No. 91-034 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

ROBERT L. RATH, Claimant and Appellant,

-vsST. LABRE 

### INDIAN SCHOOL, Employer, and STATE COMPENSATION MUTUAL INSURA: NCE F1. Defendant and Respondent.

APPEAL FROM: Workers Compensation Court, The Honorable Timothy Reardon, Judge presiding.

COUNSEL OF RECORD: For Appellant: John S. Yoder; Yoder Law Office, Billings, Montana For Respondent: Michael 

### P. Heringer; Anderson, Brown, Gerbase, Cebull, Fulton,Harman & Ross, Billings, Montana.

Filed: Submitted on briefs: June 13, 1991 Decided: August 13, 1991Justice Karla M. Gray delivered the Opinion of the Court.

The claimant, Robert L. Rath, appeals the judgment 

### of the Workersf compensation Court refusing to set aside the Full and Final Compromise Settlement that 

### he entered 

### into on January 17, 1986. Following a trial on thematter, the Workers4Compensation Court ruled that there was no mutual mistake of fact as to the claimantIsmedical condition at the timeof the settlementand that his petition to reopen the settlementwas barred by the statute of limitations pursuant to 5 27-2-203, MCA. We affirm. The dispositive issue on appeal is whether the Workers' Compensation Courterred 

### inconcludingthattheclaimant'spetition to reopen the settlement was barred by the statute of limitations pursuant to 5 27-2-203,MCA. Over the years, the claimant has suffered three separate on-the-job injuries to his back. In July 1969, the claimant was working as a supervisor at a sawmill in Ashland, Montana when a tree struck 

### him on his back. He suffered a compression fracture of a thoracic vertebra. The claimant was treated by Dr. PeterV. Teal, 

### an orthopedic surgeon in Billings. In January 1971, the claimant was released by Dr. Teal to pursue lighter work and was given a twenty percent impairment rating as a result of this 

### injury. The claimant received 

### workers' compensation benefits, settling his claim on a full and final compromisebasis. Shortly after settlement, the claimant returned 

### to 

### work as a heavy equipment operator for Powder River County in Broadus, Montana. On June 18, 1971, the claimant strained his lower back 2while changing a tire on a road grader. As with his previous injury, the claimant was treated by Dr. Teal. A myelogram was performed which showed a bulging disc 

### at L4-5. Based upon the claimant's complaints of pain, Dr. Teal completed a fusion from 

### L4 to S1 in February 1972. Dr. Teal released the claimant to 

### work in October 1974. He also assessed a twenty percent impairment rating for this injury. The claimant received workers1compensation benefits as a result of his 1971 injury, again settling his claim 

### on a full and final compromise basis. After this settlement, the claimantwent to work as the food supervisor foxthe St. Labre IndianSchool. 

### Hisback conditionwas subject to intermittent flare-ups associated with increased activity level. The claimant saw Dr. Perry M. Berg, an associate of Dr. Teal, in 1982 or 1983 for upper backpain. In 1983,he also

saw Dr. L. A. Campodonico,his family physician inMiles City, for low back pain. OnMarch 5, 1985,theclaimant slipped and fell while carrying

a box of meat and injuredhis back a third time. He was initially treated by Dr. C. T. Smith, an orthopedic surgeon in Sheridan, Wyoming. 

### Dr. Smithdiagnosed theclaimant's conditionas an "acute lumbosacral strain of S1 joint superimposed on degenerative arthritis and an old fusion." OnApril 9, 1985, the claimantwas examined by 

### Dr. Teal. Dr. Teal noted that the claimant had been having steadily increasing pain prior to re-injuring 

### his back in the fall at work. Theclaimant also complained of tendernessat L2-3 and L3-4. Dr. Teal diagnosed the claimant as having degenerative disc disease, along with chronic lumbar sprain. 

### Dr, Teal believed the claimant was unable to return to his former position and advised him to seek lighter work, The claimant did not return to Dr. Teal until September 1986,after his full and final compromise settlementhad been approved by the Workersicompensation Court. The claimant was examined by 

### Dr. Gary Ray, however, on October 17, 1985. Dr. Ray noted the degenerativechanges above the claimant's fusion. 

### Dr. Ray believed the claimant had reached maximum healing and released him to work with significant restrictions. The claimant never returned to Dr. Ray. ~pproximately three months prior to the full and final compramise settlement, the claimant retained Thomas Lynaugh 

### to represent him in regard to his workersfcompensation claim. The claimant and Mr. Lynaugh also entered into an attorney agreement for Mr. Lynaugh to representhim in regard to his claim for social security disability benefits. On November 20, 1985, the claimant requested a partial lump

sum advance of $65,000 from the respondent, State Compensation Mutual InsuranceFund,

### whichhe asserted could be credited against his projected permanent total disability benefits. The only type of employment activity that the claimant felt he could physically perform was light bookkeeping duties at a family-owned diner in Ashland. The clairnantlsconditionhad not improved sincetheMarch 1985 

### injury.The respondent denied the claimantlsrequest for a lump sum advance. The claimant's counsel,however,negotiated a settlement in the amount of $71,500 to be paid in a lump sum, which represented 500 weeks at the claimant's maximum permanent partial disability rate. In support of the Petition for Full and Final Compromise Settlement,theclaimantexecuted

### anaffidavit which indicatedthat he was aware of the extreme limitationsplaced 

### on him by Dr. 

### Ray. He also recognized that his only vocational opportunity was in a limited capacity at the family-owned diner in Ashland. In his affidavit, the claimant also stated that he was aware that with the full and final compromise settlement,he couldnever reopenhis claim. The Petition for Full and Final Compromise Settlement was subsequently submitted to the Division of Workers1 Compensation. The Division approved the settlement on January 17, 2986. The Workers1CompensationCourt approved the settlement on January 21, 1986.The claimant s back problems have bothered him consistently since the March 5, 1985 injury. He was admitted to the hospital by Dr. Teal in late September 1986 because of his continuing low back pain. On September 29, 1986, a CT scan showed constriction of the claimant's 

### spinal canal. On Octobes 3, 1986, a myelogram

was performed which showed spinal stenosisat the L3-4 level. 

