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South v. Transportation Insurance Co.

Court of Workers Compensation of Montana

August 25, 1995

SUZANNE SOUTH Petitioner
v.
TRANSPORTATION INSURANCE COMPANY Respondent/Insurer for COMBUSTION ENGINEERING, INCORPORATED Employer.

          Submitted Date: August 23, 1995

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter JUDGE

         Summary: Claimant and insurer settled claim for back injury based on medical approval of several new jobs, including that of a massage therapist. Claimant began massage therapy school but was unable to continue that training due to further back pain. She sought to reopen the settlement agreement.

         Held: Workers' Compensation Court refused to reopen the settlement agreement where the parties were not operating under a mutual mistake of fact about claimant's back condition. Persuasive medical testimony indicated her present condition was the result of "something new" happening to her back. Note: this decision was reversed, in South v. Transportation Insurance Co., 275 Mont. 397, 913 P.2d 233 (1996), with the Supreme Court concluding that the parties were mutually mistaken about claimant's ability to train and work as a masseuse and this understanding was material to the agreement.

         The trial in this matter was held on August 15, 1995, in Billings, Montana. Petitioner, Suzanne South (claimant), was present and represented by Mr. Don E. Burris. Respondent, Transportation Insurance Co. (Transportation), was represented by Mr. Todd A. Hammer. Claimant and Dr. John Moseley were sworn and testified. Additionally, the depositions of claimant and Dr. Lashman W. Soriya were submitted for the Court's consideration. Exhibits 1-6 were admitted by stipulation with the exception of pages 607-8 of Exhibit 4, to which Mr. Burris objected. Having reviewed pages 607-8 of Exhibit 4, I find them inadmissible.

         Issues Presented: Whether a full and final compromise settlement agreement executed and approved in 1990 should be set aside.

         Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1. Claimant resides in Miles City, Montana.

         2. On April 22, 1986, claimant injured her back during the course and scope of her employment while working as a laborer for Combustion Engineering.

         3. At the time of the injury, Combustion Engineering was insured by Transportation. (Ex. 1.) Transportation accepted liability for the injury and thereafter paid medical and compensation benefits.

         4. In October of 1986, claimant underwent a partial hemilaminectomy and removal of an extruded disc fragment at the Mayo Clinic in Rochester, Minnesota. (Ex. 4 at 463, 383.) The surgery was performed on the right side at the L5-S1 level.

         5. Following the surgery the claimant continued to experience pain in the lumbosacral area and down the left leg. An MRI performed in July of 1988, showed a herniated nucleus pulposus at the L5-S1 interspace. (Ex. 4 at 130, 170.) In September of 1988, Dr. Soriya performed a second surgery on the left side at the L5-S1 level. (Ex. 4 at 172-75.)

         6. Following the second surgery, Crawford Rehabilitation Services submitted several job descriptions to Dr. William S. Shaw for his consideration. At the time, Dr. Shaw was claimant's treating physician. He approved seven jobs as compatible with claimant's condition. Those jobs were hotel/motel clerk, cashier, ...


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