TODD M. SULLIVAN, Employee/Petitioner, v. SULLIVAN PAINTING and MINN.  ASSIGNED RISK PLAN, Employer-Insurer/Respondents, and HEALTH PARTNERS, INC., N. MEM’L AMBULATORY SURGERY CTR., and ESSENTIA HEALTH, Intervenors.

The employee petitions this court to vacate an award on stipulation served and filed on August 19, 1998, based upon 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 at the time of the award pursuant to Minn. Stat. § 176.461 (b)(4).  Because the employee has established good cause, we grant the petition.

On June 26, 1992, the employee, Todd Sullivan,^[1] was working for his own painting business, Sullivan Painting, the employer, ^[2] when he sustained a severe pilon fracture of the left ankle and distal tibia after falling 18 feet off a ladder.  He underwent open reduction and internal fixation (ORIF) and bone grafting surgery performed by Dr. George Osland.  Following the procedure, the employee periodically followed up with Dr. Osland and attended physical therapy, which allowed the employee to increase weight-bearing on his ankle.

By September 1993, Dr. Osland observed a significant decrease in range of motion in the employee’s left ankle, but he anticipated that the employee would improve over the next year and noted that there was no plan to remove the hardware.  Dr. Osland completed a health care provider report (HCPR) on February 21, 1994, indicating that the employee had reached maximum medical improvement (MMI) 18 months after the injury and rated the employee with 12 percent permanent partial disability (PPD) under Minn. R. 5223.0170, subp. 7A(4)(c).

Due to the injury, the employee had also received rehabilitation services from qualified rehabilitation consultant (QRC) Michael Stern.  By December 17, 1993, the employee had obtained a new job with Pro Plastics, Inc., as a press operator.  The rehabilitation file was closed on March 11, 1994.

Four years later, on March 27, 1998, QRC Stern conducted a second rehabilitation consultation with the employee, and rehabilitation services recommenced.  On July 31, 1998, rehabilitation services ended once more.  In QRC Stern’s closure report, he noted that the employee had been working at a car lot for Jim’s Sales/Jim’s Auto detailing cars for 20-30 hours per week at a wage of $6.25 per hour.  QRC Stern also noted that the employee met with Dr. Daniel Borgan^[3] on June 24, 1998, who reiterated the diagnosis of nonunion of the tibia and restricted the employee to a maximum eight-hour workday with no more than eight hours of sitting, two hours of standing and two hours of walking, and issued lifting restrictions of up to thirty-four pounds occasionally and no more than ten pounds frequently. QRC Stern noted that the employee was planning on opening a painting and decorating business.  The employee anticipated hiring employees to perform the work beyond his restrictions, while he ran the business and planned to pay himself minimum wage.

The parties executed a stipulation for settlement on July 31, 1998, in which they stipulated that the employee sustained an injury to his left ankle on June 26, 1992.  The employee claimed entitlement to temporary partial disability (TPD) benefits,^[4] PPD benefits payable as economic recovery compensation (ERC),^[5] and rehabilitation services.  The employer and insurer asserted that the employee would be entitled to TPD benefits only if he secured employment, that he had failed to conduct a diligent job search, that he was not a candidate for retraining, and that he had been properly paid PPD benefits as impairment compensation (IC).  The employer and insurer agreed to pay $72,000.00 in exchange for a full, final, and complete settlement of the employee’s workers’ compensation benefits including temporary total, temporary partial, permanent total, permanent partial disability, rehabilitation, and retraining.  Non-chiropractic medical care was left open.  The award on stipulation was signed by a compensation judge and was issued on August 19, 1998.  Following the settlement, the employee claimed to have worked in 1998 and 2000, worked “small amounts” from 2001 through 2004, and in 2005, the employee earned $23,558.38.  (Ex. 1-G.)

On April 6, 2007, the employee was seen by Dr. Rolf Hauck.  Following the examination, Dr. Hauck found a varus alignment of the employee’s left ankle^[6] with a prominent fibula.  An x-ray revealed a tibial plafond fracture with possible nonunion.  A CT scan of the left tibia and fibula showed a nonunion comminuted fracture of the distal tibia with no evidence of a bony union of the fracture fragments of the distal tibia.  On July 5, 2007, Dr. Hauck noted drainage from the employee’s anterolateral tibial plate and diagnosed an infected nonunion left tibia.  Hardware removal was recommended and on July 18, 2007, with the exception of two broken screw heads, all of the left tibia hardware was surgically removed from the employee’s ankle by Dr. Hauck.  Cultures taken during the procedure were negative.

