JOAN M. STANOCH-ANDERSON, Employee/Petitioner, v. TRIAL COURTS/7TH JUDICIAL DISTRICT, SELF-INSURED, Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 14, 2000

 

HEADNOTES

 

VACATION OF AWARD - MISTAKE; EVIDENCE - RES JUDICATA; STATUTES CONSTRUED - MINN. STAT. ' 176.461.  Where the matter of the employee=s weekly wage was raised by a compensation judge at a discontinuance hearing, where the parties deliberately considered and addressed the issue at hearing and effectively stipulated to a specific weekly wage, and where the compensation judge made an express finding as to weekly wage based on that stipulation, the principles of res judicata precluded relitigation of the employee=s weekly wage, and any mistake made by the employee in stipulating to that wage was at any rate not clearly a Amutual@ mistake that the court could vacate under Minn. Stat. ' 176.461.

 

Petition to vacate findings and order denied.

 

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

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee applies to this court to set aside the Findings and Orders filed in this case on December 6, 1995, and November 14, 1997, to the extent that those decisions establish the employee=s date-of-injury weekly wage.  Concluding that the employee has not demonstrated good cause to set aside those decisions, we deny the employee=s application.

 

BACKGROUND

 

On February 23, 1993, Joan Stanoch-Anderson [the employee] sustained a work-related injury in the nature of bilateral carpal tunnel syndrome in the course of her employment as a court reporter for the Seventh Judicial District Trial Courts [the employer].  The employer, self-insured against workers= compensation liability, admitted liability for the injury and commenced payment of various benefits, including temporary total, temporary partial, and permanent partial disability compensation and payment of medical expenses.  Subsequently, on June 20, 1995, the employer filed a Notice of Intention to Discontinue [NOID] the employee=s temporary partial disability benefits, to which the employee filed an Objection on September 11, 1995.

 

Near the beginning of the expedited discontinuance hearing on November 17, 1995, Compensation Judge Kathleen Nicol Behounek inquired, AIs there a stipulation as to the weekly wage on the date of injury?@  The employee=s attorney responded, AWe=re not objecting to the wage of $833.20,@ which was the wage indicated on the First Report of Injury.  When asked if he would stipulate to that weekly wage, the employer=s attorney  responded, AI believe I can,@ but he requested the opportunity to confirm that belief by making a telephone call, and the judge suggested that he do a file review during the break and let her know A[i]f there=s a different wage.@  AOtherwise,@ the judge indicated, AI will assume that it=s stipulated at the weekly wage on the date of injury as 833.20.@  A short while later in the hearing, the employee=s attorney spent what spans most of a page in the trial transcript explaining the method by which he had calculated the employee=s temporary partial disability benefits, based on the employee=s wages from the employer and a complex theory of purchasing back sick leave wages apparently otherwise unrecouped.  Later in the hearing there was testimony from the employee as to the work she did as a reporter in the courtroom for the employer and transcript preparation work that she sometimes did at home at night.  There is no evidence that either party informed Judge Behounek that she should not assume stipulation to $833.20 as the employee=s weekly wage for purposes of the wage replacement benefits that were at issue at the hearing.  By Findings and Order filed December 6, 1995, Judge Behounek ordered in part that the employer continue payment of temporary partial disability benefits, indicating in one of her findings that the parties had stipulated to the fact that, on the date of her work injury, the employee Awas employed by [the employer] at an average weekly wage of $833.20.@

 

The following month, on January 16, 1996, the employee filed a Claim Petition for permanent partial disability and medical benefits, on which she asserted that her weekly wage at the time of her work injury was $833.20.  In its Answer to that petition on January 31, 1996, the employer specifically admitted that allegation of weekly wage.  Hearing on the petition was several times reset, and the petition was eventually consolidated for hearing on October 31, 1997, together with a Medical Request filed by the employer on August 26, 1997.  In a Findings and Order filed November 14, 1997, in which he awarded the employee certain benefits and denied others, Compensation Judge William R. Johnson entered a finding that A[i]t has been previously found that the employee=s average weekly wage on the date of the admitted injury of February 23, 1993 was $833.20.@  The employee subsequently appealed from Judge Johnson=s decision, contesting certain conclusions of the judge but not appealing from the judge=s specific finding as to weekly wage.  Judge Johnson=s decision was ultimately affirmed by this court.

