Submitted Date: August 23, 1995
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
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.
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.
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.
Presented: Whether a full and final compromise
settlement agreement executed and approved in 1990 should be
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:
Claimant resides in Miles City, Montana.
April 22, 1986, claimant injured her back during the course
and scope of her employment while working as a laborer for
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
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.
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.)
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, ...