VACATION OF AWARD – FRAUD. Where the petitioner has not shown any false representations were made during the settlement process and has made the same allegation in a previous petition to vacate, the petitioner has not shown good cause to vacate the award on stipulation.
VACATION OF AWARD – SUBSTANTIAL CHANGE IN CONDITION. Where the petitioner has not presented new evidence to support a substantial change in medical condition and has made the same claim in prior petitions to vacate, the petition to vacate is denied.
PENALTIES. The petitioner has not presented evidence to support a claim for penalties.
PENALTIES. This court does not have jurisdiction to award civil damages under Minn. Stat. § 176.82.
Attorneys: Pro Se Petitioner. Christopher E. Celichowski, O’Meara Wagner, Minneapolis, Minnesota, for the Respondents.
Petition to vacate denied.
DEBORAH K. SUNDQUIST, Judge
The pro se petitioner seeks to vacate a September 19, 2006, award on stipulation. The petitioner has not shown good cause and the petition to vacate is denied.
Clarence Johnson, the pro se petitioner, worked for A Touch of Class Painting, Inc., beginning in late 2003. On October 15 and November 13, 2003, the petitioner claims to have injured his shoulders and low back due to a Gillette-type[1] injury. A Touch of Class Painting, Inc., and its insurer, the respondents, denied primary liability, alleging that the petitioner was an independent contractor, that he had a pre-existing bilateral shoulder condition, and that he suffered no ongoing symptoms or restrictions.
The petitioner, who was represented by counsel at the time, settled his claim with the respondents in 2006 and an award on stipulation was issued on September 19, 2006. In exchange for $6,000, the petitioner settled all past, present, and future workers’ compensation benefits arising from the two alleged dates of injury. In the years after settling his case, the petitioner has sought to vacate the award on stipulation five times, and has filed two claim petitions seeking benefits that were determined to be covered under the stipulation for settlement. In October 2007, the petitioner filed a petition to vacate the award on the grounds of mistake, newly discovered evidence, fraud, and a substantial change in condition. This court denied the petition because the petitioner failed to prove any of the elements needed to show cause.[2]
In 2012, the petitioner filed his second petition to vacate the award based on mistake, newly discovered evidence, fraud, and a substantial change in condition.[3] This court denied the petition based on the lack of evidence to support his claims.[4] A third petition to vacate the award on stipulation was filed on October 20, 2014, alleging fraud, substantial change in medical condition, newly discovered evidence, and the Department of Labor and Industry’s failure to investigate the primary denial of liability until late in 2005. Because the petitioner provided no new evidence in support of his petition, but instead resubmitted documents previously considered by the court, we denied the petition to vacate based in part on res judicata.[5]
The petitioner filed a fourth petition to vacate in April 2018. He sought penalties based on the respondents’ alleged frivolous denial of primary liability, inexcusable delay in making payments, and intentional underpayment of benefits. The petition also alleged fraud but provided no specific information to support the claim. He further claimed the shoulder surgery in 2009 constituted a change in medical condition and that the statute was unconstitutional in that it does not protect the injured worker. This court again denied the petition because the arguments were considered and determined in its 2008, 2012, and 2015 decisions.[6] The respondents asked for sanctions against the petitioner, arguing that they incurred unnecessary legal expenses with each petition to vacate and appeal filed by petitioner. Though reluctant to impose sanctions on the pro se petitioner, we noted that consequences such as sanctions may be imposed in the future should future petitions filed with this court make the same arguments with the same evidence.
On September 9, 2024, the petitioner filed the most recent petition to vacate the 2006 award on stipulation alleging fraud and substantial change in medical condition, seeking penalties and civil damages against the respondents. Attached to the petition were time sheets and drafts of checks to the petitioner; the first report of injury for the November 2, 2003, injury; medical records from 2003, including MRIs showing a right shoulder full thickness tear and a left shoulder supraspinatus tendon tear with retraction; a November 14, 2003, chart note indicating a history of several injuries and left shoulder supraspinatus tendinosis, L5-S1 disc herniation, and chronic pain; a cover letter of the notice of primary liability determination of January 20, 2004, denying the claim based on notice; a March 21, 2006, letter from the petitioner’s former attorney regarding the settlement value of the workers’ compensation case; findings of the district ethics committee; June 16, 2004, October 27, 2004, and October 24, 2007, letters from Dr. Alfonso Morales regarding chronic pain, six percent permanent partial disability, and restrictions; a social security determination of disability as of September 27, 2004; and miscellaneous pleadings.
In response to the petition, the respondents argue that the petitioner offered no proof of an alleged fraud and failed to establish any elements of fraud. They maintain that the claimed substantial change in medical condition also lacks proof. They contend that the petitioner provides no new evidence and relies on the same arguments with medical records previously submitted in support of past petitions to vacate and that the penalty claim is not supported by evidence. Finally, the respondents raise the defense of res judicata to bar the petitioner’s claims to vacate the award on stipulation on bases which have already been raised and adjudicated.
