GLENDA A. LOGAN, Employee/Appellant, v. NEW HORIZON ACAD., and TRAVELERS GROUP, Employer-Insurer/Respondents.

The employee has appealed an Order on Motion to Vacate the Roraff Attorney Fee Portion of Stipulation for Settlement and Award. We reverse the order.

Glenda A. Logan, the employee, sustained an admitted work injury to her left upper extremity on November 11, 2015, while employed at New Horizon Academy. Workers’ compensation benefits were paid by the employer and its workers’ compensation insurer, Travelers Group.^[1]

The employee had left biceps tendon repair surgery on April 26, 2016, that she claimed was related to her work injury. As a result of the surgery, she incurred a number of medical bills and approximately three weeks of lost time. The employer and insurer denied the employee’s claims for payment of medical expenses and temporary total disability benefits, alleging the surgery was not the result of the work injury. On behalf of the employee, Attorney Steven Christensen filed a medical request seeking payment of the disputed medical expenses. On behalf of the employer and insurer, Attorney Matthew Kopp filed a medical response. A hearing was scheduled for August 31, 2016. On August 30, 2016, the parties reached a tentative settlement and the hearing was cancelled.

In an exchange of emails from August 30 through November 3, 2016, the attorneys discussed terms of the settlement. A number of issues were discussed, including reimbursement to health care providers who had intervened, reimbursement to a no-fault insurer who had paid some expenses, and payment of temporary total disability benefits to the employee. The parties also discussed the issue of attorney fees to be paid to Mr. Christensen.

In the email settlement discussions, Mr. Christensen advised Mr. Kopp that he was claiming Roraff^[2] fees to be paid by the employer and insurer. On September 21, 2016, Mr. Christensen sent an itemization of his time to Mr. Kopp, showing that as of that date, he had spent 34 hours representing the employee in the claim. He claimed an hourly rate of $330.00 for a total fee of $11,220.00. Mr. Kopp responded on October 17, indicating that the claim for attorney fees would be considered after agreements had been reached with the medical providers and with a no-fault insurer who had paid some of the bills. It was the position of the employer and insurer that any fee should be a percentage of the medical bills paid as a result of the settlement and that a fee of $11,220.00 was excessive. A draft of the stipulation was also sent by Mr. Kopp to Mr. Christensen at that time.

The draft stipulation contained three different provisions regarding attorney fees. Paragraph XI itemized the payments to be made by the employer and insurer under the agreement and contained subparagraph 2, which had a blank space for a dollar amount as part of a statement that Mr. Christensen would be paid a sum representing payment of attorney fees pursuant to Minn. Stat. § 176.081, subd. 1, and the Roraff, Heaton, and Irwin cases. Paragraph XII stated that the employee’s claim for attorney fees, pursuant to Minn. Stat. § 176.081, subd. 1, and the Roraff case, associated with the employee’s surgery was resolved. Paragraph XXI stated that the employer and insurer would pay $11,220.00 in fees to Mr. Christensen pursuant the Roraff, Heaton, and Irwin cases.

By November 1, the parties had reached an impasse on the issue of attorney fees. After some additional emails back and forth, the attorneys agreed to submit the stipulation for approval without an agreement as to attorney fees. Initially, the parties seem to indicate that they would continue negotiating the issue of fees and if no agreement could be reached, Mr. Christensen would file a Statement of Attorney Fees with the issue of fees to be determined by the compensation judge. In an email dated November 3, the employer and insurer indicated that the attorney fee language would be removed from the stipulation and that the employee’s attorney would have to file a statement of attorney fees, and also attached the revised stipulation.

Based on the information provided to this court, there was no further discussion between the attorneys on the issue of attorney fees between November 3 and December 7, 2016. On November 4, 2016, the employee signed the stipulation for settlement. Mr. Christensen signed the stipulation on November 7, 2016, and returned it to Mr. Kopp who also signed it on November 7. The stipulation was forwarded to the compensation judge assigned to the case, who issued his award on stipulation on November 22, 2016. The stipulation as forwarded to the compensation judge no longer contained the subparagraph in paragraph XI which had a blank space for the amount of attorney fees or the part of paragraph XII stating that the claim for attorney fees was resolved. The only provision for attorney fees remaining in the stipulation was in paragraph XXI stating that the employer and insurer would pay Mr. Christensen $11,220.00 for attorney fees.

On December 7, 2016, Mr. Christensen sent an email to Mr. Kopp stating that the stipulation called for payment of attorney fees of $11,220.00 and asking about the payment of those fees. That same day, Mr. Kopp responded and stated that he had not agreed to any fees. Mr. Christensen pointed out in reply that the stipulation contained an agreement to pay an attorney fee of $11,220.00. Mr. Kopp advised the compensation judge on December 7 that the stipulation had inadvertently called for the requested fee contrary to the agreement of the parties and requested a settlement conference. The compensation judge scheduled a hearing on the terms of the settlement which was held on December 19, 2016. Following the hearing, the compensation judge issued an “Order on Motion to Vacate the Roraff Attorney Fee Portion of Stipulation for Settlement and Award.” The order was issued December 22, 2016, and vacated the award of fees to Mr. Christensen. The employee has appealed.

