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Kress v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

December 27, 1995

RALPH KRESS Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for JIM AND LOUIE BOUMA Employer.

          Submitted: October 18, 1995

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE.

         Summary: Truck driver injured during fall on ice settled workers' compensation claim, with medical benefits reserved. In this action, he seeks to reopen the settlement for mutual mistake of fact regarding relationship of groin pain to industrial injury. He also sought payment of medical bills relating to groin treatment and increase in compensation benefits.

         Held: Under Supreme Court precedent (e.g., Weldele v. Medley Development, 227 Mont. 257 (1987), mutual mistake regarding true nature of claimant's medical condition at time of settlement requires reopening of settlement. Recitation in settlement that both parties assume the risk that claimant's condition is otherwise than what they believe does not prevent reopening. Here, claimant's testimony and persuasive medical evidence convinces the Court that claimant's groin condition was caused by his injury and that the injury aggravated a pre-existing back condition. Where the parties were mistaken about this causal relationship, the settlement is deemed null and void. The fact that claimant insisted all along that groin condition was related to accident does not negate reopening where medical providers had rejected possible connection. Proof of causal connection entitles claimant to medical benefits for his groin and back conditions. Even with the settlement reopened, however, claimant has not proven his entitlement to additional compensation benefits, so none are ordered.

         Topics:

Settlements: Reopening: Mistake of Fact. Recitation in settlement that both parties assume the risk that claimant's condition is otherwise than what they believe does not prevent reopening where claimant's testimony and persuasive medical evidence convinces the Court that claimant's groin condition was caused by his injury and that the injury aggravated a pre-existing back condition, facts previously rejected by medical providers.
Settlements: Reopening: Mistake of Fact. The fact that claimant insisted all along that groin condition was related to an accident does not negate reopening for mutual mistake of fact regarding groin condition where medical providers had rejected possible connection at the time of settlement.

         The trial in the above-entitled matter came on Friday, October 13, 1995, in Great Falls, Montana. Petitioner, Ralph Kress (claimant), was present and represented by Mr. Cameron Ferguson. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Daniel J. Whyte. Exhibits 1 through 19 were admitted by stipulation. The claimant and Lance Zanto were sworn and testified. Additionally, the claimant's deposition was submitted for the Court's consideration.

         Issues presented: The claimant requests that a compromise and release settlement executed by the parties on October 28, 1993, be set aside and that he be awarded further temporary total and permanent partial benefits, along with medical benefits for his groin condition.

         Having considered the pretrial order, the testimony presented at trial, the demeanor and credibility of the witnesses, the deposition and exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1. The claimant is 47 years old. He is married with four children and is a high school graduate.

         2. Over the years claimant has engaged in a variety of jobs. He has worked for a railroad, farmed, worked as a butcher, operated a grocery and driven trucks.

         3. On December 16, 1991, claimant was working for J & L Trucking, which is operated by Jim and Louie Bouma. While unloading a truck, he slipped on ice and fell forward striking his thumb. He then fell backward, apparently striking his hip.

         4. The employer was insured by the State Fund at the time of the accident and the State Fund accepted liability for the claim subsequently submitted by claimant.

         5. The claimant was examined by Mr. Kelley Price, a physician's assistant, the day following his fall. An x-ray revealed a "fracture of the left thumb near the PIP[1] joint without joint space involvement." The thumb was casted and claimant was instructed to return in four weeks. (Ex. 3 at 1.)

         6. Claimant returned to Mr. Price on January 2, 1992, complaining of pain on the right side of his groin since the time of injury. Mr. Price conducted an examination. His office note reflects "right groin was without mass, there was no bulge in the inguinal canals, testicles appeared normal, they were not swollen or tender over the epididymis, there was no mass effect, urine analysis was normal, probable right groin strain." (Id.) At the time of the examination claimant believed his groin pain was caused by his December 16, 1991 industrial accident.

