DAVID GREEN, Employee, v. JANEL & JONATHAN, INC., and MINNESOTA ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS, Employer-Insurer/Petitioners, and FAIRVIEW HEALTH SERVS., ABBOTT-NORTHWESTERN HOSP., UNITED HOSP., MN DEP=T OF HUMAN SERVS., and HENNEPIN CO. MEDICAL CTR., Intervenors.

 

WORKERS' COMPENSATION COURT OF APPEALS

JUNE 20, 2002

 

HEADNOTES

                       

VACATION OF AWARD - NEWLY DISCOVERED EVIDENCE.  Under the unique circumstance of this case, where the sole direct evidence of the alleged work injury was the employee=s testimony which was partially contradicted by other witnesses, where the compensation judge=s memorandum disclosed that he had reservations about the employee=s credibility and found the issue to be close, and where the employee had given incomplete and false answers in discovery about his criminal history, evidence of prior criminal convictions which the employer and insurer discovered after the hearing and were therefore unable to introduce to attack the employee=s credibility constituted newly discovered evidence sufficient to set aside the compensation judge=s findings and order.

 

Petition to vacate findings and order granted.

 

Determined by Stofferahn, J., Rykken, J., and Johnson, C.J.

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and insurer have both appealed from, and petitioned to set aside, the compensation judge=s Findings and Order.  We grant the petition to set aside and refer the employee=s amended claim petition to the Office of Administrative Hearings for further proceedings consistent with this decision.  As we have set aside the compensation judge=s Findings and Order, the employer and insurer=s simultaneous appeal from that decision is dismissed as moot.

 

BACKGROUND

 

The employer, Janel & Jonathan, Inc., is a temporary labor service with its offices in Minneapolis, Minnesota.  On November 18, 2001, the employer hired David Green, the employee, for a temporary labor assignment to a barge company, Upper River Services, shoveling sand out of a barge at its Pig=s Eye barge facility.  A driver working for the employer picked up the employee and several other workers at a drop-in center called Branch Three Catholic Charities in Minneapolis that morning and took them to the work site. 

 

The employee spent the morning shoveling sand and salt inside the hold of a barge moored at the Pig=s Eye facility.  At about noon, the temporary laborers were led up an incline from the dock to a cafeteria where they ate lunch purchased from vending machines.  Following lunch, they were instructed to go back down to the barge to resume work.  The employee alleges that while walking back from lunch to the barge he slipped on ice and fell backwards, striking his head on the icy gravel and being briefly rendered unconscious.  According to the employee=s testimony, the accident happened close to the general manager=s office at the barge facility, and as other employees were helping him up, the general manager had him come into his office and sit down for a while to be sure he felt able to go back to work.  The employee decided he was not seriously hurt.  After about 20 minutes in the manager=s office, he returned to work where he was given somewhat lighter duties.

 

The employer disputed this version of events.  The general manager of the barge company testified that no injury was reported to him.  He also testified that the person named by the employee as the foreman did not exist and that an employee of a temporary agency would have been sent home rather than given light work if an injury were reported.

 

At about 4:30, the employee and the other temporary workers finished their shift and were picked up at the job site by the employer=s driver and taken to the one of the employer=s offices where they were to pick up their paychecks.  The employee testified that he asked the driver to instead take him to a hospital but that the driver refused.  He also testified that, while waiting for his check at the employer=s office, he told someone he believed to be one of the employer=s staff, the Ablond woman,@ about his injury.

 

The employer disputed this version of events.  The president of Janel and Jonathan testified that no Ablond woman@ worked for the company and that no notice was received from the employee of a claimed work injury until the employee=s attorney sent her a letter a few days before the filing of a claim petition.

 

The next day, November 19, 2000, the employee went to Hennepin County Medical Center where he reported having fallen at work the previous day, hitting his left shoulder, back of his head and lower back.  He was then experiencing headache, left shoulder pain, and left-sided low back pain.  Within a few more days he developed radiating pain to the left lower extremity.  Over the next several months the employee=s symptoms continued and he treated with a variety of medical providers.  MRI scans done on December 16, 2000 and February 3, 2001 revealed lumbar disc herniations at L4-5 and L4-S1 with displacement of the S-1 nerve roots.  The employee also began to experience occasional encopretic episodes, raising concerns of a developing cauda equina syndrome.  Low back surgery has been recommended, in the form of a decompression of the L5-S1 lesion.

 

The employee filed a claim petition on January 11, 2001, and an amended claim petition on January 19, 2001, claiming entitlement to temporary total disability compensation and medical benefits.  The employer and insurer filed an answer on January 31, 2001, denying both notice of injury and the occurrence of the alleged injury.

