KEVIN M. NORBY, Employee, v. YELLOW FREIGHT SYS., SELF-INSURED, Employer/Petitioner, and ALLINA HEALTH SYS. and MINNEAPOLIS ORTHOPAEDIC & ARTHRITIS INST., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 3, 2000
HEADNOTES
VACATION OF AWARD - MISTAKE. The self-insured employer did not establish good cause to vacate the compensation judge=s finding regarding weekly wage based on a mutual mistake of fact.
Petition to vacate findings and order denied.
Determined by: Rykken, J., Pederson, J. and Johnson, J.
OPINION
MIRIAM P. RYKKEN, Judge
The self-insured employer petitions to vacate Finding 1 of the Findings and Order served and filed December 12, 1997, in this matter. We conclude that the employer has failed to establish good cause to vacate the finding, and deny the petition.
BACKGROUND
Kevin M. Norby, employee, sustained work-related injuries to his right shoulder on February 1, 1995, and on July 17, 1996, while working as a dock worker for Yellow Freight Systems, self-insured employer. The employer admitted liability and paid various workers= compensation benefits. On September 16, 1996, the employee underwent surgical decompression. After the surgery, the employee underwent a program of home exercise and rehabilitation, and returned to work in November 1996 with restrictions of no lifting over ten pounds and limited work at or above shoulder level. The employee=s right shoulders symptoms returned, and he was off work on December 20, 1996, and returned to light duty on January 23, 1997. The employee worked at a wage loss and received temporary partial disability benefits. The light duty job involved filing and light office tasks, but the employee=s arm worsened, and he again went off work on May 7, 1997. The employee sought treatment, and a second surgical procedure was recommended. The employee was seen for a second opinion at the request of the employer on May 7, 1997, but he underwent surgery on May 8, 1997, before the physician=s report from the second opinion consultation was received. The employer discontinued the employee=s temporary partial disability benefits as of May 8, 1997, without the filing of a notice of intention to discontinue benefits. The employee objected to the discontinuance and requested a conference pursuant to Minn. Stat. ' 176.239, subd. 2. Following an administrative conference, a compensation judge ordered payment of ongoing temporary total disability benefits.
The employee=s condition improved after the second surgery. He had less pain, and his restrictions were no lifting over 15 pounds and limited overhead work. The employee was released to work on July 30, 1997. The employer did not have work available for the employee within his restrictions. The employee underwent vocational testing and found employment as a security guard on September 21, 1997, with a starting wage of $7.75 per hour, increasing to $8.00 after 30 days.
On July 3, 1997, the employee filed a claim petition for unspecified benefits. In its answer to the employee=s claim petition, the employer admitted the wage rate asserted in the claim petition. The employer filed a petition to discontinue benefits on July 18, 1997, arguing that the employee=s second surgery on May 8, 1997, was not reasonable and necessary to cure or relieve the effects of the employee=s 1995 and 1996 injuries. The matters were consolidated by order on August 12, 1997. A hearing was held on October 1, 1997. At the hearing, the parties stipulated to the employee=s weekly wage, agreeing that the employee=s weekly wage was $700.00 on February 1, 1995, and $722.40 on July 17, 1996. The July 1996 wage was based upon a 40 hour work week at a $18.06 per hour. The compensation judge found that the employee=s second surgery was reasonable and necessary, and awarded medical benefits, and found that the employee was entitled to the temporary total disability benefits paid between May 1997 and September 21, 1997, and therefore that the employer was not entitled to a credit for these benefits. After the hearing, but before the Findings and Order were issued, the employer=s attorney wrote to the compensation judge, indicating that he no longer agreed to the stipulated wages. As noted in her Memoradum accompany the Findings and Order, the compensation judge accepted the wages as stipulated at the hearing since no evidence was submitted by the employer post-hearing to supports it allegation that the stipulated wage rate was incorrect. The Findings and Order were issued on December 12, 1997, and no party appealed that decision.
On October 26, 1999, the self-insured employer filed a petition to vacate the December 12, 1997, Findings and Order, alleging a mutual mistake of fact regarding the employee=s weekly wage. We deny the self-insured employer=s petition.
