Wallace v. Leitzen

• Decision Date: 28 January 1955
• Docket Number: No. 36350,36350
• Citation: 68 N.W.2d 372,243 Minn. 481
• Parties: Dewey G. WALLACE, Relator, v. Bert LEITZEN, d/b/a Leitzen Concrete Products and Bituminous Casualty Corporation, Respondents.
• Court: Minnesota Supreme Court

Page 372

68 N.W.2d 372

243 Minn. 481

Dewey G. WALLACE, Relator, v. Bert LEITZEN, d/b/a Leitzen Concrete Products and Bituminous

Casualty Corporation, Respondents.

No. 36350.

Supreme Court of Minnesota.

Jan. 28, 1955.

Syllabus by the Court.

Upon showing made the industrial commission did not abuse the discretion conferred upon it by M.S.A. § 176.461 in denying relator's petition to vacate an award made in conformity with a stipulation for settlement and to grant a rehearing on the ground of mutual mistake and changed conditions unknown and not contemplated by the parties at the time of the award.

Richard H. Plunkett, Plunkett & Plunkett, Rochester, for relator.

Robb, Robb & Van Eps, Minneapolis, for respondents.

CHRISTIANSON, Justice.

Certiorari to review an order of the industrial commission denying relator's petition to vacate an award of the commission dated March 24, 1950, on the ground of mutual mistake and changed conditions unknown and not contemplated by the parties at the time of the award and for a rehearing to determine the extent of relator's disability.

Prior to March 24, 1950, relator and respondents entered into a stipulation for settlement wherein it was recited that relator claimed that he was entitled to compensation for an injury to his right testicle alleged to have been sustained as the result of an accident on November 23, 1949, while in the employ of respondent Bert Leitzen, when relator was backing a truck, lost his balance, and was caused to fall. The stipulation further recited that following said date relator suffered a wage loss by reason of alleged inability to work for a period of six weeks; had certain medical care and attention of the reasonable value of $27, which was unpaid; and had expended $7 for drugs and medicine. Respondents, while denying that relator had sustained an accidental injury or that the disability suffered by relator was due thereto, agreed, in compromise, to pay relator the sum of $60 which represented two weeks temporary total disability compensation and to reimburse him in the sum of $7 for his medical expenses. Respondents also agreed to pay the unpaid bill for relator's medical care and attention in the amount of $27 direct to the doctor who rendered the same.

Relator agreed therein to accept these sums as a full and complete settlement of all his claims for disability and medical care and expense, heretofore or hereafter rendered or to be rendered to relator, against his employer and its insurer by reason of the claimed accident. The parties having waived their rights to a formal hearing before the industrial commission, the commission on March 24, 1950, made its award in conformity with said stipulation. The stipulation discloses that relator consulted with a compensation attorney of the commission before making the settlement.

More than three years later, on October 30, 1953, relator petitioned the commission to vacate the award and to obtain a rehearing on the ground that at the time of the settlement he and his employer acted upon a mutual mistake of fact regarding his injury. In addition to the facts set out in the foregoing stipulation, relator stated in the petition that when he slipped and pinched his testicle, he also struck the lower portion of his back on the running board and that thereafter he experienced constant pain in the region of his lumbar spine as well as his testicle. He further stated that on March 28, 1950, his employer's insurer paid him $60 in settlement of his claim for injury to his testicle; that thereafter his back continued to pain him in ever increasing intensity; that on May 1, 1950, he sought medical attention and a bone graft, L-4 to S-2, was accomplished in an operation on May 8, 1950; and that ever since said accident he has experienced pain in his back. Finally relator stated that at the time of the award he did not know of the true condition of his back and that a bone graft would be required as a result of said back injury; that on October 20, 1953, he was informed by his present attorney that he had a valid claim for compensation benefits against respondents; and that shortly thereafter he authorized his attorney to institute the present proceedings.

The petition was supported by an affidavit of Dr. James R. Doyle to the effect that, based upon his examination of relator and the history of the accident as related to him by relator, it was his opinion that the fall of November 23, 1949, was a direct contributing cause of the operation performed on relator on May 8, 1950, and the disability resulting therefrom. Also, an affidavit by relator supported his petition in the following respects: That when he slipped and fell, he struck his spine on the running board of the truck and pinched his testicle on said running board; that pain persisted in both areas thereafter; that on or about March 28, 1950, he signed a final receipt for compensation in the amount of $60 disability payment and $34 medical payments; and that at said time he did not know the true condition of his back but assumed that the pain therein would go away in the near future.

The petition came on for hearing before the commission on December 1, 1953. Respondents appeared in opposition thereto With the consent of counsel, the commission thereafter wrote the Mayo Clinic to obtain the history given by relator to the clinic in May 1950. In reply it received a letter from Dr. P. R. Lipscomb dated December 14, 1953, wherein Dr. Lipscomb stated that he had conducted the examination and treatment of relator pertaining to his back; that relator was first seen by the Mayo Clinic's outcall physician on May 1, 1950, at which time he was complaining of low-back pain of four days' duration; that at that time relator stated he had had intermittent low-back pain with sciatic radiation; that relator was referred to the St. Mary's Hospital and the following history was there obtained: That relator stated he had been well until eight or nine years previously when he fell while carrying a heavy can of milk while employed by the Rochester Dairy; he stated that he struck his back at that time and was in bed with back pain following the fall; and that since that time he had had intermittent bouts of back pain. Relator also said that since April 1950, he had had more severe back pain with intermittent attacks of sciatic pain and that the pain extended into both lower extremities.

Dr. Lipscomb in his letter further stated that when relator was seen on May 1, 1950, a diagnosis was made of probable protuded disk together with narrowing of the lumbosacral interspace; that on May 8, 1950, Dr. Love of the neurosurgical department removed a protuded intervertebral disk from the lumbosacral interspace; and that at the same time Dr. Lipscomb performed a spinal fusion from the fourth lumbar to the sacrum. Finally the letter stated that relator was dismissed from the St. Mary's Hospital to his home on May 20, 1950. On December 24, 1953, the commission entered its order denying said petition.

Thereafter on January 4, 1954, relator filed a second petition and relator's affidavit in support thereof. The statements therein were the same as in the first petition and affidavit filed. However, relator's second petition was supported by an affidavit of one of his fellow employees to...