JONATHAN S. SANFORD Petitioner
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for BRANDON OWENS, INCORPORATED Employer.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
trial in this matter was held on October 12, 1993 in
Kalispell, Montana. Petitioner, Jonathan Sanford (claimant or
Sanford), was present and represented by Mr. Erik Rocksund.
Respondent, State Compensation Insurance Fund (State Fund),
was represented by Mr. Todd A. Hammer. Claimant and Dr.
Randale Sechrest were sworn and testified. Exhibit Nos. 1
through 11 were admitted into evidence by agreement of the
parties. Exhibit Nos. 12 through 15 were admitted over the
objection of the State Fund. The parties stipulated the
following depositions can be considered by the Court in
reaching its decision: Jonathan Sanford, Renee Sanford, Dr.
David F. Friedrick, Dr. Lonnie E. Paulos, and Dr. Lawrence
asks the Court to set aside a full and final compromise
settlement with respect to a knee injury he suffered in 1989.
He contends that there was a mutual mistake of fact regarding
the nature and seriousness of his knee condition.
considered the Pretrial Order, the testimony presented at
trial, the credibility of the claimant and Dr. Sechrest, the
deposition testimony and the exhibits, the Court makes the
Claimant is presently 32 years old.
December 30, 1989, he was injured while working as a skidder
operator in Lincoln County, Montana for Brandon Owens, Inc.
He slipped and fell backwards off the machinery he was
operating, injuring his right knee.
the time of injury, claimant's employer was insured by
the State Fund, which accepted liability for the injury.
Claimant was initially examined by Dr. Mark Raine. Then on
January 22, 1990, he was seen by Dr. Lawrence Iwersen, an
orthopedic surgeon. (Ex. No. 1.) Dr. Iwersen assumed his
Claimant's medical history is significant in that he had
a prior right knee injury and meniscectomy when he was 17
Iwersen's initial diagnosis was chondromalacia patella.
He prescribed physical therapy. When the knee did not respond
to that therapy, the doctor performed diagnostic arthroscopy
on claimant on March 13, 1990. The arthroscopy did not
identify any significant abnormality other than the old
lateral meniscectomy. During the arthroscopy Dr. Iwersen
visually observed, as well as probed, claimant's
posterior cruciate ligament (PCL), noting that it was intact.
Following the March, 1990 arthroscopic surgery the claimant
continued to experience pain in his knee.
magnetic resonance image (MRI) performed in May 1990, also
showed the PCL to be intact.
Claimant was seen in consultation by Dr. John Hilleboe, an
orthopedic surgeon practicing with Dr. Iwersen, on May 30,
1990. Dr. Hilleboe could find "no crepitus, no
ligamentous laxity associated with the cruciate testing or
MCL or LCL testing. ("MCL" and "LCL"
presumably refer to the medial and lateral collateral
ligaments.) I looked at his MR[I] and I don't see any
specific abnormality there either." (Ex. No. 1, May 30,
1990 report by Dr. John Hilleboe).
Claimant was also seen by Dr. Michael Sousa, another
orthopedic surgeon, in the summer of 1990. In a July 3, 1990
letter, Dr. Sousa stated "that this patient has some
instability secondary to cruciate ligamentous
laxity and patellar symptoms, possibly secondary to
a painful bipartite patella or chondromalacia patella."
Dr. Sousa suggested claimant follow-up with Dr. Iwersen, and
suggested claimant "may require a cruciate ligament
reconstruction and/or a partial patellectomy to try to
relieve his symptoms, but one cannot 100% guarantee the
results of such surgery in view of the injury." (Ex. No.
When claimant's condition did not substantially improve,
Dr. Iwersen undertook a second arthroscopic surgery on
September 11, 1990, performing a partial patellectomy
[partial removal of the knee cap] due to a "painful
bipartite patella." During the surgery the doctor
visually observed and physically probed the posterior
cruciate ligament, noting that it was intact. (Ex. No. 1,
September 11, 1990 operative report; Iwersen Dep. 13 at
medical history is interrupted here and will be picked up
later in these findings.
an agreement executed in March, 1991, and approved by an
Order of the Department of Labor and Industry dated April 26,
1991, the claimant and State Fund entered into a Permanent
Partial Wage Supplement Compromise and Release Settlement.
The Settlement Agreement stated that "the parties to
this matter have agreed to fully and finally conclude all
compensation and/or rehabilitation payments due the
claimant" in consideration of a $29, 000.00 lump sum
payment and $10, 325.73 payable in bi-weekly payments.
Claimant reserved medical and hospital benefits.
Claimant understood that he could not receive further
benefits as the result of the settlement.
Claimant is now attempting to reopen the settlement agreement
based on mutual mistake of fact. He contends that he and the
State Fund were unaware that he had suffered a tear of his
posterior cruciate ligament. He also contends that they
erroneously believed that he could return to work.
assertion that the parties were mistaken concerning his
ability to return to work will be addressed first. Prior to
the settlement, Dr. Iwersen approved his return to
sedentary work. After the dust has cleared,
and the final medical opinions are in, he is still
approved to return to sedentary
work. Dr. Lonnie Paulos, who is now treating
claimant, testified that he can perform sedentary work.
(Paulos Dep. at 50.) While claimant may dispute his own
ability to work, he was medically approved for sedentary work
both before and after the settlement.
Claimant's allegations concerning his torn posterior
cruciate ligament rests on the testimony of Dr. Paulos, a
respected knee surgeon, who performed further surgery on
claimant's knee in the fall of 1992 and winter of 1993,
and who testified by deposition. The State Fund's counter
to that testimony is the deposition testimony of Dr. Iwersen
and Dr. David F. Friedrick, an orthopedic surgeon retained by
the State Fund as an expert witness, and the trial testimony
of Dr. Randale Sechrest, an orthopedic surgeon. Dr. Sechrest
was also retained by the State Fund as an expert witness. He
performed a comprehensive review of medical records, the
depositions of both Dr. Iwersen and Dr. Paulos, physical
therapy records, Mr. Sanford's deposition and Dr.
Iwersen's videotapes of his surgeries. Since he testified
in person at trial, the Court had the opportunity to
personally assess his testimony. I find his testimony to be
credible, persuasive and convincing.
Continuing the medical chronology, Dr. Iwersen's post
operative diagnosis after his September 11, 1990 arthroscopic
surgery was "posterolateral rotary
instability". (Ex. No. 1 at September 11, 1990
Operative Report; Iwersen Dep. at 14.) In a November 15, 1990
office note, Dr. Iwersen recorded that "[h]is lateral