CLARENCE JOHNSON, Employee/Petitioner, v. A TOUCH OF CLASS PAINTING, INC., and SENTRY INS. CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 31, 2008
VACATION OF AWARD. The petitioner failed to establish grounds to vacate the award on stipulation on the basis of fraud, mistake, newly discovered evidence or a substantial change in condition..
Petition to vacate award on stipulation denied
Determined by: Wilson, C.J., Pederson, C.J., Rykken, C.J.
Attorneys: Clarence Johnson, pro se Employee. Mark A. Wagner, Johnson & Condon, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
Clarence Johnson petitions to vacate an award on stipulation filed on September 19, 2006. Finding no basis to vacate, we deny the petition.
Clarence Johnson [petitioner] performed work activities for A Touch of Class Painting, Inc. [respondent], in late 2003. The petitioner contends that he was an employee of the respondent on October 15, 2003, and November 13, 2003, when he sustained work-related injuries to both shoulders. The respondent contends that the petitioner was an independent contractor at that time, and that, while the petitioner sustained temporary injuries to both shoulders on the claimed dates, the petitioner had significant and permanent preexisting conditions in both shoulders.
The petitioner filed a claim petition on September 19, 2005, seeking temporary total and temporary partial disability benefits as a result of the two claimed injuries. He was represented by Attorney Dennis Atchison at that time, having previously retained and dismissed three other attorneys. The parties entered into a stipulation for settlement. Therein the petitioner contended that he was an employee of A Touch of Class, that he was entitled to temporary total and temporary partial disability benefits, benefits for a 6% permanent impairment, medical expenses, and rehabilitation services. It was the position of A Touch of Class and their workers’ compensation insurer that the petitioner was an independent contractor, that he had sustained only a temporary aggravation of a preexisting condition, that he was not precluded from returning to his pre-injury job, and that his medical expenses were not causally related to the injuries.
Under the terms of the stipulation, the petitioner was paid $6,000, less $1,000 in attorney fees, and the medical and vocational intervenors’ interests were settled. Those payments were made in full, final, and complete settlement of the petitioner’s past, present, and future claims, including medical expenses. An award on stipulation was filed on September 19, 2006.
On October 17, 2007, the petitioner filed a petition to vacate the September 2006 award on the grounds of mistake and newly discovered evidence. That petition indicated that the petitioner felt that his attorney kept making mistakes and that he then switched attorneys to Mr. Atchison, who told him to stay in the lobby during his settlement conference and that he would not prevail if he took his case before a compensation judge. Attached to the petition was a letter from Mr. Atchison to the petitioner dated July 31, 2006, reminding the petitioner that his claim was difficult because the petitioner had sent two to three letters to the insurer, after the injuries, indicating that he was an independent contractor. Also attached to the petition to vacate was a June 16, 2004, report from Dr. Alfonso Morales, stating that the employee had a 6% permanent impairment as a result of arthroscopic surgery on the right shoulder. Further, the petition contained allegations indicating that A Touch of Class had submitted false information to the IRS, in the form of a 1099 Miscellaneous Income form for the year 2003.
On October 24, 2007, the petitioner filed an amendment to the petition to vacate, adding fraud and substantial change in condition as bases for his petition. The petitioner appeared to be alleging at that time that A Touch of Class had indicated on their First Report of Injury that he was an independent contractor, and not an employee, and had provided him with a 1099 for independent contractors in 2003, when they knew he was not an independent contractor. The petitioner also submitted MRI reports dated November 16, 2003, indicating that the petitioner had complete supraspinatus tendon tears in both shoulders.
A Touch of Class filed an objection to the petition to vacate on November 27, 2007, contending that the pleadings had not been served on the respondents or intervenors and that the petitioner had provided inadequate grounds for vacating the award. On November 30, 2007, the petitioner served the parties to the action and filed a memorandum in support of his petition to vacate.
The petitioner subsequently filed a letter with this court on December 24, 2007, contending that the attorney for A Touch of Class had not filed his notice of appearance within the four days required by law and that penalties should therefore be assessed. That letter went on to discuss his allegations of attorney incompetence and repeated his allegation that he was an employee and not an independent contractor.