 

Subsequent to the issuance of the December 6, 1995, and November 14, 1997, Findings and Orders of Judges Behounek and Johnson, the employee apparently came to realize that her earnings from independent transcript preparation at the time of her work injury were also includable in her weekly wage for workers= compensation purposes.  On August 18, 1999, the employee filed a Claim Petition, listing $1009.07 as her weekly wage at the time of her February 23, 1993, work injury and claiming that she was undercompensated for two hundred twenty-five weeks of temporary partial disability.  The employer and insurer denied the petition and moved to dismiss it on theories of res judicata and collateral estoppel.  The Claim Petition was dismissed by Judge Johnson without prejudice on grounds that it would require vacation of prior Findings and Orders, which only this court was authorized to do.  The employee now applies to this court to set aside the December 6, 1995, and November 14, 1997, Findings and Orders of Judges Behounek and Johnson to the extent that the weekly wage reflected in them is a mistake and A[t]he employee has been denied her due process rights without the benefit of litigating the issue of average weekly wage.@

 

DECISION

 

This court's authority to set aside a compensation judge=s award is found in Minnesota Statutes ' 176.461.  Pursuant to that statute, an award may, upon application of a party, be set aside only Afor cause.@  For awards filed after July 1, 1992,  such as those here at issue, Acause@ is limited by the statute to four circumstances, one of which is Aa mutual mistake of fact.@^[1]  Minn. Stat. ' 176.461.  Asserting in her Affidavit that Judge Behounek Awrote her [December 6, 1995] decision indicating the parties had a pre-trial stipulation to a minimum average weekly wage of $833.20,@ the employee contends that the parties in this case were mutually mistaken as to her weekly wage at the time of the two decisions here at issue and that weekly wage was never litigated because never expressly at issue.  We are not persuaded.

 

Initially, we would note that, at the hearing before her, Judge Behounek expressly indicated, AThere=s been no pretrial.@  Nor do we find any evidence, either in the transcript of hearing before Judge Behounek or in her Findings and Order itself, that the stipulation to weekly wage here at issue was only to a Aminimum@ weekly wage as alleged by the employee.  Upon the judge=s query as to the existence of a stipulation as to weekly wage, the employee=s attorney indicated only that the employee was Anot objecting to the wage of $833.20,@ and the employer=s attorney responded that he Abelieve[d]@ he could stipulate to that figure and indicated that he would consider the matter at break and would inform the judge if he discovered a different one.  The judge indicated that she would assume $833.20 as the stipulated weekly wage if she was not informed otherwise, and she was apparently not informed otherwise.  Nor do we find any evidence that the Amistake@ alleged by the employee was necessarily a mutual one as required by the statute.  Indeed, in his reply brief for the employer, the employer=s attorney asserted expressly that the employer Astipulated to the average weekly wage at the time of the Hearings based upon a tactical decision; not on a mistake.@

 

Nor can we accept the argument that the issue of weekly wage was not essentially Alitigated.@  Although the question of the employee=s weekly wage may have been settled by stipulation instead of by a decision of the judge, it was clearly nevertheless a material issue that was intentionally raised by the compensation judge, thoughtfully considered and addressed by the parties, and ultimately determined in an express finding of the judge.  Establishment of a weekly wage is essential to the determination of temporary partial disability compensation, and that the matter was very materially at issue in this case is evident both by the obvious deliberation and restraint exercised by the employer=s attorney in response to the judge=s query and by the employee=s attorney=s own detailed explanation early in the hearing as to his method of calculating the weekly wage being contemplated.  Moreover, that wages other than those paid by the employer clearly may have been considered by the employee in her claim and by both parties in their stipulation is suggested by the fact that the employee herself later testified, for what spans several pages in the transcript, about the work she did preparing transcripts after her work hours with the employer and off the employer=s premises.^[2]  In these circumstances, we cannot conclude that the matter of weekly wage was not materially Aat issue@ and Alitigated@ at the hearing, although it may not have been left ultimately for the judge to determine.

