GEORGE BOYINGTON, Employee/Petitioner, v. HIRSCHBACH MOTOR LINES, INC., and ST. PAUL TRAVELERS f/k/a AETNA COMMERCIAL INS. DIV., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 15, 2007
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Under the circumstances of this case, especially given the substantial increase in permanent partial disability and change in the employee=s ability to work, good cause existed to vacate the award on stipulation.
Petition to vacate award granted.
Determined by: Wilson, J., Rykken, J., and Pederson, J.
Attorneys: David R. Ludwigson, Ludwigson Law Office, White Bear Lake, MN, for the Petitioner. Richard C. Pranke, John G. Ness & Assocs., St. Paul, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee petitions to vacate an award on stipulation filed on October 5, 1990, based on a substantial change in condition. Finding cause to vacate, we grant the petition.
On April 22, 1987, the employee sustained a work-related injury to his back, while working for Hirschbach Motor Lines, Inc. [the employer]. In August of 1987, the employee began treating with Dr. Lowell Baker, who diagnosed low back and right lower extremity radicular pain, secondary to a L2-3 central herniated disc, with secondary severe central spinal stenosis. The employee was paid wage loss benefits and medical expenses by the employer and its workers= compensation insurer. He found work as a milk truck driver in early 1989. In July of 1990, Dr. Baker noted that the employee was working and that his symptoms were controlled with medication.
The parties entered into a stipulation for settlement in the fall of 1990. The employee was still receiving conservative treatment from Dr. Baker at that time. The stipulation for settlement indicated that the employee was claiming impairment compensation for a 14% permanent partial disability, future temporary partial disability benefits, and attorney fees. The employer contended that the employee had returned to work no later than June 12, 1989, at a wage equal to or greater than his wage on the date of injury. Under the terms of the settlement, the employee was paid $9,750.00 in full, final, and complete settlement of all claims, excluding claims for permanency over 14% and reasonable and necessary medical expenses. An award on stipulation was filed on October 5, 1990. Just prior to the issuance of the award, in an office note dated October 2, 1990, Dr. Baker had noted that the employee=s symptoms persisted but were helped by medications, that the employee was still working, and that he should be rechecked in December of 1990. An award on stipulation was filed on October 5, 1990.
On June 14, 2005, the employee petitioned to vacate the 1990 award on stipulation based on a substantial change in condition. This court issued its decision on September 28, 2005, denying the petition. Boyington v. Hirschbach Motor Lines, Inc., WC05-199 (W.C.C.A. Sept. 28, 2005). Additional background information about medical treatment between October of 1990 and June of 2005 can be found in that decision.
Dr. Baker issued a report on November 4, 2005, rating the employee=s permanency at 44% (33% for multi-level spinal stenosis and 11% for total loss of the L4 nerve root). On May 30, 2006, Dr. Baker issued a report stating that the employee never completely healed from his 1987 work injury, that he had sustained no new injuries after that date to account for his flare-ups, and that the employee=s L3-4 herniated disc and his spinal stenosis were causally related to his work injury.
On March 23, 2006, Dr. Baker noted that the employee had marked edema in the left lower extremity, from the knee down. Between January 12, 2006, and December 6, 2006, the employee received treatment for diabetes from a nurse practitioner at Scenic Bluffs Community Health Center. On March 27, 2006, he complained of swelling in his left leg and foot. He also reported some swelling in his right leg.
The employee was examined by independent medical examiner Dr. Richard Galbraith in early April 2006. Dr. Galbraith concluded that the employee had sustained an additional 41% whole body impairment over the 14% previously rated (28% for spinal stenosis at multiple levels, and 13% for total loss of the L5 nerve root causing right foot drop.) It was Dr. Galbraith=s opinion that the employee had fully recovered from his work-related low back injury and that the additional permanency was due to the natural progression of preexisting, nonwork-related spinal stenosis and a herniated disc.
On May 4, 2006, the employee was rechecked by the nurse practitioner for his left lower extremity edema, and his medications were changed. When the swelling continued, an ultrasound of the left lower extremity was scheduled. Scenic Bluffs records from June 29, 2006, indicate that the ultrasound was negative for a clot, and the employee was fitted with a Unna boot. However, a repeat ultrasound performed on July 5, 2006 revealed a clot in the posterior tibial vein. As a result, the employee was prescribed medication and advised to rest and keep his leg elevated. The office note for that date reflected that the employee planned to continue working in his job as a milk truck driver. On July 11, 2006, he was prescribed Ted hose.
