DOROTHY HOSHAL-HYVONEN, Employee/Petitioner,
v.
BOVEY MOOSE LODGE and FIREMAN'S FUND INS. CO., Employer-Insurer,
and
SPECIAL COMPENSATION FUND.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
January 19, 1999
HEADNOTES
VACATION
OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where there
was no evident change in the employee's ability and work
and no medical or other evidentiary basis for comparing her
current symptoms and ability to function with her symptoms
and ability to function at the time of her settlement, and
where the employee's surgical expenses had been paid by
the employer and insurer, good cause was not shown to vacate
the award on stipulation on grounds of substantial change in
condition, notwithstanding the fact that the employee's
post-settlement surgery had resulted in a new diagnosis and
an increase in ratable permanency.
Petition
to vacate award denied.
Determined by Pederson, J., Wilson, J., and Johnson, J.
OPINION
WILLIAM R. PEDERSON, Judge
The
employee petitions this court to set aside the award on
stipulation served and filed April 8, 1994, on grounds that
her medical condition has substantially changed since the
issuance of the award and that the change was clearly not
anticipated and could not reasonably have been anticipated at
the time of the award. We deny the petition.
BACKGROUND
On
January 20, 1990, Dorothy Hoshal-Hyvonen, the employee,
sustained a work-related injury to her low back while working
for Bovey Moose Lodge #1061 [the employer]. On that
date, the employee was fifty-one years of age. The
injury occurred when she bent over to pick up a case of beer
and "something just felt like it snapped." The
employer and its workers' compensation insurer,
Fireman's Fund Insurance Company, acknowledged liability
for the injury and commenced payment of workers'
compensation benefits.1
The
employee's medical records reflect a long history of low
back problems predating the injury of January 20,
1990. The records of the Itasca Clinic and Itasca
Memorial Hospital indicate that the employee was hospitalized
on at least five occasions for treatment of her back prior to
undergoing a laminectomy and disc removal at the L4-5 level
on March 22, 1977.2 The surgery was performed by Dr.
Robert F. Donley of the Duluth Clinic, Ltd. Following
her surgery, the employee apparently got along fairly well
until approximately September of 1985, when she began to
develop low back pain and pain radiating down her left
leg. She again returned to the Itasca Clinic, where she
was referred to physical therapy for traction and other
conservative modalities in January of 1986.
The
medical records submitted reflect no additional treatment for
the low back until following her injury of January 20, 1990,
when the employee once again came under the care of Dr.
Donley. An MRI scan of the spine was performed on
January 31, 1990. According to Dr. Donley's office
note of December 4, 1990, the scan demonstrated a small
central disc herniation at L3 and degenerative disc disease
from L3 through L5. A subsequent MRI, in December 1990,
evidently showed improvement at the L3-4 level.[3]
On July
17, 1991, the employee was examined by Dr. Jay Davenport at
the request of the insurer. Dr. Davenport concluded that
the employee had severe degenerative disc disease from L4
through S1, with large posterior osteoarthritic
spurs. He felt that it was highly unlikely that she
would be employable on any sustained basis, and he rated her
permanent partial disability at 10.5%, referable to the
lumbar spine. He further indicated that
"[c]ertainly her degenerative disc disease and
hypertrophic arthritic changes of her back are going to
worsen with time and I think that realistically she in her
present state of weight is not employable."
On
February 8, 1993, the employer and insurer arranged for an
employability evaluation with employment specialist Jan
Lowe. In a report dated April 14, 1993, Ms. Lowe
recounted that the employee "does not believe she is
able to work because of her physical condition." A
Functional Capacities Evaluation [FCE] performed at the
Bemidji Hospital in July of 1992 released the employee
to work three hours a day as long as she alternated body
positions. Ms. Lowe concluded that, although an
anticipated rehabilitation...
