Wolfe v. Webb
| Decision Date | 02 January 1992 |
| Docket Number | No. 90-389,90-389 |
| Citation | 824 P.2d 240,251 Mont. 217 |
| Parties | Rodney WOLFE, Claimant, Respondent, and Cross-Appellant, v. Boyd E. WEBB, Employer, and State Compensation Mutual Insurance Fund, Defendant and Appellant. |
| Court | Montana Supreme Court |
William J. Mattix, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for appellant/cross-respondent.
Lloyd E. Hartford, Billings, for respondent/cross-appellant.
Claimant Rodney Wolfe filed his petition in the Workers' Compensation Court asking that court to reopen his case, which had been settled with defendant State Compensation Insurance Fund on March 8, 1983. Claimant alleged that at the time of the prior settlement the parties were mutually mistaken about material facts concerning claimant's physical condition.
The Honorable Nat Allen was appointed by the Workers' Compensation Court to serve as the hearing examiner, and this case was tried before the hearing examiner on April 11 and 12, 1990. Following a trial and the submission of written arguments by the parties, the Workers' Compensation Court adopted the hearing examiner's recommendation and entered judgment for claimant which set aside the parties' earlier settlement agreement, reinstated temporary total disability benefits, and awarded attorney fees to claimant. The court refused to impose a statutory penalty on defendant in addition to the benefits which were awarded. From that judgment, defendant appeals, and claimant cross-appeals. We affirm the judgment of the Workers' Compensation Court.
Defendant raises the following issues on appeal:
1. Did the Montana Workers' Compensation Court have jurisdiction to reopen the full and final compromise settlement which had been agreed upon by the parties?
2. Did the express language in the settlement agreement preclude the Workers' Compensation Court from setting it aside?
3. Did the Workers' Compensation Court abuse its discretion and commit reversible error when it adopted the findings of fact, conclusions of law, and judgment proposed by claimant after making minor changes of its own?
4. Was there substantial evidence to support the Workers' Compensation Court's determination that a mutual mistake of fact existed at the time the parties entered into their settlement agreement?
5. Was there substantial evidence to support the Workers' Compensation Court's award of temporary total disability benefits retroactive to October 1, 1985?
6. Was claimant entitled to an award of costs and attorney fees?
For his cross-appeal, claimant raises the following issue:
Did the Workers' Compensation Court err by failing to impose a statutory 20 percent penalty on defendant in addition to the benefits that were awarded?
Claimant was injured on March 28, 1980, while employed by Boyd E. Webb who was insured against claims for workers' compensation benefits by defendant Montana State Compensation Insurance Fund.
Mr. Webb was involved in the business of installing oil and gas lines and irrigation pipe. Claimant was employed by Webb as a backhoe operator and laborer.
On the date of his injury, claimant was working in a six foot ditch and installing pipe when the sides of the ditch caved in and buried him up to his neck. As a result of this accident, he sustained crushing injuries across his upper body, including a fracture of his left clavicle and dislocation of his right clavicle where it formed a joint with his sternum. He also reported pain in one or more of his shoulders.
Claimant was initially treated for his injuries in Powell Hospital in Powell, Wyoming, but was eventually referred to D.R. Huard, M.D., an orthopedic surgeon in Billings, Montana. Dr. Huard treated claimant for approximately 16 months. During that time he performed two surgical procedures. In the first procedure, he grafted bone at the location of the fracture to the left clavicle because that fracture had failed to properly unite. In a second procedure, he resected, or cut away, the end of the right clavicle where it had previously formed a joint with the sternum. He did so in order to alleviate significant discomfort that claimant continued to experience as a result of the dislocation of that joint.
During the course of Dr. Huard's treatment, his records indicate that claimant also complained of pain in the area of his right shoulder. However, that was not his primary complaint and no treatment was rendered for that complaint at that time.
On May 11, 1981, Dr. Huard released claimant to return to work.
After returning to work, claimant continued to experience significant pain due to his injuries and was referred for further treatment to Peter V. Teal, M.D., a second orthopedic surgeon. Dr. Teal advised him that his pain could be lessened by resection of the entire right clavicle, but that since the clavicle provided stability to the shoulder, a significant cosmetic deformity would also result. For that reason, claimant postponed further surgery, but by January 1982, when he could no longer stand the pain, Dr. Teal removed two-thirds of the remaining right clavicle.