On January 18, 2008, the petitioner filed yet another letter with this court, indicating that he had a 6% permanent partial disability and asking this court to “rule on the dollar amount,” asserting that “if stip is vacated the courts has that authority.” He also contended that he should be reimbursed wage loss for 150 weeks at $18 per hour and that he was entitled to penalties for A Touch of Class’s frivolous denial. Finally he contended that, when A Touch of Class furnished him with a 1099 for independent contractors, he mistakenly filed his taxes using that form but that, in 2008, he filed an amended return. Attached to that letter was the report from an October 19, 2007, MRI showing a rotator cuff tear of the left shoulder.
A Touch of Class filed a reply memorandum on January 25, 2008.
The petitioner’s final letter to this court was filed on February 6, 2008, indicating that he no longer requested oral argument. He further stated, “my settlement demand are $75,000 for a full, final settlement, or as the court sees fi[t], for this amount I will drop all FRAUD charges.”
Minn. Stat. § 176.461 (2006) governs this petition to vacate. Pursuant to that statute, there are four bases for vacating an award on stipulation. 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 mistake, 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).
The petitioner makes no allegation of a mutual mistake of fact; rather, he discusses mistakes that he felt his attorney made. There being no allegation or evidence of a mutual mistake with respect to the terms and subject matter of the contract, the petitioner has not established a mutual mistake of fact for purposes of vacating the award. See Carpenter v. Vreeman, 409 N.W.2d 258 (Minn. App. 1987).
The petitioner also contends that newly discovered evidence provides a basis for vacating the award on stipulation. However, it is unclear just what newly discovered evidence the petitioner is relying on. While the petitioner submitted a 2007 MRI report concerning his left shoulder, that report did not note any findings significantly different from those noted in the 2003 MRI report. There is no evidence that the 2007 MRI disclosed any new information. The petitioner has not established the existence of any relevant newly discovered evidence.
In addition, the petitioner contends that fraud provides a basis for vacating the award on stipulation. In this regard, the petitioner appears to contend that A Touch of Class committed fraud by contending that he was an independent contractor rather than an employee by filing a false 1099 Miscellaneous Income form with the IRS.
The following elements must be present to establish fraud:
Weise v. Red Owl Stores, Inc., 286 Minn. 1999, 175 N.W.2d 184 (1970). The petitioner in the instant case has failed to establish any of the elements of fraud.
Further, the petitioner contends that there has been a substantial change in his medical condition since the time of the award, in that he is “now on disability [due] to this.” The records supporting this contention include a Social Security disability determination indicating that the petitioner had been disabled as of September 27, 2004, and a case note from the Vocational Rehabilitation Unit of the Minnesota Department of Labor and Industry dated October 27, 2005, indicating that the petitioner was disabled from his pre-injury job as a painter due to his two rotator cuff tears.
A number of factors may be considered in determining whether an award should be vacated based on a substantial change in condition, including:
Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).
The petitioner has failed to prove any of the elements necessary to establish a substantial change in medical condition. Both of the records indicating that he is totally disabled from work as a painter appear to predate the award on stipulation. As such, those records do not establish any change in his ability to work.
In that the petitioner has failed to establish a mutual mistake of fact, newly discovered evidence, fraud, or a substantial change in medical condition, we find no basis for vacating the 2006 award on stipulation. The employee’s petition to vacate, filed on October 17, 2007, and his amended petition to vacate, filed on October 24, 2007, are therefore denied. If the employee wishes to pursue this matter further, he would do so by filing an appeal with the Minnesota Supreme Court. This decision ends our consideration of the petition to vacate the September 19, 2006, award on stipulation.
 The mistakes he references were made by one of his first attorneys, not the attorney who negotiated his settlement. It is unclear what relevance there is to an earlier attorney’s mistakes when a subsequent attorney corrected those mistakes.
 The petitioner’s claims for penalties, wage loss benefits, and a determination of permanent partial disability are outside this court’s jurisdiction.