The employee petitions to vacate an Award on Stipulation served and filed September 12, 1997, on the basis of a substantial change in medical condition.  Concluding the employee has established good cause, we grant the petition.

Patrick J. Brownell, the employee, sustained a personal injury on July 13, 1995, arising out of his employment with Jola & Sopp Excavating, Inc., the employer, then insured by the Minnesota Workers’ Compensation Assigned Risk Plan, administered by Berkley Risk Administrators Company.  The employee’s weekly wage on the date of the injury was not determined, but the first report of injury reflects a weekly wage of $1,000.00 a week.  On that date, the employee sustained a crush-type injury that caused a partial amputation of the employee’s right forefoot.

Following his injury, the employee was taken to an emergency room in Hibbing, Minnesota, and was then air lifted to Duluth.  The employee was noted to have sustained a degloving injury with devascularization and multiple disarticulations.  The employee was taken to surgery and his toes were reattached with pins.  Despite the revascularization surgery, the employee later underwent debridement of the dorsal skin of the foot and a forefoot amputation through the metatarsophalangeal (MTP) joint.  The employee later underwent two further debridements with disarticulation of the first MTP joint.  Next, the employee underwent a latissimus dorsi graft with soft tissue coverage of the forefoot and a split-thickness skin grafting over the latissimus dorsi graft.  The employee underwent a final operative procedure on August 8, 1996, to revise the right foot reconstruction and debulk excess soft tissue.

The employee was off work from July 13, 1995, through May 6, 1996.  On May 7, 1996, the employee returned to work with a different employer, J & M Excavating in Grand Rapids, Minnesota.

Dr. Jed Downs examined the employee on June 10, 1996.  The doctor reported the employee had then been back to work for about four weeks with J & M Excavating where he was working as a supervisor for a 5 to 7 person crew.  The employee stated his job duties included a lot of work in trenches or holes and required a lot of time going up and down ladders, dirt hills, and climbing in and out of holes.  He reported he spent virtually all day on his feet and stated his foot had been swelling significantly after work.  The employee told Dr. Downs that frequently he was not able to get his boot on in the morning after he had been working.  On examination, Dr. Downs noted the employee’s graft had good color, was not edematous, and showed no evidence of breakdown.  The doctor’s diagnosis was status post forefoot amputation with a mild to moderate degree of foot pain secondary to stump irritation, especially from crawling up and down incline hills and dirt banks.  Dr. Downs stated the employee was “not making it at this current job description.  He’s working for an employer other than the employer at the time of injury, and I anticipate his work restrictions to follow will not be accommodatable and he is going to lose employment and will need to go back on wage replacement benefits.”  (Resp. Ex. 11.)  The doctor recommended the employee be on his feet no more than three hours a day with a lifting limit from knee height of 30 pounds and no squatting to lift weights more than 30 pounds from the ground.

The employee was terminated by J & M Excavating in July 1996.  The insurer then recommenced payment of temporary total disability benefits.

The employee’s surgeon, Dr. Andrew Baertsch, by report dated August 15, 1996, stated that the employee would be able to return to work once he healed from the recent revisional surgery.  By report dated March 12, 1997, Dr. Baertsch opined the employee had reached maximum medical improvement.  The doctor rated the employee as having a 14% permanent partial disability under Minn. R. 5223.0550, subp. 1.I., for a midmetatarsal amputation, and a 1% permanent disability under Minn. R. 5223.0640, subp. 2.F.(3) for sensory loss.

In April 1997, the employee underwent a functional capacity evaluation (FCE) with Arrowhead Rehabilitation on referral from Dr. Downs.  Ms. Mobraten, the therapist conducting the evaluation, noted the employee’s pain symptoms were consistent with his diagnosis and findings.  She stated the employee demonstrated no overt pain behavior and appeared to have his symptoms in control.  Ms. Mobraten noted significant deficits including general deconditioning for physical work tasks, inability to perform floor to waist lifting, inability to perform squatting or crouching, decreased tolerance for tasks requiring extended weight bearing or increased pressure on the right knee and the right foot, and decreased balance.  The therapist recommended physical or occupational therapy to address decreased balance, tendonitis, and a general conditioning program and vocational counseling to identify specific job skills and interests.  In an affidavit, the employee stated that Dr. Downs reviewed the functional capacity evaluation and released the employee to return to work with a light duty limitation and within the parameters of the evaluation.

