MICHAEL S. ROMENS, Employee/Cross-Appellant, v. BALLET OF THE DOLLS, INC., and SFM, Employer-Insurer/Appellants, and MEDICA HEALTH PLANS, UNIV. OF MINN. PHYSICIANS, FAIRVIEW HEALTH SERVS., and HENNEPIN CNTY. MED. CTR. AND PHYSICIANS, Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 09, 2017

No. WC16-5952

CAUSATION - MENTAL STRESS. Substantial evidence supports the compensation judge’s determination that the employee experienced an unusual and extraordinary level of stress, beyond the ordinary day to day stress to which all employees are exposed, as a result of his work activities for the employer producing a compensable physical injury in the nature of a seizure disorder.

CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s findings that the employee failed to prove he sustained separate stress-induced injuries on July 6, 2012, December 10, 2012, and March 15, 2013.

VACATION OF AWARD - MUTUAL MISTAKE. The employer and insurer failed to establish good cause on the basis of a mutual mistake of fact with respect to any incorrect captioning of the insurer and/or the third party administrator, and their petition to vacate the Findings and Order is denied.

    Determined by:
  1. Deborah K. Sundquist, Judge
  2. Patricia J. Milun, Chief Judge
  3. Manuel J. Cervantes, Judge

Compensation Judge: Cheryl LeClair-Sommer

Attorneys: James T. Hansing, Minneapolis, Minnesota, for the Cross-Appellant. Julie A. Williams, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Appellants.

Affirmed in part and vacated in part.
Petition to vacate Findings and Order denied.

OPINION

DEBORAH K. SUNDQUIST, Judge

The employer and insurer appealed from the compensation judge’s finding that the employee suffered a compensable, work-related stress-induced seizure on March 10, 2011. We affirm. The employee cross-appealed the judge’s determination the employee failed to prove he suffered three additional work-related seizures, and we affirm. The employer and insurer’s petition to vacate the April 28, 2016, Findings and Order on the basis of a mutual mistake of fact is denied.

BACKGROUND

The employer, Ballet of the Dolls, was a non-profit management company for the Ritz Theater in downtown Minneapolis. The Ritz Theater provided space for the performing arts and private events. The employee, Michael Romens, began working as a part-time concessions manager for the employer in 2006. He also served on the board of directors until he was hired as the managing director of Ballet of the Dolls in November 2008. As managing director, the employee worked under stressful conditions, attempting to raise sufficient revenue for operation of the theater during an economic recession. Due to the precarious financial state of the employer, significant cuts in staffing, a multitude of work duties, and long work hours, the employee suffered from chronic lack of sleep and fatigue. For roughly six to eight months, the employee reported feeling poorly with reduced mentation and productivity at work, malaise, and a diminished level of functioning. The employee testified that early March 2011 was especially intense and stressful due to preparations necessary for a major fundraising event.

On the eve of the annual fundraiser, March 10, 2011, the employee was cleaning a bathroom at the theater when co-workers heard him fall and saw the employee experiencing a seizure. Minutes later, in the presence of emergency medical technicians, he experienced a second seizure and was taken to Hennepin County Medical Center (HCMC). Following the employee’s hospital stay, he returned to his duties with the employer.

In addition to the March 10, 2011, seizure, the employee claimed three additional work related seizures on July 6, 2012, December 10, 2012, and March 15, 2013. On July 5, 2012, the employee experienced a pre-seizure aura, nausea, confusion, and agitation that worsened the following day. On July 6, he was taken to HCMC from his home where he experienced two tonic-clonic seizures in the emergency room. The employee returned to work as the managing director, but struggled to perform his work duties.

The employee continued to experience auras and on December 10, 2012, was seen at the University of Minnesota Fairview emergency room feeling he was about to have a seizure. He experienced a seizure in the hospital and was admitted for testing. The employee was removed from the managing director’s position and was unable to work until February 2013, when he returned to part-time work. The employee was unable to continue his employment at Ballet of the Dolls after about March 15, 2013.

Dr. Miguel E. Fiol was the employee’s treating neurologist. The doctor was aware of the employee’s previous history of a seizure in 1979, at age 14, when he had an arterial venous malformation (AVM) rupture and excision. The employee was unaware of any other seizures until March 10, 2011. Dr. Fiol opined that the employee’s job stresses were a substantial contributing cause of his seizures beginning in March 2011. He explained that “definitely sleep deprivation associated with stress and all the responsibilities he had were a significant factor on his precipitating the seizures in March.” (Ex. G at 32.) Dr. Fiol testified that the employee was totally disabled and unable to carry out work-related activities.

Dr. Ansar Ahmed, also a neurologist, examined the employee at the request of the employer and insurer. While in agreement with Dr. Fiol regarding total disability, Dr. Ahmed did not agree with Dr. Fiol’s causation opinion. Instead, he concluded the employee’s seizure disorder was due to the 1979 AVM rupture and excision. He also concluded the employee’s work stress was not a substantial contributing factor to any disability. He explained the employee had other stress factors and contributors including relationship problems, alcohol abuse, poor sleep, and non-compliance with medications.

