RONALD L. RAY, Employee/Petitioner, v. RYAN CONSTR. CO. and FIREMAN=S FUND INS. CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 7, 2000
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the employee=s diagnosis is unchanged, he is still permanently and totally disabled and there is very little increase in his permanent partial disability rating, he has not shown good cause to vacate an award on stipulation.
Petition to vacate award denied.
Determined by Wheeler, C.J., Wilson, J., and Rykken, J.
STEVEN D. WHEELER, Judge
The employee petitions the court to set aside the award on stipulation served and filed August 25, 1989, on the ground that there has been a substantial change in his condition since the date of the award. We deny the petition.
The employee had an admitted injury to his left foot and ankle on August 31, 1981, and an admitted injury to his right hand and wrist and left shoulder sometime between September 1 and September 30, 1981. At various times the employee=s work for the employer was that of a carpenter, working foreman and working superintendent. (Finding 27.) On both occasions the employee=s weekly wage was $244.00. At the time, the employee was 52 years of age. He was employed by Ryan Construction Company, the employer, who was insured by Fireman=s Fund Insurance Company. As a result of the employee=s injuries, and in accord with the Findings and Order of Compensation Judge David S. Barnett, of the Office of Administrative Hearings, and a subsequent stipulation for settlement which was approved by an award on stipulation served and filed February 18, 1987, the employee received temporary total and temporary partial disability benefits and compensation for a 25% permanent partial disability of the right hand and wrist and 20% permanent partial disability to the left upper extremity. The employee also received rehabilitation benefits and various medical expenses were paid to cure and relieve the employee from the effects of his injuries. (Judgment Roll: 8/1989 Stipulation for Settlement, & IV.)
The employee apparently last worked sometime in the latter part of 1982. Subsequently he applied for and received Social Security disability benefits. In a settlement, entered into in August of 1989, the parties agreed that the employee was permanently and totally disabled from and after March 14, 1985. On the basis of this agreement, the employer and insurer agreed to pay the employee a lump sum of $65,500.00, which represented a compromise of the employee=s claim for future permanent total disability benefit entitlement, subject to reduction for Social Security disability benefits. In addition, the employer and insurer agreed to pay all future medical expenses that were reasonable and necessary to cure and relieve the employee from the effects of his 1981 injuries. The stipulation was approved in an award filed August 25, 1989. (Judgment Roll: 8/25/89 Award; 8/1989 Stipulation for Settlement.)
On March 13, 2000, the employee filed a petition to vacate, alleging a substantial change in his medical condition since the date of settlement in 1989. By letter dated March 29, 2000, the employee=s attorney filed with the court some medical reports from the Noran Clinic to supplement the report from Dr. Douglas Becker which had been filed with the original petition. The employee=s attorney, however, did not serve a copy of these updated reports on the employer and insurer=s attorney.
Pursuant to Minn. Stat. ' 176.461, this court may vacate an award on stipulation only if Acause@ exists. The Minnesota Supreme Court has stated that Acause@ is present if one of the following circumstances exists: (1) the award is based on fraud; (2) the award is based on mistake; (3) there is newly discovered evidence; and (4) there is a substantial change in the employee=s condition. Krebsbach v. Lake Lillian Coop. Creamery Ass=n, 350 N.W.2d 349, 36 W.C.D. 796 (Minn. 1984) (citations omitted).
In order to vacate an award based on a substantial change in condition, this court in the past has examined such factors as: (1) change in diagnosis; (2) change in the employee=s ability to work; (3) additional permanent partial disability; (4) necessity of more costly and extensive medical/nursing care; (5) causal relationship between the injury covered by the settlement and the current worsened condition; and (6) contemplation of the parties at the time of settlement. Fodness v. Standard Cafe, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).
Pursuant to the supreme court=s decision in Franke v. Fabcon, Inc., the issue of the contemplation of the parties at the time of settlement appears to be irrelevant with respect to awards on stipulation entered into prior to July 1, 1992. Franke, 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).
Based on our review of the medical records, the affidavits of the employee and counsel, and all the records and documents provided by employer and insurer=s counsel and contained in the workers= compensation file, the employee has not established that there has been a substantial change in his condition.