By May 1982, claimant had returned to work on a self-employed basis doing oilfield salvage work. In early 1983, he went back to work for another employer. However, the physical nature of that work caused him a substantial amount of pain and discomfort in his right arm and shoulder. He went to the bank and borrowed $13,500 which he used to purchase a pickup truck, trailer, tools, and equipment with which he could become self-employed in the oil pipe salvage business.
By that time, he had received a physical impairment rating from Dr. Teal equal to 10 percent of his right upper extremity. Although he was still in pain, he was unaware of any other injuries which had resulted from his industrial accident in 1980.
In order to repay the money which he had borrowed to invest in equipment for self-employment, claimant entered into settlement discussions with William Visser, a claims supervisor for appellant. Visser offered, and claimant, who was unrepresented at the time, agreed to accept, $7000 in full settlement of his claim for any future disability benefits. On March 8, 1983, the Division of Workers' Compensation approved the full and final compromise settlement agreement which had been signed by the parties. The written agreement included the following provision:
The claimant understands that by entering into a full and final compromise settlement, both the named insurer and the claimant agree to assume the risk that the condition of the claimant, as indicated by reasonable investigation to date, may be other than it appears, or it may change in the future.
Claimant testified that following settlement of his claim he continued to experience right shoulder problems. Toward the end of 1984 he moved to Jerome, Idaho where he took a job for Rocky Mountain Industries as the manager of their pipe yard. However, by October 1, 1985, he could no longer continue to perform that job due to right shoulder pain and he returned to Montana where he lived at the time of trial.
After returning to Montana, claimant worked sporadically as a farm laborer, but this work also aggravated his right shoulder. He returned to Dr. Teal who, based upon an arthroscopic examination, found a defect in the cartilaginous rim of the glenoid cavity. The glenoid cavity, with the head of the humerus, form the shoulder joint. On April 17, 1987, Dr. Teal readmitted claimant to the hospital where he performed surgery to repair and reattach the cartilaginous rim to the glenoid cavity and hopefully prevent further subluxation of the right shoulder. Claimant continued to experience difficulties with his shoulder following surgery, and by November 24, 1987, Dr. Teal's records indicate that he was inquiring about possible replacement of his shoulder with a mechanical joint.
A further arthroscopic procedure was done to repair damage in the claimant's right shoulder in February 1988. On May 17, 1988, Dr. Teal increased claimant's impairment rating from 10 percent of his right upper extremity to 15 percent. He cautioned claimant against returning to any form of heavy labor and suggested that he be rehabilitated so that he could return to the job market and perform lighter duties.
Other orthopedic surgeons who have also examined claimant since Dr. Teal's last surgical procedure concur in the opinion that claimant will never be able to return to moderate or heavy work, and that there is no additional treatment which would be of further assistance to him.
Neither claimant nor his treating physician were aware, in 1983, of the additional damage to claimant's right shoulder which resulted in the 1987 surgery, additional physical impairment, and further restrictions on claimant's physical activities.
William Visser testified that neither was he aware of the possibility of a detached glenoid rim in claimant's right shoulder at the time that he settled with claimant, but that if he had known about the condition he probably would not have entered into the settlement agreement.
Based on these facts, the Workers' Compensation Court concluded that there had been a mutual mistake of material fact sufficient to justify setting aside the agreement entered into between the parties on March 9, 1983. The court found that claimant was temporarily totally disabled, and had been since he terminated his work in Jerome, Idaho on October 1, 1985. Temporary total disability benefits were awarded retroactive to that date.
Based on its decision in favor of claimant, the Workers' Compensation Court awarded attorney fees. However, the court refused to impose an additional 20 percent penalty, concluding that appellant was not unreasonable when it rejected claimant's request to set aside the earlier agreement.
Did the Montana Workers' Compensation Court have jurisdiction to set aside the full and final...
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... ... verbatim adoption of findings and conclusions where they are ... comprehensive and detailed and supported by the evidence ... Wolfe v. Webb , 251 Mont. 217, 229, 824 P.2d 240, 241 ... (1992) (citing Pipinich v. Battershell , 232 Mont ... 507, 510, 759 P.2d 148, 150 (1988)). To ... ...
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...verbatim adoption of findings and conclusions where they are comprehensive and detailed and supported by the evidence. Wolfe v. Webb , 251 Mont. 217, 229, 824 P.2d 240, 241 (1992) (citing Pipinich v. Battershell , 232 Mont. 507, 510, 759 P.2d 148, 150 (1988) ). To determine if a district co......
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