The employee petitions to vacate a stipulation for settlement which was the subject of an award on March 10, 2005.  The employee alleges good cause exists under the statute to vacate the stipulation due to a mutual mistake of fact by the parties to the stipulation. The petition is denied.

The employee, Michelle LaBeau, is a dentist.  She sustained an admitted injury to her right upper extremity injury on August 31, 1994, while working for the employer’s Public Health Pediatric Dental Clinic.  At the time of the injury, the employee was working part time for the employer, and part time as a dental professor for the University of Minnesota.  She occasionally worked other part time hours for Delta Dental and for the Children’s Dental Clinic in Minneapolis.  The employee had restrictions following her injury but was able to accommodate them in her employments and continued working for the employer. In December, 2000, the employer discontinued its dental clinic and the employee was laid off.

The employee collected unemployment benefits thereafter through the week ending August 18, 2001, in the total amount of $1,456.00.

On March 28, 2003, the employee filed an amended claim petition alleging entitlement to temporary partial disability compensation from December 28, 2000 and continuing, together with entitlement to rehabilitation benefits and reimbursement of disputed medical benefits and reimbursement of the cost of certain ergonomically modified dental tools and equipment. On August 27, 2003, counsel for the employer took the employee’s deposition.  In that deposition, the employee testified that she had received unemployment benefits following her layoff by the employer.  The employee’s attorney stated that he would accordingly place the Minnesota Department of Employment and Economic Development (hereinafter, “the Department”) on notice of its intervention interest.

On September 3, 2003, the employee’s attorney served the Department with a “Notice to Potential Intervenor.”  The Department responded by filing a proposed stipulation for intervention and a motion and application to intervene with the Workers’ Compensation Division of the Department of Labor and Industry.  The cover letter to this filing is dated September 5, 2003, and indicates that copies were sent both to the employee’s attorney and to the employer’s attorney.  No objection to the intervention was filed by either the employee or the self-insured employer.  On September 11, 2003, the Office of Administrative Hearings served the parties with a “Notice of Intervention Status” which indicated that the Department had been granted intervention status.  The Department is identified as a party in the caption of the case. This matter had been set for hearing on November 6, 2003. At the request of the attorneys for the employee and employer, the hearing was continued so the parties could obtain additional medical information. The order granting the continuance was issued on November 4, 2003, served on the Department as well as the parties, and included the Department in the caption of the case.

On February 17, 2004, the Office of Administrative Hearings served the parties, including the Department, with notice that a hearing date had been set for April 29, 2004.  Two days later, on February 19, the employee and the self-insured employer attended a private mediation session and reached an agreement for a full, final and complete settlement of the employee’s claims. The hearing was apparently cancelled.  A stipulation status conference was held on December 15, 2004, because no stipulation had been filed with OAH.  The Department was not present at this conference although it had been served with notice of the conference. The order scheduling the conference included the Department in the caption.

A written stipulation for settlement was subsequently prepared which was signed by the employee, the employee’s attorney, and the employer’s attorney.  It provided for a full, final, and complete close-out of all past, present and future claims by the employee arising out of the right upper extremity injury of August 30, 1994, in return for a lump sum payment.  Although the stipulation  addressed the “potential intervention interest” of a potential intervenor, Patterson Dental Supply, which was noted to have failed to assert its intervention interests despite due notice, the stipulation made no mention of the intervention interests of the Department and did not provide for signature of a representative of the Department.

On March 10, 2005, an Award on Stipulation was served and filed.  The Department is not listed on the caption of the Award.  However, the Award on Stipulation was served on the Department by OAH.

Following receipt of the Award on Stipulation, the Department apparently contacted counsel for the employee and employer to inquire about the disposition of its reimbursement claims.  On March 15, 2005, the employer’s attorney, Timothy Crom, wrote a letter to the Department and to the employee’s attorney acknowledging that the parties had failed to take the Department’s potential interest into consideration when drafting the stipulation for settlement.  Mr. Crom further stated that his file contained no intervention motion or order concerning the Department and that as far as he was able to determine, the employer had been unaware of any claim of an potential intervention interest by the Department and had not had any reason to believe that unemployment benefits had been involved in the case.  He took the position that the employee should be responsible for any reimbursement of benefits.

The employee has now filed a Petition to Vacate with this court requesting that the March 10, 2005, Award on Stipulation be vacated on the basis of a mutual mistake of fact.

In her petition to vacate, the employee argues that the parties made a mutual mistake in the settlement of the case in that they failed to include the Department’s interest in the stipulation.  Minn. Stat. § 176.461 allows this court to vacate a settlement for good cause and includes “mutual mistake of fact” as one of the definitions of good cause.  In response to the employee’s petition, the employer contends that it was unaware of the Department’s status and, as a result, it did not join in the employee’s mistake in failing to include the Department in the settlement.

We conclude at the outset that the employer, through its attorney, had constructive knowledge of the Department’s status as an intervenor through the orders issued by OAH which identified the Department as an intervenor in the caption and which included the Department as one of the parties served in the proof of service. The issue then is whether the mutual failure of the parties to include an intervenor in the settlement is a mutual mistake of fact so as to constitute good cause under the statute. A mutual mistake of fact occurs when the parties misapprehend some material fact to the intended settlement. Shelton v. Schwan’s Sales Enters., 53 W.C.D. 110 (W.C.C.A. 1995). We conclude that the failure to include an intervenor in a settlement, whether inadvertent or otherwise, is not a misapprehension of a material fact. Further, vacating a settlement is generally not the appropriate remedy when an intervenor has been excluded from settlement negotiations. See Brooks v. AMF, Inc., 278 N.W.2d 310, 31 W.C.D. 521 (Minn. 1979). We deny the petition to vacate on the basis of mutual mistake of fact.^[1]