GERALD E. OLSEN, Employee/Petitioner, v. MACKAY/MINN. ENVELOPE and ASSOCIATED INDEM. CORP./FIREMAN’S FUND INS. CO., Employer-Insurer, and MACKAY/MINN. ENVELOPE and MARYLAND CAS. CO./ZURICH AM. INS. CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 12, 2012
VACATION OF AWARD - VOIDABLE AWARD. The employee established good cause to vacate a provision in the settlement agreement closing out future Roraff fees.
Petition to vacate award on stipulation granted in part.
Determined by: Wilson, J., Stofferahn, J., and Hall, J.
Attorneys: Frederick E. Kaiser and Nathaniel A. Dahl, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Petitioner. Jeffrey R. Homuth, McCollum, Crowley, Moschet, Miller & Laak, Minneapolis, MN, for Respondents Mackay/Associated. Patrick T. Grove and Kristin B. Maland, Drawe & Maland, Edina, MN, for Respondents Mackay/Maryland.
DEBRA A. WILSON, Judge
The employee petitions this court to vacate an award on stipulation filed August 24, 1987. Finding adequate cause, we vacate the award on stipulation solely as it relates to certain attorney fees.
The employee sustained a work-related injury to his low back on August 4, 1980, while employed by Mackay/Minnesota Envelope [the employer], then insured for workers’ compensation purposes by Associated Indemnity Corporation [Associated], with claims now handled by Fireman’s Fund Insurance Company. The employee sustained a second work-related injury to his low back on June 6, 1984, at which time the employer was insured by Maryland Casualty Company [Maryland], with claims now handled by Zurich American Insurance Company. Associated paid 1.6 weeks of temporary total disability benefits and medical expenses of approximately $161. Maryland paid temporary total and temporary partial disability benefits, impairment compensation for 3.5% permanent partial disability of the body as a whole, and substantial medical and rehabilitation benefits.
On May 1, 1987, in a findings and order issued following a hearing, a compensation judge upwardly adjusted the employee’s temporary total and temporary partial disability rates, awarded the employee permanent partial disability benefits for a 14% whole body impairment for a herniated disc (with credit for permanency already paid), and awarded temporary partial disability benefits for an additional three-month period. The judge also designated Maryland to be the paying agent and ordered Associated to reimburse Maryland for one-third of benefits paid.
The parties subsequently entered into a stipulation for settlement. At that time, the employee’s only claim was for temporary partial disability benefits, and the insurers’ only defense was that the employee’s wage loss was not due to his work injuries. The stipulation incorporated the judge’s prior apportionment decision. Under the terms of the settlement, the employee received $21,500, less attorney fees, in return for a full, final, and complete settlement of all past, present, and future claims for workers’ compensation benefits, “except for future medical.” The stipulation, however, specifically closed out future claims for Roraff attorney fees. The employee was represented by attorney Linda J. Theis at that time. An award on stipulation was filed on August 24, 1987.
On July 24, 2012, the employee filed a petition to vacate the award on stipulation. He contends that the symptoms associated with his work injuries never completely subsided and that when he sought medical benefits in 1988 for treatment rendered for weight gain and depression, Ms. Theis, still acting as his attorney, prevailed in securing payment of those medical bills. However, in December of 2011, the Institute for Low Back and Neck Care submitted a request for a bilateral L5 nerve root injection, which the insurers denied. Therefore, alleging that he is unable to locate Ms. Theis and is also unable to secure the services of any other attorney, the employee contends that the award on stipulation is void, because it violates public policy, and should be vacated in the interest of justice. Both insurers object to the petition to vacate.
At oral argument, the employee was represented by counsel, who argued that the employee had not been adequately represented at the time of the settlement. Counsel also maintained that the award is voidable because the stipulation is inherently unfair in that the employee cannot reasonably obtain medical expenses if he cannot secure an attorney to represent him. In response, the insurers argued that the employee can secure medical benefits by representing himself, that, while arguably voidable, the award does not satisfy the standards for vacation, and that the issue of vacation is not ripe because the employee has not yet sought medical benefits. We will not address the employee’s claim of inadequate representation because it was raised for the first time at oral argument. We conclude, however, that the employee has established reasonable cause to vacate the provision closing out Roraff fees.
In Roraff, the Minnesota Supreme Court interpreted the words “reasonable expense,” found in Minn. Stat. § 176.135, subd. 1, to include attorney fees, explaining that the statute obligated the employer to furnish medical treatment and “the additional reasonable expenses necessarily incurred by an employee who is required to commence a proceeding to obtain payment of the cost of his medical treatment.” Roraff at 16, 32 W.C.D. at 298.
Strong policy considerations favor assuring that an injured employee has adequate access to representation, as the employee would otherwise be at a huge disadvantage in any dispute with his employer or the employer’s workers’ compensation insurer. It is easily apparent that a closeout of attorney fees will substantially hinder if not preclude an employee from securing representation. As such, the fact that the stipulation allows the employee to seek future medical expenses is of little or no benefit when the same agreement precludes the employee from obtaining the means of enforcing his rights.
A judgment is voidable if it is erroneous “or one founded on some irregularity.” Lange v. Johnson, 204 N.W.2d 205, 208 (Minn. 1973). In Sondrol v. Del Hayes & Sons, Inc., 47 W.C.D. 659 (W.C.C.A. 1992), this court listed several factors relevant in determining whether a voidable award should be vacated. One of these factors is “whether the stipulation appears to fairly reflect the intent of the parties.” Id. at 666. In the present case, because medical benefits were specifically left open, it is evident that the intention of the parties was that the employee continue to receive medical benefits related to his work injury. As previously indicated, the closeout of attorney fees significantly and negatively impacts the employee’s ability to secure the ongoing treatment contemplated by the settlement. Another factor is “whether there is any prejudice to the parties,” and the last factor mentioned is “the equities involved.” Id. at 667. Both factors weigh in the employee’s favor.
For the reasons stated above, we conclude that the provision closing out Roraff fees should be vacated. However, we find no grounds to vacate the remainder of the award. See e.g., Stellmach v. Northern States Power Co., slip op. (W.C.C.A. Nov. 13, 1991) (petitioner established good cause to partially vacate prior awards on stipulation). The remainder of the settlement, therefore, remains in effect.
 See Roraff v. State, Dept. of Transp., 288 N.W.2d 15, 32 W.C.D. 297 (Minn. 1980).
 When Roraff was issued, Minn. Stat. §176.135, subd. 1, read, in pertinent part,
The employer shall furnish such medical, chiropractic, surgical and hospital treatment, including nursing, medicines, medical, chiropractic and surgical supplies… as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury. . . . In case of his inability or refusal seasonably to do so the employer shall be liable for the reasonable expense incurred by or on behalf of the employee in providing the same.