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Pettit v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

December 29, 1993

GERALD D. PETTIT Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for STEVE LINDSEY Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE.

         The 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.

         FINDINGS OF FACT

         1. The petitioner is 31 years of age and resides in Kalispell, Montana.

         2. On 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.

         3.At 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.

         4. The petitioner filed a written claim for compensation. The State Fund accepted the claim as compensable and thereafter paid medical and disability benefits.

         5. On or about December 11, 1992, the petitioner and respondent executed a PETITION FOR COMPROMISE AND RELEASE SETTLEMENT. The petition was approved January 4, 1993.

         6. Petitioner was not represented by counsel at the time of the settlement agreement.

         7. 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.

         8.The 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.]

         9.Petitioner 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 paragraph.

         10.Petitioner's understanding of the paragraph quoted in finding No. 8 was as follows:

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.)

         11.The 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.

         12.Petitioner's claim for compensation stated that the injury involved both his hip and low back.

         13.He 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.

         14.At 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).

         15.Throughout 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.)

         16.Dr. 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.

         17.Petitioner 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.

         18.Dr. 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 impression:

1. Severe lumbar strain
a. Rule out posterior joint ...

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