Submitted: January 14, 2019
ORDER GRANTING RESPONDENT SUMMARY JUDGMENT ON
PETITIONER'S REQUEST FOR RELIEF FROM THIS COURT'S
ORDER AND JUDGMENT DISMISSING WITH PREJUDICE DATED MARCH 10,
M. SANDLER JUDGE.
During litigation in 2014, Petitioner and Respondent settled
Petitioner's bilateral shoulder injury claim via a
Stipulation for Entry of Judgment, which expressly states
that this Court would enter a judgment and dismiss the case
with prejudice. Petitioner now asserts that he and Respondent
were operating under a mutual mistake of fact and asks this
Court to set aside their settlement agreement. Respondent
moves for summary judgment, asserting that Petitioner's
request for relief from this Court's Order and Judgment
Dismissing with Prejudice is time-barred under M.R.Civ.P.
60(b)(1) and (c)(1), which provide that a party seeking
relief from a judgment or order on the ground of mistake must
file for relief "no more than a year after the entry of
the judgment or order." Petitioner asserts that Rule 60
does not apply because this Court did not enter an actual
judgment; rather, Petitioner asserts that this Court merely
approved a settlement agreement. Petitioner thus argues that
contract law applies, under which he asserts his Petition for
Hearing is timely. In the alternative, Petitioner argues that
if Rule 60 applies, his 2018 Petition for Hearing is timely
under Rule 60(b)(4), which applies when a judgment is void,
and under Rule 60(b)(6), which provides that a party can
obtain relief for any other reason that justifies relief.
Petitioner also asserts that he may proceed under Rule
60(d)(1), which provides that Rule 60 "does not limit a
court's power to . . . entertain an independent action to
relieve a party from a judgment, order, or proceeding . . .
Respondent is granted summary judgment on Petitioner's
request for relief from this Court's Order and Judgment
Dismissing with Prejudice. The Workers' Compensation Act
grants this Court the power to enter judgments. The Montana
Supreme Court has held that Rule 60 applies when a party
seeks relief from a judgment of this Court. Rule 60(b)(1) and
(c)(1) state that a party seeking relief from a judgment
based on mistake must file for relief "no more than a
year after the entry of the judgment or order." Because
Petitioner did not file for relief within one year after this
Court entered its Order and Judgment Dismissing with
Prejudice, which is an actual judgment, and because Rule
60(b)(4) and (6), and (d)(1) do not provide him with avenues
for relief under Montana law, Petitioner's request for
relief is time-barred.
1 Respondent Montana State Fund (State Fund) moves for
summary judgment, asserting that Petitioner Barry Heath's
Petition for Hearing - in which he seeks relief from this
Court's Order and Judgment Dismissing with Prejudice on
the grounds of mutual mistake of fact - is time-barred under
M.R.Civ.P. 60(b)(1) and (c)(1). Heath opposes State
Fund's motion, asserting that Rule 60 is inapplicable or,
in the alternative, that his request for relief is timely
under Rule 60(b)(4), (b)(6), and (d)(1).
2 This Court grants State Fund summary judgment on
Heath's request for relief from this Court's Order
and Judgment Dismissing with Prejudice because it is
time-barred under Rule 60(b)(1) and (c)(1) and because Rule
60(b)(4), (b)(6), and (d)(1) do not provide him with avenues
for relief under established Montana law. Although State Fund
filed a Motion for Summary Judgment, there is another claim
pending in this case, that being Heath's claim that State
Fund is liable for his bilateral carpal tunnel syndrome.
State Fund has moved for summary judgment on that claim,
which this Court will address in a separate order.
3 Making all inferences in Heath's favor, the following
are the facts for purposes of this ruling.
4 On November 10, 2012, Heath suffered an accident in the
course of his employment. Heath filed a First Report of
Injury or Occupational Disease, stating that he injured his
shoulders and describing his accident and alleged injury as
follows: "Was shoveling heavy snow when I felt a sharp
pain in my right shoulder[.] I switched hands to shovel taken
[sic] pressure off right shoulder as day went on the left
shoulder gave out."
5 State Fund insured Heath's employer. State Fund
accepted liability for injuries to Heath's shoulders as a
temporary aggravation of preexisting conditions, as Heath had
preexisting shoulder problems and left-hand pain.
