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Hansen v. Liberty Northwest

Court of Workers Compensation of Montana

May 9, 2005

GARRY D. HANSEN Petitioner
v.
LIBERTY NORTHWEST Respondent/Insurer.

          Submitted: March 9, 2005

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE.

         Summary: The claimant seeks to reopen a 2002 settlement based on mistake of fact.

         Held: 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.

         Topics:

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 totally disabled.
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.

         ¶1 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. Jones.

         ¶2 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.

         ¶3 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.[1]

         ¶4 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 Court's consideration.

         ¶5 Issues Presented: The petitioner requests that his November 4, 2002 settlement be reopened and that he be ...


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