The employee was examined by Dr. James B. Ringstrom on August 28, 2006. X-rays revealed Acomplete break down of the mid foot.@ Dr. Ringstrom diagnosed Charcot foot deformity of the left foot Arocker bottom flat foot.@ He advised the employee to use crutches to keep the load off his foot and prevent further breakdown and deformity. Dr. Ringstrom also immobilized the foot with a Cam walker.
In October of 2006, the parties entered into a stipulation for settlement. According to the agreement, the employee was claiming a 46.1296% whole body disability (after application of A + B formula), whereas the employer and insurer contended that the employee had sustained an overall 44 % whole body impairment (or a 40.37 % rating, after application of the A + B formula). The employee was paid $4,898.30, less attorney fees, in full, final, and complete settlement of past, present, and future claims for permanent partial disability, to the extent of the 55% impairment rated by Dr. Galbraith. That award on stipulation was filed on November 6, 2006.
The employee returned to the nurse practitioner on October 5, 2006, who noted that the employee continued to wear the Cam walker and reported occasional pain in the ball of his left foot. A month later, on November 6, 2006, the employee was noted to have ulceration of the left foot.
On November 9, 2006, Dr. Baker wrote to the employee=s attorney, stating that the employee was Amedically disabled from any substantial, gainful employment.@ Dr. Baker explained that the employee=s work-related herniated disc and spinal stenosis had resulted in marked weakness, atrophy, and reflex change in the right lower extremity, with a right foot drop. ANow, with this patient=s new left lower extremity condition, he has lost the ability to perform the walking and heavy exertion necessary to carry out his milk truck occupation.@ It was Dr. Baker=s opinion that the employee=s 1987 work injury was a substantial contributing factor in his inability to work.
On November 14, 2006, Dr. Ringstrom noted a small abrasion on the employee=s left foot and added padding to the Cam walker. On November 16, 2006, Dr. Ringstrom discontinued the Cam walker, because the employee had developed an infection with ulceration on his left arch.
A repeat ultrasound on December 7, 2006, showed no evidence of acute deep vein thrombosis and resolution of the earlier clot.
On December 21, 2006, the employee filed another petition to vacate the 1990 award on stipulation based on a substantial change in condition.
The employee was reexamined by Dr. Galbraith on January 24, 2007. At that time, Dr. Galbraith reviewed additional medical records and examined the employee=s left lower extremity. Dr. Galbraith diagnosed the employee as having complications in the left lower extremity due to diabetes mellitus. It was Dr. Galbraith=s opinion that the changes in the left lower extremity were not caused by an altered gait related to the right foot drop.
On February 12, 2007, the employee=s counsel provided to this court an additional medical opinion, signed by Dr. Ringstrom. Dr. Ringstrom opined that the decreased function of the employee=s right leg had substantially contributed to the employee=s left foot condition.
In this court=s decision of September 28, 2005, we analyzed the case pursuant to the factors listed in Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989). There was no dispute that the employee=s diagnosis had changed since the time of the award. The employee had arguably proven a change in ability to work, but he was apparently working at the time of the June 2005 petition to vacate, and there was no evidence that he was unable to perform the job he had held for the past 16 years. There was also some increased permanency, and causation had been established. However, because the employee=s only claims at that time were for permanent partial disability benefits and medical expenses, and because both claims remained open under the terms of the 1990 stipulation for settlement, we denied the petition to vacate.
Following this court=s previous decision, the employee was rated as having more permanent partial disability. While an employee=s level of permanency may be less important when permanent partial disability benefits remain open under an award, an increase in permanency may nevertheless constitute evidence of a worsened condition. In this case, the increase is substantial. The rating at the time of the 1990 stipulation for settlement was 14% whole body impairment. Ratings now range from 44% to 55%.
The employee also submitted a medical opinion stating that he is medically disabled from any substantial gainful employment as a substantial result of the 1987 work injury. There is also deposition testimony by the employee that he has not worked since September of 2006. The employer and insurer did not provide any opinion regarding the employee=s ability to work.
The Minnesota Supreme Court has noted that fundamental fairness is the overriding principle in determining whether an award should be set aside. Krebsbach v. Lake Lillian Coop. Creamery Ass=n., 350 N.W.2d 349, 36 W.C.D. 796 (Minn. 1984); Landon v. Donovan Constr. Co., 270 N.W.2d 15, 31 W.C.D. 135 (Minn. 1978); Wollschlager v. Standard Constr. Co., 300 Minn. 550, 220 N.W.2d 346, 27 W.C.D. 495 (1974). With the additional evidence of substantially increased permanency ratings and an opinion that the employee is no longer able to work due in substantial part to the work injury, we conclude that the employee has established good cause to vacate the 1990 stipulation for settlement. The petition to vacate is therefore granted.