5 was premature at best and likely not indicated.

Dr. Perra reviewed films on August 19, 2015, and found evidence of clear movement between C4 and C5 on flexion extension x-rays. On September 13, 2015, the employee was seen at Fairview Ridges Hospital emergency room. She reported having lifted a lawnmower from the waist level down to the ground and then later going on rides at a carnival and having worsened low back pain. She was crying, claiming the pain was very bad and asking for help to walk, and stating she could not move or stand. The doctor was concerned about acute exacerbation of her low back.

On November 13, 2015, the employee underwent C4-5 fusion surgery, performed by Dr. Perra at Abbott Northwestern Hospital. The surgery was complicated by a post-operative infection, including respiratory failure and hypotension. She spent several days in intensive care and was not discharged from the hospital until February 7, 2016. The post-operative infection was thought to be due to the employee’s use of narcotic medication before the surgery. She was weaned off of the narcotic medication, prescribed Tylenol, and recommended for chemical dependency counseling. The employee told her doctors her pain was just as significant at that time as before surgery and the surgery had not helped her neck or arm pain.

In March and April of 2016, the employee underwent 27 days of chemical dependency treatment at Meridian Behavioral Health. At discharge, she was thought to have a lower risk of acute intoxication and a moderate risk of relapse and continued difficulty. On April 14, 2016, the employee underwent a diagnostic assessment at Nystrom and Associates, which indicated potential diagnoses of major depressive disorder, generalized anxiety disorder, panic disorder, and ADHD.

On May 27, 2016, the employee reported to the University of Minnesota Medical Center, claiming to have hit her head after tripping over her dog and falling down stairs. She had a non-displaced right occipital skull fracture. She was seen by neurosurgery and managed non-operatively. A head MRI revealed no fracture or acute injury. A CT scan of the cervical spine showing a solid C5-7 fusion with no acute injury.

In a follow up from fusion surgery on June 30, 2016, Dr. Perra stated it was reasonable for the employee to work with restrictions of lifting up to 20-25 pounds, no overhead activity, and frequent change in position.

On July 15, 2016, the employee was seen at Nystrom and Associates for medication management related to her depression, anxiety, and substance abuse issues.

On November 16, 2016, the employee saw Dr. Perra, who noted she had been healing appropriately and functioning in a reasonable, safe and appropriate manner. He stated she could lift and carry up to 20 pounds, should not engage in excessive overhead activity, and should minimize repetitive motion of the neck.

In late 2016, the employee received chemical dependency treatment at Dakota Treatment Center. She discontinued attending “due to funding.” On January 9, 2017, the employee was referred to Nystrom and Associates for outpatient treatment. She was assessed with major depressive disorder, generalized anxiety disorder, as well as various pain issues.

On November 7, 2017, Dr. Bradley Helms issued a report after examining the employee at the request of the employer and insurer. Dr. Helms noted the history of the previous fusion at C5-7 and a subsequent additional fusion at C4-5. He found the employee to have restricted range of motion of the neck and, despite complaints of numbness and tingling throughout her upper extremities, no signs of myelopathy or neurological impingement. He noted the past several years of her medical care had been routine follow up for the cervical fusion. Given the employee’s chronic pain with limited motion, Dr. Helms opined that Gabapentin and Robaxin, a muscle relaxant, were appropriate.

On November 28, 2017, the employee underwent right total shoulder arthroplasty.

On February 20, 2018, the employee went to St. Francis Regional Medical Center with ongoing back pain of one week. An MRI showed the employee had marked bilateral L3-4 facet arthrosis of the low back and multilevel spondylosis and/or spondylolisthesis of the low back. Upon being questioned about her narcotic pain medication use and being refused a prescription for additional narcotic pain medications, the employee became upset, tearful, and histrionic. She left against medical advice. The next day, the employee reported to Twin Cities Spine Center with a complaint of increasing low back pain. The employee also reported having been in a car accident on the way home from her most recent low back injection. She was diagnosed with spondylolisthesis of L3 on top of L4 and a more severe disc collapse at L4-5 and L5-S1. An MRI also showed disc herniation causing right-sided impingement on the L4 nerve root. She was advised to use anti-inflammatories, and was told that she would not be prescribed narcotics and that any narcotic medication would be deferred to the primary care physician. One week later, the employee was seen in the emergency room at St. Francis Regional Medical Center for low back pain. She had reported slipping on the ice that morning and landing on her buttocks.

On March 1, 2018, the employee saw Dr. Perra, complaining of ongoing worsening pain in the low back. She was diagnosed with lumbar spondylolisthesis and spinal stenosis as well as radiculopathy. Dr. Perra did not believe the employee was a good candidate for surgery. It was recommended she see a counselor or psychologist for her emotional reaction to pain and to develop some coping strategies. She was also advised to go to the emergency room to get her pain under better control. The employee reported she could not manage her pain and she would kill herself if the pain did not stop. The next day, the employee was seen at Fairview Clinic in Eagan for acute bilateral low back pain and chronic pain. The doctor noted the employee’s chronic use of opioids. She was advised that only one doctor should be prescribing medications. The employee agreed, although became “very upset” when the doctor refused to prescribe any short-term opioids. On March 7, 2018, the employee was seen by a physician’s assistant at Twin Cities Orthopedics for low back pain, who noted difficulty examining the patient due to pain reactions.

