Ballard Ready Mix petitioned to vacate the Findings and Order issued May 2, 2006.  Ballard contends that cause exists pursuant to Minn. Stat. § 176.461, in that there was a mutual mistake of fact. Ballard also argues that fundamental fairness requires the Findings and Order be vacated. The petition is denied.

The employee claims three injuries to his back while working for three different employers:  November 11, 1986, while at Kolstad Company, insured by Berkley Risk; May 25, 2000, while at Durequip, Inc., insured by American Interstate Insurance Company; and September 17, 2003, while at Ballard Ready Mix.  At the time of the last injury, Ballard was uninsured for workers’ compensation liability.  Some time before the last injury, the employee had settled all claims with Kolstad, leaving open only medical expenses.

In December 2003, the employee filed a claim petition against Durequip and Ballard, seeking wage loss and medical benefits.  The Special Compensation Fund was named as a party as well.  Both employers and the Fund filed answers which denied primary liability.  The Fund filed a petition for a temporary order for the payment of benefits.  The temporary order was issued in May 2005, and the Fund made payment of wage loss and medical benefits.  In December 2005, the Fund filed a petition for contribution and reimbursement against all three employers.

In July 2005, the employee filed a medical request against Ballard and the Fund.  The request resulted in an administrative conference and an agreement of the parties in which the Fund paid for the requested medical equipment.

After receiving a certification of dispute from the Department of Labor & Industry, the employee filed a second medical request on February 27, 2006, seeking approval for surgery recommended by his treating physician.  Ballard’s attorney withdrew as counsel for Ballard on February 28, 2006.  On March 13, a notice was issued by the Office of Administrative Hearings, setting a hearing date of April 26.  A subsequent notice was sent March 15, setting a hearing date of April 27.  The notices were sent to all parties, including Ballard, Ballard’s former attorney, and the Fund.

According to the affidavit of David Ballard, Ballard’s owner, submitted to this court with the petition to vacate, he called OAH about a week prior to the hearing and spoke to an unidentified individual to request a continuance while he obtained replacement counsel.  He states that he later received a phone message from a woman at OAH confirming that the matter had been “taken care of.”

The hearing took place as scheduled on April 27, 2006, before Compensation Judge Gary Hall.  Attorneys for the Fund and the employee were present.  There was no appearance by Ballard.  Mr. Ballard states that, on the morning of the hearing, his former counsel contacted him to let him know that the employee’s attorney had called indicating that the hearing was starting as scheduled.  Mr. Ballard states that he then called the judge’s law clerk and requested that the judge be told that he had understood that the hearing had been continued.

The judge’s Findings and Order were issued on May 2, 2006, and stated that the issue for determination was whether “the admitted September 17, 2003 work injury” was a substantial contributing factor in the need for the proposed surgery (emphasis added).  The judge determined this issue by finding that the 2003 injury aggravated the employee’s low back condition and was a cause of the employee’s need for surgery.  The proposed surgery was approved.

Ballard retained new counsel by May 2, 2006.  On May 5, 2006, Ballard’s new attorney filed a motion with Compensation Judge Hall to vacate his findings.  This motion was denied by an order dated May 9, 2006.  Ballard did not appeal either the May 2, 2006, Findings and Order, or the May 9, 2006, order.  Instead, almost a year later, on March 23, 2007, Ballard first petitioned this court to vacate the Findings and Order of May 2, 2006, pursuant to Minn. Stat. § 176.461.  Ballard alleges the agreement by the attorneys at the hearing that the employee had a work injury on September 17, 2003, was a mutual mistake of fact.  Ballard also claims the Findings and Order are fundamentally unfair and deprive it and the other employers of due process.