Following the hardware removal, the employee continued to follow up with Dr. Hauck and eventually became fully weight-bearing.  At a January 3, 2008, visit, the employee continued to demonstrate limited range of motion of his left ankle.

On January 31, 2008, the employee complained of being off balance while walking.  Dr. Hauck determined that the employee’s left leg was two centimeters shorter than his right and believed that the leg length discrepancy had been present since the employee’s initial trauma.^[7]  A two-centimeter lift and a custom arch support were ordered.  The employee was seen by a certified orthotist, Pat M. Ross, on January 22, 2009.  Mr. Ross evaluated the employee and recorded that his left foot was offset medially underneath the tibia and had both a left calcaneus with a varum and a large callus underneath the fifth metatarsal head.  The employee was provided a 5/8-inch left heel lift.

On October 23, 2015, the employee saw a podiatrist, Dr. Christopher Phillips, for an evaluation of his left foot pain.  The employee reported that the pain was worse with walking and standing.  The right first metatarsophalangeal joint (MPJ) range of motion was decreased with crepitus.  On examination, Dr. Phillips noted an absent protective sensation in the left foot secondary to the employee’s injury and surgeries.  Upon weight-bearing, the employee’s left ankle was in varus position.  Dr. Phillips diagnosed metatarsalgia in the left foot, pes cavus secondary to left foot trauma, osteoarthritis bilaterally, and exostosis of the left little toe and MPJ in the right big toe with limb discrepancy.  He recommended bracing to stabilize and support the employee’s left foot and ankle before reconstructive surgery.  A custom ankle foot orthosis (AFO) was ordered.

Dr. Hauck examined the employee again on April 4, 2016, regarding ongoing left ankle complaints.  He referred the employee to Dr. Paul Cammack for possible treatment options including surgical correction.  On May 9, 2016, Dr. Cammack examined the employee and noted significant varus of the employee’s left distal tibia, decreased left ankle range of motion, and moderate swelling.  To repair the employee’s tibial nonunion, Dr. Cammack offered the employee a distal tibia osteotomy and iliac crest bone graft (ICBG) procedure, which he declined at that time.

On June 7, 2016, a CT scan revealed severe deformity of the distal tibia with nonunion, cystic changes, and sclerosis, and also showed severe degenerative changes of the tibiotalar joint with subchondral cysts and sclerosis.  The employee returned to Dr. Cammack complaining of right great toe pain and on December 8, 2016, the employee underwent a right great toe cheilectomy.

On March 2, 2017, Dr. Cammack issued a report opining that the employee’s work injury caused gait abnormalities which contributed to right great toe symptoms and arthritis in his foot and that the severity of the work injury would lead to arthritis in his left ankle and hindfoot.  He also opined that the chronic nonunion on the left ankle would cause the hardware to loosen over time and any infection that was present would become symptomatic.  He concluded that the employee’s significant left ankle condition did not allow the employee to engage in any type of employment.

On March 5, 2018, the employee saw Dr. Hauck for his persistent right lateral hip and low back pain.  X-rays revealed degenerative arthritis and conservative treatment was recommended.  In late 2018, Dr. Cammack and the employee once again discussed a repair of the nonunion tibial shaft fracture and on April 30, 2019, Dr. Cammack performed an ICBG procedure to repair the employee’s varus, nonunion left distal tibia fracture.  At a follow-up visit on June 13, 2019, x-rays showed the hardware was stable with no infection.

On August 20, 2019, the employee was seen by Dr. John Tanner who checked the surgical incision and noted drainage and the presence of cellulitis. The employee was prescribed Keflex, oxycodone, and aspirin, and was directed to follow up with Dr. Cammack.  A week later at the follow-up visit with Dr. Cammack, pus was draining from the incision and swelling was noted.  He was diagnosed with chronic post-op infection with likely infected hardware.  Due to the infection, Dr. Cammack subsequently removed the left ankle hardware.  During surgery, Dr. Cammack irrigated, excised, and debrided non-viable skin, subcutaneous tissue, muscle, and bone, including part of the employee’s left tibia.

On February 19, 2020, the employee saw a physician’s assistant, Lisa Hromadka, complaining of ankle, hip, and left little toe pain.  P.A. Hromadka referred the employee to Scott Langston, C.O., and was seen the same day.  A left 3/4-inch heel orthotic was ordered to control supination, to balance the employee’s pelvis, to address his leg-length discrepancy, and to decrease pain.

