The employee petitions this court to vacate an Award on Stipulation served and filed March 21, 2007.  Concluding that the employee has shown good cause to vacate the award, we grant the petition.

On July 26, 2002, Jon E. Deines [the employee] was injured in the course and scope of his employment with Custom Log Buildings and/or Patrick Winkler (owner of Custom Log Buildings) under a Minnesota contract for hire.  On that date, Custom Log Buildings was uninsured against workers’ compensation liability and was under contract with Black Bear Homes, Inc., the general contractor on the project at which the employee was injured.  Litigation ensued, and, by Findings and Order served and filed August 30, 2004, affirmed by decision of this court on June 6, 2005, and summarily affirmed by the supreme court on September 29, 2005, Black Bear Homes, Inc. [Black Bear], and its workers’ compensation insurer, Acuity Mutual Insurance Company [Acuity], were found liable for the employee’s workers’ compensation benefits pursuant to Minnesota Statutes section 176.215.  Black Bear and Acuity evidently then reimbursed the Special Compensation Fund for temporary total disability benefits paid to the employee for the period July 26, 2002, through July 22, 2004.  The employee was also paid a lump sum in October of 2005, representing compensation for a 21.28% whole-body permanent partial disability.

During 2003, the employee also pursued a claim for social security disability benefits and was eventually found eligible for those benefits beginning January 2003.  Payment of social security disability benefits continuing from January 2003 coincided with the eventual award of temporary total disability benefits covering the period July 26, 2002, through July 22, 2004.

In early 2007, the employee, Black Bear, Acuity, and Custom Log Buildings entered into a stipulation for settlement of the employee’s claims against Custom Log Buildings/uninsured and Black Bear/Acuity.  According to the uncontested affidavit of the employee's attorney, Scott H. Soderberg, accompanying the employee’s petition to vacate, when the settlement was being negotiated it was Mr. Soderberg's understanding that the Social Security Administration had been informed of the employee’s receipt of temporary total disability benefits and had made the appropriate reductions in social security benefits paid to the employee between January 2003 and July 22, 2004.  Mr. Soderberg indicated that he understood also that the employee’s social security disability benefits had been appropriately reduced also to reflect payment of the 21.28% permanent partial disability benefits paid to the employee in October 2005.  It was later determined that the Social Security Administration had not reduced social security disability benefits to the employee for the period January 2003 through July 22, 2004, or for any other period.  Based on the parties’ misunderstanding regarding past coordination of the employee’s workers’ compensation and social security disability benefits, the employee has requested that this court vacate for cause the Award on Stipulation served and filed March 21, 2007.  In a response to the employee’s petition to vacate filed on May 1, 2009, Black Bear and Acuity do not oppose the petition.^[1]

This court’s authority to vacate a compensation judge’s award is found in Minnesota Statutes sections 176.461 and, with regard to settlements, 176.521, subdivision 3.  An award may be set aside if the petitioning party makes a showing of good cause to do so.  Good cause has long been held to exist if “(a) the award was based on fraud; (b) the award was based on mistake; (c) there is newly discovered evidence; or (d) there is a substantial change in the employee’s condition.”  Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989).  These bases were codified in slightly different language in a 1992 amendment of Minnesota Statutes section 176.461, which provided in part that any mistake, in order to be good cause for vacation, must be “a mutual mistake of fact.”  Minnesota Statutes section 176.461 (emphasis added).

There is undisputed affidavit evidence that at least the employee was mistaken about whether certain of his workers’ compensation benefits had been appropriately considered by the Social Security Administration and his social security benefits reduced accordingly.  The parties’ stipulation for settlement acknowledges the importance of coordinating the employee’s receipt of workers’ compensation and social security benefits, and there is nothing in their submissions to this court suggesting that either Black Bear or Acuity’s understanding regarding coordination of benefits was any different from the employee’s.  This court has indicated that a mutual mistake of fact occurs “when both parties to a stipulation misapprehend some material fact relating to the settlement.”  Hoekstra v. Gibson Trucking, slip op. (W.C.C.A. June 7, 1999), citing Shelton v. Schwan’s Sales Enters., 53 W.C.D. 110, 113 (W.C.C.A. 1995).  In a mutual mistake case, “the inquiry focuses on what the situation was and what was known about it at the time of settlement.”  Franke v. Fabcon Inc., 509 N.W.2d 373, 377, 49 W.C.D. 520, 525 (Minn. 1993).  Based on the affidavit of counsel and Black Bear/Acuity’s apparent acquiescence in the employee's petition, we conclude that the employee has reasonably established good cause under the statute to vacate the award on stipulation here at issue.  Therefore, the employee’s petition to vacate the Award on Stipulation served and filed March 21, 2007, is granted.