The employee petitions to vacate three Stipulations for Settlement and Awards on the basis of a substantial unanticipated change in medical condition.  Finding that the employee has established good cause pursuant to Minn. Stat. § 176.461, we grant the employee’s petition.

The employee, Ronald Gabrielson, injured his right shoulder on February 22, 1988, while he was working for McIntosh Embossing.  The employer and its insurer, State Fund Mutual, accepted primary liability for the injury.

As the result of his work injury, Mr. Gabrielson had shoulder surgery at Unity Health Center on April 29, 1988.  Dr. George Walker performed a surgical repair of a torn rotator cuff.  A second right shoulder surgery was necessary, and Dr. Joseph Flake did a resection of the distal right clavicle on September 7, 1989.

The employee’s first settlement with the employer and insurer was completed in September 1990.  The stipulation noted that the employee’s wage on the date of injury was $612.50 per week, and stated that the employer had paid wage loss benefits and medical expenses related to the injury.  The employee was claiming temporary partial disability benefits based on his earnings from self-employment in real estate sales.  The employer and insurer disputed any obligation to pay those benefits because of the employee’s lack of actual earnings.  The parties compromised the employee’s claim for temporary partial disability benefits through February 14, 1991.

The parties reached another settlement in September 1992.  The employee had claimed additional permanent partial disability for this right shoulder as well as permanent partial disability for the cervical spine.  The employer and insurer had denied any additional permanent partial disability for the shoulder, and any liability for the cervical spine.  In the settlement, the employer and insurer made a compromise payment to close out permanent partial disability to the right shoulder to the extent of the dispute, and also admitted primary liability for the employee’s cervical spine condition.

The employee had additional surgery at Unity Hospital on November 5, 1992, for what was identified as a recurrent tear of the right rotator cuff.  The procedures done on that date were an anterior acromioplasty and a repair of the right rotator cuff.

A year after the surgery, Dr. Flake, in his chart note of November 8, 1993, noted that the employee had full range of motion in his shoulder and stated, “as far as the shoulder goes, nothing additional needs to be done at this point.”  In a “To Whom It May Concern” letter of January 26, 1994, Dr. Flake stated the employee had a total of 6 percent permanent partial disability for his shoulder condition.  The employee received notice of maximum medical improvement from the insurer on November 17, 1994.  There are no records of any medical treatment between that date and the settlement in 1996.

The third and final settlement between the parties was the subject of an award issued on January 29, 1996.  The stipulation stated that, as of the date of settlement, the employee and insurer had paid over $155,000 in indemnity benefits, and over $66,000 in medical benefits.  The employee claimed additional temporary partial disability benefits due to his continuing wage loss from his self-employment in real estate.  The employer and insurer alleged that the claimed continuing wage loss was not reflective of the employee’s actual earning capacity.  All of the employee’s claims except for some medical expenses were settled on a full, final, and complete basis in return for a lump sum payment of $100,000.  The employee was not represented by an attorney in this agreement.

The employee was admitted for additional surgery at Fairview University Medical Center on September 21, 1999.  The preoperative diagnoses were

Further surgery was done at Fairview United Medical Center on July 14, 2000, after a diagnosis was made of

The next surgery in the record was on August 19, 2010.  The employee was noted to have developed “cuff tear arthropathy with failed tendon transfers.”  Dr. Frank Norberg at Abbott Northwestern Hospital performed “right reverse total arthroplasty and revision of pectoralis tendon transfer.”

The employee was evaluated on behalf of the employer and insurer by Dr. Michael D’Amato on December 10, 2010.  It was noted that the employee used pain medications, including Oxycontin, and a home exercise program to manage his pain.  Dr. D’Amato found the employee’s treatment to date to have been reasonable, necessary, and related to the 1988 work injury.  Dr. D’Amato concluded the employee should not lift his right arm above waist level and should only do occasional lifting to the waist with a limit of 5 pounds.

The last surgery in the record was on September 20, 2012, at Abbott Northwestern Hospital.  Dr. Norberg’s preoperative assessment was “two years status post reverse total shoulder arthroplasty, now with poly wear and shoulder instability.”  A “revision of right reserve shoulder arthroplasty” was performed.

Mr. Gabrielson was last employed in any capacity in August 2001.  He was awarded Social Security disability benefits (SSDI) effective February 2000.

The employee filed his petition to vacate with this court on July 29, 2013.  He alleged that since the time of the settlements, there had been a substantial and unanticipated change in his medical condition and that, accordingly, he had established good cause pursuant to Minn. Stat. § 176.461 to vacate the awards on settlement in this case.  The employer and insurer objected to the employee’s petition.

Minn. Stat. § 176.461 provides that the Workers’ Compensation Court of Appeals may set aside an award for cause.  Cause is defined in the statute and includes the cause alleged by the employee:  “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.”  Although three awards are at issue here, it seems reasonable for our inquiry to be whether there has been a substantial change in the employee’s medical condition since the time of the last award in 1996.

In considering whether there has been a substantial change in medical condition, this court has generally applied the factors set out in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), as an analytic guide.  The Fodness factors are:

At the time of the 1996 award, the most current medical information was from Dr. Flake concerning the November 1992 surgery.  His postoperative diagnosis was “tear, subscapularis tendon, right shoulder.”  At the time of the 2012 surgery, the procedure was a “revision of right reverse total shoulder arthroplasty.”  The employer and insurer contend that the diagnosis here remains the same as it first was stated in 1988, a rotator cuff tear.  The medical records, however, amply demonstrate severe complications from that initial condition which support a conclusion that there has been a change in diagnosis of the employee’s right shoulder condition between 1996 and 2013.

The employee’s claim as set forth in the 1996 stipulation was for continuing temporary partial disability, a claim which presumes an ability to continue to be employed, although with a continuing wage loss.  The employee has not worked in any capacity since August 2001 and is currently receiving SSDI.  The employer and insurer agree that there has been a change in the employee’s ability to work but refer to “numerous maladies” which may contribute to this change.  No supporting medical records for this position have been presented to this court.

The employee’s permanent partial disability for his shoulder in 1996 was 6 percent as rated by Dr. Flake.  No medical report provides a more current rating, but a cursory reading of Minn. R. 5223.0110 would suggest a rating significantly in excess of the rating provided in 1996 would now be appropriate.  The employer and insurer concede that there has been a change in permanent partial disability but state that the effect of this change on the employee’s function is not clear from the record here.

While some case law would seem to suggest that this factor considers only whether unforeseen medical costs have been incurred by the employee, the actual import of this factor is whether there has been a substantial change in the nature and extent of the medical care received for the injury since the time of the award, whether the cost of that medical care was borne by the employer or by the employee.  Since the 1996 award, the employee has had four surgeries, including shoulder replacement surgery and a subsequent revision of that surgery.  In contrast, Dr. Flake stated in November 1993 that “nothing additional needs to be done at this point.”

Dr. D’Amato, the insurer’s IME, concluded in his 2010 report that the employee’s shoulder condition continued to be caused by the 1988 injury.  The Answer filed by the employer and insurer to the employee’s petition also admits that the employee’s present shoulder condition is due to the 1988 injury.

We conclude that the Fodness factors have been met in the present case.  The employer and insurer argue that this matter should be referred to a compensation judge for an evidentiary hearing before we act on this petition to vacate.  We are not deciding in this opinion that all factual issues in this case have been determined.  We note, for example, that the extent of permanent partial disability has not been addressed by medical opinion.  However, there has been a sufficient showing by the employee to establish cause under the statute.

The employee’s petition is granted.