JULY 23, 2018

No. WC18-6167

VACATION OF AWARD. The employee’s allegations fail to establish fraud, mutual mistake of fact, or newly discovered evidence and his petition to vacate is denied.

    Determined by:
  1. David A. Stofferahn, Judge
  2. Patricia J. Milun, Chief Judge
  3. Sean M. Quinn, Judge

Attorneys: Pro Se Petitioner, Richfield, Minnesota. Sarah M. Hunter, O’Meara, Leer, Wagner & Kohl, P.A., Minneapolis, Minnesota, for the Respondents.




Clarence Johnson, appearing pro se, has petitioned to vacate an award on stipulation served and filed on February 26, 2007, and a Partial Award on Stipulation served and filed on March 25, 2015. We find the employee has failed to establish cause pursuant to Minn. Stat. § 176.461. The petition is denied.


Clarence Johnson was employed as a painter for Skil-Tech, Inc., on April 24, 2006. He fell from a ladder while on the job on that date and injured both knees. The employer and its insurer admitted liability for the injury and paid a limited amount of temporary total disability benefits, some medical expenses, and 4% permanent partial disability for each knee.

In February 2007, the parties entered into settlement discussions leading to a stipulation that was a subject of an award served and filed February 26, 2007.

The stipulation set out the positions of the parties. The employee claimed he was entitled to additional temporary total disability benefits, permanent partial disability benefits, and payment of medical expenses. A number of healthcare providers intervened seeking payment of their bills. As set forth in the stipulation, the medical bills totaled about $11,000.00. The response of the employer and insurer was that the employee had received all workers’ compensation benefits to which he was entitled, the medical expenses were not reasonable or related to the work injury, and the nature and extent of the injury was denied.

The employer and insurer agreed to satisfy the claims of the health care providers and agreed to pay the employee $600.00 as a settlement of his out-of-pocket medical expenses. In return for a full, final, and complete settlement of his workers’ compensation claims arising out of his employment with Skil-Tech, except for medical expenses, the employee received $24,000.00 after attorney fees were paid to his attorney.

The position of the employer and insurer in settlement negotiations was based in part on the opinion of Dr. David Fey, an orthopedic specialist who evaluated Mr. Johnson on their behalf on October 6, 2006. It was Dr. Fey’s opinion that any complaints the employee had regarding his knees were due to a pre-existing arthritic condition and not due to his work injury. Dr. Fey also stated that any work restrictions would not be due to the work injury. He based his opinion in part on a review of a surveillance video.

The employee, again represented by an attorney, entered into a second settlement which was the subject of an award served and filed on March 25, 2015. That agreement covered the employee’s claims for medical expenses he alleged were the result of his work injury. The agreement set up a “pool” from which medical expenses would be paid. The settlement did not close out future expenses if reasonable and related to the employee’s work injury.

Mr. Johnson, now pro se, filed his petition with this court to vacate both settlements. He alleges a mutual mistake of fact, newly discovered evidence, and fraud. The employer and insurer have filed a response objecting to the employee’s petition.


The employee makes a number of arguments in his petition and in his response to the objection filed by the respondents. He argues newly discovered evidence, consisting of a frivolous denial of his claim. He alleges that his attorney conspired with the employer and insurer and committed fraud. He also refers to penalties for an inexcusable delay in making payment and for an unintentional underpayment of benefits. With his petition, the employee has attached numerous exhibits.

None of these claims meet the definitions of cause as set out in the workers’ compensation statutes. Minn. Stat. § 176.461 authorizes this court to set aside an award for cause. Cause is defined in this statute as a mutual mistake of fact, newly discovered evidence, fraud, or 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.

In his petition, the employee refers to three of these factors, but the evidence he supplies does not meet any of the definitions of cause. We consider each of these factors below.

1.   Mutual mistake of fact

A mutual mistake of fact is a misunderstanding of a material fact by both parties. A mistake by one party to an agreement is not sufficient. Holtslander v. Granite City Roofing, 75 W.C.D. 555 (W.C.C.A. 2017), summarily aff’d (Minn. Feb. 13, 2018). The employee refers to the non-inclusion of claims for penalties but the employee’s own exhibits show this issue was considered at the time of settlement. We conclude there was no mutual mistake of fact.

2.   Newly discovered evidence

The employee cites information about possible penalty claims as newly discovered, but the exhibits he filed show he raised the question of penalties to his attorney and received a response stating those claims were part of the claim petition which was then in litigation and which was the subject of the settlement. We find there has been no showing of newly discovered evidence.

3.   Fraud

The employee claims that his attorney committed fraud in advising him that penalties had been claimed when they had not. The employee is wrong in this assertion. The claim petition filed by his attorney and attached by the employee to his petition as part of his exhibits shows that a claim for penalties was made by his attorney. We find no showing of fraud has been made here.

We acknowledge that the employee may not agree with these conclusions, but all of the issues he raises were known, argued, and considered in the settlements that are the subject of his petition. The employee has not established cause as required by the statute. The petition is denied.