Dee Koskela, a qualified rehabilitation consultant, met with the employee on May 29, 1997.  She noted the employee’s file had been transferred to her from a nurse QRC because the employee had been released to return to work, but the employer did not have work available within the employee’s restrictions.  Ms. Koskela reported the employee’s restrictions were standing and walking 1 to 2 hours a day; limited crawling; no bending, stooping, squatting or crouching activities; no climbing on ladders, kneeling, or balancing activities; occasional lifting and carrying up to 24 pounds for short distances; no lifting from the floor level up; and no use of the right foot in any repetitive movement such as operating a foot control.  The employee indicated a lack of enthusiasm for attending a full-time vocational training program stating he did not like school.  A Job Placement Plan and Agreement was developed with a focus on a return to work with a goal of estimator, product salesman, or warehouse work such as a forklift driver or parts retriever.

The employee returned to work with SBS Contracting in Hibbing, Minnesota, on June 9, 1997, earning $8.00 an hour.  The employee was working for SBS on September 12, 1997, the date of the Award on Stipulation.

The employee filed a claim petition seeking temporary total and permanent total disability benefits, together with permanent partial disability benefits.  In May 1997, the employee was examined by Dr. James Schaffhausen, an orthopedic surgeon, at the request of the employer and insurer.  The doctor stated the employee had sustained an amputation of all of his toes at the MTP joints which left him with skin-graft coverage of the plantar aspect of the amputation site.  Dr. Schaffhausen stated the skin in that area would be a continuous source of breakdown and irritation for the employee so he might wish to consider a revision of the amputation to a mid-metatarsal amputation.  The doctor stated the employee had reached maximum medical improvement if he did not have additional surgery, and rated an 8% permanent disability under Minn. R. 5223.0550, subp. 1.J.  Dr. Schaffhausen opined the employee could return to work subject to the restrictions outlined in the FCE, and stated the employee was not permanently and totally disabled from all sustained gainful employment.  The doctor opined, however, that “to return him to his previous occupation even with the revision would be difficult at best.”  (Pet. Ex. L.)

In August 1997, the parties entered into a stipulation for settlement.  In the stipulation, the employee claimed entitlement to payment of temporary total and temporary partial disability benefits, permanent partial disability benefits, retraining, and rehabilitation services.  The employee did not allege entitlement to permanent total disability benefits.  The employer and insurer contended the employee had reached maximum medical improvement with no more than an 8% permanent partial disability.  They denied the employee was permanently and totally disabled and stated the employee had demonstrated a capacity to return to work.  In exchange for a payment of $100,000.00, the employee settled all claims against the employer and insurer with the exception of future non-chiropractic medical expenses.  An Award on Stipulation was served and filed on September 12, 1997.

Subsequent to the Stipulation for Settlement, the employee continued to work for SBS Contracting, driving truck, operating small equipment, and performing general management duties.  The employee saw Dr. Jan Dawson on April 28, 1998, who noted the employee complained of increasing pain and tenderness with swelling and redness of the distal stump pad.  The doctor prescribed an antibiotic and took the employee off work for a week.  The employee did not return to work at SBS Contracting, and left that job effective April 28, 1998.

The employee continued to have problems with wound healing.  The employee saw Dr. Blair Marchuck in December 1998 and thereafter under went a Syme’s amputation^[1] of the right foot in February 1999.  In the summer of 1999, the employee attempted to return to work as a laborer with Bougalus Construction.  The employee stated in his affidavit that he was terminated because he was unable to perform the required work.

