NANCY BUDKE, Employee/Petitioner, v. ST. FRANCIS MED. CTR. and ALTERNATIVE INS. MGMT. SERVS./CATHOLIC HEALTH INITIATIVES, Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 14, 2009
VACATION OF AWARD. The employee’s petition to vacate a findings and order issued by a compensation judge is denied where the cause asserted by the employee, a change in the law, is not provided for in Minn. Stat. § 176.461.
Petition to vacate findings and order denied.
Determined by: Stofferahn, J., Johnson, C.J., and Pederson, J.
Attorneys: DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Petitioner. Laura L. Myslis, Gislason & Hunter, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee has petitioned to vacate a Findings and Order issued on September 4, 2003. Finding that the employee has failed to establish cause as defined by the statute, the petition is denied.
Nancy Budke, the employee, had work injuries on November 14, 1996, and December 2, 1996, while employed by St. Francis Medical Center. Subsequently, she was diagnosed with reflex sympathetic dystrophy (RSD). As the result of a hearing held in 1999, a determination was made that the employee had RSD in her left shoulder related to her work injuries.
The employee filed a claim petition in 2002 seeking permanent partial disability she sustained as the result of her RSD. After a hearing, a compensation judge issued a Findings and Order on September 4, 2003, denying the employee’s claim. The compensation judge found that the employee had failed to establish she met the requirements of Minn. R. 5223.0400, subp. 6, and Minn. R. 5223.0410, subp. 7. The compensation judge concluded that the employee was not entitled to an award of permanent partial disability benefits, citing to Lohman v. Pillsbury Co., 40 W.C.D. 45 (W.C.C.A. 1987) for the proposition that each element in a relevant schedule must be met in order for a finding of permanent partial disability to be made. No appeal was taken from the compensation judge’s decision.
On April 20, 2009, the employee filed a petition to vacate the 2003 findings. The employee asserts that this court changed the law under which the 2003 findings were made. According to the employee, this court’s decision in Stone v. Harold Chevrolet, 65 W.C.D. 102 (W.C.C.A. 2004) held that it was not necessary to satisfy all of the requirements of the rules in order to receive permanent partial disability benefits for RSD. The employee argues that the change in controlling law for her permanent partial disability claim constitutes good cause for vacating the 2003 findings.
The employee’s claim for permanent partial disability benefits for her RSD condition was denied by the compensation judge in 2003. He concluded that the employee had not established the criteria set out in Minn. R. 5223.0400, subp. 6, and Minn. R. 5223.0410, subp.7, for an award of permanent partial disability. Specifically, he determined that the employee had not shown the existence of 5 of the 8 diagnostic criteria listed in the rule. The compensation judge cited to decisions by this court which held that an employee had an obligation to prove all of the elements of a rule when making a claim for permanent partial disability benefits under the rule. The compensation judge made no determination as to whether or not the employee had sustained an impairment of function demonstrated by objective findings as the result of her 1996 work injuries.
In 2004, this court issued its decision in Stone v. Harold Chevrolet, 65 W.C.D. 102 (W.C.C.A. 2004). We affirmed a compensation judge who determined the employee had not met all of the criteria of the rule for an award of permanent partial disability benefits for RSD but who also found the employee had objective findings of functional impairment and was entitled to an award of permanent partial disability benefits under Minn. Stat. § 176.105, subd. 1(c). The employee argues that the decision in Stone created a different legal standard for permanent partial disability for RSD than was applied by the compensation judge in 2003 and that, if the compensation judge had applied the standard established by Stone, the employee’s claim would not have been denied. The employee contends that the “change in the law” represented by Stone constitutes cause for vacating the 2003 decision.
We disagree for two reasons. First, we do not consider Stone to be a change in the law. Second, even if we were to assume the employee’s characterization of Stone to be correct, a change of law is not cause for vacating an award under Minn. Stat. § 176.461.
