The employee petitions this court to vacate an Award on Stipulation served and filed on December 2, 1999, based upon a substantial change in medical condition which could not have been reasonably anticipated at the time of settlement.  Concluding that the employee has failed to show good cause to vacate the award at issue, we deny the employee’s petition.

Jerry Darvell, the employee, was a passenger in a work-related roll-over motor vehicle accident on June 5, 1980, while employed by Wherley Motors, Inc., the employer, which is now covered for workers’ compensation liability by Minnesota Insurance Guaranty Association.  He was first seen at Deer River Hospital following the accident.^[1]  The employee’s injuries included a scalp laceration, contusions of the face and head, and pain in the right shoulder.  There was no indication that neck, arm, or hand symptoms were mentioned at this initial hospital visit.

Following the accident, there has been extensive litigation related to the nature and extent of the claimed injuries, consequential injuries, as well as medical care.  We incorporate by reference the earlier findings and orders and decisions of the Office of Administrative Hearings and of this court.  The employee underwent left carpal tunnel surgery on June 16, 1981, and right carpal tunnel surgery on July 31, 1981.  The employee was found to have developed bilateral carpal tunnel condition as a result of the June 5, 1980, work injury and the associated surgeries were found to be reasonable and necessary.  The employee was awarded 10 percent permanent partial disability (PPD) of the left arm, a total of 15 percent PPD of the right arm, along with 15 percent PPD for simultaneous injury permanency.  Claims related to a repeat left carpal tunnel surgery in 1988 and injuries to the neck, back, and thoracic outlet syndrome were denied as not causally related to his work injury.  Rib resection surgeries in 1984 and 1985 related to the thoracic outlet syndrome were also denied.

On March 10, 1989, the employee was diagnosed with reflex sympathetic dystrophy/complex regional pain syndrome (RSD/CRPS) in his upper extremities by Dr. Thomas McPartlin.  Dr. James Berlin, the employee’s primary care physician, confirmed the RSD/CRPS diagnosis on June 22, 1989.  A bone scan conducted at Duluth Clinic was read as normal.  The employee began stellate ganglion blocks as a result of his diagnoses.  He also received epidural steroid injections and underwent physical therapy for his bilateral wrist and shoulder conditions under the care of Dr. Mark Carlson and Dr. Thomas Kaiser.

The employee was seen at the Mayo Clinic for evaluation of his medical condition on December 11, 1989.  The employee reported symptoms of shoulder aching, forearm burning, pain into the palms of both hands with occasional mottling of the palms, swelling of the forearm, and a feeling of coldness.  He also complained of recent hair loss over the dorsum of the hands and forearms and an extreme sensitivity to temperature changes.  After an examination and testing, the employee’s diagnosis was chronic pain dysfunction of both upper extremities.  No evidence of RSD/CRPS was observed.  In addition, an EMG found no evidence of right or left radiculopathy and no further surgery was recommended.  The employee was recommended to discontinue steroid injections and to slowly discontinue use of narcotic medications.

The employee continued to have shoulder symptoms and in May 1997, he had a partial right shoulder acromioplasty with resection of the coracoacromial ligament.  On August 28, 1997, he underwent a left shoulder acromioplasty and subacromial decompression.  In September 1998, the employee underwent a right shoulder rotator cuff tear repair surgery.  After this surgery, the employee noted increased RSD/CRPS symptoms and was treated with stellate ganglion blocks for this condition.

In a report dated July 16, 1998, Dr. Duane F. Person diagnosed the employee with ongoing symptoms of bilateral carpal tunnel syndrome, bilateral shoulder chronic impingement syndrome, and RSD/CRPS resolving bilaterally, based upon results that the stellate ganglion blocks were beneficial in reducing his symptoms.  Dr. Person also provided physical restrictions of no lifting over five pounds, no repetitive motion or lifting, no above shoulder lifting, no use of ladders, no extreme hot or cold exposure, and the ability to change tasks depending on his symptomatology.  Finally, Dr. Person concluded that the employee had a 25 percent PPD rating for each upper extremity.

