LONNY D. KNUTSON, Employee/Petitioner, v. JORDAN MILL WORK, and INSURANCE. CO. OF THE STATE OF PA./AIG, Employer-Insurer, and JORDAN MILL WORK, and WAUSAU INS. CO., Employer-Insurer, and MODERN TOOL, INC., SELF-INSURED, Employer.

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 28, 2004

No. WC04-161

HEADNOTES

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  The employee has not established a substantial change in medical condition which would support vacating the stipulations at issue.

Petition to vacate denied.

Determined by Stofferahn, J., Rykken, J., and Johnson, C.J.

Attorneys: Kathryn Hipp Carlson, Miller & Carlson, Minneapolis, MN, for the Petitioner.  Nancy E. Lamo, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Employer-Insurer.  Sarah E. Groskreutz, Conley Law Office, St. Paul, MN, for the Employer-Insurer. Michael J. Koshmrl and Amy Borgeson, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Self-Insured Employer.

OPINION

DAVID A. STOFFERAHN, Judge

The employee has petitioned to vacate stipulations which were the subject of awards issued January 23, 1998, and September 23, 1998, on the grounds that there has been a substantial change in his medical condition.^[1]  The petition is denied.

BACKGROUND

The employee has petitioned to vacate two stipulations from 1998.  In the January 1998 stipulation, the employee claimed that on January 19, 1995, February 9, 1995, and September 28, 1995, he sustained injuries to his left foot while employed at Jordan Mill Work and that as a result of those injuries, he was entitled to periods of temporary total and temporary partial disability compensation, to an award of permanent partial disability, and to payment of medical expense.  Wausau Insurance Company (Wausau), the insurer for the January 19, 1995, and the February 9, 1995, claimed injuries and the Insurance Company of the State of Pennsylvania/AIG/Crawford and Company (Crawford), the insurer for the claimed September 28, 1995, injury, denied primary liability, denied notice, and denied the employee was entitled to any benefits.

The employee=s support for his claim was provided by his podiatrist, Dr. David Neese,  who in a letter of February 10, 1997, stated that the employee had surgery on both feet on January 23, 1997, for Aremoval of entrapped nerves.@  Dr. Neese concluded that the employee had developed a neuroma Asecondary to prolonged weight bearing@ and on the question of causation stated Athe patient=s occupation had contributed to this and therefore is in some degree work related.@  Dr. Neese=s deposition was apparently taken in October 1997, but the deposition is not a part of the record before us.

An IME was conducted by Dr. Jack Drogt on behalf of Crawford on July 22, 1997. Dr. Drogt questioned the diagnosis of Morton=s neuroma and concluded that the employee=s work injury was not a causative factor in his left foot problem.  He did not address work restrictions and stated that the employee had no permanent partial disability.  An IME was done for Wausau by Dr. Richard Strand on September 5, 1997. Dr. Strand also questioned the neuroma diagnosis and concluded the employee had metatarsalgia as the result of congenital factors.  He did not believe the condition was work related and stated that the employee was capable of working without restrictions.

The parties settled the employee=s claims with the insurers agreeing to pay certain medical expenses and $8,000 to the employee in return for the employee=s full, final and complete settlement of all claims arising from the alleged injuries with the exception of future claims for medical expenses.  The insurers maintained their defenses, including notice and primary liability, for such claims.

Subsequent to this settlement, the employee initiated a claim against Modern Tool, Inc., self-insured, alleging that he had sustained injuries to both feet on or about January 23, 1997.  The employee settled these claims in the September 1998 stipulation.  In that stipulation, the employee alleged that he had incurred Gillette injuries in the form of the development of a neuroma in his right foot and an aggravation of a preexisting condition in his left foot.^[2]  He alleged entitlement to temporary total disability compensation and 2.5% permanent partial disability due to the right foot injury.  The employer denied primary liability and notice.  In the stipulation, employee cited as support for his claims the reports of Dr. Neese which had been used as the basis for his claimed 1995 injuries.

The employee was assessed by Dr. Dennis Callahan on behalf of the employer on June 17, 1998.  Dr. Callahan=s report referred to the employee as having foot problems beginning in 1994.  In February of 1995, a Morton=s neuroma was excised and a second procedure was done in September 1995.  Dr. Callahan concluded that the employee had metatarsalgia, a condition related to congenital factors and not to employment.

The parties settled the employee=s claims on a full, final and complete basis with the employer paying $3,500 and the employee waiving all claims, including future medical.