6 Heath treated with John D. Michelotti, MD, with complaints
of bilateral shoulder pain and left-hand pain. Dr. Michelotti
diagnosed bilateral shoulder biceps tendinitis and bilateral
shoulder adhesive capsulitis. On September 19, 2013, Dr.
For his left shoulder, as I explained to him multiple times,
I think the best option at this point would be to have an
injection under ultrasound guidance into the long head of the
biceps of the left shoulder. I explained to him that we use
that for diagnostic and treatment purposes. If a person gets
significant relief with an injection into the long head of
the biceps, there is good data that says that a person will
get better clinically [with] either a biceps release or a
biceps tenodesis. However, without that data we[']re
never to[o] sure whether or not just going in for a scope
will be beneficial for the shoulder.
7 On September 30, 2013, Heath filed a Petition for Hearing
with this Court. Heath alleged, inter alia, that he
had suffered a compensable injury or occupational disease on
November 10, 2012, that State Fund owed him additional
wage-loss and medical benefits, that State Fund did not
correctly calculate his temporary total disability (TTD)
rate, and that State Fund violated his constitutional rights
to privacy and due process by conducting surveillance. Heath
prayed for a judgment awarding him benefits, a penalty, his
attorney's fees, and costs.
8 On December 12, 2013, Dr. Michelotti opined that surgery
was not indicated:
Unfortunately, he did not get any improvement from the
injections into the long head of the biceps of either
shoulder. He . . . also had injections into the subacromial
space which really didn't help him.
He is wondering whether or not going in surgically to explore
the area around the sensory nerve of the terminal branch of
the axillary nerve and whether that would be beneficial. I
explained to him multiple times today that I have never done
this surgery, and I do not think that that would improve his
current symptoms. . . . .
I do not think I can help him surgically, and at this point I
think the best option after discussing this over a lengthy
process with Mr. Heath would be to have him get an
independent medical exam by someone like Dr. Kapps [sic] in
Missoula. I think someone like that could make a
determination of one whether any surgical intervention could
be beneficial and if not to whether any injections or further
treatment could be beneficial for his shoulders.
9 On January 29, 2014, Heath saw Mark Rotar, MD, an
orthopedic surgeon, for an examination under §
39-71-605, MCA. Dr. Rotar diagnosed bilateral shoulder
capsulitis and neck pain. Dr. Rotar did not think shoulder
surgery would be beneficial, noting that the injections did
not provide Heath with any relief.
10 Thereafter, Heath and State Fund reached a settlement of
Heath's claim in its entirety for a lump-sum payment of
$27, 500. They agreed that this Court would enter a judgment
and dismiss Heath's case with prejudice. Thus, they filed
with this Court a Stipulation for Entry of Judgment, which
contained the terms of their agreement. In relevant part, the
Stipulation for Entry of Judgment states:
2. Because of these disputes, the parties have agreed to
resolve Petitioner's claims by way of a settlement. This
settlement is based on an acknowledgement by the parties that
significant disputes exist between them concerning
Respondent's liability for additional benefits and a
desire by the parties to resolve all of Petitioner's
claims by means of a settlement rather than face the
uncertainty of litigation.
3. Pursuant to this agreement, the parties stipulate that
judgment be entered in the Workers' Compensation Court
resolving any and all claims by Petitioner for indemnity and
medical benefits arising out of the industrial injury he
suffered including, but not limited to, any claims for past
or future temporary total disability benefits, permanent
partial disability benefits, temporary partial disability
benefits, permanent total disability benefits, death
benefits, rehabilitation benefits, medical benefits and any
claims for penalty, costs or attorney's fees pursuant to
the Workers' Compensation Act or Occupational Disease
4. Petitioner understands that, by agreeing to entry of the
judgment on the terms of this Stipulation for Judgment, he
assumes the risk that his condition could worsen, the degree
of impairment could increase, the nature and severity of the
injury could worsen, his functional capacity could
deteriorate, and he will not be entitled to any additional
benefits. Petitioner, in signing and submitting this
Stipulation to the Workers' Compensation Court,
understands that if the Court approves this Stipulation for
Judgment and Order of Dismissal with Prejudice, the insurer
is forever released from payment of all compensation,
rehabilitation and medical benefits under the Workers'
Compensation and Occupational Disease Acts.
