JANUARY 9, 2014

No. WC13-5607


VACATION OF AWARD.  Where the employee has not provided evidence to establish a mutual mistake of fact, newly discovered evidence, fraud, or a substantial change in medical condition, the employee’s petition to vacate the award on stipulation is denied.

Petition to vacate award on stipulation denied.

Determined by:  Milun, C.J., Wilson, J., and Stofferahn, J.

Attorneys:  Connie L. Adams, pro se Petitioner.  Sarah M. Hunter, O’Meara, Leer, Wagner & Kohl, Minneapolis, MN, for the Respondents.




The pro se employee petitions to vacate an October 9, 2012, award on stipulation based on allegations of misrepresentations, missing documents, false statements, mistake of fact, and a substantial change in medical condition.  Finding an insufficient basis to vacate the award on stipulation, we deny the petition.


On September 19, 2011, Connie L. Adams, the employee, sustained work-related injuries as she was riding in an elevator at the MSP airport while working for Sodexo, Inc., the employer, which was insured for workers’ compensation liability by New Hampshire Insurance Company, as administered by Gallagher Bassett Services, Inc.  As the employee was riding in the elevator, it dropped suddenly and the employee’s right arm struck against the elevator’s handrail, jamming her right elbow and shoulder area.  The first report of injury indicates that the employee injured her right shoulder during the incident.

The employee treated with Dr. David Ness, her primary physician, at Parkway Family Physicians and was referred to a neurologist at Capitol Neurology.  The employee reported experiencing pain in the posterior olecranon and medial epicondyle as well as extreme sensitivity localized at the ulnar nerve of the right elbow.  The neurologist diagnosed right ulnar neuropathy at the elbow and probable tendinitis of the right medial epicondyle.  The employee was referred to a specialist, Dr. Andrew Thomas at Summit Orthopedics, who evaluated the employee on January 23, 2012.  During the examination, the employee reported pain in the posterior and medial aspects of her right elbow as well as paresthesias into the right ring and small fingers.  The employer and insurer accepted primary liability for the injury and began paying temporary total disability benefits as of January 23, 2012.

The employee underwent a right elbow MRI on February 28, 2012, which revealed a mild common extensor tendinopathy with a small shallow-appearing area of deep surface longitudinal splitting.  The employee was evaluated by Dr. Marcel Hungs at Neurological Associates of St. Paul, P.A., and underwent an EMG on April 12, 2012.  Dr. Hungs opined that the test results were consistent with a diagnosis of mild sensory carpal tunnel syndrome and did not indicate evidence of entrapment neuropathy of the ulnar nerve or any acute or chronic denervation in the examined muscles.

On April 19, 2012, the employee had a follow-up visit with Dr. Thomas.  Dr. Thomas acknowledged that the employee’s symptoms appeared to reflect mild medial and lateral epicondylitis, but he believed the symptoms were more consistent with median nerve compression at the wrist.  On June 4, 2012, Dr. Thomas assigned restrictions of no lifting or carrying over 5 pounds and to wear a splint as needed.  He listed the employee’s diagnosis as right medial and lateral epicondylitis and did not recommend surgery, but recommended a second opinion.

On June 18, 2012, the employee submitted to an independent medical examination with Dr. Paul Yellin.  At the examination, the employee reported pain over the olecranon and over the area of the ulnar tunnel at the elbow, and described her current symptoms of numbness and tingling into her ring and little fingers.  Dr. Yellin noted tenderness over the medial epicondyle and over the ulnar nerve on compression.  Based on the physical examination, the medical records, and the history obtained from the employee, Dr. Yellin provided the following opinions.  First, he indicated that the physical examination was generally within normal limits and that he found no objective findings to substantiate any residual pathology.  He also opined that the employee was at maximum medical improvement without restrictions, permanency, or the need for further medical treatment.  Both Dr. Yellin and Dr. Hungs noted that there was no evidence of ulnar nerve entrapment at the elbow or the median nerve at the wrist area.  Dr. Yellin opined that Dr. Thomas’s diagnosis was not consistent with the pain pathology reported by the employee.

Based on Dr. Yellin’s opinion, the employer and insurer filed a notice of intention to discontinue the employee’s workers’ compensation benefits on June 22, 2012.  Dr. Ness opined that the employee was not at maximum medical improvement as of July 9, 2012.  After an administrative conference pursuant to Minn. Stat. § 176.239 was held on July 10, 2013, the request for discontinuance was denied.  The employer and insurer did not file a petition to discontinue for a formal hearing.

