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Frazer v. Montana State Fund

Court of Workers Compensation of Montana

June 6, 2005

DAN FRAZER Petitioner
v.
MONTANA STATE FUND Respondent/insurer.

          Richard J. Pyfer Doubek & Pyfer, LLP Attorney for Petitioner

          ORDER REGARDING FURTHER PROCEEDINGS

         ¶1 The petition herein requests the Court to set aside a disputed liability settlement the petitioner entered into with respect to an alleged February 9, 2001 industrial injury. The specific ground cited by the petitioner for reopening the settlement is "mutual mistake of fact." (Second to last sentence of ¶ 3, Petition for Hearing.)

         ¶2 The facts giving rise to the request to reopen are set forth in a single paragraph of the petition. That paragraph alleges:

A dispute exists between the parties. When Mr. Frazer filed his claim in April of 2001 it was denied pursuant to Mont. Code Ann. § 39-71-603 (1999) because Mr. Frazer had allegedly failed to notify his employer within 30 days of his injury. Believing he had no alternative and without counsel, on May 31, 2001, Mr. Frazer settled his claim on a disputed liability basis for $8, 500.00. Subsequently, after developing serious medical complications and spending thousands of dollars on medical care, Mr. Frazer sought counsel. In October of 2003, he contacted an attorney to see if there was anything that could be done to revisit his workers' compensation claim. His attorney obtained two affidavits from Mr. Frazer's co-workers indicating that he had reported his injury in February of 2001 to his employer. Mr. Frazer made a request to reopen his claim and the State Fund denied his request. Mr. Frazer seeks to reopen his claim based upon the mutual mistake of the parties to his settlement. Neither State Fund nor the claimant was aware that the employer had been properly notified of the injury.

         (Petition for Hearing, ¶ 3.)

         ¶3 The respondent moved for summary judgment. (Motion for Summary Judgment and Supporting Brief.) In doing so, it relied on facts set forth in a "Combined Motion and Brief to Reopen Claim" which had been sent by the petitioner to the Court on September 9, 2004. That document, however, was returned to the petitioner since no petition had been filed as of that date.[1]

         ¶4 In his response to the motion for summary judgment, the petitioner urged that he entered into the settlement as a result of the claims adjuster's "overreaching and undue influence" and misleading statements. His argument in opposition to the motion was set out in a single paragraph, [2] which states as follows:

As additional response to Respondent's Motion For Summary Judgment and reply thereto, Petitioner takes issue with Respondent's argument. Respondent basically takes the position that there is no mutual mistake of fact because Petitioner contends he had knowledge that he verbally notified the boss of his injury within 30 days. Mr. Frazer was led to believe that he had not verbally notified his boss of this injury within the 30 day period and that the boss had no knowledge of this matter and therefore the matter would not be accepted. There was, in fact, overreaching and undue influence by the adjuster for the workers' compensation insurer in suggesting the same to the Petitioner under the circumstances. Also the conflict and positions taken by the Respondent's adjuster led Petitioner to believe that he had no choice but to resolve his worker's compensation claim on a disputed basis. This was also stated in the Petition and in footnote 1 on page 2 of the Petitioner's Combined Motion And Brief To Reopen Claim.

         (Petitioner's Brief in Opposition to Motion for Summary Judgment, ¶ 2.)

         ¶5 Because the Court did not have the document on which the respondent relied in moving for summary judgment, and because the petitioner's brief in opposition to the motion raised a question as to whether the petitioner "intended to allege some sort of fraud or duress in connection with his settlement," on February 15, 2005, I held a telephone conference with counsel. (February 15, 2005 Minute Entry, ¶ 2.) After discussion, I entered an oral order. The order was as follows:

Mr. Pyfer [petitioner's attorney] will file an amended petition within one week. Mr. Martello [respondent's attorney] will have two weeks thereafter to file an amended response and an amended motion for summary judgment. The Combined Motion and Brief to Reopen Claim will have to be provided to the Court at that time if I am to rely upon it.
I asked counsel to address whether a disputed liability settlement can be reopened based on mutual mistake of fact.

(February 15, 2005 Minute Entry, ¶¶4, 5.)

         ¶6 The oral order was confirmed by written order filed February 15, 2005. That order was as follows:

ΒΆ2 IT IS HEREBY ORDERED that petitioner file an amended petition by February 22, 2005, if he wishes to add fraud or duress allegations, or some similar ground, to ...

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