VACATION OF AWARD – SUBSTANTIAL CHANGE IN CONDITION. Where the employee was released to work without restrictions with a functioning ankle at the time of settlement and subsequently underwent the amputation of his lower leg due to the effects of the work injury, the employee has shown a change in diagnosis, a change in ability to work, additional permanent partial disability, the need for more costly and extensive medical care, and an admitted causal relationship between the employee’s additional medical treatment and his work injury, sufficient to support the granting of the employee’s petition to vacate the award as the subsequent condition was outside of the contemplation of the parties.
Compensation Judge: Jane G. Ertl
Attorneys: Michael G. Schultz, Sommerer & Schultz, P.L.L.C., Minneapolis, Minnesota, for the Appellant. M. Shannon Peterson, McCollum, Crowley, Moschet, Miller, & Laak, Minneapolis, Minnesota, for the Respondents.
Granted.
GARY M. HALL, Judge
The employee petitions to vacate the award on stipulation served and filed January 26, 2011, on grounds of a substantial change in medical condition that was clearly not anticipated. We grant the petition.
On November 3, 2008, Corey Fenske, the employee, fell from a ladder while at work for the employer, Western Steel Erection, Inc. The employee suffered fractures in his left tibia and fibula near his ankle. A closed fixation of the fractures was attempted and was unsuccessful. Several weeks later, the employee underwent open fixation surgery and hardware was installed. The procedure resulted in an infection soon after the surgery. The employee underwent revision surgery and the hardware was removed on June 10, 2009. The employee was diagnosed with depression arising from the ongoing problems with his left leg. The employee received temporary total disability benefits from November 3, 2008, through June 13, 2010. From June 14, 2010, through September 11, 2010, the employee received temporary partial disability benefits. The employee was rated with a 9% whole body impairment due to the condition of his left leg.
In January 2011, the parties settled the employee’s workers’ compensation claims on a full, final, and complete basis. The employee received $87,412.57 (from which $13,000 was paid as attorney fees). Future medical treatment to the left ankle was reserved. A number of treatment modalities, including psychiatric and psychological care, were closed out. Rehabilitation, retraining, and “all other benefits under Minn. Stat. § 176.102” were closed out. The employee also agreed to terminate his employment with the employer and never resume such employment. At the time of settlement, the employee was not under formal restrictions and he was employed full time.
From January 2011 to August 2017, the employee worked full time in the iron work industry performing ironworker duties, although the employee continued to experience pain in his left lower extremity. From January 26, 2011, to May 21, 2014, the employee did not seek any medical treatment. By May 2014, the employee had developed a limp and increased pain in his left leg. The employee resumed care with Mitchell D. Kuhl, D.O., who observed limited range of motion and pain responses centering on the employee’s left ankle. Dr. Kuhl diagnosed post-traumatic arthritis of the left ankle. The employee was examined by Thomas C. Kowalkowski, D.O., who diagnosed a neuroma of the left ankle. Both Dr. Kuhl and Dr. Kowalkowski indicated that further surgery could be required to address the employee’s left ankle condition. An MRI performed on April 1, 2016, indicated deterioration of the employee’s left ankle and lower left leg.
On October 24, 2016, the employee underwent an independent medical examination (IME) on behalf of the employer and insurer, conducted by James Mazzuca, D.P.M. Dr. Mazzuca, a surgeon specializing in foot and ankle conditions, opined that left ankle arthrodesis to reposition the joint was reasonable and needed. The employee was examined by Dr. Lance Silverman, who noted significant left calf muscle atrophy and diagnosed traumatic arthropathy and posttraumatic arthritis in the left ankle and subtalar ankle. Dr. Silverman recommended below-the-knee amputation of the employee’s left leg. Dr. Mazzuca concurred with Dr. Silverman’s approach. The employer and insurer approved the procedure.
On August 18, 2017, the employee underwent a subtalar amputation of his left leg, several inches below the knee. Dr. Silverman noted the diagnoses both before and after the amputation as posttraumatic arthritis of the ankle and subtalar joint and left equinus contracture of the ankle subtalar joint. The employee was taken off of work for three months post surgery and was advised that he was permanently restricted from iron work.[1] The employee has petitioned to vacate the January 26, 2011, award on stipulation.
Upon a showing of cause, this court can set aside an award on stipulation. Minn. Stat. §§ 176.461 and 176.521, subd. 3. Cause, as defined in the statute, includes “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.” Minn. Stat. § 176.461 (b)(4). When determining whether cause exists in a particular case, this court compares the employee’s circumstances at the time of the award with the employee’s situation at the time of the petition to vacate. See Davis v. Scott Moeller Co., 524 N.W.2d 464, 467, 51 W.C.D. 472, 475 (Minn. 1994). The primary purpose of allowing a vacation of an award is “to assure compensation proportionate to the degree and duration of disability.” Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 539, 63 W.C.D. 337, 344 (Minn. 2003) (citing Heath v. Airtex Indus., 297 N.W.2d 269, 272 (Minn. 1980).
As the petitioning party, the employee has the burden of proof to demonstrate that cause exists. Groshong v. The Light Depot, 65 W.C.D. 349, 355 (W.C.C.A. 2005). The employee asserts a substantial change in medical condition that was not anticipated, based on several factors. Substantial change amounting to cause under the statute can be demonstrated through a worsening diagnosis, impairment in the employee’s ability to work, additional permanent partial disability, a need for more costly and extensive medical care than initially anticipated, a causal relationship between the work injury and the worsened condition, and a showing that the worsened situation was not within the contemplation of the parties at the time of the settlement. Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).