         7. Claimant continued to experience pain in his right groin and was seen on January 16, 1992, by Dr. Stone, a urologist. (Ex. 17.) Claimant told Dr. Stone that his groin pain commenced at the time of his industrial accident. Dr. Stone opined that claimant had suffered an ilioinguinal genital nerve irritation and was possibly developing a hernia but recommended no medical intervention at that time.

         8. Apparently unsatisfied with Dr. Stone's diagnosis and recommendation, the claimant sought an evaluation by Dr. Jake J. Allen on January 21, 1992. (Ex. 2.) At that time claimant again reported that he was suffering groin pain since the time of his industrial accident. Dr. Allen found no evidence of a hernia but reported claimant was tender at the pubic tubercle on the right. He felt claimant most likely had a chronic groin strain and recommended symptomatic treatment with Ibuprofen. Dr. Allen explained to claimant that the strain may be a chronic problem requiring treatment when symptoms arise.

         9. On January 24, 1992, Mr. Price removed the cast from claimant's thumb and concluded that claimant had reached maximum medical improvement and could return to work as a truck driver. (Ex. 3.)

         10. The claimant returned to Mr. Price on February 13, 1992, still complaining of groin pain. (Ex. 3.) Mr. Price felt that claimant had experienced a groin strain. There is no indication in his note for that date that he offered any further treatment.

         11. Claimant then moved to Glasgow, Montana. He sought further treatment by physicians in that community.

         12. He consulted Dr. Anne Williams, who is a general surgeon, on April 20, May 5, and October 5, 1992. (Ex. 7.) On the first visit claimant reported right groin pain and intermittent swelling of his right testicle. Of some significance to later developments, he reported that his groin pain sometimes extended down into the middle leg. Dr. Williams ultimately concluded that claimant's groin pain was "due to ilio-inguinal nerve irritation." (Ex. 7 at 1.) She offered two courses of treatment. One was "neurolysis[2] of the ilioinguinal nerve." (Id.) The other was "surgical exploration to look for a neuroma or scar tissue entrapping the nerve to see if we could relieve some of this pain." (Id.) Claimant declined both options.

         13. The claimant underwent a testicular ultrasound on May 7, 1992. The scan was within normal limits. (Ex. 4 at 2.)

         14. At Dr. Williams' recommendation, the claimant also sought the advice of Dr. Richard Melzer; a urologist, on May 21, 1992. The copy of his office note provided to the Court is difficult to read; however, it is evident that no firm diagnosis resulted from this referral. (Ex. 5.)

         15. Claimant, still casting about for a definitive resolution of his pain, consulted Dr. Gordon Bell on July 31 and September 16, 1992. (Ex. 6 at 3.) Dr. Bell first reported, "I certainly find nothing to be diagnosed but have to suspect chemical epididymis." He suggested claimant use Ibuprofen for his pain. At the time of the second examination, Dr. Bell did a local injection of claimant's groin with xylocaine and marcaine. The injection provided temporary relief and Dr. Bell concluded that surgery might provide claimant substantial relief. Dr. Bell also noted that while the etiology of the groin pain remained unclear, he suspected "mechanical local trauma" due to the industrial accident. (Ex. 6 at 1.)

         16. Claimant was examined on December 15, 1992 by Dr. Charles Perkins, who is a neurologist. (Ex. 8.) Dr. Perkins felt the claimant "probably has possibly a high lumbar nerve root entrapment" or "could have pelvic plexus involvement" and ordered an MRI. (Ex. 8 at 1-2.) The MRI, taken February 20, 1993, showed "[m]inimal L4-5 bulging but not herniated disc . . . [causing] . . . no compromise on the neural foraminal openings or the spinal canal" and "minimal grade I reverse spondylolisthesis at L5-S1." (Ex. 9 at 1.)

         17. On February 5, 1993, Dr. Michael Fay, an orthopedic surgeon, evaluated claimant's thumb. Dr. Fay did not feel further treatment of the thumb was ...


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