First, the diagnosis of the employee=s condition has essentially remained the same before August of 1989. At that time, the employee had significant left shoulder pain and had been diagnosed with a rotator cuff tear, which had been originally injured in 1973. At the time of the settlement, it was contemplated by the employee=s physicians that he would likely require some surgical intervention for his torn rotator cuff at some time in the future. (Ex. H to ER/INS Objection.) His latest condition is stated by his surgeon to be a torn rotator cuff. We conclude that his current diagnosis is essentially the same as that in effect at the time of settlement, in that he is post operative for treatment of the left shoulder injury which he had in 1989. What has changed since the award on stipulation is the level of surgical treatment and the amount of subjective pain that the employee is describing. The employee has had an additional surgical operation, on November 19, 1999, in the form of an arthroscopic subacromial decompression, left shoulder arthroscopic extensive anterior laboral, superior and posterial laboral debridement, open distal clavical excision, open rotator cuff repair and left shoulder bicep tenodesis. (Office notes of Dr. Becker dated 10/19/99.) While the employee=s affidavit describes that he has had an increase in pain in his shoulder over the past ten years, this does not change the fact that the diagnosis of his condition is essentially the same.
Second, the ability of the employee to work appears unchanged. At the time of the settlement, the parties stipulated that the employee had been permanently and totally disabled from all work effective March 14, 1985. In the employee=s affidavit he indicates that he has not worked since 1981. He also stated that he had applied for and had been awarded Social Security disability benefits, which apparently were approved in October 1986. (Ex. I to ER/INS Objection.) In his affidavit, however, the employee indicates that he was able to do some limited activities and felt that he would have been able to perform some part-time work. There is no evidence, however, that the employee actually did engage in any work activities at any time between late1982 and 1989. For that matter, there is no evidence that the employee has engaged in any work activities since the time of the settlement. It appears that the employee is still permanently and totally disabled at this time.
Third, in the area of additional permanent partial disability, the employee=s treating physician, Dr. Becker, an orthopedic surgeon, who operated on the employee in October of 1999, has indicated that the employee=s permanent partial disability rating for his current left shoulder condition is 9% of the whole body under Minn. R. 5223.0450, subp. 3A(2), 6%, and Minn. R. 5223.0450, subp. 4A(1)(b), 3%. In the petition to vacate, the employee contends that in 1989 he had a 6% whole body rating of his left shoulder and that the current rating of 9% whole body permanent partial disability represents a substantial change. Even if we accept the employee=s proposed ratings, the increase in disability rating is relatively small and would not be considered significant.
Fourth, the employee contends that he will need additional and more costly and extensive medical treatment than initially anticipated. It does not appear that there is an issue with respect to the causal relationship between the employee=s current left shoulder difficulties and his original injury, and the employer and insurer have accepted responsibility for medical care to his shoulder up to this point.
Based on the evidence presented by the employee and the medical records provided by the employer and insurer, we find that the employee has not sustained any significant change in his diagnosis, there has been no change in his ability to work and he has had only a 3% change in his permanent partial disability rating. The question of the necessity of more costly and extensive medical care is not particularly relevant in this case, in that future medical care was not closed out and is being paid for by the insurer. As a result, we do not consider that the employee has established sufficient cause for us to overturn the award on stipulation based on a claim of substantial change in the employee=s condition.
 The employee first injured his left shoulder while on the job for the employer in 1973. The 1981 injury was a permanent aggravation of the earlier injury. (Findings and Order of Compensation Judge Barnett of 8/28/85, Findings 8, 17, 23.) The August 28, 1985 Findings and Order was affirmed by the WCCA on April 28, 1986. The WCCA decision was appealed, but the appeal was withdrawn as the matter was settled in January 1987.
 The employee was awarded temporary total disability benefits from November 6, 1982 through the date of hearing before Judge Barnett on March 14, 1985. The judge=s memorandum indicates that the employee worked on a limited basis until permanently laid off on November 6, 1982. (8/28/85 Findings and Order, Finding 19; memo at p. 10.)
 The employee=s attorney provided a copy of his March 29, 2000 filing to insurer=s counsel on the day of oral argument. Employer and insurer=s counsel objected to consideration of these materials on the basis that he had inadequate time to review them. His motion was granted at oral argument and the court will not consider the additional materials in its deliberation.