Minn. Stat. § 176.461 authorizes this court to set aside an award “for cause,” and mutual mistake of fact is one of the four definitions of cause set out in the statute.  A mutual mistake of fact requires a misapprehension of a material fact by opposing parties.  Shelton v. Schwan’s Sales Enters., 53 W.C.D. 110 (W.C.C.A. 1995).  The mistake must be one of fact and not one of law.  Fieck v. Brandrup & Assocs., slip op., WC04-142 (W.C.C.A. Oct. 6, 2004).

Ballard alleges vacation should be granted on the basis that the attorney representing the Special Compensation Fund at the April 2006 hearing mistakenly represented that a work injury on September 17, 2003, was “admitted.”  We conclude that  Ballard has not established the requisite elements to vacate the Findings and Order under a mutual mistake of fact.

First, if the admission of a work injury was a mistake, it was more akin to a mistake of law than one of fact.  The question at the hearing was not whether there was an incident on September 17, 2003, but whether that incident constituted a personal injury arising out of and in the course of employment. We have stated specifically that “the statute does not contemplate setting aside a decision or order on the basis of a mistake of law.”  Fieck, id..

More importantly, there is no showing of mutuality in the alleged mistake.  There are questions as to whether the Fund’s admission has any effect on the defenses of the uninsured employer and, conversely, as to whether the uninsured employer has standing to argue an alleged mistake by the Fund.  However those questions might be answered, there is no showing or argument by Ballard that the opposing party at the hearing, the employee, accepted the admission of a work injury on September 17, 2003, was a mistake.  Indeed, the employee argues that the Fund’s admission at the beginning of the hearing was mandated by the lack of any evidence to the contrary to rebut the employee’s case.  Certainly Ballard is not contending that it, as well as the other parties, mistakenly deemed the injury to have been admitted.

The real material “mistakes” in this case were, first, Ballard’s assumption that the hearing had been continued, and second, that even on learning that the hearing was about to proceed, leaving a message with the judge’s law clerk to explain that mistake would be sufficient to protect its interests.  These mistakes were clearly unilateral, and do not constitute a basis for vacating the judge’s findings and order under Minn. Stat. § 176.461.

Ballard also argues that the Findings and Order should be vacated on the basis of fundamental fairness and cites to our decision in Peterson v. Bullyan Mobile Homes, slip op., WC-04-196 (W.C.C.A. Feb. 23, 2005).

In Peterson, this court dealt with a petition to vacate in a case where additional medical tests after the hearing indicated the employee’s condition had not been accurately diagnosed.  The petitioner alleged newly discovered evidence, mutual mistake of fact, and an unanticipated substantial change in condition as grounds for vacating the award.  Noting that the facts did not fit neatly into one of those categories, we nevertheless vacated the findings, citing to the supreme court’s decision in Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 63 W.C.D. 337 (Minn. 2003).

Peterson did not create a new basis for vacating an award. Rather, Peterson is simply a recognition that facts do not always exactly coincide with the elements of a single definition of cause.  Taken as a whole however, the facts may contain enough elements of more than one category of cause so as to constitute cause when considering all categories. Fundamental fairness, or more precisely, lack of fundamental fairness, is not an independent basis for vacating an award.  Krebsbach v. Lillian Coop., 350 N.W.2d 349, 36 W.C.D. 796 (Minn. 1984).

Further, we find no lack of fundamental fairness to Ballard in this matter.^[1]  Essentially, Ballard contends it was unfair to hold the hearing when he was under the understanding that the hearing would be postponed.  Notice of the hearing was properly served on the parties, including Ballard, and on the attorney who had represented him to that point.  Ballard’s decision not to appear at a scheduled hearing does not result in a lack of fundamental fairness to Ballard.

Finally, we should note that despite the admission of a work injury, the employee still had the burden of establishing that the 2003 injury was a substantial contributing factor in the need for surgery.  On that issue, the interests of Ballard and the Fund were identical and the Fund contested that issue at the hearing.  Ballard advances no argument as to why we should consider the efforts of the Fund to be so inadequate as to raise the issue of fairness.

The petition is denied.