On August 10, 2012, the employee underwent a surgical evaluation with Dr. Yvonne Grierson at Tria Orthopedic Clinic.  Dr. Grierson listed the employee’s diagnosis as medial epicondylitis and ulnar neuropathy, and assigned restrictions related to the employee’s right arm condition of no lifting or carrying over 10 pounds, no lifting with her arm extended, and no cutting, torquing or crimping, rare heavy grasping, and use of a wrist splint.  The doctor also recommended exercise, anti-inflammatory medication, and physical therapy.

The parties agreed to mediation of the employee’s workers’ compensation claim.  Mediation was facilitated at the Department of Labor and Industry on September 13, 2012.  The employee was represented by counsel at the mediation.  During the mediation, the employee’s claimed injuries as a result of the September 19, 2011, injury were listed as being to her neck, shoulder, elbow, and low back.  The employer and insurer admitted a temporary contusion to the right elbow, but denied any injuries to the neck, right shoulder, and low back.  The employee claimed ongoing entitlement to temporary total disability benefits and medical treatment.  The employer and insurer denied wage loss benefits and medical treatment.  The parties reached what was thought to be a common final agreement for a full, final and complete settlement, including future medical benefits.  The stipulation for settlement was signed by the employee and her attorney on September 26, 2012.  The stipulation was filed October 8, 2012, and the award on stipulation was served and filed on October 9, 2012.

On August 2, 2013, the pro se employee petitioned this court to vacate the award on stipulation for cause based on mutual mistake of fact and a substantial change in her medical condition since the award.  On August 21, 2013, the employee’s attorney notified the court that he would not be representing the employee in her petition to set aside the award on stipulation.  The employer and insurer objected to the petition and filed an attorney affidavit with exhibits and a memorandum of law in opposition to the petition to vacate.  On October 3, 2013, the employee submitted medical records from appointments with Dr. Grierson in August 2012 and September 2013.  The September 27, 2013, medical record indicated that the employee was diagnosed with medial and lateral epicondylitis and ulnar neuropathy, and that physical therapy was recommended.


Minn. Stat. §176.461 provides the Workers’ Compensation Court of Appeals with authority to vacate an award on stipulation “for cause.”[1]  The party seeking to vacate an award has the obligation to present sufficient proof to show such cause exists.[2]  Under the statute, “cause” to set aside an award exists if (1) the award was based on a mutual mistake of fact, (2) there is newly discovered evidence, (3) the award was based on fraud, or (4) there is 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.[3]  Of the four grounds to vacate, the employee’s petition is mainly based on an alleged mutual mistake of fact and a claimed substantial change in medical condition.

Mutual mistake of fact

The employee claims the award on stipulation should be vacated on the basis of mutual mistake.  A mistake of fact occurs when a party has an erroneous belief regarding a fact material to a transaction.[4]  For the purpose of addressing our authority to vacate an award, the mistake of fact must be mutual and occurs when both the employee and the employer/insurer share the same mistaken belief.[5]  This court has held that a mutual mistake of fact occurs when the opposing parties both misapprehend some material fact of the intended settlement.[6]   A mutual mistake requires a “clear showing of a misunderstanding, reciprocal and common to both parties, with respect to the terms and subject matter of the contract, or some substantial part thereof.[7]  With regard to a case involving a settlement, “the inquiry focuses on what the situation was and what was known about it at the time of settlement.”[8]

Here, the employee asserts that at the conclusion of her mediation, there was no mutual agreement with the employer and insurer to close out all future medical benefits or to recharacterize the lump sum payment to maximize future Social Security benefits.[9]  The employee also contends the stipulation for settlement contains fraudulent and negligent misrepresentations and that the settlement agreement as written was not the same as what she had agreed to during the mediation.  The employee claims it was a mistake for her to rely on the reassurances of her attorney and to sign the stipulation without reading the text of the document.  Although the employee thought she and her attorney both misunderstood the terms and conditions of the settlement, any mistake was unilateral rather than mutual, because the mistake was not shared by the employer and insurer.  For that reason, the mistake of fact alleged by the employee does not present a basis for this court to vacate the award under the criteria provided by Minn. Stat. § 176.461.

