MICHELLE SAYLER, Employee/Petitioner,
v.
BETHANY HOME and AM. COMP. INS./RTW, Employer-Insurer/Respondents.
No. WC19-6323
Minnesota Workers Compensation
Workers’ Compensation Court of Appeals
October 15, 2020
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.
Determined by: Deborah K. Sundquist, Judge, Patricia J.
Milun, Chief Judge, Sean M. Quinn, Judge.
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.
OPINION
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.
BACKGROUND
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)1which 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.2
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...