On December 14, 1999, the employee had foot surgery done by Dr. Kydee Sheetz.  Dr. Sheetz excised a Morton=s neuroma on the left foot and performed a third metatarsal condylectomy.  Dr. Sheetz= chart note indicates that the employee had three previous excisions in 1995, 1996 and 1997.  The employee advised Dr. Sheetz that he was able to walk one-quarter to one-half mile before stopping due to pain.  Dr. Sheetz did not address the issues of causation or work restrictions.

The other medical evidence in the record is a chart note and a letter both of which are dated October 23, 2002, and which were completed by Dr. Mary Hotchkiss at the Veterans Administration Medical Center.  Dr. Hotchkiss= chart note indicates she began seeing the employee in August 2002 for chest pain.  The employee=s main concern when he saw her on October 23 was chronic left foot pain which he said dated back to 1995.  The employee also advised Dr. Hotchkiss that he had had six foot operations on the left foot and two on the right.  The employee reported severe pain even at rest but which was exacerbated by weight bearing, standing, walking, or climbing.  As recorded by Dr. Hotchkiss, the employee=s work history included construction, fork lift operator, and Amost recently@ home remodeling which the employee could not do because of the weight bearing and climbing required.  No treatment was recommended by Dr. Hotchkiss.  She noted that the employee had been advised by an orthopedic foot surgeon that no further surgeries were appropriate.  In her letter of the same date, Dr. Hotchkiss stated that the employee was unable to work due to foot pain.

On March 31, 2004, the employee filed a petition to vacate the January 1998 and September 1998 stipulations.  The employee alleged that he had a substantial change in his medical condition which warranted vacation of these agreements under Minn. Stat. ' 176.461.  The various employers and insurers have objected to the employee=s petition. 

DECISION

Under Minn. Stat. ' 176.521, subd. 3, and Minn. Stat. ' 176.461, this court has authority to set aside an award on stipulation for cause. Cause is defined as including Aa 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.@  In considering whether or not there has  been a substantial change in medical condition, this court has considered the factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).   Those factors are 1) a change in diagnosis; 2) a change in the employee=s ability to work; 3) additional permanent partial disability; 4) more costly and extensive medical care; and 5) a showing of a causal relationship between the original injury and the current symptoms.

With the regard to the change of diagnosis, Dr. Neese in his 1997 reports identifies the employee=s condition as neuromas on the right and left feet.  The surgery done in January 1997 involved excision of neuromas from both the right and left feet.  In his IME report of June 17, 1998, Dr. Callahan questioned the diagnosis of Morton=s neuroma and concluded the employee had metatarsalgia.  Both Dr. Drogt and Dr. Strand who evaluated the employee in regard to the claimed 1995 injuries also questioned whether or not the employee had neuromas.  After the stipulations, Dr. Sheetz performed an operative procedure which he identified as an excision of a neuroma. Dr. Hotchkiss in her chart note and letter of October 23, 2002, did not provide a diagnosis of the employee=s condition but referred only to Aburning pain@ in the left foot.  We do not find a change of diagnosis.

Dr. Neese did not address the ability of the employee to be employed prior to the 1998 stipulations.  In his affidavit accompanying the petition to vacate, the employee states that he was released to light-duty work by Dr. Neese in August 1997 and that in mid August 1997 he was physically able to return to full-time work as a mover.  As indicated earlier, the employee also worked in home remodeling but there was no information as to whether this was before or after the 1998 settlements.  The only information on the employee=s ability to work after the settlements is from the October 23, 2002, letter of Dr. Hotchkiss in which she states the employee is Aunable to be employed due to the foot pain.@ There is no evidence of additional permanent partial disability.

The third factor in Fodness is additional permanent partial disability. In the January 1998 settlement, the employee alleged that he sustained a 1.25% disability for his left foot problems and in the September 1998 settlement the employee claimed he had a 2.5% disability from his right foot injury. There is no opinion or information about the extent of permanent partial disability at the present time.

On the question of additional medical care, although the employee has apparently undergone additional foot surgery since the time of the settlements, the nature of those surgeries and why they were done is not in the record.  In her chart note, Dr. Hotchkiss refers to an unnamed orthopedic foot surgeon for the statement that further surgeries would not be of assistance to the employee.  Dr. Hotchkiss herself did not offer any treatment recommendations to the employee.

The last factor in the Fodness analysis is a showing of a causal relationship between the employee=s current symptoms and the injuries which were the subject of the settlement.  No showing is made here of any causal connection. Dr. Hotchkiss, in her history, simply refers to the information given to her by the employee that his foot symptoms began in 1995.  No opinion on causation for his present condition is given.

In view of the record in this matter, we conclude that the employee has failed to establish a substantial change in his medical condition which would support vacating the 1998 settlements.  The petition is denied.