SEAN D. RICHTER, Employee/Petitioner, v. LIFE SAFETY SYS., INC., and HARLEYSVILLE INS. CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 31, 2007
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where it was apparent that there had been a significant change in the employee=s diagnosis, ability to work, permanent partial disability, and need for medical treatment since the date of his award, where the employee=s affidavit in support of his petition asserted evidence that adequately satisfied the statutory requirement that the change in condition could not reasonably have been anticipated at the time of the award, and where the employer and insurer did not oppose the employee=s petition, the court granted the employee=s petition to vacate his award on settlement without elaborating on how he had satisfied each of the factors for consideration articulated in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).
Petition to vacate award on stipulation granted.
Determined by: Pederson, J., Johnson, C.J., Wilson, J.
Attorneys: Michael G. Schultz, Sommerer & Schultz, Minneapolis, MN, for the Petitioner. Mark A. Wagner, Johnson & Condon, Minneapolis, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee petitions this court to set aside an award on stipulation served and filed in this case on November 22, 2004, on grounds that, since the issuance of the award, there has been a substantial change in his medical condition that was clearly not anticipated and could not reasonably have been anticipated at the time of the award. We grant the petition.
On May 26, 2003, Sean Richter [the employee] sustained an injury to his right foot while working for Life Safety Systems, Inc. [the employer]. On that date, the employee was twenty-eight years old and was earning a weekly wage of $645.75. He was subsequently diagnosed with a navicular stress fracture and eventually referred to Dr. Fernando Pena, who concluded that he had gone on to develop talonavicular degenerative joint disease. On May 17, 2004, Dr. Pena performed a right talonavicular arthrodesis. The employer and its workers= compensation insurer accepted liability for the employee=s injury and commenced payment of temporary total disability benefits as well as medical and rehabilitation benefits.
By November of 2004, the parties had entered into a stipulation for settlement of the employee=s claims stemming from his work injury of May 26, 2003. At the time of the stipulation, the employee was contending in part as follows: that he remained temporarily totally disabled as a result of his fusion surgery; that his fusion had not yet healed and might result in significant restrictions and disability and the need of additional surgery; that he might require retraining and/or further rehabilitation assistance; and that he had also sustained a consequential shoulder and cervical injury by using crutches. The employer and insurer contended that the employee had been fully compensated to date for the effects of his injury of May 26, 2003, arguing that the treating physician had indicated that, once the fusion had healed, the employee Amay have full, unrestricted use of his foot and ankle with no restrictions.@ The stipulation for settlement provided that the employee would accept from the employer and insurer a lump sum of $35,000.00 in full, final, and complete settlement of all claims for benefits arising out of his personal injury of May 26, 2003, with the exception of claims for reasonable and necessary medical treatment for the employee=s talonavicular degenerative joint disease of the right foot/ankle. The stipulation was submitted for approval by a compensation judge, and on November 22, 2004, an award on the stipulation was issued.
Subsequent to the award on stipulation, the employee=s fusion did not heal as anticipated, and Dr. Pena performed a revision fusion on January 10, 2005. Despite use of a bone stimulator following this surgery, this surgery, too, resulted in nonunion of the talonavicular joint. On May 27, 2005, the employee was examined by Dr. J. Chris Coetzee, a specialist in foot and ankle surgery, who recommended another revision of the talonavicular joint to include also the subtalar joint. This procedure was performed on August 5, 2005.
Following his attempted third fusion surgery, the employee continued to complain of significant pain in his right foot and ankle. On October 31, 2005, Dr. Coetzee noted that the employee=s talonavicular and subtalar fusions were not completely solid but Aheading in the right direction.@ He recommended that the employee Ashould get to a pain clinic to start management of chronic pain.@ The employee was subsequently seen by licensed psychologist Dr. John Patrick Cronin on November 8, 2005. Dr. Cronin administered a battery of tests, including an MMPI-2 and a Beck Depression Inventory. Dr. Cronin concluded that the employee was exhibiting an emotional reaction to his injury in the form of depression and that he clearly met the criteria for chronic pain syndrome as defined by the DSM-IV. He recommended the employee be referred for a psychiatric consultation with possible medication management.
