MARK W. OLIN, Employee/Petitioner, v. TOWER ASPHALT, INC., and CNA INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 5, 2002

 

HEADNOTES

 

VACATION OF AWARD - MISTAKE.  Where vacating the award at issue would neither alter the employee=s obligation under a federal district court decision to reimburse his union=s welfare benefit plan for funds expended in treatment of his work injury nor affect his contractual relationship with that party, and where there was no evidence in the record that the employee and the employer and insurer were, at the time of the settlement at issue, subject to a mutual mistake of fact as opposed to a mistake in legal judgment, the employee did not demonstrate sufficient good cause to vacate the award on settlement at issue.

 

Petition to vacate denied.

 

Pederson, J., Wilson, J., and Johnson, J.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee petitions to vacate an Award on Stipulation served and filed September 29, 1999, on the ground that it was based on a mutual mistake of fact.  We conclude the employee has failed to establish cause sufficient to set aside the award and, accordingly, deny the petition to vacate.

 

BACKGROUND^[1]

 

Mark W. Olin [the employee], currently forty-six years-of-age, began working as a truck driver for Tower Asphalt, Inc. [the employer], in 1976.  The employee typically worked on a seasonal basis between April and November and evidently worked for the employer until July 15, 1999.  At all times relevant to the issues presented here, the employer=s workers= compensation insurance coverage was provided by CNA Insurance Companies [the insurer].

 

On November 18, 1986, and November 20, 1997, the employee sustained admitted work-related injuries in the nature of right-sided and left-sided carpal tunnel syndromes respectively, and the insurer paid various workers= compensation benefits related to those injuries.

 

In 1998, the employee filed a claim petition, apparently alleging an injury to his right shoulder on March 16, 1998.  Prior to trial, the employee amended his petition to include alleged injuries to his left shoulder and neck.  The employer and insurer denied primary liability for the claimed injuries.  The Minnesota Teamsters Construction Division Health and Welfare Fund [the Fund] intervened as a payor of medical and disability benefits related to the employee=s bilateral shoulder and neck claims.  The Fund is an Aemployee welfare benefit plan@ within the scope of the Employee Retirement Income Security Act of 1974 (AERISA@), 29 U.S.C. '' 1001 et seq.  The employee=s claims were heard by a compensation judge on July 15, 1999, and in a Findings and Order issued July 30, 1999, the judge determined that the employee failed to prove that he sustained injuries to his right shoulder, left shoulder, or neck.^[2]  Consequently, the judge denied the employee=s claims for benefits and the Fund=s claim for reimbursement.  No appeal was taken by any party from the judge=s decision.

 

Nearly two months later, the employee entered into a stipulation for settlement with the employer and insurer, resulting in an Award on Stipulation on September 29, 1999.  The Fund was not a party to the settlement, as their claims for reimbursement had been denied under the unappealed Findings and Order of July 30, 1999.  Although specifically identifying only the admitted carpal tunnel injuries of November 18, 1986, and November 20, 1997, Paragraph V.A. of the stipulation provides:

 

That the Employer and Insurer shall pay, and the Employee shall accept, a single sum of $46,000.00, less attorney=s fees described below.  That when the above payment has been made, it shall constitute a full, final and complete settlement of any and all claims with respect to any and all injuries claimed to have been sustained by Employee up through and including his last day of employment of July 15, 1999.

 

(Emphasis added.)

 

After learning of the employee=s settlement agreement, the Fund refused to pay the employee=s pending and future claims for benefits.  The employee filed an action in state court alleging that the Fund wrongfully refused to pay benefits under the plan.  The Fund removed the case to federal court and asserted a counterclaim against the employee, alleging that the employee failed to fulfill an obligation to reimburse the Fund from the proceeds of a workers= compensation settlement.  The Fund was granted summary judgment on the employee=s claim and on its counterclaim. 

 

On October 18, 2001, the employee, through his attorney, filed a petition to vacate the September 29, 1999, Award on Stipulation, on the ground that it was based on a mutual mistake of fact.  The employer and insurer filed an objection to the petition to vacate, alleging that the employee=s petition fails to demonstrate a mutual mistake as to any facts material to their settlement.  They contend that any mistake in this case arises from the employee=s legal assessment of his contractual obligation to the Fund, rather than from any misperception of the facts assessed.

 

DECISION

 

This court=s authority to vacate an award on settlement is found in Minn. Stat. ' 176.461 and 176.521, subd. 3.  A party must show good cause in order for us to exercise this authority.  Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989).  AGood cause@ to vacate an award is limited by Minn. Stat. ' 176.461 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.

 

The employee contends that neither the employer and insurer nor the employee realized that the Fund continued to have a viable economic interest in the proceeds of the employee=s settlement, given the denial of the Fund=s reimbursement claim in the July 30, 1999, findings and order of the compensation judge.  This mutual mistake as to the interest of the Fund, he argues, constitutes good cause to set aside the award and requires a remand to a compensation judge to determine the intervention interest of the Fund.  We disagree.

 

AA mutual mistake of fact occurs when opposing parties to the stipulation both misapprehend some fact material to their intended settlement of a claim or claims.@  Shelton v. Schwan=s Sales Enter., 53 W.C.D. 110, 113 (W.C.C.A. 1995), summarily aff=d (Minn. Sept. 5, 1995).  In this case, the employer and insurer do not concede that they misapprehended any fact material to their intended settlement, nor can the employee effectively contend that he was uninformed of the Fund=s first priority right of subrogation and reimbursement.  In a letter dated October 9, 1998, counsel for the Fund advised the employee=s attorney as follows:

 

Pursuant to the terms of the Plan, Mr. Olin is obligated to reimburse the Fund in full out of any recovery he receives, regardless of how that recovery is characterized and regardless of whether he has been fully compensated for his injuries.  Be advised that in the event Mr. Olin receives recovery and the employer/insurer does not reimburse the Fund in full for the benefits it has provided, the Fund will require Mr. Olin to reimburse it for any remainder from his recovery.  See Health and Welfare Plan for Employees of REM, Inc. v. Ridler, 942 F.Supp. 431 (D.Minn. 1996), aff=d 124 F.3d 207 (8^th Cir. 1997); see also Riley v. Herbes, 524 N.W.2d 523 (Minn. App. 1994). *** Enclosed for your review is the applicable Plan language setting forth the Fund=s first-priority right of subrogation and reimbursement.

 

Even assuming that there was a mistake in this case, we see no clear evidence that the mistake was mutual or that it was a mistake of fact as opposed to law.  The statute requires that an actionable mistake be one Aof fact,@ and a mistake in legal judgment is usually not sufficient grounds for vacating an award.  See Eldred v. Dezurik, slip op. (W.C.C.A. Dec. 21, 1994).  Cf. Gauthier v. Paul Williams Tire Co., 47 W.C.D. 36, 41 (W.C.C.A. 1992) (an attorney=s failure to submit complete rehabilitation records to the compensation judge at the time of trial was not the kind of mistake that would support vacation).  The employee and his counsel were, or should have been, fully aware of the legal risk they were taking under the Plan language upon entering into a full, final, and complete settlement Aof any and all claims.@

 

This court will not vacate an award on stipulation unless there is good cause to do so.  We fail to see the purpose to be served by setting aside the settlement at issue in this case.  Vacating the award will not alter the decision of the federal district court or affect the employee=s contractual relationship with the Fund.  Finding no evidence in this record of a mutual mistake of fact, and finding that if in fact a mistake was made it was a mistake in legal judgment, we conclude that the employee has failed to satisfy his burden of proof for vacation of the award at issue.  Accordingly, the employee=s petition is denied.^[3]