 

The employer and insurer deposed the employee for purposes of discovery on April 23, 2001.  In the course of the deposition, the employee was asked about a gap in his work history and the following testimony was elicited:

 

Q. Okay.  What was going on during that nine-year gap?

* * *

[A brief recess was taken while the employee consulted with his attorney.]

* * *

A. Yeah, I went to prison, Leavenworth, Kansas, Federal Penitentiary, for bank robbery.  Then I got out August 25th, 1988.

Q. 1988?

A. And I haven=t had a traffic ticket since.

Q. Good for you.

A. And you can check that.

* * *

Q. Okay.  Where was the conviction, bank robbery conviction?

A. The conviction was Illinois.

Q. In Chicago?

A. Seventh Circuit, Yeah.

Q. Any other felony convictions?

A. No.

 

(4/23/01 Dep. at 11-12.) 

 

During the discovery deposition, the employee was also asked about prior low back problems:

 

Q. Have you ever head any problems before November of 19, of 2000, any problems with your back?

A. Never.

* * *

Q. And you told me before, I think, you have never had any low back problems before?

A. Never in my life, no.

 

(4/23/01 Dep. at 19, 64.) 

 

The employer and insurer also served a discovery demand on the employee requesting the names and addresses of all health care providers who had examined or treated the employee for the alleged injury or any similar or related condition to those alleged in his claim petition.  The employee=s discovery response listed only the Hennepin County Medical Center and the Abbott Northwestern Hospital. 

 

Subsequently, but prior to the hearing below, the employer and insurer learned that the employee had also sought treatment for his alleged work injury at additional hospitals, including Methodist Hospital, HealthEast St. Joseph=s Hospital, and United Hospital, none of which had been disclosed by the employee in discovery.  The employer and insurer also learned that the employee had treated for low back pain at the Hennepin County Medical Center on at least one occasion prior to the alleged work injury.

 

The employee=s claim petition came on for hearing before a compensation judge of the Office of Administrative Hearings on July 12, 2001.  During the hearing, the employee admitted to receiving treatment for his alleged injury at the additional hospitals, and the employer and insurer submitted medical records for this additional treatment.  One of the emergency room records from these hospitals mentioned that the employee had previously treated at the Park Nicollet Hospital, but the employer and insurer had not obtained records from Park Nicollet as of the date of hearing.  The employee was questioned about treatment at Park Nicollet but testified that he had treated there only for a problem with his gums and a bruise but had never treated for any other problems at that hospital.  He was also asked about references to a motorcycle accident in 1978 but denied ever having even been on a motorcycle.  Following the hearing, the record was left open solely for the purposes of a cross-examination deposition of Dr. Robert Wengler, M.D., as the employer and insurer had first received this physician=s medical report on the day prior to the hearing.

 

On July 30, 2001, the employer and insurer filed a motion with the compensation judge requesting leave to take additional testimony, based on alleged newly discovered evidence.  Specifically, the employer and insurer asserted, among other things, that Park Nicollet records received subsequent to the hearing revealed additional prior medical care to the employee=s low back.  In addition, they alleged that medical records since the hearing indicated not one but two motorcycle accidents for which the employee was treated prior to the alleged work injury.  Finally, the employer and insurer noted that, while they had not introduced evidence at the hearing as to the employee=s criminal conviction for bank robbery in 1989, as that conviction was more than 10 years old, they had learned since the hearing that the employee had failed to disclose further criminal convictions of a more recent date which, they alleged, would have been relevant to the court=s assessment of the employee=s credibility.

 

In a letter responding to the employer and insurer=s motion, employee=s counsel objected to the motion for further testimony.  He noted that none of the prior treatment for low back problems in the medical records pre-existing the date of the alleged work injury showed pathology similar to that experienced by the employee following the alleged November 18, 2000 work injury, and none involved continued or lengthy treatment for low back problems.  Employee=s counsel further argued that the employer and insurer had already had ample opportunity to investigate the employee=s criminal history, and claimed that the employer and insurer, during the period from the filing of the claim petition to the date of hearing, Afailed to ask any questions concerning any past convictions the Employee may have had.@

 

The compensation judge denied the employer and insurer=s motion for additional testimony on September 4, 2001, noting that the record was left open solely for the purpose of the cross-examination of Dr. Wengler and that, based on the files, records and pleadings in the case, he was not convinced that the record should be reopened.  On October 29, 2001, the compensation judge served and filed his Findings and Order.  In the findings, the judge accepted the employee=s testimony as to the occurrence of the work injury and notice of the injury.  The employer and insurer were ordered to pay temporary total disability from November 19, 2000 through the date of hearing, along with the employee=s outstanding medical expenses.

 

The employer and insurer filed both an appeal and a petition to vacate based on fraud and newly discovered evidence. 

