GERALD D. PETTIT Petitioner
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for STEVE LINDSEY Employer.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
trial in this matter was held on October 15 and 22, 1993, in
Kalispell, Montana. Petitioner, Gerald D. Pettit, was present
and represented by David A. Hawkins. Respondent, State
Compensation Insurance Fund, was represented by Todd A.
Hammer. Petitioner and Dr. Albert Joern were sworn and
testified. Exhibit Nos. 1 through 7 were attached to the
PRETRIAL ORDER and admitted by stipulation. Exhibit Nos. 8
and 9 were admitted. The parties stipulated that the
following depositions could be considered: Gerald D. Pettit,
Steven R. Biggs and Marlene Catulli.
petitioner is 31 years of age and resides in Kalispell,
July 15, 1991, the petitioner was injured while working as a
carpet cleaner for ServPro of Flathead County. Petitioner was
attempting to load equipment into a van when he experienced
sharp pain in his hip and lower back.
the time of the injury the employer was insured by the
respondent, State Compensation Insurance Fund (State Fund),
under Plan III of the Workers' Compensation Act.
petitioner filed a written claim for compensation. The State
Fund accepted the claim as compensable and thereafter paid
medical and disability benefits.
or about December 11, 1992, the petitioner and respondent
executed a PETITION FOR COMPROMISE AND RELEASE SETTLEMENT.
The petition was approved January 4, 1993.
Petitioner was not represented by counsel at the time of the
petition stated that the "parties to this matter have
agreed to fully and finally conclude all compensation
payments due the claimant" in consideration of a $21,
672.00 lump sum payment to the petitioner. Medical benefits
were, however, reserved by the petitioner.
petition contained a provision which states:
. . . The claimant understands that by signing this
compromise and release settlement petition, 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. The claimant understands
that this petition represents a compromise and release
settlement and, if approved, may not be reopened by the
Department. [Emphasis in the original.]
had the skills and education to understand the paragraph
quoted in the previous finding. Although he did not graduate
from high school, he has obtained a GED. He testified that he
does not have difficulty understanding the English language
generally, and that he had no difficulty reading the
understanding of the paragraph quoted in finding No. 8 was as
Q. When the Petition language states the condition of the
Claimant may be other than it appears, what did you
understand that to mean?
A. That it may have been something that wasn't related to
what they had diagnosed.
(Pettit Dep. at 18.)
petitioner is now seeking to reopen the settlement agreement
based on mutual mistake of fact. He alleges that the
settlement was based on a misdiagnosis of his injury.
claim for compensation stated that the injury involved both
his hip and low back.
was first treated for his injuries by chiropractor Steven R.
Biggs, D.C. The doctor treated petitioner for the first time
on July 18, 1991, and last saw him on November 11, 1991.
the time of his first treatment by Dr. Biggs, petitioner had
discomfort in the lumbosacral and sacroiliac areas. According
to Dr. Biggs, sacroiliac refers to the sacroiliac joint,
which is a joint between the sacrum and the ilium (a portion
of the hip bone).
Dr. Biggs' treatment, the petitioner continued to have
pain in the lumbosacral and sacroiliac areas, and his
treatments extended to the sacroiliac area. According to the
doctor, "Our treatment, a lot of it was geared toward
sacroiliac dysfunction." (Biggs Dep. at 32.)
Biggs, however, never arrived at any final diagnosis. While
some of petitioner's symptoms were consistent with
sacroiliac dysfunction, others, such as bilateral leg pain,
were not. The sacroiliac symptoms experienced by petitioner
were also consistent with other lower back conditions.
However, Dr. Biggs had not ruled out sacroiliac dysfunction
as a possible diagnosis.
recalled Dr. Biggs telling him that his sacroiliac joint, as
well his back, was "out", and that the doctor put
his sacroiliac joint back into place.
Albert Joern, a neurosurgeon, examined petitioner on August
30 and November 19, 1991. 19.In his report of the August 30
examination, Dr. Joern reached the following clinical
1. Severe lumbar strain
a. Rule out posterior joint ...