VACATION OF AWARD – SUBSTANTIAL CHANGE IN CONDITION. Where the employee’s diagnosed conditions had worsened but she had no new diagnoses, her ability to work had not substantially changed, her additional medical treatment expenses had been mostly paid, and her additional PPD ratings were anticipated or inaccurate, the employee did not establish good cause to vacate an award on stipulation.
Attorneys: DeAnna McCashin, McCashin Law Firm, Chtd., Alexandria, Minnesota, for the Petitioner. Patrick W. Ostergren, Law Office of Brian A. Meeker, Bloomington, Minnesota, for the Respondents.
Petition to vacate denied.
DEBORAH K. SUNDQUIST, Judge
The employee petitions to vacate an award on stipulation served and filed December 11, 1998. We conclude the employee has not established good cause to vacate the award on stipulation under Minn. Stat. § 176.461 and deny the petition.
On January 19, 1997, Michelle (Zaviska) Sayler, the employee, was working as a certified nurse assistant for Bethany Home, the employer, when a patient’s wheelchair struck her right great toe and ran over her right foot. The employee sought treatment the same day at the Douglas County Hospital where an x-ray was taken and showed no fracture. A week later, Wade Hanson, M.D., diagnosed the condition as a right toe contusion with persistent mild low grade swelling and possible tendonitis. The employee was off work for about a week and returned to work on February 21, 1997. The employer admitted liability and paid temporary total disability (TTD), temporary partial disability (TPD), and rehabilitation benefits.
When the employee’s pain continued, she was diagnosed with reflex sympathetic dystrophy (RSD) which was confirmed by several physicians, including neurologist Keith Larson, M.D. In March 1997, an inpatient pain program was recommended. The employee was off work for nonwork-related reasons from July 14 to September 23, 1997, and performed light-duty work part time from October 1997 until mid-November 1998, under Dr. Larson’s restriction that the employee was limited to working four hours per day.
In November 1997, David Watkin, M.D., noted that the employee had a tremendous amount of emotional overlay, including anxiety over using her right foot when driving during winter. A few months later, James Bear, M.D., was asked to assume care of the employee and observed psychosocial overlay and possible secondary gain issues, yet he confirmed that she had a serious problem. He also noted that in February 1998 she walked with a cane and used a wheelchair at work. Around the same time, surveillance video was taken of the employee in a bar playing darts for more than three hours, standing, sitting, and walking without a cane or wheelchair.
The employee was examined by Bruce Van Dyne, M.D., at the employer and its insurer’s request on May 5, 1998. Dr. Van Dyne opined that the employee could gradually increase her hours from four hours a day to full time, that she was at maximum medical improvement (MMI), and that she had no permanent partial disability (PPD). Based on Dr. Van Dyne’s restrictions, the employer offered the employee a position. The employee objected to the increased hours, argued that Dr. Larson had limited her to working four hours per day, and declined the job offer. The employer and insurer filed a notice of intention to discontinue benefits on August 21, 1998. Based on the evidence at an administrative conference, the compensation judge concluded that the employee had functional overlay, preexisting anxiety and depression, and had the ability to increase her work hours with work hardening, and granted discontinuance.
By September 1998, the employee had a chronic inversion of her right foot and RSD had spread into her right ankle and right knee. After an appointment on September 10, 1998, Dr. Larson noted that he had a discussion with L. Michael Espeland, M.D., an anesthesia pain consultant. Dr. Espeland stated that an implantable stimulator was a possible alternative treatment for the employee because a series of sympathetic block injections had not provided significant benefit. In October 1998, Dr. Larson indicated that the stimulator implant had not been approved for the employee.
The parties settled the employee’s claim in December 1998 for $27,000.00 for all past, present, and future workers’ compensation benefits, less $5,000.00 in attorney fees, leaving open medical treatment. However, the parties closed out chiropractic treatment, future psychological treatment, pain clinic treatment, and rehabilitation. At the time of the settlement, the employee claimed 13 percent PPD for her RSD condition, entitlement to TTD or TPD benefits, and that she needed a neurostimulator implant. The employer and insurer claimed the employee was at MMI, that she was capable of gainful employment, and that she had no PPD. The employee voluntarily resigned from the employer as part of the stipulation for settlement. An award on stipulation was filed on December 11, 1998. The employee applied for social security disability insurance (SSDI) benefits, which were denied in January 1999, but granted in May 1999. The employee continued to treat for RSD, which had spread from her right foot up to below her knee and she began to have RSD symptoms in her low back and left leg.
