Gabrielson v. McIntosh Embossing and SFM Ins. Group, No. WC13-5599 (W.C.C.A. Oct. 2, 2013)
The employee successfully petitioned to vacate three Stipulations for Settlement and Awards on the basis of showing a substantial unanticipated change in medical condition and establishing good cause under Minn. Stat § 176.461.
In this case, the employee injured his right shoulder in 1988. The employer and insurer accepted primary liability and two months later, the employee had a surgical repair for a torn rotator cuff. A year later, the employee required a second right shoulder surgery. The parties settled (for the first time) in 1990.
The parties reached another settlement in 1992 after the employee claimed additional permanent partial disability for his right shoulder and a new body part: his cervical spine. They made a compromise payment to close out permanent partial disability to the right shoulder to the extent of the dispute. The employer and insurer also admitted primary liability for the employee’s cervical spine condition.
Later in 1992, the employee had a third surgery on his right shoulder for a recurrent tear of the rotator cuff. In 1993, the employee’s surgeon noted the employee had a full range of motion in his right shoulder and that no additional treatment was necessary.
In January 1994, the employee’s surgeon stated the employee had a six percent permanent partial disability for his right shoulder condition.
By the time of the final settlement in January 1996, the employer and insurer had paid over $155,000 in indemnity benefits and over $66,000 in medical expenses. The employee claimed additional temporary partial disability benefits due to this continuing wage loss from his self-employment in real estate. All of the claims except for some medical expenses were settled on a full, final, and complete basis and the employee received $100,000.
However, the employee continued to have right shoulder problems after the full and final settlement and ended up having three more surgeries in September 1999, July 2000, and August 2010.
In December 2010, Dr. D’Amato performed an independent medical examination on behalf of the employer and insurer. He found the employee’s treatment to date reasonable, necessary, and related to the 1988 work injury.
A seventh and final right shoulder surgery was performed in August 2012.
An award may be set aside for cause if there has been “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.” To make this determination, the W.C.C.A. applied the factors found in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), which are: (1) a change in diagnosis; (2) a change in the employee’s ability to work; (3) additional permanent partial disability; (4) a necessity for more costly and extensive medical care than previously anticipated; and (5) a causal relationship between the injury covered by the settlement and the employee’s current condition.
Looking at the last settlement and award in 1996, the W.C.C.A. determined all five Fodness factors were met.
1. Diagnosis
Although the employer and insurer argued the diagnosis had not changed since 1988 (rotator cuff tear), the W.C.C.A. reasoned the medical records “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.”
2. Ability to work
The W.C.C.A. believed this factor was easily met because the employee had not worked in any capacity since August 2001 and, at the time of the petition, was receiving Social Security disability income.
3. Additional permanent partial disability
The employer and insurer conceded there had been a change from the six percent permanent partial disability rating from 1996, but argued it was not clear from the record what effect, if any, this change had on the employee’s function. Although no medical report provided a more current rating, the W.C.C.A. stated “a cursory reading of Minn. R. 5223.0110 would suggest a rating significantly in excess [of that]. . . .”
4. Treatment
In terms of medical treatment, the employee had four surgeries since the final settlement in 1996, including a shoulder replacement and a subsequent revision of that surgery. The W.C.C.A pointed out the medical opinion in 1993, given by the employee’s surgeon, stated that no additional treatment was necessary. Thus, there was a necessity for more costly and extensive medical care than previously anticipated.
5. Causation
Dr. D’Amato’s IME report from 2010 concluded the right shoulder condition was caused by the 1988 injury. Also, the answer filed by the employer and insurer to the employee’s petition admitted that the employee’s present shoulder condition was due to the 1988 injury.