Clarence Johnson v. Skil-Tech, Inc., WC18-6167 (W.C.C.A. July 23, 2018)
The employee 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.
The employee fell off a ladder and injured both knees in April 2006. The employer and insurer admitted liability, paid some temporary total disability benefits and 4% permanent partial disability for each knee.
The matter settled and the award was served and filed on February 26, 2007. The stipulation was full, final, and complete with medical expenses remaining open. There was an additional claim for medical benefits and the parties, in which the employee continued to be represented by an attorney, entered into a second settlement, which was subject to an award served and filed on March 25, 2015. The second settlement set up a medical pool from which the employee’s medical expenses would be paid and again left medical expenses open.
The employee petitioned to vacate both settlements alleging mutual mistake of fact, newly discovered evidence, and fraud. More specifically, the employee argued the newly discovered evidence consisted of a frivolous denial of his claim, that his attorney conspired with the employer and insurer and committed fraud, penalties for inexcusable delay in making payment, and an unintentional underpayment of benefits.
With respect to mutual mistake of fact and the non-inclusion of claims for penalties, the Court held that the employee’s own exhibits show that the issue was considered at the time of settlement and there was no mutual mistake of fact. Similarly, with newly discovered evidence, the Court held that the employee’s exhibits showed that he raised the concern of penalties to his attorney at the time and received a response that those claims were part of the claim petition and thus, there had been no showing of newly discovered evidence. Lastly, the employee claimed that his attorney committed fraud in advising him that claims for penalties had been made when they were not. The Court found that the employee’s assertion was wrong, again pointing to the employee’s exhibits showing that a claim for penalties was made by his attorney, thus fining no showing of fraud.
The Court held that none of the employee’s claims met the definition of cause set out in the statute and further that all of the issues raised as part of the petition to vacate were known, argued, and considered in the settlements and therefore, the petition was denied.