Michelle Sayler v. Bethany Home and Am. Comp Ins./RTW WC19-6323 (W.C.C.A. October 15, 2020)
The employee worked for Bethany Home as a CNA on January 19, 1997. A patient’s wheelchair rolled over the Employee’s right great toe and right foot. This was an admitted claim. The Employer and Insurer paid TTD, TPD, medical benefits, and rehabilitation benefits.
The Employee’s pain continued and she was diagnosed with Reflex Sympathetic Dystrophy (RSD also known as CRPS). The Employee continued seeking treatment and was performing light-duty work part time from October 1997-November 1998.
In November 1997, Dr. David Watkin noted the Employee has a tremendous amount of emotional overlay, including anxiety over using her right foot. In February 1998, she was walking with a cane and used a wheelchair at work. Surveillance video was taken showing the Employee in a bar playing darts for several hours standing, sitting, and walking without a cane or wheelchair.
On May 5, 1998, the Employee underwent an IME by Dr. Bruce Van Dyne. He opined the Employee could gradually increase her hours from four hours to full time, she reached maximum medical improvement, and she had no permanent partial disability. Based upon the restrictions recommended by Dr. Van Dyne, the Employer offered the Employee a position. The Employee objected to the increased hours and she decline the job offer. The Employer and Insurer filed a NOID on August 21, 1998 and the compensation judge granted discontinuance.
By September 1998, the Employee had a chronic inversion of her right foot and RSD has spread to her right ankle and right knee. Dr. Michael Espeland opined an implantable stimulator was a possible alternative treatment, But in October 1998, Dr. Larson indicated that the stipulator implant has not been approved for the Employee.
The employee took medication to treat depression and anxiety for many years before the work injury. Before the settlement, the employee was diagnosed with chronic anxiety and depression.
The parties settled the Employee’s claim in December of 1998 for a lump sum for $27,000.00 for past, present, and future workers’ compensation benefits, less $5,000.00 in attorney’s fees, and left leaving medical treatment open, but closing out chiropractic treatment, future psychological treatment, pain clinic treatment, and rehabilitation. At the time of the settlement, the Employee claimed 13% PPD for her RSD/CRPS condition, entitlement to TTD and TPD benefits, and that she needed a neurostimulator implant. The Employee resigned from her employment as part of the Stipulation for Settlement.
Following the settlement, the Employee applied for and began receiving SSDI benefits 6 months after the settlement.
The Employee eventually underwent eight surgeries including the neurostimulator implants. The Employer and Insurer paid over $278,000.00 in medical expenses. In 2007 Dr. Espeland opined the Employee has CRPS of her right leg. He assigned a 17% PPD. By 2019, Dr. Timothy Rasmussen opined the Employee a 40% PPD rating due to chronic anxiety and depression.
The Employee filed a petition to vacate the Award on Stipulation based on a substantial change in medical condition. The Employer and Insurer object.
The WCCA denied the petition to vacate, based on Fodness Factors, finding the Employee’s condition had worsened, but did not reach her burden that there was a substantial change in her condition. The Employer and Insurer did continue to pay medical benefits for the Employee’s CRPS condition. The WCCA rejected the Employee’s argument for her anxiety and depression as that was a pre-existing condition, and the additional PPD rating for the Employee’s anxiety and depression was not supported by the evidence.
Takeaway: Make sure all claimed injuries related to the date of injury are addressed in the stipulation clearly, especially CRPS conditions and the reasonable probability of future medical treatment including future psychological conditions that could arise from that condition.