A hearing was held before a compensation judge on October 20, 2015, and February 17, 2016. At the hearing, the employee’s co-workers testified that the work environment was highly stressful. In Findings and Order, served and filed April 28, 2016, the judge found the employee sustained a work-related injury on March 10, 2011, but found the employee failed to prove he sustained separate injuries arising out of and in the course of his employment on July 6, 2012, December 10, 2012, and March 15, 2013. The judge awarded temporary total disability benefits from and after June 1, 2013, and ordered payment of medical expenses exceeding $80,000.00. The employer and insurer appeal the compensation judge’s finding that the employee experienced unusual and extraordinary job stress arising out of his employment. They also appeal the judge’s finding that a chief operating officer, Michelle Briol, left the employer due to stressful working conditions. The employee cross-appeals the judge’s denial of work-related injuries on July 6, 2012, December 10, 2012, and March 15, 2013.

STANDARD OF REVIEW

On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1(3). Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

DECISION

1.   Causation - Mental-Physical Injury

We first address whether substantial evidence supports the compensation judge’s finding that the employee experienced unusual and extraordinary stress as a result of his work activities producing a medically treatable physical injury in the nature of a seizure disorder. In Lockwood v. Independent School District No. 877, 312 N.W.2d 924, 926, 34 W.C.D. 305, 309 (Minn. 1981) the Minnesota Supreme Court divided cases involving mental or emotional stress into three categories: (1) cases in which mental stress produces physical injury, (2) cases in which physical injury produces mental injury, and (3) cases in which mental stress produces mental injury. Lockwood made it clear that claims involving the first two categories are compensable. The supreme court has set out a two-step test for determining causation of stress-induced injuries. First, whether there is sufficient factual evidence to support a finding of legal causation under the act. Second, whether there is sufficient medical evidence to support the conclusion that the mental stress and strain were medically related to the seizure. See Egeland v. City of Minneapolis, 344N.W.2d 597, 603, 36 W.C.D. 465, 473-74 (Minn. 1984)(citing Klapperich v. Agape Halfway House, 281 N.W.2d 675, 31 W.C.D. 641, (Minn. 1979)).

In this case, the appellants addressed solely the first part of the test, that of legal causation. They argue the stress experienced by the employee was no greater than the ordinary day to day stress to which all similarly situated management employees at Ballet of the Dolls were exposed. Accordingly, they argue the judge’s finding of a compensable mental-physical injury on March 10, 2011, should be reversed. We disagree.

In Courtney v. City of Orono, 424 N.W.2d 295, 40 W.C.D. 1117 (Minn. 1988), the compensation judge analyzed legal causation in terms of whether the stress experienced by the employee was beyond that of his immediate fellow officers rather than whether it was beyond the ordinary day to day stress of all persons employed. The supreme court reversed finding the judge had failed to properly apply the Egeland/Klapperich legal causation test. Here, the employee submitted evidence that the stress was extreme, or at least beyond the ordinary day to day stress to which all employees are exposed. Multiple witnesses testified that the employee worked under extraordinarily stressful conditions because of funding issues. One witness quit her job due to the stress. Another called the employer’s financial condition a pretty desperate situation and quantified the stress as a nine and a half on a scale of one to 10. The chairman of the employer’s board of directors testified there were 200 performances or events in the theater each year, leaving approximately 165 days when the theater was empty or dark. Yet, he also testified that he could see the employee was not getting rest. He further agreed it was a difficult step to go from a concessions manager to running a non-profit. The record established that fundraising to pay the bills became increasingly difficult during the economic recession years. The theater cut staffing from nine to four positions requiring remaining management staff to perform significantly more work. The employee testified at length that he frequently worked seven days a week and often worked from 9:00 a.m. to 2:00 or 3:00 a.m. Due to the long work hours and the stress of meeting payroll, the employee had difficulty getting sleep on a consistent basis. He testified that beginning in 2009, he couldn’t sleep and his fatigue escalated because of the workload. Substantial evidence supports the compensation judge’s finding that the employee experienced an unusual and extraordinary level of job stress and sleep deprivation due to the employer’s financial situation, the lack of appropriate staffing levels, and the necessity for the employee to perform multiple roles and tasks on a regular and ongoing basis. We, therefore, affirm.

2.   Testimony of Former Co-employee

We next address the employer and insurer’s argument that the compensation judge erred in finding that Michele Briol, a former managing employee, quit due to adverse working conditions that were very stressful. Both the employee and the employer agree the finding is incorrect. The undisputed testimony of Ms. Briol was that she was laid off in June 2009 for economic reasons. This error is harmless and of little consequence in light of the record as a whole. We, accordingly, vacate finding 5.