On January 6, 1999, the employee participated in a rehabilitation consultation with qualified rehabilitation consultant (QRC) Dee Koskela.  At the time of the consultation, the employee was recovering from surgery, had not yet been released to return to work, and was still under the restrictions set forth by Dr. Person.  The employee reported difficulties in his arms when lifting, driving, and walking.  He was unable to participate in many of his hobbies and his household chores were modified to limit his arm use and the amount of weight lifted.  He reported that he did very little outside such as shoveling snow or yard work.  He also reported that since June 1980, he worked approximately 11 of the last 19 years, but he was noted to be a poor historian regarding his work history.  He had been laid off from his employment with New Court Financial in September 1996.

The employee treated with Dr. Berlin on January 22, 1999, without his QRC, for a follow up on his shoulder surgery, RSD, and depression.  The employee indicated that he was not able to do anything and did not think that he was ever going to be able to work again.  Dr. Berlin opined that, other than a job in sales, the employee was “going to be unemployable due to his arm and shoulder and associated problems.”  (Ex. R.)  Dr. Berlin assessed the employee with depression and prescribed medication.

In a progress report dated May 20, 1999, QRC Koskela stated that a physician treating the employee for RSD/CRPS indicated that the condition was “very unpredictable,” but was anticipated to continue.  (Ex. 3.)  The last progress report from the QRC in evidence dated September 17, 1999, indicated that the employee continued to be off work per Dr. Kaiser’s evaluation and that he would be having surgery on his left shoulder.  The employee underwent left shoulder laser debridement and capsular stabilization on October 28, 1999.

The parties executed a stipulation for settlement in November 1999.  In exchange for a payment of $150,000, the employee agreed to a full, final, and complete settlement of any and all claims arising out of the motor vehicle accident of June 5, 1980.  Permanent total disability (PTD) and PPD benefits were closed out, however, future medical care for physical injuries remained open subject to defenses of reasonableness, necessity, and causation.  The employer and insurer denied that the employee’s diagnosis of RSD/CRPS was causally related to the work injury.  The parties stipulated that future surgery would not be grounds to vacate the agreement and the employee conceded that his personal injuries may change in the future and could become substantially worse than at the present time.

A compensation judge reviewed the stipulation and, finding it to be fair, reasonable and in conformity with the Minnesota Workers’ Compensation Act, approved the stipulation and signed an award on stipulation.  The award was served and filed on December 2, 1999, per Minn. Stat. § 176.521.  The employee was awarded benefits in accordance with the stipulation.

Dr. Kaiser continued treating the employee for his bilateral shoulder condition after the issuance of the award.  Following the left shoulder surgery in October 1999, the employee continued to receive stellate ganglion blocks, cortisone injections, and physical and massage therapy.  He was also prescribed medications for his RSD/CRPS and bilateral shoulder conditions which allowed the employee to work at a sedentary level.  However, the treatment provided only temporary relief.  The parties eventually litigated the issue of whether the employee’s RSD/CRPS treatment was causally related to his work injury, and after a remand, this court affirmed the compensation judge’s finding that the employee’s RSD/CRPS condition was causally related to his work injury.  See Darvell v. Wherley Motors, No. WC04-320 (W.C.C.A. May 17, 2005).

Dr. Kaiser wrote to the employee’s counsel on July 27, 2000, stating that “it is possible that he is going to get degenerative change of the glenohumeral joints with time, and at some point, he may require additional treatment because of this.”  (Ex. R.)  He assessed the employee’s diagnoses as bilateral shoulder instability problems with chronic impingement, osteoarthritis of the AC joints due to degenerative change in the joints from trauma or at least aggravated by trauma, and rotator cuff tearing due to the chronic impingement from the degenerative change of the AC joints.  At a follow-up appointment on March 8, 2001, Dr. Kaiser’s impression was that the employee was doing very well.  Dr. Kaiser noted that “[t]his is one reason why in the settlement he has open medical on both shoulders.”  Id.