 

DECISION

 

1. Petition to Vacate

                                                                           

This court's authority to vacate an award is governed by Minn. Stat. '176.461.  Under this statute, an award may be set aside only upon a showing of cause, specifically limited to a mutual mistake of fact, newly discovered evidence, fraud, or a substantial change in medical condition which was not and could not have been anticipated at the time of the award.  

 

The employer and insurer request that the award embodied in the compensation judge=s Findings and Order in this case be set aside on the basis of fraud and/or newly discovered evidence.  We conclude that the employer and insurer have demonstrated grounds to set aside the Findings and Order.

 

To justify vacation of a compensation judge=s findings and order on the grounds of newly discovered evidence, the evidence must have been in existence at the time of the hearing but not discoverable by the exercise of reasonable diligence, must be relevant and admissible, must not be merely cumulative or duplicative, and must be such as to have had a reasonable likelihood of  affecting the outcome.  Gruenhagen v. Larson, 310 Minn. 454, 246 N.W.2d 565 (1976); Brown v. Bertrand, 254 Minn. 175, 94 N.W.2d 543 (1959).  These elements have been met in this case.

 

In the present case, the employee=s testimony was the only direct evidence offered to establish that he had sustained a slip and fall at work on November 18, 2000.  The employer and insurer offered testimony from the employer=s owner and from the on-site manager of the barge facility contradicting many of the specific details of the employee=s testimony and denying any evidence of such an injury having occurred.  In finding that the employee had sustained the alleged injury, the compensation judge noted that he had some reservations about the employee's credibility, and acknowledged that A[t]his was a difficult question because it relies so heavily on the credibility of an employee whose testimony was generally not credible or reliable.@  The compensation judge nonetheless accepted the employee=s testimony as credible with respect to the occurrence of the work injury.  Thus, the employee=s credibility was not only central to the decision in the case but also sufficiently in question that any further evidence casting doubt on the employee=s credibility may have altered the result. 

 

The employer and insurer did not offer evidence of the employee=s felony conviction for bank robbery for purposes of impeaching the employee=s credibility, as that conviction and its resulting incarceration had occurred more than ten years prior to the hearing.^[1]   The newly discovered evidence in this case is that of additional and more recent convictions and incarcerations, not disclosed by the employee despite direct questioning in discovery, which might have cast further doubt on the employee=s credibility.  The employer and insurer reasonably relied upon the employee=s denial under oath of further convictions during direct questioning in his discovery deposition, and accordingly their failure to discover this evidence through the date of hearing was not the result of lack of due diligence.  

 

Generally, we are highly reluctant to vacate an award solely on the basis of newly discovered evidence bearing tangentially on witness credibility.  In this case, however, not only was the employee=s credibility central to the judge=s determination, but the judge himself indicated that the employee=s credibility was already seen as somewhat in doubt and that the issue was Aclose.@  Under these specific circumstances, it is possible that the additional evidence of the employee=s criminal convictions might have affected the outcome of the case. 

 

Although we have not reached the question of fraud, the employer and insurer=s alternate basis for its petition,  we nonetheless observe that the employee provided false or blatantly incomplete responses which significantly affected and thwarted the employer and insurer=s discovery in the case.  We have considered this factor in determining whether the Findings and Order should be set aside.

 

In determining whether to vacate an award, this court has wide discretion which has been characterized as "instinct with considerable latitude."  Krebsbach v. Lake Lillian Coop Cream. Ass'n., 350 N.W.2d 349, 354, 36 W.C.D. 796, 802 (Minn. 1984) (citations omitted).  In applying our discretion, we are mindful that, "[w]hile compensation decisions do not enjoy the same finality as ordinary judgments, the parties are entitled to have their litigation laid to rest with some assurance of finality . . . ."  Turner v. Federal Reserve Bank of Minneapolis, 213 N.W.2d 414, 418, 27 W.C.D. 149, 156 (Minn. 1973; see Maurer v. Braun=s Locker Plant, 298 N.W.2d 439, 33 W.C.D. 66 (Minn. 1980); Krebsbach, 350 N.W.2d at 354, 36 W.C.D. at 802 (Minn. 1984).  Nonetheless, we conclude that it is appropriate under the unique facts of this case that the employer and insurer have the opportunity to offer the newly discovered evidence.  The compensation judge=s Findings and Order are set aside and the matter is remanded to the Office of Administrative Hearings for a new hearing on the employee=s amended claim petition.  Nothing in this opinion should be taken as supplanting the discretion of the compensation judge to whom the case may be assigned for hearing as to whether to grant further discovery in the case or as to the admission or weight of the evidence.  Nor does the setting aside of the prior Findings and Order preclude the use in evidence of all or part of the transcript of testimony taken at the hearing below.

 

2.  Employer and Insurer=s Appeal

 

As we have set aside the compensation judge=s findings and order in their entirety, the employer and insurer=s appeal is rendered moot and is hereby dismissed.