In August 1999, the employee entered a chemical dependency program at Miller Dwan Medical Center.  In a discharge summary dated September 10, 1999, Dr. Kleinschmidt provided a history of the employee’s use of alcohol, marijuana, and pain medication from age fifteen to date.  The doctor noted the employee had undergone multiple chemical dependency treatments and was in treatment in 1974 and 1979 with a significant period of sobriety after each.  Dr. Kleinschmidt’s current impression was chemical dependency on alcohol and cannabis.  The doctor reported the employee had achieved his treatment goals, developed a responsible aftercare plan, and was discharged from the program.  On September 27, 1999, Craig Stevens, a licensed psychologist, performed a court-ordered evaluation of the employee as part of a judicial process to determine whether the employee was mentally ill and whether commitment to a hospital was necessary.  Dr. Stevens reported that the employee was seen in a hospital emergency room on September 20, 1999, and diagnosed as presenting with a suicide attempt with depression.  Dr. Stevens diagnosed major depression, recurrent, moderate and alcohol dependence.  The doctor stated the employee’s depression did not appear to be a result of his use of drugs or alcohol.  The employee was committed to the Brainerd Regional Treatment Center from October 8, 1999, through January 11, 2000.

In September 1999, the employee applied for Social Security disability benefits.  In a December 2000 decision, the employee was determined to be disabled and entitled to benefits effective January 11, 1999.

In the spring of 2000, the employee returned to work as a supervisor for Northern Landscapes for approximately two months.  Thereafter, the employee worked for approximately one month for Occupational Development Center packaging drill bits, two days a week for $5.00 an hour.  In 2003 or 2004, the employee worked as a custodian for two weeks at a local church.  The employee has not worked since.

In an effort to return to work, the employee sought the services of the Minnesota Division of Rehabilitation Services.  Joseph Caulfield, a licensed psychologist, performed a psychological evaluation of the employee in September 2001 as part of an eligibility determination process for Vocational Rehabilitation Services.  Mr. Caulfield noted that the employee dropped out of school in the 11th grade but did complete a GED.  An I.Q. test placed the employee in the mild range of mental retardation with an educational equivalence of an educably mentally handicapped.  Mr. Caulfield concluded academic training was not going to be a suitable avenue for the employee due to his limitations with general cognitive abilities and his difficulty with abstraction.  Mr. Caulfield stated vocational training and placement was the key to finding the employee productive employment but noted that the test scores suggested that hands-on training with fairly repetitive tasks would be easiest for the employee to master.  Further, Mr. Caulfield noted it was imperative the employee maintain sobriety and deal with his depression.

At some point, the employee began treating with Dr. William Fleeson.  By report dated October 13, 2005, Dr. Fleeson stated the employee had received little or no pain relief since the Syme’s amputation in 1999.  The employee reported long-term and recurrent irritation from his prosthesis which limited his activities of daily living.  Dr. Fleeson stated that, due to the employee’s injury, he became severely depressed, drank alcohol for pain relief, and suffered the symptoms of post traumatic stress disorder (PTSD).  The employee reported he had been evaluated by Dr. Fernando Pena who recommended a below the knee amputation.  Dr. Fleeson stated his diagnosis was a severe right forefoot crush and degloving injury with open fractures resulting in an amputation at the level of the malleoli.  The doctor also diagnosed Hepatitis C which he opined the employee developed from a transfusion source during a surgical procedure.  Dr. Fleeson stated the employee obtained suboptimal results with chronic stump pain and skin breakdown, severe depression, chronic pain syndrome, PTSD, and a minimally functional right lower extremity.  Dr. Fleeson stated the employee’s 1995 injury was a substantial contributing cause of all of the diagnosed conditions.  The doctor opined the employee’s condition had substantially worsened since the award on stipulation in September 1997.

On October 17, 2005, Dr. Pena performed a below-knee amputation of the employee’s right leg.  On January 10, 2007, the employee told Dr. Fleeson that he was getting along fine with less swelling in his leg.  Dr. Fleeson reported, “today’s visit represents a major breakthrough: Pat did not arrive with a cane and he is considerably more upbeat and taking charge of his life.”  (Resp. Ex. 8.)  On August 15, 2007, the employee again reported to Dr. Fleeson that he was doing much better and only used his cane once in awhile in the afternoons.  The employee stated that his leg gets sore if he spends too much time on his feet.  On examination, the doctor noted the employee’s “stump looks great, though there is some tenderness laterally and there is one small anteriomedial area that is slightly inflamed but is minimal.”  (Resp. Ex. 9.)  The doctor noted the employee ambulated quite well with his prosthesis and reported steady improvement following the below-knee amputation.