Beginning in May 2003, the employee began working for Yellow Book USA, Inc., as an account representative selling new advertising in the Duluth area.  By April 21, 2004, the employee and Dr. Kaiser discussed changes in the right shoulder and the possibility that surgery may be required.  Dr. Kaiser also indicated that, given the employee’s long-term use of anti-inflammatories, he would need to have his renal and liver function checked every six months.  In June 2004, the employee was seen by Dr. Douglas Johnson at Duluth Clinic – International Falls for refills of his prescriptions.

On July 14, 2004, the employee was seen at the Duluth Clinic by a rheumatologist, Dr. Raymond Hausch.  In October 2004, the employee’s symptoms worsened and he reported shoulder pain to Drs. Hausch and Kaiser.  He also reported having trouble with pushing, pulling, and lifting, and not being able to raise his right arm above shoulder level.  Both Dr. Hausch and Dr. Kaiser restricted the employee to sedentary work.  Dr. Hausch believed that the employee could not sustain gainful employment given his shoulder condition and RSD/CRPS.

On March 4, 2005, Dr. Johnson indicated that the employee’s right shoulder was “jelling much more,” and that he had limited range of motion and increased pain with any type of movement.  (Ex. R.)  At this point, Dr. Johnson opined that each of the employee’s conditions was disabling and that the employee should stop working.  The employee’s last day of work for Yellow Book was March 3, 2005.  Over the next several months the employee’s symptoms continued to wax and wane, and his doctors adjusted his pain medications.  On May 10, 2005, Dr. Kaiser noted that the employee “really just cannot use the arms at all at this point,” but this limitation was apparently due solely to pain, as Dr. Kaiser noted that the employee had “excellent motion in both of his shoulders.”  (Ex. S.)

On referral from Dr. Johnson, the employee was evaluated for participation in the Duluth Clinic pain program by Dr. Cassandra Schamber on October 26, 2005.  Based upon her physical examination and review of the employee’s records, Dr. Schamber recommended that the employee cease stellate ganglion blocks and cortisone injections given his age and minimal evidence of disease.  For these same reasons, Dr. Schamber did not endorse the employee’s request for shoulder replacement procedures.  Dr. Schamber also noted that the employee’s RSD/CRPS condition was normalized.  After her evaluation and that of a pain psychologist, Dr. Susan Bruns, the employee was determined to be a good candidate for the pain program.  However, the employee chose not to participate in the program and instead, continued to treat with stellate ganglion blocks, cortisone injections, and medications for his RSD/CRPS and bilateral shoulder conditions.

After litigation in 2008, a compensation judge found that the employee’s use of pain medication and occasional injections was effective in managing the pain from his work-related shoulder injury and RSD/CRPS condition and that the treatment was reasonable, necessary, and causally related to his work injury.  In December 2008, Dr. Kaiser continued to recommend pain medication, noting that cortisone injections did not provide much relief and that the employee was not a surgical candidate at that time.  In March 2009, the employee reported decreased motion in his right shoulder and increased pain.  Dr. Kaiser performed a left shoulder hemiarthroplasty and rotator cuff repair in 2010 and a right shoulder arthroplasty with rotator cuff repair and bicep tendon repair in 2011.

In November 2009, the employee was awarded SSDI benefits as of September 2005.  The award was based upon the employee’s RSD/CRPS and bilateral shoulder conditions.  His residual employability was at the sedentary level.

The employee began to complain of RSD/CRPS symptoms in his lower extremities when seeing Dr. Kaiser in December 2009.  The employee had been evaluated in May 2007 for pain and tingling in his legs, which was assessed as edema.  Recommendations at that time included weight loss, low sodium diet, and reduction of medications.