As to the first issue, it is an error to read the holding in Stone as being that a claim for permanent partial disability benefits for RSD is no longer subject to the permanent partial disability schedule. The error lies in focusing on the diagnosis and not the impairment. While it may be understandable for the parties to focus on whether or not the injured employee has a particular diagnosis, since that is often the issue addressed in medical reports, the question in a permanent partial disability claim is whether there is an impairment of function. As we stated in Stone, “An employee who has a significant functional impairment which is demonstrated through objective findings must receive permanent partial disability for that functional loss.” An employee who is able to establish that he or she meets all of the diagnostic criteria for RSD set forth in the permanency schedule is still able to bring a claim for permanent partial disability for RSD under the rule. An employee, however, who has significant functional impairment demonstrated by objective findings is entitled to an award of permanent partial disability under Minn. Stat. § 176.105, subd. 1(c), regardless of what diagnosis may be used. Accordingly, we do not consider Stone to be a change in law; it is instead consistent with the law as set out in Weber and Minn. Stat. § 176.105, subd. 1(c).
The employee argues that because there was an unappealed finding in 1999 that she had RSD, she would have been entitled to an award of permanent partial benefits in 2003 under Stone. However, in Mundy v. American Red Cross, 66 W.C.D. 99, 103 (W.C.C.A. 2006), we stated “Stone should not be read as holding that a diagnosis of RSD always results in an award of permanent partial disability compensation. The central factor in Stone was the undisputed existence of objective findings of functional impairment.” There is no basis for concluding the employee in the present case would have been entitled to an award of permanent partial disability under Stone simply because she had been found to have RSD in 1999.
The second issue raised by the employee in her petition is whether a change in law, assuming it existed in the present case, constitutes cause to vacate an award. This court is given authority by Minn. Stat. § 176.461 to vacate an award for cause. In 1992, the statute was amended to define cause; the amendment also provided that cause was limited to one of the four definitions set out in the statute.
The employee cites to a number of decisions decided before 1992 for the proposition that a mistake in the law by a compensation judge or one of the parties constitutes cause to vacate an award. While the 1992 changes were generally consistent with the existing case law as to what constituted cause, pre-1992 cases established a broader definition of mistake than the statute now provides. Before 1992, vacation of an award was allowed where there was a mistake of law by a compensation judge. Collins v. Conwed Corp., 42 W.C.D. 905 (W.C.C.A. 1989). Vacation of an award was allowed where there was a unilateral mistake as to the employee’s pre-injury medical condition. Napper v. Boise Cascade Corp., 348 N.W.2d 81, 36 W.C.D. 731 (Minn. 1984). However the statute now refers to a “mutual mistake of fact.” This court has held that a mutual mistake of fact occurs when the opposing parties both misapprehend some material fact. Shelton v. Schwann’s Sales Enter., slip op. (W.C.C.A. May 18, 1995). We have specifically determined that a mutual mistake of fact is not found where there has been a mistake of law by the parties. Oredson v. Mesabi Electronics, No. WC06-128 (W.C.C.A. Aug. 28, 2006). An error of law made by a compensation judge in an unappealed determination is not a mutual mistake of fact constituting cause under the statute. Ovall v. Haven Homes, 52 W.C.D. 139 (W.C.C.A. 1995). The pre-1992 cases cited by the employee in her brief are not controlling for the present case.
The employee also argues that the real “cause” here is fundamental fairness. The employee cites to Krebsbach v. Lake Lillian Coop. Creamery Ass’n, 350 N.W.2d 349, 36 W.C.D. 796 (1984) for authority for her position that the purpose of this court’s authority to set aside an award is to assure compensation proportionate to the degree and extent of disability. We agree with that statement. Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 63 W.C.D. 337 (Minn. 2003). However, the exercise of our discretion to achieve that purpose must be done within the framework of the statute. Where, as here, the cause argued by the employee is not included in the statute, this court has no authority to vacate. The employee’s petition is denied.
 This section, added to the statute in 1992, is essentially a codification of the decision in Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990). The court in Weber held that functional impairment not included in the permanent partial disability schedule was still entitled to an award of benefits for permanent partial disability. Subsequent cases dealing with this situation generally referred to the award as a Weber rating.
 176.461. Setting aside award
Except when a writ of certiorari has been issued by the Supreme Court and the matter is still pending in that court or if as a matter of law the determination of the Supreme Court cannot be subsequently modified, the Workers’ Compensation Court of Appeals, for cause, at any time after an award, upon application of either party and not less than five working days after written notice to all interested parties, may set the award aside and grant a new hearing and refer the matter for a determination on its merits to the chief administrative law judge for assignment to a compensation judge, who shall make findings of fact, conclusions of law, and an order of award or disallowance of compensation or other order based on the pleadings and the evidence produced and as required by the provisions of this chapter or rules adopted under it.
As used in this section, the phrase “for cause” is limited to the following:
(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.