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

The employee argues that the compensation judge had no authority to issue an order vacating a portion of a stipulation where an award had been issued on the stipulation. The employer and insurer, in response, raise a number of arguments supporting the compensation judge’s decision. We consider these arguments here.

The employer and insurer argue that the compensation judge had authority under Minn. Stat. § 176.521, subd. 2a, to correct mathematical or clerical errors. That section applies to settlements not subject to approval and provides: “The commissioner may correct mathematical or clerical errors at any time.”^[3] While the paragraph in the stipulation awarding Roraff fees to Mr. Christensen may have been the result of an error by the employer and insurer’s attorneys in drafting the stipulation, we do not agree that inclusion of a paragraph paying over $11,000.00 in attorney fees can be characterized as a mathematical or clerical error, even if the paragraph was included in error. We are of the opinion that the purpose of the provision in the statute is to deal with minor and obvious clerical and mathematic mistakes. Further, the statute also gives this authority to the “commissioner.” “Commissioner” is defined in the statute as referring to the commissioner of the Department of Labor and Industry. Minn. Stat. § 176.011, subd. 6(4). The compensation judge did not have authority under this section of the statute for ordering the award of attorney fees vacated.

Generally, a compensation judge retains jurisdiction of a case for 30 days after issuance of a findings and order or until a notice of appeal is filed, and may issue amended findings during that time. See Minn. Stat. § 176.421, subd. 1; Minn. R. 1420.3150, subp. 1. The respondents specifically argue that the compensation judge’s order was authorized by Minn. R. 1420.3150, subp. 1. That subpart states, “Upon issuance of findings and orders after a hearing, the judge’s jurisdiction over the case continues until a notice of appeal is filed or the appeal period expires, whichever occurs first. While jurisdiction continues, amended findings may be issued as needed to fully and fairly decide all issues litigated.” The cited rule, however, allows the compensation judge to issue amended findings “after a hearing.” There was no hearing before the award on stipulation. Instead, the compensation judge’s award on stipulation was mandated by the conclusive presumption of reasonableness set out in Minn. Stat. § 176.521, subd. 2.

In support of their position, the employer and insurer cite to a number of this court’s decisions, including our decision in Alli v. Great Pacific Enters., LLC, 75 W.C.D. 195 (W.C.C.A. 2015). That decision, dealing with a compensation judge’s order on attorney fees, where a statement of attorney fees had not been served on opposing counsel, is not relevant to the facts here. In that case, the compensation judge denied an employer and insurer’s motion to rescind an award of attorney fees. The employer and insurer then appealed the award, and this court reversed on grounds that the attorney was not entitled to the fees. No stipulation for settlement was involved in that case. Language in the opinion referring to the compensation judge’s jurisdiction after the award on attorney fees was not controlling.

While the employer and insurer are correct that this court held in Louks v. Be Lane, Inc., slip op. (W.C.C.A. Sept 1, 1994), that an award on stipulation may be appealed, this court also stated that the grounds for such an appeal was limited since there are no findings of fact to review. The court specifically held that it would not adjust a wage stipulation in a settlement and stated that the employer’s remedy was to petition this court to vacate the award. Further, in other cases cited by the employer and insurer, the decisions from this court indicate that the awards on stipulation had been amended as part of the procedural histories of the cases, but do not indicate the reasons for the amendments of the awards by the compensation judges.^[4] The parties could have agreed to the amendments or there may have been no objections to the amendments.

The employer and insurer also assert that this court should affirm the compensation judge because the stipulation as approved was not an enforceable contract. “A compromise settlement of a workers’ compensation claim is contractual in nature.” Murphy v. Northwest Sheetmetal Co., No. WC07-102, slip op. at 4 (W.C.C.A. May 2, 2007). Where the terms of a contract are not ambiguous and absent fraud or misrepresentation, a mistake of one party as to the terms of a contract is not a ground for rescission. Id. (citing Bakke v. Keller, 220 Minn. 383, 19 N.W.2d 803 (1945)). The employer and insurer further contend the compensation judge should be affirmed because the award was based on either intentional deception or fraud. Although fraud may be one of the grounds for vacating an award under Minn. Stat. § 176.461, this matter is not before us on a petition to vacate and that statute does not bestow authority on a compensation judge to vacate part of an award. While the circumstances in this case are not entirely clear, the stipulation was signed by the attorneys representing the parties, and it otherwise complies with the statute. The stipulation appears to be a valid agreement, and we find no basis in the information before us to find otherwise.

We conclude the compensation judge was not authorized to vacate part of a stipulation for settlement upon which a valid award had been issued. The compensation judge’s Order on Motion to Vacate the Roraff Fee Portion of Stipulation for Settlement and Award, served and filed December 22, 2016, is therefore reversed. The Award on Stipulation served and filed on November 22, 2016, remains in effect.