The employee was seen at Fairview Pain Management Clinic in Burnsville on August 20, 2014.  He was evaluated by Dr. Anne Kokayeff, a medical doctor, and Dr. John Mullen, a licensed psychologist, on referral from his primary physician at the Hibbing Fairview Clinic.  The employee reported he was engaged in social activities with family and friends, going out for coffee, helping his mother and mother-in-law, and volunteering at his church.  The employee reported that his sleep pattern and daytime energy were good.  He was noted to regularly participate in household tasks and to ride motorcycles and snowmobiles.  On physical examination, Dr. Kokayeff reported that the employee had good muscle tone and bulk in his bilateral upper extremities and bilateral lower extremities.  The employee also had good range of motion of the joints and had no tremors, edema, or sudomotor changes.  The employee showed mild allodynia to light touch in his bilateral upper extremities and decreased sensation to pinprick in posterior bilateral lower extremities.  His skin was warm and well-perfused with very slight mottling of a portion of the palmar surfaces of his hands.  The employee reported reduced hair growth on the back of his hands, however, Dr. Kokayeff could not confirm this observation.  Based upon the evaluation, Dr. Kokayeff prescribed opioid and other medications.

The employee continued treatment with Dr. Kokayeff.  When he was seen on April 8, 2015, the employee reported that he was able to volunteer, help his elderly mother, and go snowmobiling with friends.  The results of an EMG scan previously ordered by Dr. Kokayeff was negative, per the employee.  Dr. Kokayeff continued to manage the employee’s prescription opioid medications until at least February 10, 2016.

In 2016, the employee underwent a left hemiarthroplasty revision to the total shoulder arthroplasty and biceps tenodesis, and in 2017 he had further revisions of the left shoulder replacement performed by Dr. Leroy Pearce McCarty, an orthopedic surgeon.

At the request of his attorney, the employee was examined by Dr. Robert Wengler on November 11, 2016.  Dr. Wengler opined that the employee developed a cascade of progressive orthopedic problems following the 1980 work injury.  By history, the employee complained of allodynia in his lower extremities which was completely relieved by sympathetic blocks.  Examination of the lower extremities was normal without allodynia, skin discoloration, or atrophic skin changes.  In his upper extremities, the employee showed mild hypersensitivity in the soft tissue and sparse hair distribution.  There were no characteristic symptoms of skin discoloration or dyshidrosis.  Dr. Wengler indicated that the employee had recurrent symptoms of RSD/CRPS in his upper extremities and recommended restrictions of no working with his upper extremities away from the body or overhead and no lifting over five pounds.  He rated the employee’s PPD as 18 percent for an implant glenohumeral joint; 5 percent for the right and left shoulders respectively for loss of forward elevation; and 8 percent for the right and left shoulders respectively for loss of abduction and assigned 15 percent for mild type-1 RSD/CRPS of the upper extremities.  He did not rate the employee for RSD/CRPS of his lower extremities.

The employee was treated for low testosterone by his primary physician in 2017.  Dr. Kathryn Thompson at St. Luke’s Interventional Pain Clinic noted that chronic ongoing narcotic use is implicated in the development of low testosterone, but that he could continue using his medication on a reasoned and measured basis.  In 2018, a compensation judge found that the employee’s work injury was a substantial contributing cause of this condition.

Dr. Mark Engasser performed an independent medical examination of the employee on May 17, 2018.  He opined that given the employee’s condition at the time of settlement in 1999, the employee had not shown a substantial change in diagnosis that could not have been anticipated.  Dr. Engasser stated there was no evidence of RSD/CRPS in the employee’s lower extremities and opined that the employee did not have RSD/CRPS in his lower extremities.

In 2019, Dr. McCarty performed a right total shoulder revision arthroplasty, biceps tenodesis, and subscapularis repair.  On July 15, 2021, Dr. McCarty provided the employee with permanent restrictions consisting of no reaching above the shoulder, no repetitive activities, and no outstretched reaching with the elbow four to six inches from the body.  The employee was also restricted to only basic activities of daily living and given permanent weight restrictions of no lifting more than three to five pounds from floor to shoulder height and no lifting from tabletop to shoulder height or overhead.