3.   Compensability of Additional Dates of Injury

The cross-appellant argues the compensation judge’s finding that the employee failed to prove he sustained separate injuries arising out of and in the course and scope of employment on July 6, 2012, December 10, 2012, and March 15, 2013, is clearly erroneous and unsupported by substantial evidence in the record as a whole. He asserts the unusual and extraordinary job stress and fatigue he experienced was omnipresent and constant throughout his employment with the employer. While we agree the employee continued to experience job stress and fatigue working for the employer, we conclude, as did the judge, that the evidence is vague as it relates to medical causation for these dates of injury. On July 6, 2012, the employee suffered a seizure at home. The July 7, 2012, emergency room note reflects that he was seen for a seizure related to medication non-compliance. Moreover, Dr. Fiol did not verify a separate injury on July 6, 2012. On December 10, 2012, the employee failed to show he suffered a seizure at all. Finally, on March 15, 2013, the record reflects the employee was working two days a week and was no longer performing the duties of the managing director. While it appears that March 15, 2013, is the date after which the employee was no longer able to work for the employer, by this time, the employee had experienced multiple seizures and was taking medication to control his condition. Dr. Fiol testified that the “occurrence of repeated seizures could have built up and ultimately produced him unable to continue to function in ’13 when the event was in 2011.” (Ex. G at 37.) The compensation judge could reasonably conclude that Dr. Fiol’s opinion was ambiguous and did not clearly establish any injury separate from the operative March 10, 2011, seizure. On that date, the employee suffered a seizure at work preparing for a major fundraising event, he fell, and was taken to the emergency room at HCMC. He suffered from two epileptic seizures within five minutes. Dr. Fiol described this event as a “status seizure,” meaning a continuous seizure of the brain, which can lead to damage. Because substantial evidence supports the compensation judge’s findings, we affirm.

4.   Petition to Vacate

The employer, Ballet of the Dolls, and SFM Risk Solutions, as third-party administrator for Minnesota Workers’ Compensation Assigned Risk Plan (MWCARP), filed a petition to vacate the April 28, 2016, Findings and Order alleging a mutual mistake of fact regarding the identity of the insurer on the risk on March 10, 2011. The employer and insurer claim that the insurer for the March 10, 2011, injury was not SFM Risk Solutions/MWCARP but was instead State Fund Mutual Insurance Companies. Counsel for the employer and insurer argue that State Fund Mutual was not properly joined and was not given an opportunity to defend its interests.

The employee objected to the petition to vacate, claiming the insurer was properly served at the street address for State Fund Mutual Companies and its subsidiaries. Arguing there was no mutual mistake of fact, the employee attached multiple notices from the Office of Administrative Hearings (OAH) serving “SFM” at P.O. Box 9416, the postal address listed on the SFM company website. The website lists the SFM headquarters’ street address as 3500 American Boulevard West, Bloomington, MN 55431, which was the address of service on the employee’s claim petition and the amended claim petition. The employee also asserts the employer and insurer stipulated at the hearing that Ballet of the Dolls and SFM Risk Solutions were the employer and insurer for all dates of injury claimed.

This court has authority pursuant to Minn. Stat. § 176.461 to vacate an award for cause, including a mutual mistake of fact. This court’s authority to vacate an award extends not to any mistake, but only to a mutual mistake of fact. Pomije v Minn. Valley Ag. Coop., No. WC05-104 (W.C.C.A. May 24, 2005). A mutual mistake of fact occurs when opposing parties both misapprehend some fact material to the claim or claims. Shelton v. Schwan's Sales Enters., 53 W.C.D. 110, 113 (W.C.C.A. 1995)(summarily aff’d Sept. 5, 1995). A unilateral mistake arising from an oversight by a party or a party's attorney does not constitute a mutual mistake of fact for purposes of a petition to vacate. See, e.g., Shelton at 114; Slaight v. Exceptional Homes, No. WC09-4999 (W.C.C.A. Feb. 10, 2010); Murphy v. Nw. Sheetmetal Co., No. WC07-102 (W.C.C.A. May 2, 2007).

We conclude that no mutual mistake of fact exists with respect to any incorrect captioning of the insurer and/or third party administrator. The employee filed his claim petition and amended claim petition at the address of the corporate office of SFM and its subsidiaries. There is no evidence or claim by the employer and insurer that SFM Companies did not receive the original or amended claim petition or the multiple notices served upon SFM by OAH. Counsel for the employer and insurer acknowledged that coverage for the additional dates was not verified upon receipt of the amended claim petition. It appears the employee served the amended claim petition on the correct insurer who unilaterally erred in assigning the claim to its subsidiary. In this case, the errors and omissions were of SFM’s own making. That SFM made a mistake should not entitle the insurer to relitigate all issues already tried in the proceedings below. We deny the petition to vacate the award.