Substantial change in medical condition

The employee also asserts that she has experienced a substantial change in medical condition sufficient to establish cause to vacate the award on stipulation.  A substantial change in the employee’s medical condition requires that the change in the condition occurred after the time of the award, was clearly unanticipated at the time of the award, and could not reasonably have been anticipated at the time of the award.[10]  Substantial change may be demonstrated by a number of factors such as a change in a diagnosis, a change in the employee’s ability to work, additional permanent partial disability, the necessity of more costly and extensive medical care than initially anticipated, the causal relationship between the work injury and the worsened condition, and the contemplation of the parties at the time of the settlement.[11]

When a party files a petition to vacate an award based on a settlement agreement, our court analyzes the evidence offered in order to determine whether cause has been shown to vacate the award.  In this case, the employee submitted limited evidence to address the factors which this court must consider in order for the court to vacate an award on stipulation on the grounds of a substantial change in medical condition.  The employee submitted some medical records from before the stipulation agreement, but such evidence does not address whether the employee’s medical condition has changed since the award.  The employee submitted one medical record from after the award, which was from an appointment with Dr. Grierson in September 2013.  The record indicated a similar diagnosis and similar physical therapy recommendations as the records from August 2012.  This evidence does not support a finding of a substantial change in medical condition since the award.  Thus, there is no basis for this court to vacate the award on stipulation under the criteria provided by Minn. Stat. § 176.461.

Additional arguments

The employee made additional arguments in her attempt to vacate the award on stipulation based on newly discovered evidence, fraud, and misrepresentations by her attorney.  She argues that documentation allegedly missing from the record is newly discovered evidence.  In order for relief to be granted on the grounds of newly discovered evidence, the evidence must be relevant and admissible; could not have been discovered with the exercise of reasonable and due diligence; is not merely collateral, impeaching, cumulative, or duplicative; and be such to have had a probable effect on the outcome of the litigation.[12]  In this case, the employee is arguing that some medical records from before the award were not submitted at the mediation.  These records mostly relate to physical therapy recommendations.  The employee does not explain how these medical records would have changed the result of the mediation.  To that end, there is no basis to vacate the award on stipulation.

The employee also contends that her attorney made numerous misrepresentations to her regarding the settlement.  She believes these misrepresentations, which she relied on to her detriment, are tantamount to fraud and should be considered grounds to vacate the award.  Fraud under Minn. Stat. § 176.46 requires an intentional effort to mislead a party by another party.[13]  The employee only claims that her attorney made misrepresentations or fraudulent statements to her.  Her attorney, however, is not a party to this matter.[14]  There is no evidence to support vacating the award on stipulation based on fraud under Minn. Stat. § 176.461.

Generally, workers’ compensation settlements are encouraged and are favored by the law.[15]  The employee has not demonstrated cause to vacate the award on stipulation.  Therefore, the employee’s petition to vacate the award is, in all respects, denied.

[1] See also Minn. Stat. § 176.521, subd. 3.

[2] Groshung v. The Light Depot, 65 W.C.D. 349, 355 (W.C.C.A. 2005); Mehta v. Meldisco, slip op. (W.C.C.A. Oct. 26, 1995) (burden of proving good cause rests with the party petitioning to vacate an award); see also Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989).

[3] Minn. Stat. § 176.461; see also Franke v. Fabcon, Inc., 509 N.W.2d 373, 376, 49 W.C.D. 520, 523 (Minn. 1993).

[4] Black’s Law Dictionary 1092 (9th ed. 2009).

[5] Shelton v. Schwan’s Sales Enters., 53 W.C.D. 110, 113 (W.C.C.A. 1995), summarily aff’d (Minn. Sept. 5, 1995).

[6] Id.

[7] Carpenter v. Vreeman, 409 N.W.2d 258, 261 (Minn. App. 1987).

[8] Franke, 509 N.W.2d at 377, 49 W.C.D. at 525.

[9] The employee reads the language in the stipulation regarding Social Security benefits as meaning that she is being awarded only a small amount per month, rather than its intended meaning that the payment should be interpreted in a way to maximize her future Social Security benefits.

[10] Minn. Stat. § 176.461(4).

[11] Fodness v. Standard Cafe, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).

[12] See Gruenhagen v. Larson, 310 Minn. 454, 459, 246 N.W.2d 565, 569 (Minn. 1976); Regents of the Univ. of Minn. v. Medical, Inc., 405 N.W.2d 474, 478 (Minn. App. 1987), pet. for rev. denied (Minn. July 15, 1987).

[13] See Strande v. Woman’s Club of Minneapolis, 50 W.C.D. 527 (W.C.C.A. 1994), affirmed 518 N.W.2d 555, 50 W.C.D. 532 (Minn. 1994).

[14] The workers’ Compensation Court of Appeals lacks jurisdiction to consider the employee’s allegations of attorney misconduct.

[15] See Maurer v. Braun’s Locker Plant, 298 N.W.2d 439, 441, 33 W.C.D. 66, 71 (Minn. 1980); Senske v. Fairmont & Waseca Canning Co., 232 Minn. 350, 361, 45 N.W.2d 640, 648, 16 W.C.D. 242, 251 (1951).