DECISION
The self-insured employer argues that the compensation judge=s finding regarding the employee=s July 1996 weekly wage, to which the parties initially stipulated, was based upon a mutual mistake of fact. Generally, stipulations which are part of a final judgment and are not appealed are given the same res judicata effect as litigated issues. See Holthusen v. Marshall County Highway Dep't, slip op. (W.C.C.A. Feb. 22, 1994) (upon approval of a stipulation by an award on stipulation, the date of MMI agreed upon by the parties was res judicata in the absence of any vacation of the award). The Workers= Compensation Court of Appeals may vacate awards on findings and orders for good cause. Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989). "Good cause" to vacate an award is limited to: (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. Minn. Stat. § 176.461.
At the October 1997 hearing, the parties stipulated that the employee=s weekly wage on July 17, 1996 was $722.40, apparently based upon a 40 hour work week at a $18.06 per hour. After the hearing, but before the Findings and Order were issued, the employer=s attorney apparently wrote to the compensation judge, indicating that he no longer agreed to the stipulated wages. The compensation judge accepted the wages as stipulated at the hearing since no evidence was submitted concerning the alleged correct wage. (Memo. at 6.) The employer had full opportunity to appeal this decision, but failed to do so. Two years later, the employer now petitions to vacate the Findings and Order based upon a mutual mistake of fact. The employer did not give any indication that the wage information was not available at the time of the hearing or during the 30 day appeal period after the Findings and Order were served and filed. The employee asserts that the employer had this information three months before the hearing, and in fact controlled this information. The employer=s failure to use this information in a timely fashion during litigation is not a mutual mistake of fact.
In addition, Minn. R. 9800.1100, subp. 1, provides that an application to set aside an award must be accompanied by appropriate supporting affidavits, medical reports, and other documentary evidence. In this case, the employer supplied information regarding the employee=s weekly earnings for the 26 weeks prior to the work injury. The wage information provided indicates that the employee earned $16,352.99 during the 26 week period. The employer argues that the employee=s weekly wage should be calculated by averaging his wages earned over a 22 week period, which would exclude a week where the employee earned an unusually high amount, for reasons not indicated, resulting in a weekly wage of $609.86. Averaging the 26 week period would result in a weekly wage of $628.96.
However, an employee=s weekly wage is calculated in accordance with the provisions of Minn. Stat. ' 176.011, subd. 3, defining Adaily wage@ and subd. 18, defining Aweekly wage.@ The employer did not provide the number of days that the employee worked, which is necessary to determine the employee=s weekly wage under Minn. Stat. ' 176.011, subd. 18, which reads in part as follows:
AWeekly wage@ is arrived at by multiplying the daily wage by the number of days and fractional days normally worked in the business of the employer for the employment involved. If the employee normally works less than five days per week or works an irregular number of days per week, the number of days normally worked shall be computed by dividing the total number of days in which the employee actually performed any of the duties of employment in the last 26 weeks by the number of weeks in which the employee actually performed such duties . . . .
The appropriate daily wage is determined under Minn. Stat. ' 176.011, subd. 3, which provides in pertinent part:
If the amount of the daily wage received or to be received by the employee in the employment engaged in at the time of injury was irregular or difficult to determine, . . . the daily wage shall be computed by dividing the total amount the employee actually earned in such employment in the last 26 weeks, by the total number of days in which the employee actually performed any of the duties of such employment[.]
The employer did not provide the information necessary to perform these calculations. Where there is inadequate evidence of the number of hours or days the employee worked, strict application of the statutory formula is not possible, and the compensation judge may use another method of calculating the employee's weekly wage, so long as it fairly represents the employee's injury-related lost earning capacity. Hansford v. Berger Transfer, 46 W.C.D. 303, 309-10 (W.C.C.A. 1991); Decker v. Red Wing Shoe, 41 W.C.D. 763 (W.C.C.A 1988). The employer did not indicate that the information regarding the number of days that the employee worked was unavailable in this case.
Under these circumstances, where the employer initially stipulated to the employee=s weekly wage at hearing, had full opportunity to appeal the compensation judge=s finding regarding the employee=s weekly wage, and did not provide adequate information to this court to calculate the employee=s weekly wage under Minn. Stat. ' 176.011, subds. 3 and 18, we conclude that the self-insured employer has not established good cause to vacate the findings and order, and therefore we deny the petition to vacate.