Dr. Fleeson issued a final medical report on July 15, 2008.  The doctor’s diagnoses were: 1995 right forefoot crush/degloving injury with open fractures requiring repair and reconstruction attempts over the ensuing months and years, including amputations, and eventually leading to the Syme’s amputation procedure; persistent moderate to severe stump symptomatology with severe limitation on weight-bearing and ability to perform activities of daily living; PTSD and depression disorders; a below-knee amputation performed by Dr. Pena in October 2005; and Hepatitis C, transfusion related.  Dr. Fleeson noted the employee was currently better able to tolerate limited ambulation and weight-bearing with some improvement in his emotional/psychological conditions.  Physically, Dr. Fleeson stated the employee continued to have stump irritation issues on an intermittent basis with demonstrated difficulty tolerating the prosthesis, particularly with any attempts at exertion, prolonged walking, or standing.  The doctor noted the employee had a slight boney protrusion on the distal tibia stump which was quite bothersome to him and irritating to the surrounding tissue.  Dr. Fleeson noted the tissue around the stump had broken down in the past and if the employee were to over do it, it would easily be a problem for him again.  The doctor stated the employee’s current physical condition, while not precarious, was easily disrupted and his long-term prognosis was, therefore, guarded.  Psychologically, the doctor stated the employee’s emotional/psychological matters had been addressed, but remained sub-clinical and could resurface.  Dr. Fleeson again opined the employee’s physical and psychological diagnoses were causally related to his work injury.  Dr. Fleeson rated a 30% whole body disability for the amputation under Minn. R. 5223.0550, subp. 1.F., 5% for Hepatitis C under Minn. R. 5223.0600, subp. 5. A., and 15% for psychological disability under Minn. R. 5223.0360, subp. 7.  The doctor opined the employee should not stand, weight bear or walk more than 10 minutes at a time and no more than once every two to three hours a day.  The employee should not be required to jump, run, climb stairs, squat or kneel with no lifting or carrying of items greater than 15 pounds and no pushing or pulling more than 25 pounds.  Dr. Fleeson stated the employee could use his left foot for only occasional, very light foot control use, because he had essentially no opposite-leg bracing ability.  The doctor opined the employee could not return to work as a heavy equipment operator.

Dr. Thomas Gratzer conducted an independent psychiatric evaluation of the employee in February 2009, at the request of the employer and insurer.  The doctor administered a Minnesota Multiphasic Personality Inventory-II, which he interpreted as invalid.  Dr. Gratzer stated the employee responded to the test questions in an exaggerated manner reporting a wide variety of psychiatric symptoms and behavioral problems.  The doctor diagnosed alcohol dependence in early full remission, depressive disorder, not otherwise specified (nos), with dependent and anti-social features, and personality disorder, NOS, with dependent and antisocial features.  The doctor noted the employee had a long history of drug and alcohol abuse, longstanding anger issues, and a history of depressive symptoms prior to 1995.  Dr. Gratzer concluded the employee’s medical history and treatment records did not document a diagnosis of post traumatic stress disorder.  The doctor opined each of the diagnosed conditions predated the employee’s personal injury.  He stated the employee’s alcohol dependence and associated depressive disorder predated and were unrelated to the physical stresses of the personal injury.  Dr. Gratzer acknowledged the employee sustained a significant injury which may have affected his mood, but the overwhelming alcohol dependence and associated depressive symptoms were more significant.  The doctor also acknowledged the amputation surgeries in 1999 and 2005 were significant physical stressors but opined the treatment records did not document a worsening of the employee’s psychiatric condition due to these stressors.  Rather, Dr. Gratzer stated the employee’s presentation was affected by his alcohol dependence and associated depressive symptoms.  The doctor opined the employee did not have a permanent psychiatric condition caused by his personal injury and did not develop discrete psychiatric symptoms attributable to the injury.  Dr. Gratzer opined the employee’s psychiatric condition had not materially changed since September 1997.