5. As consideration for this settlement, the parties
stipulate and agree that judgment shall be entered by this
Court directing Respondent to pay Petitioner and his attorney
the total sum of TWENTY SEVEN THOUSAND FIVE HUNDRED
AND 00/100 DOLLARS ($27, 500.00) in full
satisfaction of all issues, claims, and entitlements.
Petitioner is responsible for the payment of the
attorney's fees and costs that are owed as a result of
this settlement. The Judgment and Order of this Court shall
dismiss this action with prejudice, each party to bear its
own costs and attorney's fees.
signed the Stipulation for Entry of Judgment on February 28,
2014, below a sentence stating, "I, Barry Heath, hereby
acknowledge that I have read the foregoing Stipulation,
discussed its legal effect with my attorney, understand the
contents thereof, and sign this Stipulation of my own free
will and accord." Heath's attorney also signed the
Stipulation for Entry of Judgment.
11 On March 10, 2014, this Court entered its Order and
Judgment Dismissing with Prejudice, in which this Court
ordered "that the stipulation filed by the parties is
approved and adopted as the judgment of this Court and the
above-entitled matter is hereby DISMISSED WITH
12 More than four years later, Heath saw Richard N. Vinglas,
MD, with complaints of bilateral shoulder pain, left greater
than right. Heath attributed the pain to his November 10,
2012, industrial injury. After an MRI and an EMG, Dr. Vinglas
confirmed Heath's prior diagnosis of left biceps
tendinitis and diagnosed bilateral carpal tunnel syndrome.
Dr. Vinglas opined that left shoulder surgery was a treatment
option. Heath decided to undergo surgery. Dr. Vinglas'
record from May 15, 2018, states, in relevant part:
50-year-old gentleman with moderate bilateral carpal tunnel
syndrome as confirmed by 5/15/18 EMG. He also has left biceps
tendinosis as shown on 4/12/18 MRI. I discussed the etiology
of the conditions as well as possible treatment options
including living with the symptoms, nocturnal bracing,
cortisone injections, or surgical intervention. I reviewed
the advantages and disadvantages of each. As he continues to
have significant pain and has trialed conservative management
without relief, Barry would like to pursue surgical
intervention for both his left shoulder and left carpal
tunnel. The risks and benefits were discussed in detail. . .
. We will proceed with a left shoulder arthroscopy, biceps
tenodesis, SAD, DCE, treatment as indicated and a left open
carpal tunnel release.
13 Following surgery, Heath's left shoulder and wrist
condition have markedly improved.
14 Heath intends on having Dr. Vinglas evaluate his right
shoulder and wrist to determine if surgery is indicated.
15 On October 30, 2018, Heath filed a Petition for Hearing
requesting this Court set aside his 2014 settlement with
State Fund and reopen his claim. Heath alleges that at the
time of the settlement, he and State Fund were operating
under a mistake of fact. He alleges:
Barry Heath and the Montana State Fund were told by both Dr.
Michelotti and the Fund's IME doctor, Dr. Rotar, that
surgery was not warranted and Barry's claim was settled
on that mistaken belief. . . . In short, at the time of the
settlement in the Claimant's case, there was a material
misunderstanding of the full nature and extent of Barry's
injuries and, under the authority of the Harrison
[v. Liberty Northwest Ins. Corp. 2008 MT 102, 342
Mont. 326, 181 P.3d 590] case and the cases cited therein,
the settlement of his workers' compensation claim must be
set aside and his claim reopened.
seeks TTD benefits retroactive to the surgery on his left
shoulder, medical benefits for his bilateral shoulder
injuries, a determination of his correct TTD rate, a penalty,
and his attorney fees. Heath also seeks an order that State
Fund is liable for his bilateral carpal tunnel syndrome.
16 On November 13, 2018, Dr. Vinglas responded to a letter
from Heath's attorney in which Dr. Vinglas opined that
Heath's November 10, 2012, industrial accident caused a
permanent aggravation to his preexisting left shoulder
problem and that he operated on Heath's left shoulder to
treat that condition. Dr. Vinglas also opined that
Heath's bilateral carpal tunnel syndrome was not caused
by Heath's industrial accident and that it was "[a]s
likely as not as likely related to his employment." As
for Heath's ...