On May 25, 2018, the employee reported to Twin Cities Spine Center one and a half years following her C4-5 fusion. She reported working full-time at McDonald’s. The work was challenging due to the long hours (about 47-48 hours per week) and she had neck pain and low back pain at the end of the day. X-rays showed intact instrumentation for the cervical fusion. It was recommended that she avoid heavy lifting especially anything over 20 pounds. In a deposition taken in June 2018, the employee testified that her most recent employment was the previous summer at a McDonald’s restaurant, where she worked 30-40 hours a week, but stopped because she moved to a different community.

On June 5, 2018, the employee underwent left total shoulder arthroplasty.

On August 7, 2018, Dr. Paul Arbisi issued a report after examining the employee at the request of the employer and insurer. Dr. Arbisi diagnosed the employee with a major depressive disorder within the context of a polysubstance use disorder and somatic symptom disorder. He did not believe the July 2004 work injury to be a substantial cause to her psychiatric diagnosis, noting the employee had engaged in drug seeking behaviors prior to her July 2004 work injury, had developed a severe opioid addiction prior to 2009, and her chemical dependency had not been properly addressed until 2015. He also noted evidence of somatic symptom disorder prior to her 2004 work injury. He concluded the depression did not appear to be due to the work injury as evidenced by Dr. Gratzer’s opinion in 2006. He found no substantial change in the employee’s psychological condition since her 2009 settlement, other than acceleration of her opioid use disorder, which he opined was something that could have been anticipated before the settlement. He highlighted evidence of narcotic abuse and chemical dependency treatment prior that settlement.

On August 9, 2018, Dr. Hood issued a report after examining the employee at the request of the employer and insurer. He diagnosed the employee with multilevel degenerative disc disease of the cervical spine with a history of herniated discs, fusion from C5-7 and resulting pseudoarthrosis. He also noted a subsequent fusion at C4-5 with suggestion of pseudoarthrosis developing at that level, as well. Dr. Hood opined there was no unanticipated substantial change in the employee’s neck since her 2009 settlement. In support of his opinion, he noted that degeneration at adjacent levels to a fusion was very common, that the employee’s spondylosis and disc bulging were seen at the C4-5 level as early as 2005, that facet and medial branch blocks at C3-5 and C7-T1 were performed in 2007 and 2008, and that an MRI performed prior to the settlement showed bulging at C3-4, C4-5, and C7-T1.

The employee petitioned this court to vacate the October 28, 2009, Award on Stipulation on March 23, 2018.


Minn. Stat. § 176.461 provides that this court may set aside an award on stipulation and grant a new hearing on the merits to be held before a compensation judge. The statute limits this court’s power to set aside awards only “for cause,” which is defined as:

  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.

Here, the employee seeks a vacation of the October 28, 2009, Award on Stipulation, or in the alternative, a referral for additional fact finding.[1] The employee seeks vacation of the award based upon a substantial change in her medical condition that was not anticipated and could not have been reasonably anticipated at the time of the award.

1.  Causation

In a petition to vacate, it is essential that a petitioner establish a causal relationship between the work injury and the present condition. Failure to do so will result in a denial of the petition. Coleman v. Prof’l Res. Network, 77 W.C.D. 85 (W.C.C.A. 2017).

            A.  Lumbar Spine

At the time of the settlement, the employee did not suffer from any lumbar spine symptoms or conditions. Now, she suffers from lumbar spine symptomology with objective evidence of mild to moderate degenerative disc disease, facet joint disease, and spondylolisthesis of L3 on top of L4.

On April 30, 2015, Dr. Perra stated that the combination of instability and stenosis of the employee’s cervical spine could be contributing to the low back symptoms. (Ex. O, p. 147.) The parties submitted over 2,000 pages of exhibits to support their respective positions in this matter. This single record provides the only causation opinion relating the employee’s low back condition to her 2004 work injury. On the other hand, the employer and insurer have submitted the opinions of several doctors who found no causal relationship. Moreover, there have been numerous other injuries to the employee’s low back that are unrelated to her 2004 work injury.

This court is not persuaded that there is any causal link between the employee’s admitted neck injury and her low back symptoms and diagnoses. The employee urges this court to refer the matter for fact finding on the causation issue. We decline to do so. The failure to present medical evidence supporting causation between the work injury and the change in condition can be fatal to a petition to vacate. See Coleman, 77 W.C.D. at 88. Without more than a single sentence opinion in a treatment record that there could be a connection, we are not inclined to refer the matter to a compensation judge, and conclude that causation has not been established as it relates to the employee’s lumbar spine.

