TRUDY L. ADAMS, Employee/Appellant, v. HORMEL FOODS CORP., SELF-INSURED, Employer, and BLUE CROSS & BLUE SHIELD OF MINN., MAYO FOUND., and HORMEL FOODS CORP., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 8, 2008
VACATION OF AWARD - FRAUD. The employee did not establish good cause to vacate the compensation judge’s decision on grounds of fraud where it was apparent that the compensation judge did not base her decision on the allegedly fraudulent testimony.
Petition to vacate findings and order denied.
Determined by: Wilson, J., Stofferahn, J., and Johnson, C.J.
Attorneys: Donaldson V. Lawhead, Lawhead Law Offices, Austin, MN, for the Appellant. Mary E. Kohl, Johnson & Condon, Minneapolis, MN, for the Respondent.
DEBRA A. WILSON, Judge
The employee petitions this court to vacate the October 6, 2006, Findings and Order of the compensation judge on grounds of fraud. Concluding that the employee has not established good cause to vacate, we deny the petition.
The employee claims that she sustained a Gillette-type injury to her neck and shoulder on or about April 14, 2004, while employed by Hormel Foods Corporation [the employer]. The injury allegedly occurred as a result of the employee’s work activities on the employer’s Canadian bacon packaging line, an assignment the employee had begun in December of 2003. The employer ultimately denied liability, and the matter came on for hearing before a compensation judge on May 17, 2006, and July 18, 2006.
Witnesses at hearing included the employee; Brian Schotanus, a supervisor; Rebecca Erickson, a coworker on the Canadian bacon line; and Ray Gutierrez, the industrial engineer who oversaw sliced smoked meats for the employer, including the Canadian bacon line. Daniel Bartel, the chief union steward for the entire plant, testified by deposition.
Much of the testimony at hearing concerned the details of the employee’s specific work activities on the line, including the height and depth of the equipment and the speed of the Canadian bacon slicer, known as a Toby slicer. It is undisputed that workers on a part of this line, with the exception of the slicer operator, rotated to different positions on the line every half hour. Testimony conflicted, however, concerning the number of workers on the line, the amount of reaching and neck rotation required by the various line jobs, and the speed of the line in general and of the Toby slicer in particular.
The employee testified that the line speed increased dramatically on April 13, 2004 - - by 50%, she estimated - - and that she experienced severe pain in her neck and shoulders, into her hands, by the end of her shift. The following day, on April 14, 2004, the employee went to the employer’s medical department for treatment. Ms. Erickson corroborated the employee’s testimony about the events of April 13, 2004, and indicated that changes in the speed of the line were not uncommon. Both the employee and Ms. Erickson also testified that workers on the Canadian bacon line were required to reach and to work at shoulder level or above on a repetitive basis.
Mr. Gutierrez contradicted the employee’s testimony as to the size and height of the work tables, the extent of reaching required by the jobs, and the need for employees on this line to work at or above shoulder height and to turn their heads on a repetitive basis. Mr. Gutierrez also testified at several points that the Toby slicer ran at a speed of 300 rpms, that the speed of the slicer could not be increased beyond that level, and that, if the employee thought that the line speed had increased on April 13, 2004, she was mistaken. Also according to Mr. Gutierrez, any change in line speed would have been documented, and he clarified that, while the speed of the Toby slicer could be adjusted, it was set for 100 rpms for every line worker performing “loader” work. In other words, if there were three workers at loader stations, the slicer would be set at 300 rpms; if there were two loaders, the slicer would be set at 200 rpms. Nevertheless, Mr. Gutierrez reiterated that the speed of the Toby slicer could not be increased above 300 rpms. Neither party called any slicer operators to testify.
The employer also introduced into evidence a DVD of the Canadian bacon line operation as it existed at the time of hearing, featuring a different slicer, a Weber slicer, which had replaced the Toby slicer shortly after the date of the employee’s alleged injury. Mr. Gutierrez testified that, other than the change from the Toby slicer to the Weber slicer, the equipment depicted in the DVD was substantially similar to the equipment the employee had worked with through the date of her alleged injury, in terms of ergonomics. Several witnesses testified that the line speed shown on the DVD was slower than usual. Both parties also submitted hand-drawn diagrams of the line. Following an objection by the employee, the compensation judge declined to accept into evidence still photographs of the line with the Toby slicer in place.
