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Heath v. Montana State Fund

Court of Workers Compensation of Montana

March 14, 2019

BARRY HEATH Petitioner
v.
MONTANA STATE FUND Respondent/Insurer.

          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, 2014

          DAVID M. SANDLER JUDGE.

         Summary: 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 . . . ."

         Held: 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.

         FACTS

         ¶ 3 Making all inferences in Heath's favor, the following are the facts for purposes of this ruling.[1]

         ¶ 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. Michelotti noted:

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 Act.
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.[2]

         Heath 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 PREJUDICE."[3]

         ¶ 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.[4]

         Heath 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 ...


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