Dr. Todd Hess evaluated the employee on June 22, 2021.  The employee reported that his legs were more painful than his arms at that time.  By history, Dr. Hess noted the employee had separated both AC joints in the 1980 work injury and had longstanding CRPS in the upper extremities.  Dr. Hess stated that the employee had experienced a “natural” progression of RSD/CRPS to the lower extremities in the 2000s which showed some weakness, swelling, and changes in temperature and coloring.  (Ex. NN.)  Dr. Hess saw the employee for a follow up on November 10, 2021.  At this visit, the employee showed allodynia and hyperalgesia and the AC joints were normal.  Dr. Hess also opined that the employee was unable to work and rated the employee at 30 percent PPD for the employee’s RSD/CRPS in each upper extremity and 20 percent PPD for RSD/CRPS in each lower extremity.

The employee filed a petition to vacate the 1999 award on stipulation on September 10, 2021.^[2]   This court may set aside an award on stipulation and grant a new hearing on petition by either party.  Minn. Stat. § 176.521, subd. 3; see also Minn. Stat. § 176.461(a).  The petitioner must show good cause for this court to vacate an award.  Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989).  For awards issued on or after July 1, 1992, “cause” 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(b); see also Ryan v. Potlatch Corp., 882 N.W.2d 220, 224-25, 76 W.C.D. 491, 496 (Minn. 2016); Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).

In this case, the employee has alleged that there has been a substantial change in medical condition since the time of the award which was clearly not anticipated and could not reasonably have been anticipated.  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 with the condition at the time the petition was filed.  See Davis v. Scott Moeller Co., 524 N.W.2d 464, 467, 51 W.C.D. 472, 475 (Minn. 1994); Battle v. Gould, Inc., 42 W.C.D. 1085, 1086 (W.C.C.A. 1990), summarily aff’d (Minn. May 24, 1990); Virnig v. Carley Foundry, Inc., slip op. (W.C.C.A. Nov. 14, 2000).  In considering the employee’s petition to vacate, we will compare his condition at the time of the 1999 settlement with his condition at the time the petition to vacate was filed in 2021.  “[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 disability.”  Krebsbach v. Lake Lillian Coop. Creamery Ass’n, 350 N.W.2d 349, 353-54, 36 W.C.D. 796, 801 (Minn. 1984) (citation omitted).

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 PPD, 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 Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).  The employee asserts that his change in medical condition is causally related to his 1980 work injury, that he has additional PPD due to the work injury, that he is permanently and totally disabled, and that the settlement amount is not commensurate with the degree of disability he has experienced.  The employer and insurer contend that the employee’s petition should be denied because his current condition has not substantially changed since 1999 when the award was issued or, alternatively, that the change could have been reasonably anticipated.

The employee claims that he has experienced a change in diagnosis related to his work injury because his RSD/CRPS condition has spread to his bilateral lower extremities.  We are not persuaded.  The employee has not experienced substantial changes in his diagnoses for his bilateral shoulder condition but worsening of the same diagnosed conditions leading to additional treatment.  While Dr. Hess indicated that the employee’s RSD/CRPS condition had followed a “natural” progression to his lower extremities in the 2000s, Dr. Wengler indicated that the employee’s lower extremities were normal in 2016 and Dr. Engasser opined that the employee did not have RSD/CRPS in his lower extremities in 2018.  The employee also argues that he has developed a consequential injury of low testosterone as a result of medication prescribed for his work injury.  We acknowledge that this diagnosis is a consequential injury related to his work injury, but the employee has received minimal treatment for this condition which has been paid for by the employer and insurer under the terms of the stipulation for settlement, and there is no additional PPD claimed for this condition.