This court is given broad, although not unlimited, discretion in vacating an award for cause under Minn. Stat. § 176.461. Hudson v. Trillium Staffing, 896 N.W.2d 536, 540, 77 W.C.D. 437, 441-42 (Minn. 2017). The term “for cause” is defined as: (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(b). The petitioner argues that his former attorney knew that he was not an independent contractor and that he did not meet the criteria for an independent contractor under Minn. R. ch. 5224. He argues that the grounds for the 2003 denial of primary liability beyond 30 days and before 180 days post injury was fraudulent and not based on fact or law. Finally, he argues that he suffered a substantial change in medical condition because he underwent shoulder surgery in 2009. We are not persuaded that the petitioner has established grounds to vacate the September 19, 2006, Award on Stipulation.
To vacate an award on stipulation based on fraud, we rely on the standard adopted in Weise v. Red Owl Stores, Inc., 286 Minn. 199, 175 N.W.2d 184 (1970). To prove fraud, there must be: 1) a false representation of fact; 2) the representation must deal with a past or present fact; 3) the fact must be susceptible of knowledge; 4) the representing party must know that the fact is false; 5) the representing party must intend that another be induced to act based on the false representation; 6) the other person must in fact act on the false representation; and 7) the misrepresentation must be the proximate cause of actual damages. Bramscher v. City of Perham Police Dep’t, slip op. at 3-4 (W.C.C.A. Feb. 27, 1995) (citing Weise, 286 Minn. at 202, 175 N.W.2d at 187).
The petitioner argues that he was lied to regarding the basis for the initial denial of liability based on lack of notice that exceeded 30 days and on the allegation that he was an independent contractor, not an employee. While these arguments may have had some merit during the litigation and settlement process, the petitioner was represented by counsel at the time of settlement, therefore the settlement was presumptively fair and reasonable. See Minn. Stat. § 176.521, subd. 2. Furthermore, we addressed the same arguments in the previous petitions to vacate, and no new evidence has been submitted for our review on this issue. We deny the petition to vacate the 2006 award on stipulation on the basis of fraud.
The petitioner also argues that he has experienced a substantial change in medical condition. We have often looked to the Fodness[7] factors in analyzing grounds for a petition to vacate an award on this basis for cause. However, this court previously addressed the same claim in the prior petitions to vacate. Since the last petition, we have received no new evidence in support of a substantial change in condition. We therefore deny the petition to vacate the 2006 award on this basis.
The petitioner argues that he is entitled to penalties and civil damages but cites no basis under the statute for either claim. Penalties may be awarded to an employee entitled to compensation when an employer or insurer do not pay the compensation in a timely manner. Minn. Stat. §§ 176.221 and 176.225. Civil damages for retaliation or refusal to offer a job are available under Minn. Stat. § 176.82, but are imposed in a civil action. Because there is no evidence that the respondents failed to pay benefits and because any claim under Minn. Stat. § 176.82 is not within this court’s jurisdiction,[8] there is no basis for this court to award penalties to the petitioner.[9]
[1] Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
[2] Johnson v. A Touch of Class Painting, Inc., No. WC08-113 (W.C.C.A. Mar. 31, 2008).
[3] In his 2012 petition to vacate the award on stipulation, the petitioner also claimed that his former attorney and the respondents had conspired against him, that the Department of Labor and Industry was responsible for investigating the denial of liability and whether the petitioner was a subcontractor, that the stipulation did not include all copies of medical records, that he was not an independent contractor, and that he was on medication, unaware of Minnesota law, confused at the time of the settlement, and should be granted deference in litigation as a pro se litigant.
[5] Johnson v. A Touch of Class Painting, Inc., 75 W.C.D. 439 (W.C.C.A. 2015), appeal dismissed (Minn. Apr. 16, 2015).
[6] Johnson v. A Touch of Class Painting, Inc., 79 W.C.D. 133 (W.C.C.A. 2018), summarily aff’d (Minn. Feb. 6, 2019).
[7] Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).
[8] Karnes v. Quality Pork Processors, 532 N.W.2d 560, 563 (Minn. 1995) (a retaliatory discharge action under Minn. Stat. § 176.82 is a common law cause of action outside the purview of the Workers’ Compensation Act).
[9] The petitioner has filed multiple petitions to vacate the award on stipulation. In this petition, the petitioner has not presented any new arguments or new evidence. Minn. Stat. § 176.511, subd. 2, allows for this court to award actual and necessary disbursements to the prevailing party. Petitions to vacate that are repetitious of previously denied petitions may warrant disbursements to be paid to the responding party.