Dr. Tilok Ghose, an orthopedic surgeon, examined the employee in January 2009 at the request of the respondents.  The doctor stated the employee’s diagnosis was a right below-knee amputation due to a severe crushing degloving injury.  The doctor opined the employee’s injury was a significant contributing factor to the amputations in 1999 and 2005.  Dr. Ghose stated, “Given the crushing injury of July 13, 1995, as well as his history of smoking, both of these factors would be high risk factors for him to have required the amputations.  Therefore, given the severe degloving nature of the injury, these amputations were anticipated consequences.”  (Resp. Ex. 4.)  Accordingly, Dr. Ghose stated further amputations were anticipated prior to August 1997.  The doctor rated a 28% permanent partial disability and stated the employee could participate in sedentary work and should stand or walk only for 10 to 15 minutes at a time.

This court has jurisdiction to set aside an award on stipulation upon a showing of good cause.  Minn. Stat. §§ 176.461 and 176.521, subd. 3.  Good cause includes “a substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably been anticipated.”  Minn. Stat. § 176.461(4).  Cause sufficient to justify setting aside an award on the grounds of a change in medical condition exists where there is evidence of a substantial deterioration in the employee’s condition or significant additional disability since the time of the settlement and a showing of causal relationship between the injury covered by the award and the employee’s present condition.  Davis v. Scott Moeller Co., 524 N.W.2d 464, 51 W.C.D 473 (Minn. 1994).  In determining whether an award should be vacated, the claimed change in condition is generally considered in the context of the employee’s diagnosis, the employee’s ability to work, the extent of permanent partial disability, and the anticipated cost and extent of medical care and treatment.  Fodness v. Standard Cafe, 41 W.C.D. 1054 (W.C.C.A. 1989).  The inquiry looks back on events, comparing the employee’s condition as it was at the time of the settlement with the employee’s condition at the present time.  Davis, id.  The Workers’ Compensation Act permits a vacation of an award on stipulation so as to assure compensation proportionate to the degree and duration of disability.  Franke v. Fabcon, Inc., 519 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).

The employee’s initial diagnosis was a severe right forefoot degloving injury with devascularization, multiple disarticulations, and open fractures.  Since the initial surgery, the employee has undergone two further amputations.  The employer and insurer concede there has been a change in diagnosis since the date of the award.  The employee also contends his alcohol dependency and depression were substantially and materially aggravated by the effects of his personal injury.  The employer and insurer, in reliance on the report of Dr. Gratzer, deny any causal relationship.  Even without consideration of the employee’s psychological condition, there has been a change in the employee’s diagnosis.

The employee’s claim petition filed in 1996 claimed entitlement to temporary total and/or permanent total disability benefits.  However, at the time the award on stipulation was issued, the employee was working for SBS Contracting.  The employee did not claim in the stipulation for settlement that he was permanently and totally disabled.  The employer and insurer asserted in the stipulation the employee had shown a capacity to return to work such that he would not be permanently totally disabled.  In support of that assertion, the respondents referred to the May 22, 1997, report of Dr. Schaffhausen who opined that the employee could return to work subject to the restrictions outlined in the functional capacity evaluation.

The respondents contend the employee was substantially disabled from the date of his injury to the date of the award and argue his functional abilities have not significantly changed.  The FCE in April 1997 established significant limitations on the employee’s ability to work, including an inability to perform floor to waist lifting, an inability to perform squatting or crouching, decreased tolerance for tasks requiring extended weight bearing, and decreased balance, particularly for dynamic tasks.  In his June 1996 office note, Dr. Downs opined the employee would not be able to continue his job with J & M Excavating due to the work restrictions to follow.  In a February 1997 note, Dr. Downs alluded to the employee’s “uncertainty with regards to future employability and employment plans.”  (Resp. Ex. 12.)  In addition, the cognitive testing performed by Mr. Caulfield in September 2001 demonstrated the employee had limited vocational aptitudes.  Superimposed on these conditions are psychological conditions of alcohol dependency and depression, which, the respondents argue, preexisted the employee’s personal injury.  Finally, the respondents contend the employee presented no vocational evidence to support his contention that his ability to work has changed since 1997.  Accordingly, the respondents contend the employee has failed to establish any change in his ability to work.

