The employee petitions this court to vacate a findings and order served and filed August 30, 2005.  Concluding that the employee has not shown good cause to vacate the findings and order, we deny the employee’s petition.

On January 28, 2003, Raymond Slaight [the employee] sustained injuries to multiple parts of his body while working for Exceptional Homes [the employer], insured by Acuity Mutual Insurance [the insurer].  The employer and insurer accepted liability for the employee’s injuries and immediately commenced payment of workers’ compensation benefits based upon a weekly wage of $600.00.  After paying over 89 weeks of temporary total disability benefits, the insurer commenced paying temporary partial disability benefits based on this same wage.

During the course of the employee’s claim, a dispute arose over certain rehabilitation issues.  Following a request for formal hearing filed on March 7, 2005, the matter came on for a hearing before Compensation Judge Gary M. Hall on June 28, 2005.  Preliminary to trial, the parties stipulated to certain facts, including the employee’s date-of-injury weekly wage of $600.00.  The parties’ stipulations were memorialized in Judge Hall’s subsequent findings and order, issued August 30, 2005.^[1]  Subsequently, the insurer evidently paid temporary partial disability benefits to the employee through October 12, 2007, on which date it filed a notice of intention to discontinue benefits [NOID].

About two years later, on September 25, 2009, the employee filed with this court a petition to vacate the August 30, 2005, findings and order on grounds that there had been a mutual mistake of fact at the time of that award and that there was newly discovered evidence since then.  The only evidence submitted in support of the employee’s petition was an affidavit of the employee’s counsel.  In that affidavit, counsel averred that, at the time of the 2005 findings and order, the employee had not disclosed that at the time of injury he had also held a second job.  Counsel averred that, because there was no dispute at the time about the employee’s wage with the employer, it was mistakenly concluded that the employee’s earnings with the employer represented his total date-of-injury wage.  Counsel averred also that it was not until after the court’s findings and order that the specifics of the employee’s second job and the necessary records were obtained documenting a greater date-of-injury wage.  The employer and insurer have objected to the petition to vacate.  They contend that counsel’s arguments regarding a second job are insufficient to constitute either a mutual mistake of fact or newly discovered evidence under Minnesota Statutes section 176.461.  Even if the employee did have a second job on the date of injury,^[2] they contend, the fact that he had such a job was obviously known to the employee and should have been known to his counsel at the time of of the 2005 findings and order containing the stipulated weekly wage.

This court’s authority to set aside a compensation judge’s award is found in Minnesota Statutes section 176.461.  Pursuant to that statute, an award may, upon application of a party, be set aside only “for cause.”  “Cause” to vacate an award is limited to (1) a mutual mistake of fact, (2) newly discovered evidence, (3) fraud, or (4) a substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated at the time of the award.  Minn. Stat. § 176.461.  The employee contends here that there was a clear mutual mistake of the parties and that newly discovered evidence proving the amount of money received from the second job was not discovered until after the findings and order in 2005.

In a mutual mistake case, “the inquiry focuses on what the situation was and what was known about it at the time of the settlement.”  Franke v. Fabcon, Inc., 509 N.W.2d 373, 377, 49 W.C.D. 520, 525 (Minn. 1993).  A mutual mistake of fact occurs when both parties to a stipulation misapprehend some material fact relating to the settlement.  Shelton v. Schwan’s Sales Enters., 53 W.C.D. 110, 113 (W.C.C.A. 1995).  In an affidavit submitted to the court, counsel for the employee asserts that the parties were mutually mistaken as to the employee’s weekly wage at the time of the hearing because the existence of that second job had not yet been disclosed by the employee.  At oral argument, however, employee’s counsel argued that the parties had already become aware of the alleged second job at a deposition of the employee in May 2005, the month before trial.  The employee contends nevertheless that, because there had been no dispute regarding the employee’s wage with the employer, because wage was not expressly at issue at trial, and because neither party had the necessary wage information regarding the alleged second job, both parties were mistaken as to their stipulation regarding the employee’s date of injury wage.  Thus, the employee argues, there was a mutual mistake of fact justifying a vacation of the findings and order.  We are not persuaded.

We have only the judge’s August 30, 2005, findings and order before us.  There was no appeal from that decision.  The judge undoubtedly inquired at the outset of the hearing whether there were any matters that the parties could resolve by stipulation.  In his subsequent findings and order, the judge listed six stipulations, including the stipulation regarding the employee’s date of injury wage.  Although it was not in dispute at the time, the employee’s weekly wage was certainly relevant to the issues regarding the employee’s rehabilitation plan, and the judge noted the employee’s date-of-injury wage at Finding 5 of his decision.  The employee has offered no evidence that would establish that the alleged mistake was necessarily a mutual one as required by the statute.  Indeed, there is no evidence before us that the employer and insurer were under any misapprehension as to the employee’s wage on the date of injury.  A unilateral mistake arising from an employee’s failure to consider a second job as part of his date-of-injury wage does not constitute a mutual mistake of fact for purposes of a petition to vacate.  On the basis of the record presented to this court, we find no evidence of a mutual mistake of fact sufficient to justify vacation of the findings and order here at issue.

The employee contends that specifics regarding his second job and the necessary documentation regarding his wage were not obtained until after issuance of the court’s findings and order.  This newly discovered evidence, he contends, must necessarily be considered in order to accurately and fairly determine the past benefits to which he is entitled and the propriety and specifics of a retraining plan for his rehabilitation.  Again, we are not persuaded.

To grant relief on the grounds of newly discovered evidence, the evidence must have been in existence at the time of the award but unavailable to discovery with the exercise of reasonable and due diligence.  Gruenhagen v. Larson, 310 Minn. 454, 459, 246 N.W.2d 565, 569 (Minn. 1976).  Information that could have been obtained with due diligence prior to the hearing does not constitute newly discovered evidence.  Hampel v. Peterson Elec. Unlimited, 47 W.C.D. 289, 295-96 (W.C.C.A. 1992).  Here, the employee had been paid workers’ compensation benefits for almost two and one-half years before the hearing in 2005.  The fact that evidence regarding the employee’s wage at his second job had not been obtained or uncovered through reasonable investigation by the employee or his counsel at the time of trial does not make it “newly discovered evidence.”

Based upon our review of the record as submitted, we conclude that the employee has failed to establish “cause” to set aside the compensation judge’s findings and order on grounds of mutual mistake of fact or newly discovered evidence.^[3]