After the settlement, the employee was evaluated for consideration of an implantable neurotransmitter spinal cord stimulator by James Collins, Ph.D., who opined that the procedure was ill-advised given the employee’s long-term depression. The employee filed a medical request for pre-approval of the stimulator as recommended by Dr. Espeland, which was approved in March 2001. After an implantation of a trial spinal cord stimulator in July 2001 was successful, a permanent stimulator was implanted on August 3, 2001, which resulted in 50 percent relief of the employee’s pain. The employee worked at Viking Foods part time from 2002 to May 2003, stopping when her spinal cord stimulator failed. Her SSDI payments continued. The employee required numerous procedures including replacements, modifications, and adjustments related to the stimulator. A replacement implant procedure was performed in January 2017, and the implant was reprogrammed in 2019. The employer and insurer paid more than $278,000.00 in medical expenses. Over the course of her treatment, her pain levels have varied. She reported that her pain was managed well and that her symptoms were usually reduced by about 50 percent, but also that at times her pain is severe.
In 2007, Dr. Espeland opined that the employee had CRPS of her right leg, involving the right foot and the leg below the knee. He assigned a 17 percent PPD rating under Minn. R. 5223.0420, subp. 6. (Ex. P.) In 2017, Dr. Jeffrey Anderson at the Center for Pain Management assigned a 13 percent PPD rating for right leg RSD/CRPS and 6.5 percent PPD rating for left leg RSD/CRPS under Minn. R. 5223.0420, subp. 6. (Ex. Q.)
The employee took medication to treat depression and anxiety for many years before the work injury. Before the settlement, the employee was diagnosed with chronic anxiety and depression. In May 2015, she began treating with Timothy Rasmussen, M.D., for depression and anxiety. In a 2019 report, Dr. Rasmussen opined that the employee’s work injury “contributed greatly to the ongoing intensity of her depression and anxiety symptoms” and assigned a 40 percent PPD rating, citing Minn. R. 5223.0360, subp. 7.D(3), which he indicated applied to the employee’s condition because she has moderate emotional disturbance present at all times and can live independently but requires some supervision on a regular basis. (Ex. X.) The employee testified that she had difficulty living independently after her husband’s death in 2016. She received assistance with activities of daily living from social services for a time, then moved in with her parents and her mother assisted her with activities of daily living. She also testified that she helped her mother take care of her father who has dementia. In an affidavit, she stated that since 2011, she has provided intermittent childcare services for family members such as nieces and nephews and provided manicures to friends and relatives. (Ex. Y.)
The employee petitions to vacate the December 11, 1998, award on stipulation based on a substantial change in medical condition. The employer and insurer object.
Minnesota Statute § 176.461 authorizes this court to set aside an award on stipulation for cause, which is limited to (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. The burden to show cause sufficient to set aside an award rests upon the petitioning party. Groshong v. The Light Depot, 65 W.C.D. 349, 355 (W.C.C.A. 2005).
The employee seeks vacation of the settlement on the basis of 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. This court generally analyzes such claims according to the factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989), which include 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 injury covered by the settlement and the employee’s current worsened condition, and the contemplation of the parties at the time of settlement. See also Powell v. Abbott Nw. Hosp., slip op. (W.C.C.A. Aug. 17, 1995) (the Fodness factors are to be applied in a manner consistent with the requirements that the change was clearly not anticipated, and the change could not reasonably have been anticipated at the time of the award).
The employee claims that under these circumstances, her compensation of $22,000.00 is inadequate because the parties contemplated that she would be able to recover and return to work but she has not been able to work since 2003. She argues that she has undergone a substantial change in medical condition since the 1998 award on stipulation that was causally related to her work injury based on a change in diagnosis, a change in ability to work, need for more costly and extensive medical care than previously anticipated, and additional PPD. The employer and insurer argue that there has been no change in diagnosis or change in ability to work, that the additional PPD ratings were anticipated or inaccurate, and that the additional medical treatment services were not closed out and have been paid.
The employee claims that she has experienced a change in diagnosis related to her work injury because her CRPS condition has spread since the settlement from her right foot and ankle to her right hip, low back, left foot, and left leg. The employee also contends that at the time of the settlement, she did not have documentation to support a consequential mental health claim, and that her mental health condition has worsened since then due to her CRPS condition. We are not persuaded. The employee took medication to treat depression and anxiety for many years before and after the work injury. Dr. Rasmussen opined that her pain and disability from CRPS/RSD aggravated her preexisting depression/anxiety condition. As the employee has not experienced changes in her diagnoses, but only worsening of diagnosed conditions leading to additional treatment, we cannot conclude that she has met the burden of proving a change in diagnosis.