On July 26, 2006, the employee was examined by orthopedist Dr. Lance Silverman at the request of Dr. Coetzee. Dr. Silverman concluded that the fusion surgery performed by Dr. Coetzee had been unsuccessful and that the employee had a chronic nonunion with the possibility of underlying infection. He recommended a multiple surgical approach with hardware removal, debridement, long-term IV antibiotics, and attempted revision fusion. In addition, the possibility of amputation was discussed.
On January 25, 2007, Dr. Silverman remove the hardware from the employee=s previous surgery and obtained cultures to rule out an infection. Then, on March 6, 2007, he performed a revision triple arthrodesis to address the employee=s Amultiple hind foot nonunion.@ About ten days later, the employee returned to the hospital with cellulitis and obvious infection. At that time the employee requested a below-the-knee amputation. After discussing with him all of the employee=s options, Dr. Silverman performed a right below-the-knee amputation on March 22, 2007.
On June 15, 2007, the employee filed a Petition to Vacate his November 22, 2004, Award on Stipulation, contending that there had been a substantial change in his medical condition. In an affidavit attached to his petition, the employee asserted that, when Dr. Pena recommended in late April 2004 that he undergo the talonavicular fusion surgery, the doctor anticipated a high likelihood of complete pain relief and ability to return to his pre-injury job. At the time of settlement in November 2004, the employee asserts, Dr. Pena still predicted a successful recovery even if a revision surgery proved necessary to ensure integrity of the bone graft. The employee contends that he did not have any knowledge nor anticipate that he would need multiple revision surgeries or that he would have ongoing infection and difficulty at the surgical site. Nor did he anticipate that his work injury would lead to a below-the-knee amputation. By letter dated June 22, 2007, then counsel for the employer and insurer advised the court that the employer and insurer did not oppose the Petition to Vacate.
For this court to grant a petition to vacate, the moving party must show good Acause@ to do so, pursuant to the provisions of Minnesota Statutes section 176.461 and Minnesota Statutes section 176.521, subdivision 3. For awards filed on or after July 1, 1992, good Acause@ is limited to the following: (1) a mutual mistake of fact; (2) newly discovered evidence; (3) fraud; or (4) a substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated at the time of the award. Minn. Stat. ' 176.461. The employee claims good cause to vacate his award on stipulation based on a substantial change in his medical condition. Where a change of condition is alleged, the focus of this court=s inquiry is on whether there has been a significant change and whether there is adequate evidence of a causal relationship to the work injury. Setting aside an award is justified where there has been a substantial worsening in the employee=s condition or significant additional disability since the time of the settlement. Davis v. Scott Moeller Co., 524 N.W.2d 464, 466-67, 51 W.C.D. 472, 475 (Minn. 1994); Franke v. Fabcon, Inc., 509 N.W.2d 373, 376-77, 49 W.C.D. 520, 525 (Minn. 1993). This court has delineated a number of factors that may be considered in determining whether a substantial change in medical condition has occurred. These factors include the following: a change in diagnosis, a change in the employee=s ability to work, an increase in permanent partial disability, the necessity of more costly and extensive medical care or nursing services than was initially anticipated, the causal relationship between the injury covered by the settlement and the employee=s current worsened condition, and the contemplation of the parties at the time of settlement. Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).
It is apparent from a review of the evidence that there has been a significant change in the employee=s diagnosis, his ability to work, his permanent partial disability, and his need for medical treatment since the date of his award on stipulation. The employee=s affidavit in support of his petition asserts evidence that adequately satisfies the statutory requirement that the change in his condition could not reasonably have been anticipated at the time of the award. Given the employer and insurer=s lack of opposition to the employee=s petition, we see no need to elaborate on how the employee has satisfied each of the Fodness factors. We conclude that the employee has demonstrated a sufficiently substantial change in his medical condition since the time of his settlement to warrant vacating his award on stipulation, and accordingly we vacate the award.
 The stipulation did, however, close out claims for future medical expenses related to the employee=s alleged consequential injury. In addition, claims for future medical treatment for the employee=s talonavicular degenerative joint disease of the right foot/ankle were subject to the following exclusions: chiropractic treatment, osteopathic treatment, durable medical equipment, nursing services, health clubs, pain clinics, counseling, chronic narcotic medication treatment, home remodeling, and any and all medical mileage associated with closed-out forms of medical care and treatment.
 Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition.