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Acuity Insurance v. Foreman9/24/2003
Employer and workers' compensation carrier appeal from district court ruling upholding an agency review-reopening decision, which found employee to be permanently and totally disabled, and awarded additional benefits. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Foreman Electric & Hardware and its workers' compensation carrier, Acuity Insurance, appeal from the district court ruling that affirmed an agency decision in favor of Darrell Foreman, which followed his petition for review-reopening of his arbitration award. The agency found that Foreman had become permanently and totally disabled, and awarded additional benefits. While we conclude there was substantial evidence before the agency to show a new or changed impairment, there was not substantial evidence showing that Foreman was permanently and totally disabled. We therefore reverse the agency's disability finding and remand this matter to the agency for an assessment of Foreman's industrial disability rating.
Background Facts and Proceedings
Darrell Foreman has owned and operated Foreman Electrical & Hardware, an electrical, plumbing and heating business, since the 1960s. In 1987 Foreman suffered an on-the-job injury to his left hip, left knee and back, when he fell from a ladder. At a September 1991 arbitration hearing, the parties stipulated that Foreman had sustained a sixty percent industrial disability as a result of his 1987 injury. The stipulation contemplated that Foreman's medical condition would remain "substantially stable." It also acknowledged the future economic uncertainty of Foreman's business, and the possibility that Foreman might need or want to seek outside employment.
In 1997 Foreman, then sixty years old, sought review-reopening of the original award. Although he was still managing Foreman Electrical full time, still capable of running some of the heavy equipment, and earning roughly double what he had earned in 1991, he complained of a severe reduction in his physical functioning. The deputy workers' compensation commissioner, while recognizing that the deterioration of Foreman's left knee, left hip and back were all anticipated at the time of the 1991 stipulation, found a new or changed condition based on the deterioration of Foreman's right hip and knee.
Both Foreman and his wife had testified to the increase in Foreman's pain, and the decrease in his physical functioning. The deputy was also presented with the records and deposition testimony of Dr. Neff, the physician who had treated Foreman for his 1987 injury. These included a December 1997 opinion that stated, in pertinent part:
hen I look at the bone scan, there is increased uptake in the left hip compared with the right, although there are degenerative changes on both sides. Neither knee shows severe degenerative change.
We have known since his injury that at some point he will require left total hip arthroplasty. He has protected the left leg for some time, and following compression of the fracture, the left leg is shorter than the right. This results in an increased force being applied to the right leg over a prolonged period of time....
In my opinion, the arthritis in his left hip has been substantially contributed to by the fracture. The pain and aching in his back has been substantially contributed to or caused by the compression fracture of L1, and the degenerative changes occurring in his right hip and knee are the result of a short left leg. When surgical treatment is warranted, these surgeries will be the result of this injury combined with time.
Focusing on the prospect of a right knee and hip replacement, the deputy found that Forem
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