DONALD W. SORBY, Employee, v. DCI, INC., and STATE FUND MUT. INS. CO., Employer-Insurer/Petitioner, and SOIL TESTING SERV., and CNA COMMERCIAL INS., Employer-Insurer, and MEDICA/HEALTHCARE RECOVERIES, INSTITUTE FOR LOW BACK AND NECK CARE, DEP=T OF LABOR & INDUS./VRU, CENTER. FOR DIAGNOSTIC IMAGING, ABBOTT-NORTHWESTERN HOSP., NORTHERN STAR THERAPY, LTD, and MN DEP=T OF EMPLOYMENT & ECONOMIC DEV., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 1, 2004

 

No. WC04-167

 

HEADNOTES

 

VACATION OF AWARD - NEWLY DISCOVERED EVIDENCE.  Where one of the issues at hearing was whether an employer and insurer had paid workers= compensation benefits for an earlier injury, where there was a lack of documentation of payments for that earlier injury and no file existed at the Department of Labor and Industry, Workers= Compensation Division, for that injury, where the compensation judge found that benefits had not been paid by the earlier employer and insurer, and where documents showing that such benefits had been paid were located after the findings and order were issued, the petition to vacate the findings and order in the matter is granted.

 

Petition to vacate granted.

 

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

Compensation Judge: Jennifer Patterson

 

Attorneys:  Mark A. Kleinschmidt, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Petitioner.  Philip C. Warner, Law Offices of Joseph M. Stocco, Edina, MN, for the Respondents.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer, DCI, Inc., and insurer, State Fund Mutual Insurance Company, petition to vacate Findings and Order served and filed February 6, 2004, on the basis of newly discovered evidence.  The petition is granted and the matter remanded to the compensation judge.

 

BACKGROUND

 

On October 4, 2000, Donald W. Sorby, the employee, sustained a low back injury while working in a stockroom for DCI, Inc., which was insured for workers= compensation liability by State Fund Mutual Insurance Company.  Before that injury, the employee had an extensive medical history involving his low back, including treatment for a work injury in February 1981.  In November 1981, the employee underwent a left L4-5 laminectomy, discectomy, and foraminotomy.  The employee had a good result from surgery and returned to self-employment laying carpet and floor tiles, and lost no time from work from 1982 through 1991.  In 1990, the employee moved to Texas and worked at a warehouse where he sustained low back injuries while lifting in 1991.  In October 1991, the employee underwent a laminectomy and discectomy at L4-5 and L5-S1.  In January 1993, the employee underwent a L4-5 discectomy and a posterolateral fusion with instrumentation at L4-5 and L5-S1.  The employee moved back to Minnesota in June 1993 and treated with Dr. William Akins.  In October 1993, Dr. Akins removed the lumbar instrumentation from the failed fusion.  In May 1994, Dr. Akins performed an anterior-posterior fusion from L4 to S1.  Later X-rays indicated that the L4-5 fusion was not solid.

 

In 1995, the employee was self-employed in a bar business, which required him to be on his feet and lift cases of stock.  In 1997, he worked as a restaurant manager, then later for an insulation company, where he was able to lift 40 to 50 pounds.  In 1998, he worked in a warehouse operating a forklift and lifting up to 30 pounds.  In 2000, the employee applied for a stockroom job with DCI.  The employee underwent a pre-employment physical and was hired for a position which required continuous lifting of 50 pounds, frequent lifting of 75 pounds, and maximum lifting of 100 pounds.  The employee was able to perform this job until October 4, 2000, when he sustained a specific injury to his low back while attempting to lift a 140-pound box.  The employee was treated with further surgery on April 2, 2002, a L4-5 posterolateral fusion with instrumentation and a left laminectomy with neurolysis at L4-5.  The fusion was noted to be solid in January 2003, and in March 2003, the instrumentation was removed.

 

On September 26, 2002, the employee filed a claim petition against DCI and State Fund, claiming temporary total disability benefits, temporary partial disability benefits, permanent partial disability benefits for his lumbar spine, medical expenses, and rehabilitation benefits.  On April 24, 2003, DCI and State Fund filed a petition for contribution claiming that the employee=s October 4, 2000, injury was a temporary aggravation of a pre-existing condition caused by a February 1981 injury which the employee sustained while working for Soil Testing Services, insured for workers= compensation liability by CNA Commercial Insurance.  A hearing was held on December 11, 2003.  At the hearing, the employee testified that he injured his low back on February 5, 1981, while working for Soil Testing Services.  After that 1981 injury, the employee was represented by Donald Bruce, who indicated by affidavit submitted into evidence that he had represented the employee but that his records from that time had been destroyed.  CNA presented evidence that there was no February 5, 1981, claim by the employee.  A representative from the Department of Labor and Industry, Workers= Compensation Division, testified that there was no record of a February 5, 1981, claim by the employee.^[1]