In a decision issued on October 6, 2006, the compensation judge concluded that the employee had not sustained a Gillette-type injury to her shoulder or neck, and she denied the claimed benefits. Following the employee’s appeal, filed November 3, 2006, it was discovered that one of the audiotapes from the first day of hearing was inaudible. This court therefore directed the compensation judge to file a statement of proceedings, reconstructing testimony and evidence from the faulty audiotape. That statement of proceedings was filed on June 8, 2007.
Two months later, on August 7, 2007, the employee filed a petition to vacate the judge’s October 6, 2006, decision on grounds of fraud, contending that Mr. Gutierrez testified falsely with respect to how fast the Toby slicer could be operated. Attached to the petition were affidavits from the employee’s attorney, the employee, and Thomas E. Clements, a worker in the employer’s mechanical division. According to Mr. Clements, who has repaired and adjusted the Toby slicer, the slicer operator or even random workers could increase the speed of the slicer “to about 500 rpms.” Mr. Clements also indicated that the speeds of other parts of the line were “routinely changed” by production supervisors. All of the affidavits submitted in connection with the petition to vacate contain additional information about how the Canadian bacon line operates and how workers perform the activities required on the line.
The employer filed an objection to the petition to vacate, denying the allegations contained in the employee’s petition. In connection with this objection, the employer submitted affidavits from the employer’s attorney; Mr. Gutierrez; James Cavanaugh, general counsel for the employer; and Matthew Stasi, the employer’s manager of industrial engineering and Mr. Gutierrez’s former supervisor. Mr. Stasi’s affidavit includes further explanation about the operation of the Canadian bacon line, including information about production standards and the productivity of the line for the week of the employee’s alleged injury. According to Mr. Stasi, it was highly unlikely that the line speed “was ever running at 50% greater than standard” during the week of the employee’s injury, because the productivity for the employee’s shift that week was only 75% of standard. Mr. Stasi also explained that a factor known as “skip time,” essentially the spacing of the product on the line, can affect worker perception about the speed of the line, when, in reality, production would continue to conform to the usual standard set by industrial engineers. Furthermore, as Mr. Stasi explained it, other machines on the line would malfunction if the slicer speed were set to exceed the optimum - - normal - - speed set by engineers for that product, and the company did not speed up the line to make up for mechanical or other miscellaneous delays. Mr. Stasi did not directly address the question of whether the Toby slicer could be set to run at more than 300 rpms.
Following the filing of the petition to vacate, the employee requested and received an order staying the appeal pending decision on the petition. Additional motions and affidavits were also filed.
1. Petition to Vacate
This court may vacate an award on stipulation or a decision of a compensation judge for good cause, including fraud. Minn. Stat. § 176.461. A party seeking vacation on grounds of fraud must establish that (1) there has been a false representation of fact; (2) the representation deals with a past or present fact; (3) the fact was susceptible of knowledge; (4) the representing person knew that the fact was false; (5) the representing person intended that another be induced to act based on the false representation; (6) the other person did in fact act on the false representation; and (7) the false representation was the proximate cause of actual damages. Weise v. Red Owl Stores, Inc., 286 Minn. 199, 202, 175 N.W.2d 184, 187 (1970).
In the present case, the employee alleges that Mr. Gutierrez intentionally lied, under oath, about the maximum possible speed of the Toby slicer. Further alleging that the compensation judge relied on the fraudulent testimony as a basis for denying the employee’s Gillette injury claim, the employee maintains that the judge’s decision must be vacated and the matter remanded for retrial before a different compensation judge. The employer, in response, vehemently denies that fraud was committed or that the compensation judge relied on the alleged false representation. After careful review of the relevant portions of the record, including the submissions of both parties to this court, we conclude that the employee has not established good cause to vacate.