Dr. Mark C. Gregerson examined the employee at the request of his attorney and issued his report on January 29, 2021.^[8]  Dr. Gregerson diagnosed the employee with a pilon fracture of the left tibia status post-ORIF with infected nonunion, which required hardware removal and debridement, corrective bone grafting, and reinfection, which required additional debridement and hardware removal.  He also noted degenerative changes to the employee’s lumbar spine, right hip, and right great toe as a result of altered mechanics and gait which occurred as a result of the left ankle condition.  Dr. Gregerson remarked that the employee’s left ankle condition back in 1998 did not include a diagnosis of infected nonunion.  He considered the employee to have been permanently and totally disabled since 2007 as a result of the infected nonunion and that the subsequent infections which led to a severe collapse of the hardware, alteration of the employee’s walking motion, degenerative changes to other body areas, and multiple surgeries.  Further, he opined that it was clear that these injuries were not anticipated and could not have reasonably been anticipated at the time of the 1998 settlement.  As a result of the employee’s left leg discrepancy, he rated the employee at 4.5 percent PPD per Minn. R. 5223.0170, subp. 2B, and an additional 4 percent PPD per Minn. R. 5223.0170, subp. 7B(3)(b)(ii) for the left ankle.  In an addendum report dated August 17, 2022, Dr. Gregerson concluded that the employee’s left leg discrepancy was caused by the tibia fracture, nonunion, and multiple surgeries leading to shortening and angulation of the affected bone.

On October 25, 2022, the employee filed a petition to vacate the August 19, 1998, award on stipulation.

Dr. Paul T. Wicklund performed an independent medical examination (IME) of the employee on January 2, 2023, at the request of the employer and insurer.  Dr. Wicklund noted that the employee did not want any more treatment following his diagnosis of a left distal tibia nonunion back in 1998.  He recorded that the employee last worked as a union commercial painter in 2005 or 2006.  He observed that the employee had a limp and favored his left leg and exhibited a varus deformity at the left ankle with 0 degrees of dorsiflexion and 20 degrees of plantar flexion.  The employee’s distal fibula was prominent, and his left leg was two centimeters shorter than the right.  Dr. Wicklund diagnosed the employee with a pilon fracture, distal left tibia with intraarticular involvement of the tibiotalar joint, resulting in a varus deformity of the left distal tibia, and chronic nonunion of left distal tibia which was treated successfully with bone grafting and resulted in subsequent healing.  The employee was also diagnosed with age-related osteoarthritis of the right hip, unrelated surgically-treated hallux rigidus of the right first metatarsophalangeal joint, and subjective low back pain.  Dr. Wicklund opined that the infection, internal fixation and removal, and bone grafting were all related to the employee’s left ankle fracture in 1992.  However, Dr. Wicklund maintained that there was no indication that the employee’s walking caused injury to his right big toe or left little toe, low back, or right hip.  He concluded that the treatment to the right hip, right great toe, left little toe, and low back was reasonable and necessary but not causally related to the 1992 left ankle injury.  To correct the varus condition and motion at the tibiotalar joint, Dr. Wicklund believed that the employee will require a left ankle fusion in the future.  Dr. Wicklund rated the employee’s PPD at three percent for the left leg length discrepancy and three percent for the left ankle.  Further, Dr. Wicklund considered the employee to be appropriately restricted to continuous standing for no longer than one hour, not more than four hours in an eight-hour day, and no walking long distances.

The employee petitions to vacate the 1998 award on stipulation based upon a substantial change in medical condition pursuant to Minn. Stat. § 176.461 (b).  This court may vacate an award “for cause.”  Generally, when evaluating a petition to vacate an award on stipulation based upon a substantial change in medical condition, this court applies the following factors:

For awards issued on or after July 1, 1992, “cause” 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); see also Ryan v. Potlatch Corp., 882 N.W.2d 220, 224-25, 76 W.C.D. 491, 496 (Minn. 2016); Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).  Contrary to the employer and insurer’s assertion, not all of the Fodness factors need be met in order for an award to be vacated.  Blomme v. Indep. Sch. Dist. No. 413, 76 W.C.D. 971, 982 (W.C.C.A. 2016); Timmerman v. George A. Hormel & Co., 54 W.C.D. 299, 302 (W.C.C.A. 1996), summarily aff’d (Minn. Apr. 29, 1996).  However, we highlight the pertinent factors below.

Regarding the change in diagnosis factor, the employer and insurer assert the employee’s “fundamental diagnosis” remains the same as at the time the award was issued.  The parties stipulated in the settlement that the employee sustained a work-related injury to his “left ankle.”  The medical record shows that Dr. Osland diagnosed the employee in 1993 with a severe pilon fracture of the left ankle and distal tibia.  In the employee’s recent treatment record from 2021, Dr. Gregerson opined that the employee’s diagnosis included a nonunion left tibia fracture that became infected, requiring hardware removal, debridement, corrective bone grafting. Consequently, the employee developed further infection which required further debridement and additional hardware removal.  The medical records and reports support the employee’s position that his left ankle condition worsened since the date of the award causing a substantial change in his medical condition.  This factor weighs in favor of the petition to vacate.