There is merit to the respondent’s arguments.  The 1997 FCE placed significant limitations on the employee’s ability to return to work.  When he did return to work for brief periods, the effects of his injury essentially precluded the employee from performing many duties of the job, or, when he did so, aggravated his injury.  As the employer and insurer argue, there is some question whether there has been any material change in the employee’s functional ability to work since the award on stipulation.

At the time of the settlement, however, the employee was not claiming entitlement to permanent total disability benefits.  Rather, the employee was then working for SBS Contracting and continued to work full-time through April 1998.  Dr. Baertsch, the employee’s treating surgeon, opined in August 1996 that the employee would be able to return to work once he healed from his most recent surgery.  In April 1997, Dr. Downs released the employee to return to light-duty work.  Dr. Schaffhausen opined the employee could return to work subject to the restrictions in the FCE.  In May 1997, Ms. Kaskela, the employee’s QRC, developed a Job Placement Plan and Agreement with a goal of a return to work.  The employee’s amputation is now much more extensive than it was at the time of the award.  While there may be some question whether the additional amputations have caused further functional impairment, the employee’s ability to work certainly has not improved.  Rather, the restrictions assigned by Dr. Fleeson in his July 2008 report are significantly more limiting than those outlined in the 1997 FCE.  Finally, we note that during his deposition in April 1997, the employee believed he could return to operating heavy equipment.  On balance, we conclude the employee has established a change in his ability to work.

At the time of the Award on Stipulation, the employee had either an 8% or 15% permanent partial disability.  In his 2009 report, Dr. Ghose rated the employee with a 28% permanent partial disability for an amputation below the knee.  Dr. Fleeson rated 34% permanent disability.  The employee has additional permanent partial disability caused by his personal injury.

The employee’s need for two additional surgeries has resulted in much more extensive and costly medical care than initially anticipated in 1997.  This factor has been established.

There is no question there is a causal relationship between the employee’s injury and the need for the further amputations in 1999 and 2005.  The respondents concede the change in diagnosis, additional permanent partial disability, and the necessity for more costly and extensive medical care resulted from the employee’s personal injury.  They again argue, however, that from a functional standpoint, the employee is probably now in a better position then he was at the time of the stipulation.  We have, however, concluded there has been a change in the employee’s ability to work since 1997.  This change is due to the deterioration and the condition of the employee’s right leg, the resultant surgeries, and subsequent treatment.  The employee also contends his alcohol dependence and depression were significantly aggravated by his personal injury.  The respondents, however, deny any causal relationship between any emotional condition and the personal injury.  Based solely upon the employee’s personal injury to his right leg, there exists a causal relationship between the personal injury and the employee’s current worsened condition.

Minn. Stat. § 176.421 requires that a substantial change in the employee’s medical condition be one that “was clearly not anticipated and could not reasonably have been anticipated at the time of the award.”  The respondents note the employee filed for Social Security disability benefits shortly after the award was issued and he has received benefits since January 1999.  They argue the employee’s vocational ability has not changed since the award.  In reliance on the report of Dr. Ghose, the respondents contend the employee’s additional amputations were foreseeable and an anticipated consequence of the original injury.  Finally, they argue it was clear prior to the settlement that the employee’s prognosis for future employment was limited.  Accordingly, the respondents assert it is “absurd” to contend that permanent total disability was clearly not anticipated and could not have reasonably been anticipated at the time of the award.  We disagree.

We conclude there has been a substantial change in the employee’s medical condition since the time of the award in that there is evidence of significant additional disability since the time of the settlement which is causally related to the employee’s personal injury.  Dr. Ghose’s opinion notwithstanding, we find no evidence in the contemporaneous medical records that additional amputation surgery would be necessary in the future.  Neither is there any evidence in the medical records the employee would be unable to work following the award.  Accordingly, we conclude the substantial change in the employee’s medical condition was not anticipated and could not reasonably been anticipated.  The employee’s petition to vacate the September 12, 1997, Award on Stipulation is, accordingly, granted.