Mr. Clements’ affidavit indicates that the speed of the Toby slicer can be increased to “about 500 rpms,” contradicting Mr. Gutierrez’s testimony that the slicer speed cannot be increased beyond 300 rpms. Even assuming, however, that the affidavit of Mr. Clements is accurate and that Mr. Gutierrez intentionally misrepresented the maximum possible Toby slicer speed in order to induce the compensation judge to deny the employee’s claim, the employee has not established either reliance by the compensation judge or that any such reliance was the proximate cause of the compensation judge’s decision.
Contrary to the employee’s assertion, the compensation judge did not find that the line speed did not change on April 13, 2004, only that “the employee’s contention that the line speed was increased by 50% and that repetitive reaching was performed at or above mouth level is not supported by the evidence.” In her memorandum, the judge explained that the employee’s testimony was not “supported by production records and [was] contradicted by the testimony from some witnesses.” Also in her memorandum, the compensation judge indicated that she believed that the line speed had in fact been increased over the previous year, thereby acknowledging that a speed increase was possible. However, because of “the overstated description of the extent of reaching above shoulder level and the exaggerated pace of the line speed . . . provided to medical providers,” the compensation judge was unpersuaded by the causation opinions of the providers who supported the employee’s claim. In other words, the compensation judge based her decision on her rejection of the employee’s testimony concerning the extent of the increase in line speed on April 13, 2004, and the amount of shoulder-level work required by the employee’s job - - conclusions having nothing to do with Mr. Gutierrez’s testimony that the Toby slicer cannot run faster than 300 rpms.
The affidavits submitted by the employee in support of her petition to vacate contain numerous allegations concerning the amount of reaching and shoulder-level work required by jobs on the Canadian bacon line. However, these allegations have nothing to do with the employee’s claim of fraud. In fact, it is apparent that the employee submitted this information simply to bolster her contention that repetitive reaching and shoulder-level activity contributed to her neck and shoulder complaints. Having failed to convince the compensation judge with the evidence submitted at the hearing level, the employee may not now supplement the record with more persuasive proof. And, for purposes of this proceeding, it is irrelevant whether or not the compensation judge’s decision on primary liability is supported by substantial evidence. The appeal is not yet before us.
Because it is apparent that the compensation judge did not base her decision on Mr. Gutierrez’s testimony about the maximum possible speed of the Toby slicer, we need not consider whether the employee satisfied the other elements required to vacate the judge’s decision on grounds of fraud. The employee’s petition is denied.
2. The Appeal
The employee’s appeal was stayed pending resolution of the petition to vacate. That appeal will be dismissed unless the employee serves and files a request for reinstatement of the appeal within 30 days of the date of this decision. If a request is timely filed, the appellant’s brief will be due no later than 30 days after that filing. Other briefs will be due within the times specified by Minn. R. 9800.0900.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 After having first accepted liability for the employee’s right shoulder condition and paying various benefits.
 For example, what Mr. Clements referred to as the “cat feed,” which feeds meat to the slicer.
 As alluded to earlier, the parties made various motions to this court with respect to what should be considered in connection with the employee’s petition. We have considered all submissions from both parties.
 In his affidavit, Mr. Gutierrez flatly denied making untruthful statements, maintaining that he answered to the best of his ability and that he stands by his testimony. He also indicated that he was not coached in his answers in any way. He is no longer employed by the employer, having taken an industrial engineering job with another company in Michigan. Our acceptance of the employee’s allegations, for purposes of considering the petition, should not be construed as reflecting any particular view of Mr. Gutierrez’s honesty.
 We are similarly unconvinced by the employee’s arguments concerning the alleged inaccuracy of the DVD depicting the Canadian bacon line. For one thing, the employer acknowledged at hearing that the DVD depicted the line with a Weber slicer, rather than the Toby slicer, and the compensation judge noted that the DVD did not “accurately represent all work activities performed by the employee on April 14, 2004.” In any event, arguments about the accuracy of the DVD should have been raised at hearing.