The employee contends that the facts in this matter demonstrate a change in circumstances under all of the Fodness factors. The employer and insurer dispute all of the Fodness factors, except causation. Consistent with our long-standing approach in these cases, each of the disputed factors will be analyzed.
In maintaining that the employee has experienced no change in diagnosis, the employer and insurer rely entirely on the report of Dr. Silverman. Dr. Silverman used identical words to describe his diagnoses of the employee’s condition both before and after the amputation. This reliance is completely unfounded in analyzing the employee’s condition. The employee no longer has posttraumatic arthritis of the ankle and subtalar joint and left equinus contracture of the ankle subtalar joint, as all of those portions of his left leg have been surgically removed. The change in diagnosis factor has been met for the purpose of determining if cause exists to support vacation of the award.
The employee asserts that the ability to work factor has been met in this proceeding by the employee being taken off of work post surgery and the employee having been informed that he is permanently precluded from iron work in the future. The employer and insurer contend that this evidence is too prospective to form a basis for vacating the award.
The employee has provided no formal restrictions or medical opinion that he is permanently precluded from returning to iron work. Typically, this would tend toward the conclusion that this factor does not support vacation of the award. But in this instance, the severity of the change in the employee’s condition, from fully ambulatory and able to work full time in his field to subtalar amputation of his lower left leg and unable to work for an indeterminate period post-surgery, supports the conclusion that the employee’s condition has substantially changed. Of note, the close-out agreed to between the parties included qualified rehabilitation benefits which may prove to be important in restoring the employee to work. Granting the employee’s petition to vacate at this time provides the opportunity to expedite the process of determining if rehabilitation will be useful to return the employee to gainful employment.
The employee asserts that he is entitled to a permanent partial disability rating of 34%of the whole body under Minn. R. 5223.0550, subp. 1.F. The employer and insurer dispute this claim, noting that the amputation under that rule must be four inches or less below the intercondylar notch, and there is no evidence supporting that fact in in the record.
As with the return to work, the employee has provided no medical determination that he meets any particular permanent partial disability rating. Inadequate medical support for a claim of increased permanent partial disability can support denial of a petition to vacate. Hudson v. Trillium Staffing Solutions, 896 N.W.2d 536, 77 W.C.D. 437 (Minn. 2017). But in this instance, the rating in the next applicable rule provision is 28% for an amputation more than four inches below the intercondylar notch. Minn. R. 5223.0550, subp. 1.F.[2] This rating is an increase of 19% from that in place at the time of the award. An increase of this degree has consistently been found to demonstrate cause to vacate an award. Betcher v. Modern Tool, Inc., 72 W.C.D. 373 (W.C.C.A. 2012) (15% increase was substantial); Brownell v. Jola & Sopp Excavating, Inc., No. WC08-248 (W.C.C.A. June 23, 2009) (either amputation figure supported vacating award). No medical opinion is required to know that the increase in permanence, under the unambiguous terms of the rule, is either 25% or 19% and either of those figures supports a determination of a change in condition under Minn. Stat. § 176.461.
The employer and insurer contend that much of the employee’s asserted additional medical care is prospective in nature and therefore cannot support the current petition to vacate. We disagree. At the time of settlement, the employee was released to work with no restrictions and the only medical care provided was on an as needed basis. Since that time, the employee has undergone a lower extremity amputation and will require, at a minimum, a prosthesis and ongoing wound care. As ongoing medical care was left open in the settlement, this factor is less important in the ultimate determination. See Black v. Honeywell, Inc., 551 N.W.2d 486, 55W.C.D. 87 (Minn. 1996); Burke v. F & M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996); Hughes v. Medcor, Inc., 69 W.C.D. 258, 269 (W.C.C.A. 2009) (where left open, additional medical care is “useful evidence”). The employee has shown that this factor favors vacating the award.
The employer and insurer maintain that the employee’s initialed agreement with statements in the settlement demonstrate that the employee’s current condition was within the contemplation of the parties at the time of settlement. This court has expressly distinguished between such boilerplate statements and the “reasonably foreseeable consequences or the true expectations and contemplation of the parties at the time of the award.” Davis v. Trevilla of Golden Valley, WC09-165 (W.C.C.A. Jan. 21, 2010) (emphasis in original).[3]
In this matter, the employee was medically released to work with no anticipated medical care or plan of treatment. As in Davis, the employee has subsequently required significant surgery that arose from the work injury and has resulted in substantially increased permanent disability and potential loss of earning capacity. There is no evidence presented by the employer and insurer that any of these outcomes were reasonably within the contemplation of the parties at the time of settlement. The employee has shown that this factor favors vacating the award.
Having concluded that the employee has shown a substantial change in his medical condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated, this court grants the employee’s petition to vacate the January 26, 2011, award on stipulation.
[1] Affidavit of Corey Fenske, at 4.
[2] The next lower rating is for a partial amputation of the ankle, which is plainly not applicable to this case. Minn. R. 5223.0550, subp. 1.H.
[3] To hold otherwise would be to allow the parties to contract away rights expressly afforded by statute and effectively shift costs from the workers’ compensation system to other systems of insurance. Wiehoff v. Indep. Sch. Dist. No. 15, WC13-5610 (W.C.C.A. Jan. 17, 2014).