The employee had been working part time for the employer shortly before the settlement and contends that she has experienced a change in her ability to work since the settlement. She was able to work part time for a while in 2002 and 2003, and admits that she has provided intermittent childcare services and provided manicures for friends and relatives since 2011. During the same time, she received SSDI income. While an award of social security disability benefits may weigh in favor of a change in ability to work, it is not determinative. See Tudahl v. Beverley Enters., 70 W.C.D. 30 (W.C.C.A. 2010). In this case, the employee stopped working for the employer and applied for social security disability benefits around the time of the settlement and was approved about six months later. The employee’s ability to work has not substantially changed since the time of the settlement.
Implantation of a spinal cord stimulator was recommended and referenced in the stipulation for settlement. Since that time, the stimulator trial was held, a stimulator has been implanted, and complications have resulted. Eight surgeries have been performed related to the stimulators and a replacement stimulator was implanted. These medical expenses continue to be paid under the terms of the settlement. More costly and extensive medical care is a less significant factor when medical benefits are left open as part of the settlement sought to be vacated. Burke v. F-M Asphalt, 54 W.C.D. 363, 368 (W.C.C.A. 1996), summarily aff’d (Minn. May 30, 1996). The employee has also been treated for her preexisting depression and anxiety which was affected by her CRPS condition. These expenses were closed out by the stipulation, but the bulk of the employee’s medical expenses were related to her CRPS condition and have been paid. Because the spinal cord stimulator was recommended and noted in the stipulation, we cannot conclude that the employee has met her burden that medical care related to the spinal cord stimulator was not anticipated at the time of settlement.
The employee claimed a 13 percent PPD rating at the time of settlement, by then the CRPS had already spread into her right ankle and right knee. In 2007, the employee was assigned 17 percent PPD for CRPS of the right knee and in 2017, she was assigned 13 percent PPD for right leg CRPS and 6.5 percent for left leg. These new ratings represent additional PPD, but with the CRPS having already spread at the time of settlement, the employee has not met her burden of proving that the additional PPD was unanticipated.
In addition, Dr. Rasmussen rated the employee’s preexisting anxiety and depression condition at 40 percent PPD, citing Minn. R. 5223.0360, subp. 7.D(3), which he indicated applied to the employee’s condition for moderate emotional disturbance requiring some supervision on a regular basis. We note that subpart 7.D(3) applies when supervision is required on a daily basis. The employer and insurer assert that the employee’s emotional condition has improved and that she does not need daily supervision. The evidence shows that the employee needs assistance with some activities of daily living, but this assistance does not appear to rise to the level of required daily supervision, indicating that 40 percent PPD is not an accurate rating for the employee’s condition. As a result, Dr. Rasmussen’s 40 percent PPD rating lacks foundation as his opinion assumes facts that do not appear to be supported by the evidence. See Hudson v. Trillium Staffing, 896 N.W.2d 536, 77 W.C.D. 437 (Minn. 2017) (a medical expert’s opinion lacks foundation where the opinion does not include facts upon which the expert relied in forming the opinion, does not explain the basis for the opinion, or when the facts assumed in rendering the opinion are not supported by the evidence).
This court has wide discretion in considering petitions to vacate settlements and in weighing the Fodness factors according to the circumstances of each case. See Krebsbach v. Lake Lillian Coop. Creamery Ass’n, 350 N.W.2d 349, 354, 36 W.C.D. 796, 802 (Minn. 1984) (this court is accorded wide, though not unlimited, discretion in determining whether to vacate an award). We conclude that the evidence presented does not establish good cause under the statute to set aside the award on stipulation. The employee’s petition to vacate the December 11, 1998, award on stipulation is denied.
 Ex. I (as noted by Dr. Van Dyne in his report of May 5, 1998).
Subp. 7. Brain dysfunction. Signs or symptoms of organic brain dysfunction due to illness or injury must be present and persistent with anatomic loss or alteration, or objectively measurable neurologic deficit. A rating under this part is the combination as described in part 5223.0300, subpart 3, item E, of the ratings assigned by items A to I.
. . .
D. Emotional disturbances and personality changes must be substantiated by medical observation and supported by psychometric testing. These disturbances may include irritability, outbursts of rage or aggression, absence of normal emotional response, inappropriate euphoria, depression, abnormal emotional interaction with others, involuntary laughing and crying, akinetic mutism, and uncontrollable fluctuation of emotional state. Primary psychiatric disturbances, including functional overlay, shall not be rated under this part:
. . .
(3) moderate emotional disturbance is present at all times and can live independently but requires some supervision on a daily basis, 40 percent.