AMBROSE MANNING, Employee/Petitioner, v. ALLSIDE BUILDERS SUPPLY CO., and CNA/CONTINENTIAL CAS. CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 30, 2007
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The employee has submitted evidence of an unanticipated substantial change in condition since an award on stipulation was issued in 2001, and the employee=s petition to vacate is granted.
Petition to vacate award on stipulation granted.
Determined by: Stofferahn, J., Rykken, J., and Johnson, C.J.
Attorneys: William H. Getts, Minneapolis, MN, for the Petitioner. Philip C. Warner, Law Offices of Jeffrey A. Magnus, Edina, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee petitions to vacate a stipulation for settlement which was the subject of an award issued July 20, 2001. The employee alleges good cause exists as defined by Minn. Stat. § 176.461, in that there has been an unanticipated substantial change in his medical condition since the time of the award. The petition is granted.
Ambrose Manning, the employee, sustained a work injury to his right shoulder on June 25, 1999. The employee and the employer and insurer entered into a stipulation for settlement in July 2001. In the settlement, the employee agreed to settle all claims, except for future medical expenses, in return for a payment of $22,000.00. An award on stipulation was issued July 20, 2001.
The employee was treated in 1999 for his right shoulder injury at Park Nicollet Medical Center. He was then referred to an orthopedist, Dr. Paul Damrow, who did arthroscopic surgery, consisting of debridement and loose body removal, on November 18, 1999. On follow up, the employee reported no substantial improvement and further surgery was recommended. A total shoulder arthroplasty was planned but at the time of surgery on March 30, 2000, the surgery was changed to a hemiarthroplasty because of difficulties with fixation of the glenoid. The employee reported progress from his 2000 surgery and in August 2000, Dr. Damrow gave the employee permanent work restrictions of no overhead reaching and a lifting limit of 20 pounds.
At the time of his injury, the employee worked as a warehouseman for the employer, a job he had held since 1992. In his job, he loaded and unloaded building materials, generally lifting in excess of 50 pounds. The employee was born on August 22, 1954, and he had a high school diploma. His previous employment consisted of laboring jobs. The employee=s weekly wage on the date of injury was $550.40.
After he was released to work by Dr. Damrow, the employee found a job as a school bus driver. He found however that the repetitive use of his right arm to open the bus door caused increased pain in his right shoulder. He was given a TENS unit by Damrow and an FCE was recommended. After the FCE was done, Dr. Damrow approved the employee=s return to work as a bus driver. He told Dr. Damrow on May 22, 2001, that he was having difficulty sleeping because of his shoulder pain.
Shortly after the settlement, the employee moved to Louisiana to be closer to his mother. While there, he looked for and found a number of jobs. He worked for awhile as a security guard at a detention facility but left because of a concern that his shoulder condition would limit his ability to deal with inmates. He also worked jobs as a truck driver, a warehouseman, and at a trash company. He found that these jobs bothered his shoulder but he sought no medical care for his shoulder during the time he was in Louisiana.
In July 2004, the employee moved back to Minnesota and worked again as a school bus driver. In September 2004, he returned to Dr. Damrow. He reported Ahaving a lot of difficulty with pain.@ The employee also told Dr. Damrow that he had been treated for depression because of the continuing pain. The employee was given pain medication. The employee=s comments about treatment for depression referred to care he had received at the Veteran=s Administration Medical Center (VAMC) beginning in October 2004. Those records indicate the employee=s chronic pain and loss of employment because of his shoulder condition were contributing factors in his depression. When he returned to Dr. Damrow in December 2004, Dr. Damrow referred the employee for another orthopedic consultation. The employee stopped working in December 2004 after a child jumped on his arm and aggravated his shoulder pain. The employee has not worked since.
The employee saw Dr. Douglas Becker on January 10, 2005, and advised him that he had pain and weakness in his right arm that had gotten progressively worse so that he was no longer able to use his right arm. The employee attributed his complaints to his 1999 work injury. Dr. Becker=s assessment was Aright shoulder failed hemiarthroplasty with probable rotator cuff tearing.@ Dr. Becker identified the problem as being that the shoulder prosthesis Aput excess pressure on his glenoid and now has caused glenoid wear.@ Dr. Becker recommended revision of the previous surgery with a total shoulder arthroplasty.
The employee opted to have his shoulder care provided by VAMC and he had revision surgery there on March 15, 2005. The employee had physical therapy after his surgery but reported that he had no improvement and little use of his right arm. A work ability form completed at the VAMC on July 14, 2006, stated that the employee was unable to work and was precluded from use of his right arm. No further treatment recommendations were provided. The employee also applied for, and received, Social Security disability benefits with a disability date of July 6, 2004.
The employee filed his petition to vacate on April 19, 2007. The employer and insurer objected to the petition and oral argument was held on July 23, 2007.
This court has been given authority to vacate an award for cause under Minn. Stat. § 176.461. Cause is defined in the statute as including Aa substantial change in medical condition since the time of the award that was clearly not anticipated and could not have been anticipated at the time of the award.@ The employee claims that his situation meets this definition and that the July 2001 award on stipulation should be vacated.
In considering whether there has been a substantial change in condition, this court has generally applied the factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989):
1. A change in diagnosis;
2. A change in the employee=s ability to work;
3. Additional permanent partial disability;
4. A necessity for more costly and extensive medical care than previously anticipated; and
5. A causal relationship between the injury covered by the settlement and the covered condition.
While these factors may be useful, the primary purpose of allowing a vacation of an award is to assure compensation proportionate to the degree and duration of disability. Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 63 W.C.D. 337 (Minn. 2003). We conclude that the employee has established cause to vacate the award in this case.
We conclude there has been a change of diagnosis in the present case. Dr. Damrow=s impression at the time of the employee=s visit on July 10, 2001, was of Asatisfactory function post- hemiarthroplasty, right shoulder.@ The most recent medical information from VAMC indicates a total shoulder arthroplasty with continued pain and comments that the employee was not a candidate for further surgery. The employee was on Methadone and Vicodin for pain management and was not able to use his right arm.
There has also been a change in the employee=s ability to work. At the time of the settlement, the employee had permanent work restrictions of no overhead reaching and no lifting of 20 pounds. The employee was able to find work within those restrictions as a school bus driver. The physicians at VAMC have stated now that the employee is not able to work. The employee has been found eligible for Social Security disability benefits.
It is difficult to assess the change in permanent partial disability. The record indicates that permanent partial disability was not rated or paid after the 2000 hemiarthroplasty and no rating is provided for his current disability.
There has been a necessity for more extensive medical treatment than had been anticipated at the time of the settlement. At the time of the settlement, there was no suggestion that further treatment would be necessary and the employee, in fact, did not seek medical care for his shoulder until the fall of 2004. Since then, the employee has had extensive care, including the arthroplasty in 2005. While, generally, this factor is given lesser weight where the employee=s medical expenses remain open after the settlement, the nature of the care is evidence of a change in the employee=s medical condition.
As to causation, Dr. Becker, in his January 10, 2005, report identifies the failed 2000 surgery as being the cause of the employee=s condition. In the response to the petition, the employer and insurer argue that the employee=s present condition is the result of his employment in Louisiana and that the injuries sustained there are intervening superseding causes of the employee=s medical condition. The only evidence of these Ainjuries@ is from the employee=s affidavit in which he states that his shoulder pain Aworsened@ at his jobs and that one of his jobs was outside of his restrictions. We do not believe that the employee=s comments about his pain level can be considered as evidence that the 1999 work injury does not continue to be a significant contributing factor in his present condition.
The employee=s petition is granted.