DARLENE MENZEL, Employee, v. AMERICAN RESTAURANT GROUP and AMERICAN INT=L GROUP/CRAWFORD, Employer-Insurer, and HOLIDAY FOODS and FIREMAN=S FUND INS. CO., Employer-Insurer/Petitioners.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 13, 2000

 

HEADNOTES

 

VACATION OF AWARD - FRAUD; VACATION OF AWARD - MISTAKE; VACATION OF AWARD - NEWLY DISCOVERED EVIDENCE.  Where there was no evidence at all of fraud, where the alleged Anewly discovered evidence@ could have been discovered through the exercise of due diligence, and where there was no mutual mistake as to the employee=s restrictions or ability to work, the employer and insurer did not establish good cause to vacate the compensation judge=s 1998 decision regarding the suitability of two offered jobs.

 

Petition to vacate findings and order denied.

 

Determined by: Wilson, J., Wheeler, C.J., and Pederson, J.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer, Holiday Foods, and its insurer, Fireman=s Fund Insurance Company, petition this court to vacate the findings and order filed on October 19, 1998, based on mutual mistake of fact, newly discovered evidence, or fraud.  Finding no basis to vacate, we deny the petition.

 

BACKGROUND

 

The employee sustained a work-related injury to her right upper extremity on August 28, 1997, while employed by Holiday Foods [the employer].  On November 13, 1997, the employee filed a claim petition, seeking temporary partial disability benefits from September 30, 1997, to December 13, 1997, and temporary total disability benefits thereafter.

 

The employer and insurer apparently filed a demand for discovery, and the employee responded by indicating that Dr. Thomas F. Varecka was one of her treating doctors and by providing medical records from Dr. Varecka and medical authorizations.  Those records reflect that Dr. Varecka saw the employee on only two occasions.  On September 23, 1997, he diagnosed degenerative joint disease of the thumb and recommended that the employee be fitted with an orthoplast thumb cone.  The employee apparently returned to work in a modified job.^[1]  When she was re-evaluated on October 14, 1997, Dr. Varecka restricted the employee to work wearing a splint, with directions to avoid lifting more than two pounds with the right hand and more than twelve pounds total.  The employee apparently discontinued working on or about October 19, 1997.^[2]

 

On October 31, 1997, the employer offered the employee a job as a Abakery wrapper.@  A written job description indicated that the job required continuous lifting of zero to ten pounds and occasional lifting of eleven to fifty pounds.^[3]  On November 4, 1997, the employee=s treating chiropractor, Albert Hoff, wrote to the insurer, stating that the employee was not able to perform the bakery wrapper job.  However, Dr. Varecka also reviewed the bakery wrapper job description, and, in an office note dated November 8, 1997, the doctor wrote that, Agiven the job represented by this job description which has been presented, there would appear to be no significant medical contraindication to the patient continuing at this position.@  On November 10, 1997, Dr. Varecka wrote to the insurer, again stating that he had reviewed the description for the bakery wrapper job and opining that, AI feel that the patient is capable of working.@  He went on to clarify the employee=s restrictions as

 

lifting 2 to 3 lbs. on a frequent basis with her right hand, though maximum combined two handed lifting should be limited to no more than about 12 lbs., and should be carried out on only an occasional basis.  In addition, there should be no overhead reaching, and all work should be carried out below shoulder level.

 

The employee did not accept the job.

 

On April 7, 1998, the employer offered the employee a job as a Afood handler-cashier@ and again provided a written job description with that job offer.  That job description reflected that the employee would be required to continuously lift zero to ten pounds, frequently lift eleven to twenty-five pounds, and occasionally lift twenty-six to fifty pounds. The employee rejected that job offer based on the recommendations of Dr. Hoff.

 

The employee=s claim petition proceeded to hearing on August 12, 1998.  In findings filed on October 19, 1998, a compensation judge determined that the employee was entitled to temporary partial disability benefits for the period from September 30 to October 18, 1997, and that the employee had reasonably refused the offered jobs as a bakery wrapper and food handler-cashier, because those jobs, as described, exceeded the physical restrictions recommended by Dr. Varecka.  The judge denied the employee=s claim for temporary total disability benefits, however, because the employee had failed to perform a reasonably diligent search for work within her restrictions.  No appeal was taken from this decision.

