CLARENCE JOHNSON, Employee/Petitioner, v. UNIVERSITY GOOD SAMARITAN CTR. and SENTRY INS. CO., Employer-Insurer, and DEP’T OF EMPLOYMENT and ECON. DEV., Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 6, 2008
VACATION OF AWARD - NEWLY DISCOVERED EVIDENCE; VACATION OF AWARD - MISTAKE; VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. The employee pro se failed to establish grounds to vacate the mediation award on grounds of mistake, newly discovered evidence, or a substantial change in condition.
Petition to vacate mediation award denied.
Determined by: Wilson, J., Rykken, J., and Stofferahn, J.
Attorneys: Clarence Johnson, pro se Petitioner. Kirk C. Thompson, Cronan, Pearson, Quinlivan, Minneapolis, MN, for the Respondents.
DEBRA A WILSON, Judge
The employee petitions to vacate the Mediation Resolution/Award filed on October 18, 2004. Finding no basis to vacate, we deny the petition.
The employee was employed as a nursing assistant by University Good Samaritan Center [the employer] on June 14, 2003, when he allegedly sustained an injury to his low back and left leg. The employee had a history of low back and left leg numbness preceding that date. A claim petition was filed on June 27, 2003, seeking temporary total disability benefits continuing from June 23, 2003, permanent partial disability benefits to be determined, and unknown medical expenses incurred for treatment at Richfield Medical Center and Suburban Imaging. The employee was represented by attorney James Batchelor at that time. In answer to the claim petition, the employer and insurer denied that the employee had sustained a work-related injury.
At some point, Kenya Bodden was substituted as the employee’s attorney. On August 3, 2004, the parties entered into an agreement to mediate the workers’ compensation dispute. That agreement indicated that the parties had disclosed “all third parties who have paid monetary benefits or treatment expenses or who have provided treatment to the employee or on the employee’s behalf.”
A Mediation Resolution/Award was filed on October 18, 2004. That award specified that, “[t]o the knowledge of the employee and the insurer, no third party has paid or provided any monetary benefits, medical treatment expense or vocational rehabilitation services except as follows: Payments from the Minnesota Dept. of Employment and Economic Development.” The award also incorporated a stipulation for settlement, which was attached. The stipulation indicated that the employee contended that he had sustained a work-related injury to his low back and left leg on June 14, 2003, that, as a result of his injury, the employee was entitled to temporary total disability benefits on June 23 and 24, 2003, that the medical treatment the employee had received at Richfield Medical Center and Suburban Imaging was the responsibility of the employer and insurer, and that the employee might be entitled to additional workers’ compensation benefits, including benefits for permanent impairment. The employer and insurer disputed the employee’s claims. Under the terms of the stipulation, the employee was paid $4,000.00 (less attorney fees of $1,000.00), in full, final, and complete settlement of past, present, and future claims arising out of the alleged June 14, 2003, injury, including medical expenses. The stipulation also contained documentation that the Department of Employment and Economic Development had requested to be dismissed as an intervenor. The employee, Mr. Bodden, Mr. Batchelor, and the attorney for the employer and insurer signed the stipulation for settlement.
On October 12, 2007, the pro se employee filed a petition to vacate the Mediation Resolution/Award. The bases identified for the petition were mistake and newly discovered evidence. The employer and insurer objected to the petition.
The employee subsequently submitted numerous other filings with this court. On October 24, 2007, the employee amended his petition to vacate to include substantial change in condition as a basis, alleging, “I am now disabled due to this injury and others.” On November 26, 2007, he filed a “memoranda and motion in favor of set [sic] aside award petition to vacate stipulation.” In that memorandum, he contended that medical records alleged to be attached to the stipulation for settlement were not in fact so attached. Other filings included a letter of December 20, 2007, alleging, “this professional attorney did not send notice of appearance in the 4 days that was required, so penalties must be assessed.” On December 26, 2007, the employee filed a letter dated November 22, 2007, again stating that the rules require that stipulations for settlement must be accompanied by copies of all relevant medical reports and that, “on those grounds, the application to vacate a stipulation settlement must be granted.” He also filed a letter on January 15, 2008, contending that he was entitled to benefits for a 26% whole body impairment pursuant to Dr. Alfonso Morales’ December 30, 2003, report. That letter further described his termination from the employer as “a retaliation discharge,” discussed the depression he had suffered after that discharge, and indicated that he has sustained a wage loss.
The employer and insurer filed a supplemental memorandum opposing the petition to vacate on February 6, 2008.
Oral argument in the matter was heard on February 11, 2008.
Minn. Stat. § 176.461 (2006) governs this petition to vacate. Pursuant to that statute, there are four bases for vacating a Mediation Resolution/Award. Those are: 1) a mutual mistake of fact; 2) newly discovered evidence; 3) fraud; or 4) 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.