            B.  Mental Health

Unlike the lumbar spine condition, the employee suffered from depression, chronic pain, and narcotic use disorder at the time of the settlement. At that time, causation between these mental health issues and her admitted neck injury was disputed. According to the language of the settlement, the employee agreed to close out medical care including psychological/psychiatric treatment and related medications, pain clinics and pain management programs, treatment with MAPS, and chemical dependency treatment, among other things. Before the settlement, a psychiatrist opined that the employee had an adjustment disorder with depressed mood and that there was a causal link between that disorder and her work injury. For the purposes of this petition, there appears to be sufficient evidence to find a causal relationship between the employee’s mental health conditions and her work injury.

            C.  Cervical

The employer and insurer admit there is a causal connection between the 2004 work injury and the employee’s neck condition.

2.  Substantial Change in Medical Condition

In addressing whether to vacate an award based upon an unanticipated substantial change in medical condition, this court has applied the Fodness[2] factors. The Fodness factors are:

  1. a change in diagnosis;
  2. a change in the employee’s ability to work;
  3. additional permanent partial disability;
  4. necessity of more costly and extensive medical care than initially anticipated;
  5. causal relationship between the injury covered by the settlement and the employee’s current worsened condition; and
  6. contemplation of the parties at the time of the settlement.

Because we have determined that there is no causal relationship between the employee’s lumbar spine condition and her 2004 work injury to her neck, we will only examine the Fodness factors as they relate to the employee’s cervical spine and mental health conditions.

            A.  Change in Diagnosis

As to the cervical spine and mental health conditions, there appears to be little change in diagnosis. At the time of the settlement in 2009, the employee had undergone surgeries including fusion surgery from C5-7 and removal of hardware, as well as injections, an FCE, and treatment with medication. Further, she had been diagnosed with pseudoarthritis and chronic pain, and had been a long-term user of narcotic pain medication.

After the settlement, the employee underwent an adjacent level fusion surgery, though her neck condition has changed very little otherwise. The fact that an employee undergoes a post-settlement surgery, in and of itself, however, does not necessarily justify vacating an award on stipulation. Miedema v. Brown Group, Inc., slip op. (W.C.C.A. Apr. 22, 1996).

Likewise, from a mental health perspective, the employee continued to suffer from chronic pain and narcotic use disorder after the settlement, much as she had before the settlement.

            B.  Change in the Employee’s Ability to Work

As noted above, the employee underwent an FCE before the settlement. It was determined that a light-sedentary level of exertion was appropriate. Since the settlement, the employee has continued to be limited to a light-sedentary level. Moreover, after the settlement, the employee returned to work in such a capacity, and discontinued that work because she moved and not because of her symptoms.

            C.  Additional Permanent Partial Disability

The employee presented no ratings or evidence of additional permanent partial disability for her neck or mental health conditions beyond the 17 percent paid for by the employer and insurer in 2007.

            D.  Necessity of More Costly and Extensive Medical Care

Since the settlement, the employee has undergone an adjacent level fusion surgery. She has also undergone some additional medical care relative to her mental health and narcotic use disorder. This factor appears to weigh in favor of the employee. Yet, where medical expenses are left open in a stipulation, less emphasis is put on this factor. Burke v. F-M Asphalt, 54 W.C.D. 363, 368 (W.C.C.A. 1996), summarily aff’d (Minn. May 30, 1996).

            E.  Causal Relationship between the Injury and the Current Condition

There is no dispute that the employee’s current neck condition is related to her work injury, and we have concluded above that her current mental health conditions are also related to her work injury. The employee has suffered from a number of other conditions and injuries, including her low back, which are not related to her work injury. Despite these other conditions and injuries suffered by the employee in addition to her work injury, her ability to work has remained unchanged.[3]

            F.  Contemplation of the Parties at the Time of the Settlement

The only evidence of what the parties contemplated at the time of the settlement is the stipulation for settlement itself. That the employee alleged she might become permanently totally disabled, and the claim settled for $113,000.00, suggests the parties anticipated that the disabling effects of the employee’s work injury would be ongoing.


The employee had a history of chronic pain complaints and narcotics use prior to her 2004 work injury to her neck. Over the course of the next five years and before the settlement, she was suffering from severe neck difficulties, underwent fusion surgeries encompassing two levels, and surgery removing hardware. She was diagnosed with pseudoarthritis, chronic pain syndrome, and narcotic use disorder.

Since the time of the settlement, the employee’s neck condition and narcotic use disorder have remained essentially unchanged. She developed other significant problems, including spondylolisthesis of her low back, and underwent bilateral shoulder replacement surgeries. The employee has not shown a causal connection between these other conditions and her work injury.

Moreover, to the extent that the employee’s neck and/or chronic pain conditions are any worse now than they were at the time of the settlement, there is no evidence that the worsening was not anticipated and clearly could not have been anticipated.

The employee’s petition to vacate the October 28, 2009, Award on Stipulation is denied.

[1] Minn. Stat. § 176.521, subd. 3, provides that this court may, before determining whether to set aside an award, refer the matter to a compensation judge for fact finding to better inform this court in its decision.

[2] Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).

[3] Any change in an employee’s ability to work must be related to the settled work injury. Schueler v. William Miller Scrap Iron & Metal, slip op. (W.C.C.A. Mar. 3, 2000).