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Sanford v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

March 16, 1994



          Mike McCarter Judge

         The 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 Iwersen.

         Claimant 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.

         Having 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 following:


         1. Claimant is presently 32 years old.

         2. On 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.

         3. At the time of injury, claimant's employer was insured by the State Fund, which accepted liability for the injury.

         4. 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 care.

         5. Claimant's medical history is significant in that he had a prior right knee injury and meniscectomy when he was 17 years old.

         6. Dr. 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.

         7. Following the March, 1990 arthroscopic surgery the claimant continued to experience pain in his knee.

         8. A magnetic resonance image (MRI) performed in May 1990, also showed the PCL to be intact.

         9. 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).

         10. 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. 1.)

         11. 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 13-18.)

         12. The medical history is interrupted here and will be picked up later in these findings.

         13. In 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.

         14. Claimant understood that he could not receive further benefits as the result of the settlement.

         15. 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.

         16.Claimant's 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.

         17. 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.

         18. 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 ...

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