CAROL A. SCHJENKEN, Employee, v. BERMO, INC., SELF-INSURED/BERKLEY RISK ADM=RS, Employer/Petitioner.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 24, 2003

 

HEADNOTES

 

VACATION OF AWARD - MISTAKE; VACATION OF AWARD - NEWLY DISCOVERED EVIDENCE.  Where the Anewly discovered evidence@ cited by the employer was available and discoverable through the exercise of due diligence prior to the parties= settlement, and where there was no showing that both parties misapprehended a fact material to the proposed settlement, the employer did not establish good cause to vacate the award on stipulation covering the employee=s weekly wage.

 

Petition to vacate denied.

 

Determined by Wilson, J., Rykken, J., and Pederson, J.

 

Attorneys:  Leslie M. Altman, Rider Bennett, Minneapolis, MN, appeared for Petitioner.  Mark J. Fellman, Attorney at Law, St. Paul, MN, appeared for Respondent.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The self-insured employer petitions to vacate a June 5, 2001, award on stipulation based on mutual mistake of fact or newly discovered evidence.  Finding no basis to vacate the award, we deny the petition.

 

BACKGROUND

 

The employee sustained a work-related injury in the nature of a disc herniation at C6-7 on February 8, 2000, while working for Bermo, Inc.[the employer], which was then self-insured for workers= compensation purposes.  In May of 2001, the parties entered into a stipulation for settlement, wherein the parties stipulated that the employee was employed as a production worker at the time of the injury and earning a weekly wage of $744.91.  The employee at that time was claiming entitlement to temporary total, temporary partial, and permanent partial disability benefits and medical expenses.  The employer paid $14,120.65, for a close-out of temporary total and temporary partial disability benefits through October 29, 2000, permanent partial disability to the extent of an 11% impairment, and miscellaneous other items[1] through the date of the award on stipulation.  An award on stipulation was filed on June 5, 2001.

 

A petition to vacate that award on stipulation was filed by the employer on July 17, 2003, alleging that the stipulation for settlement contained an inaccurate weekly wage figure and that the correct wage should be $631.29 or $638.00.[2]  Accordingly, the employer contends that the award on stipulation should be vacated based on mutual mistake of fact or newly discovered evidence.  The employee opposes the petition to vacate.

 

DECISION

 

For awards filed on or after July 1, 1992, the Workers= Compensation Court of Appeals may vacate an award Afor cause@ as defined in Minn. Stat. '176.461.  Cause includes  newly discovered evidence or a mutual mistake of fact.

 

The attorney for the employer contends that the wage records for the 26 weeks preceding the injury, which were provided by the employer to her, did not reveal the hourly rate at which the employee was paid during each week prior to the work injury, and that, A[i]n calculating the 26-week average, my office had no way of knowing that Employee=s hourly wage had been cut by 9% when she was reassigned from welder to assembly on December 12, 1999.@  Counsel goes on to contend that it was only after investigating a pending claim that she learned for the first time that the employee=s hourly rate was different when the employee worked as a production worker than it was when she worked as a welder.  Counsel argues that this information constitutes newly discovered evidence and provides a basis for vacating the award on stipulation.  We are not persuaded.

 

The employer=s attorney refers to Exhibit C, attached to her memorandum, in support of her contention that the pre-injury wage records available to her at the time of the stipulation for settlement did not indicate the hourly wage.  Exhibit C, however, is an itemization of wages paid to the employee beginning with the week ending September 30, 2001, a period after the work injury.  We therefore looked at the employer=s response to the employee=s demand for discovery, dated June 16, 2000, which was submitted with the employee=s objection to the petition to vacate.  Attached to that response were the wage records covering the 26 weeks prior to the date of the employee=s work injury.  While those records do not delineate the hourly wage on a week-to-week basis, those records do clearly reflect different gross wages for different weeks.  For the weeks ending December 5, 1999, and December 12, 1999, the employee earned $745.60 for a 40 hour work week.  However, beginning with the week ending December 26, 1999, and continuing to the date of injury, the employee was paid $654.01or $654.00 for a 40-hour work week.[3]  As such, the employer and employer=s counsel had sufficient evidence at the time of the award on stipulation to ascertain that the employee=s hourly wage changed sometime in December of 1999, and they cannot reasonably now contend that this evidence was first discovered after the award on stipulation was filed or that it was not discoverable through the exercise of due diligence.[4]  See Sorenson v. Nelson County Mkt., slip op. (W.C.C.A. Oct. 12, 1991) (newly discovered evidence is evidence that was not discoverable through the exercise of due diligence).

 

The employer=s argument as to mutual mistake of fact is less clear.  In her memorandum, counsel for the employer argues only that it was unknown at the time of the stipulation that Atwo different hourly wage rates were embedded in the 26 weeks of wages that had accrued as of February 8, 2000" and that the employee=s average weekly wage on date of injury should have been calculated by averaging the employee=s wages during the nine weeks she worked in assembly prior to her injury, which would yield an average weekly wage on date of $638.00, rather than $744.91. 

 

A mutual mistake of fact occurs when opposing parties both misapprehend some fact material to their intended settlement of a claim or claims.  Shelton v. Schwann=s Sales Enters., slip op. (W.C.C.A. May 18, 1995).  While employer=s counsel has indicated that she was mistaken as to the hourly rate the employee was paid in the 26 weeks prior to the work injury and, therefore, the correct calculation of weekly wage, the employee Avigorously disputes the claim that there was a mutual mistake of fact.@  In support of her position, the employee again points to the wage records provided by the employer in response to her demand for discovery as evidence that the employee was paid a different hourly wage at different times.  And, the employee cites to case law that supports the way that the weekly wage was calculated at the time of the stipulation for settlement.  The most that can be said is that the parties no longer agree as to how the employee=s weekly wage should be calculated -- there is no showing that both parties misapprehended some fact material to their settlement of the employee=s claims in 2001.  The employer=s petition to vacate based on mutual mistake of fact and newly discovered evidence is therefore denied.[5]