JAMES R. HENNINGS, Employee/Petitioner, v. LAKES GAS CO. and RELIANCE INS. CO./MINNESOTA INS. GUAR. ASS=N, adm'd by GAB, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 8, 2004

 

No. WC04-183

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where the employee underwent an amputation of his right forearm as a result of his reflex sympathetic dystrophy and was assessed as having an increased permanent partial disability relative to his work injury, the employee showed a substantial change in medical condition to support vacating the stipulation and awards at issue.

 

Petition to vacate awards on stipulation granted.

 

Determined by Rykken, J., Wilson, J., and Stofferahn, J.

 

Attorneys:  Ronald Drewski, Drewski & Lindberg, P.A., Sauk Rapids, MN, for Petitioner.  John T. Thul, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Respondents.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee petitions to set aside a 1993 award on stipulation and a 1993 amended award on stipulation based upon a substantial change in medical condition.  We grant the petition.

 

BACKGROUND

 

On March 20, 1991, James Hennings, the employee, sustained a work-related injury to his right hand and wrist when he fell at work and landed on his right hand while working as a truck driver for Lakes Gas Company, the employer.  At that time, the employer was insured for workers= compensation liability by Reliance Insurance Company.^[1]  The employer and Reliance admitted liability and paid temporary total disability benefits, medical expenses, and rehabilitation benefits.  The employee originally was diagnosed as having a significant right wrist sprain but eventually was  diagnosed with reflex sympathetic dystrophy.  He underwent aggressive medical treatment, including occupation therapy, several nerve blocks, and use of a TENS unit.  The employee used a brace on his right hand and arm.  In July 1992, his treating doctor, Dr. William Carlson, indicated that he had reached maximum medical improvement as of July 22, 1992, and rated the employee=s permanent partial disability as 28.5% pursuant to Minn. R. 5223.0090, subp. 4, and Minn. R. 5223.0080 for persistent causalgia, loss of sensory and motor function, loss of joint function and inability to use the extremity in any useful manner. 

 

On March 1, 1993, the parties entered into a stipulation for settlement regarding the employee=s claim for permanent partial disability benefits and ongoing wage loss benefits.   The stipulation closed out all future claims for benefits, with the exception of medical expenses, on a full, final and complete basis.  An award on stipulation was served and filed March 10, 1993, and an amended award on stipulation was served and filed on March 26, 1993.  Under the settlement, the employee was paid $60,000.  Of this amount, $45,000 represented wage loss benefits and $15,000 represented permanent partial disability benefits.  The employer and Reliance were credited with an advance payment of $6,400 and $3,200 was withheld and paid to the employee=s attorney at that time.  At the time of the settlement, the employee had completed a nine-month welding program under the employee=s rehabilitation plan and intended to be self-employed in that field.  In September 1994, the employee qualified to receive social security disability benefits based on disability resulting from his reflex sympathetic dystrophy.

 

In May 1994, Dr. Carlson first raised the issue of amputation as a viable treatment option for the employee since his hand was nonfunctional and since attempts to develop an improved apparatus for the employee=s hand had failed.  The employee was referred to Dr. Mark Holm, an orthopedic surgeon, who noted that the employee was unable to move his fingers or thumb and that when exposed to cold the hand developed burning pain.  Dr. Holm concluded that amputation would provide the employee with the ability to use a functional prosthesis.  At the request of the employer and insurer, the employee was examined by Dr. David Falconer, who diagnosed severe advanced end-stage dystrophy with a markedly dysfunctional right hand and fingers.  Dr. Falconer discussed options for treatment, the advantages and potential neurological risks resulting from amputation, the absence of any further beneficial treatment that might help the employee recover function in his right hand, and the limited likelihood of improvement absent an amputation.  Dr. Falconer explained his conclusion as follows:

 

I think there is a relatively limited likelihood that the patient will develop significant functional recurrence [in his right hand], and I do think in general amputation is a very reasonable consideration for this patient, given his motivations and desires for future career and functional activities.

 

On October 7, 1994, Dr. Holm performed amputation surgery at the right forearm.

 

In November 1995, the employee=s former attorney brought a petition to vacate the 1993 award on stipulation on the basis of substantial change in medical condition.  This court dismissed the petition in a decision served and filed June 11, 1996, based on failure to provide sufficient documentation to determine whether good cause existed to vacate the award on stipulation.  Hennings v. Lakes Gas Co., slip op. (W.C.C.A. June 11, 1996).  No appeal was taken from this decision.