With regard to mutual mistake of fact, the employee indicated at oral argument that the mutual mistake was that “my attorney didn’t have all the medical records and didn’t make it a part of the stipulation.” The employee’s written petition to vacate could also be interpreted to allege that a mistake was made when the employer and insurer did not pay outstanding medical bills under the terms of the stipulation for settlement. We are not persuaded.
The statute requires that the mistake be mutual. A mutual mistake of fact occurs when opposing parties to the stipulation both misapprehend some fact material to their intended settlement of a claim or claims. Shelton v. Schwann’s Sales Enters., slip op. (W.C.C.A. May 18, 1995). A mutual mistake requires a “clear showing of a misunderstanding, reciprocal, and common to both parties, with respect to the terms and subject matter of the contract, or some substantial part thereof.” Carpenter v. Vreeman, 409 N.W.2d 258, 261 (Minn. App. 1987). Neither of the employee’s contentions would support a finding that a mutual mistake of fact had been made.
We note also that the employee failed to prove that his attorney did not have all the medical records at the time of the stipulation for settlement, and, in any event, failure to attach medical records to a stipulation for settlement is not a basis for vacating that agreement. Further, the employee failed to prove that the employer and insurer mistakenly failed to pay medical bills under the terms of the stipulation. In this case, the employer and insurer denied primary liability for the June 14, 2003, work injury, and the stipulation specifically closed out all past, present, and future medical expenses. In addition, the employee provided no evidence of outstanding medical bills. Generally, this court will decline to vacate an award unless there is a practical reason to do so. Henry v. American Bldg. Maintenance, slip op. (W.C.C.A. Jan. 27, 1994).
The employee also alleges newly discovered evidence as a basis for vacating the Mediation Resolution/Award. At oral argument he explained, “my attorney didn’t get a percentage rating for my back.” Attached to the employee’s pleadings, however, were a report from a June 25, 2003, MRI, indicating that the employee had a small- to moderate-sized disc herniation, and two pages of Dr. Morale’s December 30, 2003, report, indicating that the employee had a herniated disc and a full thickness supraspinatus tendon tear. Both of those records would suggest the existence of a permanent partial disability under the permanency schedules, and both records were generated prior to the stipulation for settlement and Mediation Resolution/Award. Where medical records establishing permanent partial disability were in existence at the time of the award, such reports do not constitute newly discovered evidence, within the meaning of the statute, unless the employee establishes that the records were unknown at that time. The employee did not do so here.
The employee also contended at oral argument that there has been a substantial change in his condition since the issuance of the award. He was, however, unable to point to any medical records establishing a change in diagnosis, additional permanent partial disability, necessity of more costly and extensive medical care than initially anticipated, or a causal relationship between the injury covered by the settlement and the employee’s current worsened condition. See Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989). The employee’s sole argument was that he was working at the time of the award and that he is not working now. The employee did not provide any medical report stating that his current inability to work is causally related to the alleged June 14, 2003, work injury. There is insufficient evidence to establish a substantial change in medical condition. And, the other numerous issues raised by the employee in his pleadings, letters, and oral argument are all beyond the jurisdiction of this court.
The employee has not established cause to vacate the Mediation Resolution/Award, and his petition to vacate is therefore denied. If the employee wishes to pursue this matter further, he would do so by filing an appeal with the Minnesota Supreme Court. While this court will be addressing the employee’s petition to vacate the September 13, 2006, award on stipulation, by separate decision, this decision ends our consideration of the petition to vacate the October 18, 2004, Mediation Resolution/Award.
 On October 17, 2007, the employee filed a petition to vacate a September 13, 2006, award on stipulation filed with regard to an alleged injury on November 13, 2003, with A Touch of Class Painting named as the employer. That petition to vacate is not a part of this proceeding and will be decided separately.
 The employee filed additional letters on February 11, 2008, and on February 14, 2008. Those letters were received after the oral argument and are not part of the record before this court. Further filings will also have no impact on this decision.
 The employee admitted at oral argument that the stipulation did not state that the employer and insurer would pay medical bills.
 The fact that Dr. Morales’ report ended abruptly and was not signed suggests that there were additional pages.
 See Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 63 W.C.D. 337, (Minn. 2003), citing Dudansky v. L.H. Sault Constr. Co., 224 Minn. 369, 372, 70 N.W.2d 114, 116, 18 W.C.D. 286 (1955).
 This court has no jurisdiction, at this time, to order the employer and/or insurer to refund union dues, to pay lost wages, permanent partial disability benefits, penalties, or medical bills that were not specifically addressed in the stipulation for settlement and mediation agreement, or to pay money for the employee’s depression.