As to the employee’s work history before and after the settlement, the evidence in the record is sparse and conflicting.  The employee’s work history, as set out in his affidavit and the hypothetical facts provided to his examining physicians by his attorney, contradicted other documentation in the record which indicates that he was able to work intermittently from 1980 to approximately 1996 and that he did not work from 1996 to December 1999 when the award was issued.  The record is not clear when the employee began to work following the issuance of the award but appears to indicate the employee worked sporadically after December 1999 until March 2005.  The employee applied for, and in 2009, was awarded SSDI income as of September 2005. 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).  Based upon the evidentiary record as submitted, we find nothing in the record to indicate the employee’s ability to work substantially changed since the time of the settlement in 1999.

The employee has continued to treat for his bilateral shoulder condition since the settlement, including surgeries and numerous stellate ganglion blocks, steroid injections, and sympathetic blocks for his RSD/CRPS condition.  Medical expenses for those conditions causally related to the employee’s work injury have been paid under the terms of the settlement.  The factor of more costly and extensive medical care is less significant 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 fact that an employee has undergone post-settlement treatment and surgery, in and of itself, does not necessarily justify vacating an award on stipulation.  Cates v. SPX Serv. Sols., No. WC19-6329 (W.C.C.A. Aug. 5, 2020) (citing Miedma v. Brown Group, Inc., slip op. (W.C.C.A. Apr. 22, 1996)).

Approximately ten years before the settlement, the employee was awarded PPD benefits of 10 percent for the left arm, 15 percent for the right arm, and 15 percent for the simultaneous injury factor.  In 1998, a year before the settlement, the employee was assigned a 25 percent PPD rating respectively for the right arm and left arm, including the RSD/CRPS condition, by Dr. Person.  In 2016, Dr. Wengler rated the employee’s PPD as 18 percent for an implant glenohumeral joint; 5 percent for the right and left shoulders respectively for loss of forward elevation; and 8 percent for the right and left shoulders respectively for loss of abduction. Dr. Wengler also assigned 15 percent for mild type-1 RSD/CRPS of the upper extremities.  In 2021, Dr. Hess assigned 30 percent for the employee’s RSD/CRPS in his upper extremities and 20 percent for RSD/CRPS in his lower extremities.  Dr. Wengler did not rate the employee for PPD for his lower extremities.  The opinions of Dr. Wengler and Dr. Hess failed to take into account or explain how their opinions compared to that of Dr. Person as to the employee’s restrictions and PPD ratings, especially since Dr. Person rated the employee following his bilateral shoulder surgeries and included his RSD/CRPS condition.  Further, it is not clear from the record that the employee’s RSD- type symptoms in his legs are causally related to his work injury.

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, 350 N.W.2d at 354, 36 W.C.D. at 802 (this court is accorded wide, though not unlimited, discretion in determining whether to vacate an award).  Under Minn. Stat. § 176.461(b)(4), a substantial change in medical condition must have been clearly not anticipated and could not reasonably have been anticipated by the parties at the time of the settlement.  Here, the record indicates that it was reasonable to expect that, after the employee had undergone multiple shoulder surgeries prior to settlement, over the years the employee’s bilateral shoulder joints could worsen so that additional surgeries would be anticipated.  The worsening of the adjacent muscles, joints, and structure of the employee’s bilateral shoulder integrity was, or reasonably could have been, anticipated by the parties.  In addition, the employee has not shown significant additional PPD related to the work injury and has not had a significant change in his ability to work.

At the time of the settlement, the employer and insurer had already paid substantial wage loss, medical, vocational rehabilitation, and PPD benefits to the employee as a result of the work injury.  The employee was claiming potential future wage loss benefits, including PTD benefits.  The employer and insurer disputed the nature and extent of the employee’s injury, wage loss claims, ongoing medical treatment, vocational rehabilitation, and additional PPD ratings in the stipulation.  Based upon the record, the overall impression from the terms of the stipulation, including the claims and contentions, defenses, and the amount of the settlement payment, shows that both parties anticipated that the employee would require additional medical treatment and contemplated potential future loss of earning capacity, vocational rehabilitation needs, and additional PPD.

We conclude that the settlement amount was commensurate with the employee’s disability and 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 2, 1999, Award on Stipulation is denied.