 

In September 2003, the employee was evaluated by Dr. Robert Wengler, who concluded that the employee now had a permanent partial disability rating of 54% under Minn. R. 5223.0540, subp. 1(G), for amputation of the forearm and that the employee needed a prosthesis.^[2]  The employee, who is right-handed, also asserts that he has had to learn to perform tasks with his left hand and has developed increasing left shoulder pain.  He  continues to experience tremors and spasms in his right arm, and it remains sensitive and cold.  The employee has also treated for depression since 1994.

 

 In May 2004, the employee again petitioned to vacate the 1993 awards on stipulation based upon a substantial change in medical condition.  The employer and insurer object.

 

DECISION

 

The law in effect on the date of settlement is controlling for purposes of considering a petition to vacate an award.  Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).  For awards issued after July 1, 1992, Minn. Stat. ' 176.461 defines cause for vacation of an award as limited to the following:  (1) 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.  Where a change in condition is alleged, the focus is on whether there has been a substantial or significant worsening of the employee=s condition and whether there is adequate evidence of a causal relationship, comparing the employee=s condition at the time of settlement with the employee=s condition at the time of the petition to vacate.  Davis v. Scott Moeller Co., 524 N.W.2d 464, 466-67, 51 W.C.D. 472, 475 (Minn. 1994); Franke, 509 N.W.2d at 376-77, 49 W.C.D. at 525.  A number of factors may be considered in determining whether a substantial change in condition has occurred, including 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 (W.C.C.A. 1989).

 

After the settlement, the employee underwent amputation surgery at the right forearm, which was causally related to his work injury.  In addition, the employee alleges that since approximately 1994 he has undergone treatment for depression which is causally related to his work injury. The employer and insurer argue that the employee has produced no records from 1994 regarding the onset of this alleged condition and no records from a psychologist or psychiatrist. In view of the amputation alone, however, the employee=s diagnosis has unquestionably changed since the 1993 stipulation for settlement.

 

As to whether additional medical treatment is necessary beyond that which was anticipated at the time of settlement, Dr. Wengler has opined that the employee=s work-related reflex sympathetic dystrophy Awas refractory to all treatment modalities and eventually required a forearm amputation.@  Dr. Wengler also opined that the employee needed to be fitted with a prosthesis.  The employer and MIGA deny the employee=s assertion that the employee=s claim for a prosthesis had been rejected.  No documentation regarding a claim for a prosthesis has been submitted by either party, and the employer and MIGA ask that such a claim should be submitted to the current insurance administrator.  In any event, the employee is now in need of additional treatment than he had received at the time of the settlement and there is no evidence that such extensive treatment as an amputation was anticipated at the time of the settlement.

 

The employee=s permanent partial disability rating has increased from 28.5% pursuant to Minn. R. 5223.0090, subp. 4, and Minn. R. 5223.0080 for persistent causalgia, loss of sensory and motor function, loss of joint function and inability to use the extremity in any useful manner, to 54% under Minn. R. 5223.0540, subp. 1(G), for amputation of the forearm.  The employer and MIGA argue that the employee could have been rated at 54% at the time of the settlement since his arm had lost its function at that time.  We disagree.  The 28.5% rating assigned at the time of the stipulation was calculated at 50% of the rating which would be assigned for an amputation, and so the permanency schedule reflects a determination that a functional loss of use, without amputation, creates only half the functional disability created by an amputation.  The schedules specifically require amputation to qualify for the higher rating.  Due to his amputation, the employee=s permanent partial disability has increased significantly since the time of the settlement. 

 

The parties dispute whether the employee=s ability to work has changed since the settlement, which is one of the factors that may be considered when evaluating a petition to vacate a settlement award.  Fodness, 41 W.C.D. at 1060.  The employee has testified by affidavit that at the time of the settlement, he had completed a welding course as part of his rehabilitation plan and hoped to become self-employed in that field.  He contends that, at the time of his welding course, he was functioning relatively well with the use of a brace and was able to rig up an apparatus in order to brace or hold items for welding.  Since that time, however, the employee has not returned to work, even though he engaged in a job search after completing his training.  In January 2004, the employee underwent an employment evaluation with vocational consultant Mike Gurda, who opined that the employee was permanently and totally disabled.   Although the employee hoped to return to work in the field of welding, he was not working at the time of the settlement and has not worked since then.  The employee has not demonstrated a change in his ability to work since the settlement. 

 

Even so, under these circumstances, in view of the change in the employee=s diagnosis, the increase in his level of permanent partial disability and the extensive medical treatment the employee has received since the 1993 settlement, we believe that the employee has established his burden of demonstrating a substantial change in his condition since entering into the 1993 stipulation for settlement.   In addition, the employee has submitted additional documentation to support his claim beyond that which he submitted in 1995 when he first petitioned to vacate the awards.  Therefore, we grant the employee=s petition to vacate the 1993 awards on stipulation.