In regard to the change in the ability to work factor, the impairment must be related to the settled left ankle injury.  See Schueler v. William Miller Scrap Iron & Metal, slip op. (W.C.C.A. Mar. 3, 2000).  The record presented before this court has limited information of the employee’s ability to work following the 1998 settlement.  At the time of settlement, the employee had been working for a car dealership and was planning to open his own business.  He was also given work restrictions from Dr. Borgan.  The employee’s affidavit and subsequent earnings history indicate that he was capable of engaging in more than sporadic work and making a substantial income through 2005.

Following the award on stipulation, in 2017, Dr. Cammack opined that the employee was unlikely to be able to “participate in any kind of significant gainful employment” due to the left tibia injury.  (Ex. 6.)  In his 2021 report, Dr. Gregerson concurred with Dr. Cammack and remarked that the employee “should have been permanently and totally disabled since 2007….”  (Ex. 2.)  In his 2023 report, Dr. Wicklund also considered restrictions related to the distal left tibia fracture to be appropriate.  Based upon the record in this case, the employee has shown a decrease in his ability to work since the time of settlement that supports vacating the award on stipulation.

Dr. Osland’s 1994 PPD rating was higher than the PPD ratings Drs. Gregerson or Wicklund estimated in 2021 and 2023 for the left ankle injury. However, Dr. Osland did not mention a rating for the employee’s leg length discrepancy at the time of his assessment in 1994.  Because of this additional permanency, the employee’s total PPD rating is higher than at the time of the settlement.  The additional PPD rating, though small, meets this factor for the purpose of determining if cause exists to support vacation of the award.

The employer and insurer note that when medical benefits are left open in a settlement, the additional medical treatment factor carries less weight.  Burke v. F-M Asphalt, 54 W.C.D. 363, 368 (W.C.C.A. 1996), summarily aff’d (Minn. May 30, 1996).  They assert that additional surgery, standing alone, does not justify vacation of an award, citing Miedma v. Brown Group, Inc., slip op. (W.C.C.A. Apr. 22, 1986).  We note that the record submitted does not contain the cost of benefits paid related to the employee’s left ankle medical care after the issuance of the award in 1998.  However, the numerous surgeries performed on the employee’s left ankle since the settlement were not minor.  In addition, the surgeries after the award was issued are related to the 1992 work injury and reflect a worsening condition.  The number and scope of the employee’s post-award surgeries and required aftercare weigh in favor of granting the petition to vacate.

As to the contemplation of the parties, when the settlement was reached in 1998, the employee asserted entitlement to payment of TPD benefits, payment of PPD benefits as ERC as opposed to the IC that had been paid to him, and rehabilitation services.  There was no claim for permanent total disability (PTD) benefits or any medical report supporting that the employee was permanently and totally disabled at that time.  The stipulation for settlement did not include any social security offset language.  The employee had procured a job at the time and the parties assumed that he was going to continue to work.  He had been released to work with no future medical care planned.  Since 1998, the employee has required significant surgeries and after care caused by his left ankle work injury and medical opinions now deem the employee permanently and totally disabled as a result of the multiple post-award surgeries.  The employee has shown that this factor favors vacating the settlement.

The employer and insurer maintain that there is no causal relationship between the employee’s current medical condition and the June 26, 1992, work injury.  Instead, the employer and insurer assert that the employee’s current condition is largely related to personal conditions unrelated to the 1992 left ankle injury.  We disagree.  The hardware used in repairing the employee’s pilon left distal tibia fracture deteriorated and contributed to infections and multiple surgeries since the award on stipulation was issued in 1998.  In his report, Dr. Wicklund diagnosed the employee with a left ankle condition that resulted in intraarticular involvement of the tibiotalar joint, causing a varus deformity and left leg length discrepancy and further opined that the subsequent conditions of the employee’s “left ankle are all related to the original fracture.”  (Ex. A.)

Based upon the reasons set forth above, the court finds that the employee meets the requirements of Minn. Stat. § 176.461(b)(4) and grants the employee’s petition to vacate the August 19, 1998, award on stipulation pertaining to the left ankle due to a substantial change in medical condition since the time of the award that was clearly not anticipated and could not have been anticipated at the time of settlement.^[9]