 

In Findings and Order served and filed February 6, 2004, the compensation judge found that the employee had sustained a work injury at Soil Testing in February 1981.  The compensation judge apportioned liability for the employee=s disability as 10% to the 1981 injury, 65% to the employee=s Texas work injuries, and 25% to his 2000 work-related injury at DCI.  The compensation judge also found that the employee had not presented sufficient evidence that Soil Testing or CNA had paid workers= compensation benefits for a February 5, 1981, low back injury.  Based on this finding, the compensation judge denied the employee=s claims against Soil Testing and CNA, as well as DCI and State Fund=s claims for contribution against Soil Testing and CNA, on the basis that such claims were barred by the statute of limitations in Minn. Stat. ' 176.151(1).  The compensation judge concluded that the Texas injuries were beyond her jurisdiction and that DCI and State Fund were 100% liable for workers= compensation benefits payable to or on behalf of the employee after his October 4, 2000, injury at DCI.  No appeal was taken from the Findings and Order.

 

On February 10, 2004, shortly after the findings and order were issued, Attorney Phillip Warner, representing Soil Testing and CNA, was informed by a representative of CNA that a claim file for the February 5, 1981, injury had been discovered.  That discovery was apparently made after CNA further investigated the matter by using a claim number found in medical records from Noran Neurological Clinic, which had been entered into evidence at the hearing by DCI.  The CNA file indicated that Soil Testing and CNA had accepted liability for this 1981 injury and paid workers= compensation benefits to and on behalf of the employee for that injury.  The claim file included, in part, a transcript of a recorded statement provided by the employee in 1982 concerning his February 5, 1981 injury; correspondence from the employer to CNA in March and September 1981 reporting the employee=s injury and providing wage information to the insurer; a stipulation for settlement and award on stipulation from 1982; an application for registration of physical impairment, dated June 17, 1982; and a letter from the employee=s attorney, Donald Bruce, to the  Department of Labor and Industry, Workers= Compensation Division, dated  July 7, 1982, confirming that the Division=s file in this matter had been lost.

 

On April 9, 2004, DCI and State Fund petitioned to vacate the February 6, 2004, Findings and Order on the basis of newly discovered evidence. 

 

DECISION

 

This court has authority to vacate a compensation judge=s findings and order pursuant to Minn. Stat. ' 176.461.  A party must show good cause for this court to vacate a compensation judge=s findings and order.  See 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 to: mistake, newly discovered evidence, fraud, or a substantial change in the employee=s medical  condition since the time of the findings.  See  Minn. Stat. ' 176.461.  In order for relief to be granted in an application to vacate on the grounds of newly discovered evidence, the evidence must satisfy the following requirements: (1) relevant and admissible; (2) although in existence at the time of the award, could not have been discovered with the exercise of reasonable and due diligence; (3) not merely collateral, impeaching, cumulative, or duplicative; and (4) have a probable effect on the outcome of the litigation.  Gruenhagen v. Larson, 310 Minn. 454, 459, 246 N.W.2d 565, 569 (Minn. 1976). 

 

DCI and State Fund petition to vacate the February 4, 2004, Findings and Order on the basis of newly discovered evidence, that is, the claim file from the February 5, 1981, work injury at Soil Testing, which indicated that Soil Testing and CNA had accepted liability for this injury and paid workers= compensation benefits to and on behalf of the employee for that injury.  Soil Testing and CNA do not object to this court vacating the findings that the contribution claims and the employee=s claims are barred by the statute of limitations.

 

DCI and State Fund also request that this court substitute findings regarding the appropriate apportionment of liability for the employee=s low back condition and disability between the two insurers for a proportionate share of the liability attributed to the Texas injuries.  Soil Testing and CNA object to substituted findings and instead request remand to the compensation judge for reconsideration and issuance of findings based on the entire record, including the newly-discovered evidence. 

 

We have reviewed the application to vacate and accompanying materials, the briefs and arguments of the parties, and find that good cause has been shown to vacate the findings and order herein under these circumstances.  The documentation of the February 5, 1981, work injury was not found before the hearing, either through Soil Testing Service, CNA, the Workers= Compensation Division of the Department of Labor and Industry, or the employee=s previous attorney, but such documentation was located after the Findings and Order were issued.  The compensation judge did not have the opportunity to review this newly discovered evidence, that is, the claim file for the February 5, 1981, work injury.  We vacate the Findings and Order served and filed February 4, 2004, and remand to the compensation judge for consideration of the newly discovered evidence and for issuance of findings and order based on the entire record.