CLARENCE JOHNSON, Employee/Petitioner, v. A TOUCH OF CLASS PAINTING, INC., and STATE FARM FIRE & CASUALTY CO., Employer-Insurer, and CENTRAL MED. CLINIC, MINNEAPOLIS CLINIC OF NEUROLOGY, LTD., MINN. DEP’T OF LABOR & INDUS./VRU, PREFERREDONE/OPTUM, FAIRVIEW HEALTH SERVS., MINNEAPOLIS SURGICAL CTR., and TWIN CITIES ORTHOPEDICS, Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 17, 2015

No. WC14-5768

HEADNOTES

VACATION OF AWARD.  Where the arguments and evidence in support of the petition to vacate were previously reviewed and considered by this court in two earlier decisions, res judicata bars the present petition.

Petition to vacate award on stipulation denied.

Determined by:  Stofferahn, J., Milun, C.J., and Hall, J.
Compensation Judge:  Catherine Dallner

Attorneys:  Petitioner appeared pro se.  Mark A. Wagner, O’Meara, Leer, Wagner & Kohl, Minneapolis, MN, for the Respondents.

 

OPINION

DAVID A. STOFFERAHN, Judge

Clarence Johnson, appearing pro se, has petitioned to vacate an award on stipulation served and filed September 19, 2006.  We conclude the petition is barred by res judicata and the petition is denied.

BACKGROUND

Clarence Johnson, the petitioner, claimed he sustained work-related injuries to both shoulders on October 15, 2003, and November 13, 2003, while he was employed by A Touch of Class Painting, respondent.  The respondent and its workers’ compensation insurer denied the petitioner was an employee, alleging instead that he was an independent contractor.  The respondents also alleged that the petitioner did not sustain any work-related shoulder injuries.

The petitioner, then represented by an attorney, and the respondents entered into a settlement which was the subject of an award on stipulation issued September 19, 2006.  The stipulation set out the positions of the parties and provided for a full, final, and complete settlement of all claims in return for a payment to the petitioner of $5,000.00, after attorney fees, as well as payment of certain medical expenses.  In the stipulation, the employee responded to a number of questions that asked whether he had read the stipulation, whether it had been explained to him by his attorney, whether he understood his condition could change and worsen, whether he understood that the settlement was final, and whether he wanted to have a compensation judge approve the settlement.  The petitioner answered “yes” to each of these questions.

The petitioner petitioned this court to vacate the settlement in October 2007.  In his petition and subsequent materials filed with the court, Mr. Johnson argued the settlement should be set aside on the basis of mutual mistake of fact, fraud, newly discovered evidence, and/or a substantial change in medical condition.  This court found the petitioner had failed to establish cause as required by the statute and denied the petition.  Johnson v. A Touch of Class Painting, Inc., No. WC08-113 (W.C.C.A. Mar. 31, 2008).  The petitioner’s subsequent appeals to the Minnesota Supreme Court and the United States Supreme Court were unsuccessful.

In May 2009, Mr. Johnson filed an amended claim petition against respondents alleging entitlement to benefits resulting from the injuries he claimed to have sustained in 2003.  On motion of the respondents, the claim was dismissed.  The petitioner appealed the dismissal to this court, but his appeal was dismissed for his failure to pay the filing fee required by statute.  Johnson v. A Touch of Class Painting, 69 W.C.D. 386 (W.C.C.A. 2009).

The petitioner filed additional claim petitions in April 2012, alleging an entitlement to various benefits as the result of the 2003 injuries that he allegedly sustained at A Touch of Class Painting.  The claim petition was dismissed on the grounds that the claims were precluded by the 2006 stipulation and award.  The petitioner appealed to this court, and in his appeal, argued that the stipulation should be vacated on various grounds.  His appeal and his request to vacate were denied.  The court found that the issues raised by the petitioner were the issues raised in his 2008 application and that no new evidence was presented by the petitioner.  The petition was denied on the basis of res judicata.  Johnson v. A Touch of Class Painting, Inc., 72 W.C.D. 723 (W.C.C.A. 2012).

The current application to set aside the award was filed by the petitioner on October 20, 2014.  The grounds cited in the application as cause were:  1) Department of Labor and Industry (DLI) did not legally investigate primary denial of liability until late in 2005; 2) newly discovered evidence; and 3) findings and facts were unsupported by substantial evidence.  In a subsequent mailing, the petitioner also alleged fraud and substantial change in medical condition.  Respondents have objected to the application.  At the request of the petitioner, this matter is considered without oral argument.

DECISION

In the petition to vacate considered by this court in 2008, the petitioner argued that the settlement should be set aside on the grounds of mutual mistake of fact, newly discovered evidence, fraud, and/or a substantial change in medical condition.  The court reviewed the information supplied by the petitioner with his application and found that the petitioner had failed to present evidence sufficient to vacate the award on any one of the alleged grounds.

In his 2012 application, the petitioner argued that the 2006 settlement should be set aside on the grounds:

1.   That respondents and his prior attorney conspired against him.
2.   That the Department of Labor and Industry was responsible for investigating the denial of liability and whether the appellant was a subcontractor before 2005.
3.   That the 2006 Stipulation needed to be accompanied by copies of all medical records in possession under “Minn. R. 1515.2000 (6).”
4.   That he had shoulder surgery in 2008 and should be entitled to payment for disability ratings of 6 percent.
5.   That he was not an independent contractor.
6.   That he was on medication, unaware of Minnesota law, and confused at the time of the 2006 settlement, and that the settlement was, accordingly, inappropriate.
7.   That he should be granted deference in litigation because he is pro se.

The court reviewed these arguments and the evidence presented in support of the petitioner’s claims.  The court stated:

Appellant has submitted no new evidence or records in support of his current claims, and he raised many similar arguments in the previous litigation and proceedings.  He was represented by counsel at the time of the 2006 settlement, but in his 2008 case before this court, appellant primarily argued that his attorney made mistakes in the handling of his claims.  His argument has now evolved to allege, instead, that he was on medication in 2006 because of a different injury.  The employee has not submitted any evidence that he was somehow incapacitated at the time of the settlement.  As in 2008, we see nothing new or different in the appellant’s submissions that would entitle him to vacation of the 2006 stipulation and award, and because appellant has already litigated the claims raised herein, they are barred by res judicata.  Therefore, the May 25, 2012 order dismissing the appellant’s claim petition is affirmed.

In his present application, the petitioner again argues that the 2006 settlement award should be set aside because of fraud, mutual mistake of fact, newly discovered evidence, the failure of the Department of Labor and Industry to properly investigate the denial of liability by the respondents, substantial evidence does not support the findings of fact, and/or a substantial change in medical condition.

Except for the claim that substantial evidence does not support the findings, all of these claims have been considered either in 2008 or in 2012.  The petitioner provides no new evidence in support of his application but has instead resubmitted material generated from 2007 to 2012 that was considered by the court in its earlier decisions.  Accordingly, we find no basis to change our decision in 2012 that res judicata bars a review of the same arguments and the same evidence presented here.

The new allegation that substantial evidence does not support the findings will not be considered.  That allegation is not one of the grounds allowed by the statute as cause to vacate a stipulation and award.  Minn. Stat. § 176.461.

The petitioner also claims that Minn. Stat. § 176.461 is unconstitutional.  This court does not have jurisdiction to consider the constitutionality of a statute.  Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999).

The petitioner’s application is denied.