 

The employee attempts to support her position with arguments from several prior decisions of this and the supreme court, the facts in all of which are easily distinguishable.  The employee argues that, in Silvers-Tate v. Marriott Inflite Services, 46 W.C.D. 259 (W.C.C.A. 1991), the doctrine of res judicata applied to bar the employee=s relitigation of findings only because the employee had been allowed to submit evidence on a disputed claim for benefits.  Here, she argues, she was not allowed to submit evidence, and the issue was not disputed.  We conclude, however, that, as discussed above, the matter of weekly wage was at issue, though it may not have been specifically contested, and that the employee was never precluded from submitting evidence as she now contends.

 

The employee also cites the cases of Westendorf v. Campbell Soup Company, 309 Minn. 550, 243 N.W.2d 157, 28 W.C.D. 460 (1976), and Brix v. General Accident and Assurance Corp., 254 Minn. 21, 93 N.W.2d 542, 20 W.C.D. 281 (1958), to support her argument that the doctrine of res judicata may not bar proceedings to determine claims that were not litigated in a prior proceeding.  We conclude, however, again as suggested above, that the issue of weekly wage was essentially litigated, in that it was raised as an issue, deliberately considered by both parties, and expressly determined in the judge=s decision.

 

The employee also cites Cooper v. Georgia Pacific Corporation, slip op. (W.C.C.A. Apr. 27, 1993), in which the employee, after a hearing at which weekly wage was not an issue, was held to be free to file a claim petition post hearing to allege underpayment of benefits based on a higher weekly wage than the wage at which the employee was being paid. Cooper is clearly distinguished, however, by the fact that the compensation judge in that matter had made no finding as to weekly wage in his decision.  In the present case, the judge made an express finding as to weekly wage, based on a considered stipulation by the parties.

 

The employee also cites Stageberg v. Hyatt Regency of Minneapolis,  slip op. (W.C.C.A. May 21, 1998), for the principle that res judicata and collateral estoppel apply to bar relitigation only of claims and issues previously raised and determined, arguing that the issue of weekly wage was never raised in this case and therefore can still be litigated.  She cites also the cases of Fischer v. Saga Corporation, 498 N.W.2d 449, 48 W.C.D. 368 (Minn. 1993), and Johns v. Modern Tool, Inc., slip op. (W.C.C.A. Feb. 8, 1994), for the principle that res judicata only precludes litigation of issues and claims that were in fact decided in earlier proceedings, arguing, AIf the issue was not clearly decided in a prior proceedings, or contested, then the doctrine of res judicata would not apply.@  Again, as we have indicated earlier, we conclude that the issue of weekly wage was both raised and determined in this case, and we find nothing in the cases cited to indicate res judicata applies only to Acontested@ determinations of a compensation judge.

 

Finally, the employee argues, citing generally Heath v. Airtex Industries, 297 N.W.2d 269, 33 W.C.D. 107  (Minn. 1980), and Napper v. Boise Cascade Corp., 348 N.W.2d 81, 36 W.C.D. 731 (Minn. 1984), that, even if litigated, the weekly wage findings at issue were based upon mistakes by all parties at the hearings before both judges and that, A[b]ecause of this alone, the Court should set aside the prior finding.@  We conclude, however, as suggested earlier, that, whatever mistake the employee may have made in asserting and stipulating to a weekly wage of $833.20, there is no evidence that that mistake was a Amutual@ mistake shared by the employer as required by the statute.  The decisions in both Heath and Napper predated the statutory requirement that a mistake must be a Amutual@ one in order to be grounds for setting aside an award.

 

Concluding that the employee=s weekly wage was properly litigated at the hearing before Judge Behounek on November 17, 1995, that principles of res judicata now preclude relitigation of that weekly wage, and that any mistake made by the employee in stipulating to that wage was not at any rate clearly a Amutual@ mistake, we conclude that the employee has not demonstrated good cause to set aside the Findings and Orders of Compensation Judges Kathleen Behounek and William Johnson, filed in this case on December 6, 1995, and November 14, 1997, respectively.