Burns v. East Range Builders

ROB BURNS, Employee/Petitioner, v. EAST RANGE BUILDERS and BERKLEY RISK ADM=RS, Employer-Insurer.

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The record reasonably establishes that the employee=s development of severe arthritis, and resulting need for a hip replacement, was not anticipated or reasonably capable of anticipation by the employee at the time of the settlement agreement.

The employee petitions to vacate a 1996 award on stipulation based on substantial change in medical condition. Finding an adequate basis for vacation, we grant the petition.

The employee sustained a work-related fall on September 29, 1992, while working for East Range Builders [the employer]. His injuries included severe fractures of his pelvis, sacrum, and right femur, which required surgical fixation. The employee treated with Dr. Frank Budd, who reported on August 17, 1993, that the employee=s pelvic and femoral fractures were solidly united. The femoral fracture resulted in a one-inch shortening of the employee=s right leg and external rotation of the femur. In October of 1994, a functional capacities evaluation [FCE] was completed, and the employee was restricted to 45 pounds of lifting and carrying.^[1]

The employee was off work, and received temporary total disability benefits, from the date of injury until approximately February 13, 1995, when he began an on-the-job training program with Creative Woodworking Concepts as a cabinet maker trainee. In March of 1995, the employee advised his QRC that he would rather be self-employed as a contractor, work that he felt he was able to do and which would pay more. The QRC advised the employee to contact his attorney.

The employee saw Dr. Budd on May 23, 1995, and reported that he was still having low back pain and right leg discomfort. Dr. Budd noted that the employee=s ability to perform heavy work was limited Afor the rest of his life,@ and he released the employee to return for treatment Aas needed.@ By August of 1995, the employee was self-employed doing siding work. He reported to his QRC that he had no difficulties with his leg or back because he was able to schedule the work at his own pace and convenience. The QRC noted that the work was medium to heavy, inconsistent with the FCE results.

In 1996, the employee and the employer entered into a stipulation. According to the stipulation, the employee was contending that he was entitled to benefits for a 2% permanent partial disability, temporary total disability benefits, temporary partial disability benefits, and medical expenses. It was agreed that the employer and insurer would pay $6,000 for a full, final, and complete settlement of all claims arising out of the work injury, with the exception of medical expenses. An award on stipulation was filed on August 8, 1996. The employee was 29 years old at the time.

There is no record indicating that the employee received any medical treatment for his work injury between May of 1995 and March of 2001. However, on March 8, 2001, the employee began treatment with Dr. Robin Hendricks, who noted that the employee had pain Aon and off in his hip over the years, but that over the last couple of years he has noticed increasing right lateral hip pain, right groin pain, loss of motion in the hip which has left him with an external rotation deformity.@ Dr. Hendricks= impression was right hip arthrosis, healed right femur fracture, healed right pelvic ring fracture, right knee arthritis, and low back pain. The doctor prescribed a cortisone injection to the employee=s hip and advised, Awill proceed with total hip replacement in the future as necessary.@ A total hip replacement was performed on January 9, 2002. In August of 2002, Dr. Hendricks released the employee to return to work with restrictions against working off the ground, lifting over 35 pounds, and jumping.

The employee filed a petition to vacate the award on stipulation based on a substantial change in condition.^[2] On November 8, 2002, the employer and insurer objected to the petition to vacate.

Pursuant to Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), a number of factors may be considered in determining whether an award should be vacated based on a substantial change in condition, including:

(d) necessity of more costly and extensive medical care/nursing services than initially anticipated;

(e) causal relationship between the injury covered by the settlement and the employee=s current worsened condition.

The employee contends that his current diagnosis is severe post-traumatic arthritis in the right hip necessitating total hip arthroplasty, which was not diagnosed at the time of the award on stipulation. The medical records attached to the petition to vacate and the objection to that petition reveal that the diagnoses at the time of the stipulation for settlement were healed fractures of the pelvis and right femur with ongoing low back pain and right leg discomfort. No doctor had diagnosed arthritis in the employee=s hip at the time of the award on stipulation. As such, there has been a change in diagnosis since the award on stipulation was issued.

The employee also contends that there has been a change in his ability to work. In an affidavit attached to the petition to vacate, the employee stated that he returned to self-employment as a siding subcontractor following his hip replacement surgery but has had to hire someone to do all work on ladders and scaffolding because of Dr. Hendricks= restriction that he not work off the ground. The employer and insurer respond that the employee=s current restrictions are not significantly different than those in place at the time of settlement and that the employee had simply chosen to work outside his restrictions at the time of the stipulation. We are persuaded that the added restriction of an inability to work off the ground represents a significant change in the employee=s ability to work as a siding subcontractor.

The employee also maintains that his permanent partial disability has increased. According to Dr. Hendricks, the employee has an additional 13% permanent partial disability of the whole body as a result of his total hip replacement. The employer and insurer do not dispute that the employee=s permanency has increased.

The employee further contends that he has undergone a total hip replacement with associated testing and subsequent physical therapy, at great additional expense. Less emphasis is placed on this factor where, as here, medical expenses were not closed out by the award on stipulation. Burke v. F & M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996). However, we note that the contemporaneous medical records at the time of the award on stipulation did not mention the possibility of a hip replacement at any time in the future.

There is no dispute that the employee=s current condition is causally related to the 1992 work injury.

To provide a basis for vacating awards issued after July 1, 1992, the change in the employee=s medical condition must clearly not have been anticipated and must not have been reasonably capable of anticipation at the time of the award on stipulation. Minn. Stat. ' 176.461. The employer and insurer contend that Dr. Hendricks opined that the employee=s arthritis had been progressing since the date of injury and that the progression was anticipated. In his office note of May 10, 2002, Dr. Hendricks stated that the employee=s Aposttraumatic arthritis progressed sooner than what would be expected but certainly with his severe pelvic and bilateral femoral injuries one could predict arthrosis at some point in Mr. Burns life, but no one would have expected it to progress as rapidly as it has.@

No medical records were provided that suggested a diagnosis of arthritis at the time of the award on stipulation. Similarly, no medical records were introduced that suggested that any doctor, at the time of the award on stipulation, was anticipating difficulties with arthritis, or the need for a hip replacement, sometime in the future. The employee stated in his affidavit that his right hip was not bothering him much at the time of settlement and that he did not expect to have further difficulties with the right hip. While Dr. Hendricks= report indicates that he would have anticipated arthritis to develop at some time after the work injury, that report was issued six years after the award on stipulation, and he was not the employee=s treating doctor at the time the employee entered into the settlement. Without medical evidence that arthritis and/or a hip replacement were anticipated at that time, or evidence that the employee anticipated having difficulties with arthritis in the future, we find no basis to conclude that the change in condition was clearly anticipated or could reasonably have been anticipated by the employee.

Based on all of the evidence submitted in connection with the employee=s petition, and the employer and insurer=s objection, we find good cause to vacate the award on stipulation filed on August 8, 1996. The petition to vacate is therefore granted.

^[1] The FCE itself and the R-33 are confusing as to the employee=s actual restrictions. At oral argument, however, the employee=s attorney agreed that the employee=s lifting and carrying restriction in 1994 was 45 pounds.

^[2] Because it was not Adate stamped@ when received at the Workers= Compensation Court of Appeals, we cannot determine exactly when the petition was filed with this court.