 

The employee filed another claim petition on December 2, 1998, claiming permanent total disability, continuing from October 19, 1997, as a result of the August 28, 1997, injury and a claimed Gillette injury,^[4] allegedly occurring on January 25, 1993, while she was employed by Stuart Anderson=s Cattle Company.  The employer and its insurer served a demand for discovery upon the employee and used an authorization signed by the employee to obtain copies of the records of Dr. Varecka.  Those records included, for the first time, a May 29, 1998, note addressed to the employee=s attorney, stating that Dr. Varecka had reviewed the job description of the food handler/clerk-cashier job and found Ato a reasonable degree of medical certainty, the job outlined in that job description is within the physical capabilities and work capacities of Ms. Menzel.@

 

The employer and insurer petition this court to vacate the 1998 findings and order on grounds of mutual mistake of fact, newly discovered evidence, and/or fraud.

 

DECISION

 

Mutual Mistake of Fact

 

The employer and insurer contend that, if it is assumed that neither the employer nor the employee had a copy of Dr. Varecka=s May 29, 1998, note at the time of the 1998 hearing, Acertainly there was a mutual mistake as to exactly what Dr. Varecka=s restrictions were and exactly what his opinions were regarding the Employee=s physical ability to perform the jobs that were offered to her.@  The employer and insurer also contend that the facts regarding the April 1998 job offer are different than they had assumed.  Specifically, they had assumed that Dr. Varecka would have opined that the employee could not perform the food handler-cashier job.  We note, however, that Dr. Varecka opined that the employee could perform the bakery wrapper job, even though a comparison of the written job description with the restrictions imposed by Dr. Varecka would indicate that the job was outside the employee=s restrictions.^[5]

 

The May 29, 1998, note from Dr. Varecka to the employee=s attorney reflects that Dr. Hoff had sent a letter to Dr. Varecka with a job description (believed to be the food handler-cashier description), which Dr. Varecka reviewed and then wrote that A[a] similar job description has been presented to me previously for review, and as noted in my chart notes of November 8, 1997, I have had the opportunity to review that, and it is my opinion, to a reasonable degree of medical certainty, the job outlined in that job description is within the physical capabilities and work capacities of Ms. Menzel.@

 

The employee contends that she was not mistaken about either her restrictions or her ability to work.  She contends that the notes of Dr. Varecka regarding the job descriptions made no sense in that the offered jobs clearly exceeded the written restrictions recommended by that doctor.  She also relied on the opinions of Dr. Hoff and Meri Jo Tepe, director of human resources at the employer, for her claim that the offered jobs exceeded her restrictions. We agree that there was no mutual mistake of fact.

 

Newly Discovered Evidence

 

In their brief, the employer and insurer also contend that the May 29, 1998, note of Dr. Varecka constitutes newly discovered evidence.  ANewly discovered evidence@ is evidence that was in existence at the time of the award and that was not discoverable through the exercise of due diligence.  Sorenson v. Nelson County Mkt., slip op. (W.C.C.A. June 18, 1991).  The May 29, 1998, note at issue was not included in the records provided by the employee to the employer and insurer after the filing of the 1997 claim petition, because that note had not yet been made.  In addition, the employee=s counsel represented that, although that note was addressed to her, it was not received by her.  The employer and insurer apparently did not request updated records from Dr. Varecka prior to the hearing, and, at oral argument, counsel for the employer and insurer agreed that he could have taken the deposition of Dr. Varecka but chose not to.  There is therefore no evidence that the May 29, 1998, note could not have been obtained, prior to hearing, through the exercise of due diligence.

 

Fraud

 

The employer and insurer argue in their brief that, Aif it could be demonstrated that the employee made certain representations to the court . . . ,@ but they admit that they have no evidence in this regard.  Accordingly, there is no basis for vacating this findings and order on grounds of fraud.

 

                        Finding no basis to vacate the findings and order, we deny the employer and insurer=s petition.