GARRY D. HANSEN Petitioner
LIBERTY NORTHWEST Respondent/Insurer.
Submitted: March 9, 2005
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
The claimant seeks to reopen a 2002 settlement based on
mistake of fact.
The claimant failed to demonstrate any mistake of material
fact which would entitle him to rescind the 2002 settlement.
He has not shown any material change in or misunderstanding
about his medical condition. He alleges he is totally
disabled but believed that to be the case when he entered
into the settlement agreement.
Settlements: Reopening: Mistake of Fact. To
reopen or rescind a workers' compensation settlement the
claimant must prove the parties were mistaken as to facts
material to the settlement.
Settlements: Reopening: Mistake of Fact.
Where the claimant believed that he was unable to work and
permanently totally disabled at the time he entered into a
settlement, he is not entitled to reopen the settlement
simply because he continues to believe he is permanently
Settlements: Reopening: Mistake of Fact. The
fact that chronic back pain is later diagnosed as
fibromyalgia is immaterial where the nature of the back pain
has not materially changed and the new diagnosis does not
result in any new, successful treatment of the pain. A change
in diagnostic labels is not in itself sufficient to prove a
mistake of fact for purposes of rescinding a settlement.
Benefits: Medical Benefits: Reasonableness of
Services. The Court will not order an insurer to pay
for an examination at the Mayo Clinic where the Mayo Clinic
has indicated it cannot see the claimant at the time the
examination was requested, no evidence was presented that the
Mayo Clinic would ever be willing to see the claimant as a
patient, and the physician referring the claimant to the Mayo
Clinic did so only after the claimant requested the referral
and without any medical justification other than the fact
that the claimant's pain had not improved.
The trial in this matter was held in Helena, Montana, on
February 15, 2005. The petitioner was present and represented
himself. The respondent was represented by Mr. Larry W.
Subsequent to trial, the petitioner submitted additional
exhibits and asked that they be admitted. On March 8, 2005,
the respondent replied that it did not object to the
additional exhibits except on grounds of relevancy. The
exhibits are therefore made a part of the record and
considered insofar as they are relevant.
Exhibits: Exhibits 1 through 6 and 9 through 30 were
admitted at trial. Some exhibits were objected to on
relevancy grounds. Those exhibits are considered only insofar
as they are relevant. Exhibits 7 and 8 were refused since it
was plain that they were irrelevant.
Witnesses and Depositions: The petitioner and his
wife, Patricia Hansen, testified. The depositions of the
petitioner and Dr. Curt G. Kurtz were also submitted for the
Issues Presented: The petitioner requests that his
November 4, 2002 settlement be reopened and that he be