### The stenosiswas due to thebulging of the disc and/or bone 

### spurs that projected into the spinal canal.Dr. Teal explained in his deposition that the claimant's joints are wearing out,which produces constriction of the spinal canal so that the nerves have less 

### room. As the condition progresses, the spinal canal becomes narrower and the vertebrae becomemore unstable and loose as timepasses. Dr. Teal suspected spinal stenosis 

### inApril 1985because oftheclaimantIs significant degenerative disc disease. However, his suspicions were not confirmed until the October 3, 1986,myelogram. Dr. Teal testified thatbased upon the findingsof the CT scan and the myelogram, he discussed with the claimant the possibility of future surgery to relieve the constriction inhis spinal canal. He advised the claimant to consider surgery and to return in November 1986 to discuss it further. The claimantpursued 

### his claim for social securitydisability benefits during this period of time. As part of that claim process, the claimant's counsel submitted a letter with exhibits to the administrativelaw judge onOctober 23, 1986, asserting that the findings of the CT scan and the myelogram supported Rathls claim for disabilitybenefits. The letter makes it clear that 

### Dr. Teal had discussedwith the claimant thepossibility of surgery as

a courseof treatment for his condition. The claimantargued that, given his condition, he was not capable of performing any competitive employment, and therefore,was totally disabled. Although Dr. Teal requested that the claimant return in November 1986 to discuss surgery for his back problems, the claimantdid not returnuntil July 1987, atwhich timehe continued

### to complain of low back pain. InMay 1988, the claimant told Dr. Teal that his painwas as severe as inMarch 1985. X-rays did not reveal any significant change in the claimant's condition. The claimant returned to Dr. Teal onMay 9, 1989, complaining of pain inhisback. 

### A CT scan showed stenosis of the spinal canal at L3-4. 

### When compared with the CT scan of September 1986, this CT scan showed basically no change in the claimant's condition except for a little more stenosis at the L3-4 

### level. An MRI 

### completed on July 19, 

### 1989 reconfirmed Dr. Teal's belief that claimant suffered from spinal stenosis. Dr. Teal recommended surgery. Surgery was performed on November 3, 

### 1989, to decompress and remove bone spurs at L3-4 

### and to extend the fusionto the third lumbar vertebra. At the time of his deposition on September 6, 

### 1990, Dr. Teal did not believe the claimant had reached a point of maximum healing and had not released the claimant to work. The claimant has not worked since his March 5, 1985 injury. On July 9, 1990, the claimant filed a petition with the Workers' Compensation Court to set aside the Full and Final Compromise Settlement he had entered into on January 17, 1986, on the grounds of mutual mistake of the fact thathewould be required to have additionalback surgery after the settlement of his claim. A trial on thematter was held on September 24, 

### 1990. The claimant testified briefly at the trial. Further testimony of the claimant, as well as testimony of his treating physician, Dr. Teal, his counsel at the time of settlement, Thomas Lynaugh, three of the

### respondent's claims personnel and the claimant's vocational rehabilitationexpert,was submittedby depositions filedwith the Workers' Compensation Court. On December 13,1990,theWorkers' Compensation Court entered its findings of fact,conclusions of law, and judgment refusing to set aside the settlement. The Workers' Compensation Court ruled that there was no mutual mistake of fact as to the claimant's medical condition at the time of the settlement, and that his petition to reopen the settlement was barred by the statute of limitations pursuant to 5 

### 27-2-203,MCA. This appeal followed. The claimant contendsonappeal thattheWorkers' Compensation Court erred in concluding that therewas no mutual mistake of fact regarding the condition of his back at the time of the January 17, 1986, Full and Final Compromise Settlement. In addition, the claimant contends that the Workers' Compensation Court erred in concluding that his petition to reopen the settlement was barred by the statute of limitations. The claimant maintains that he never had knowledge that his conditionmight require further surgery until he received a letter from Dr. Teal dated July 29, 1989. He asserts that the court ignored the testimony of Dr. Teal that in an office visit on July 7, 1987, after the October 3, 

### 1986, myelogram, there was no discussion of surgery. He argues that Dr. Teal's office note of this visit reflected that Dr. Teal had not yet determined a definite diagnosis of spinal stenosis and that Dr. Teal's primary diagnosis was depression. He further asserts that in his nextvisit to Dr. Teal on May 31, 1988, he again was treated conservativelywith no discussion of surgery. The claimant argues that this evidence is consistent with his own testimony that he believed Dr. Teal thought his subjective complaints of pain had a psychological, rather than a physiological, basis. He further argues that the two-year statute of limitations contained in 5 27-2-203, MCA, did not begin to accrue until he actually discovered hismistake regarding the condition of his back in July 1989.This Court will not overturn findingsof fact of theWorkers1 Compensation Court if there is substantial evidence in the record to support them. Kraft v. Flathead Valley Labor & Contr. (1990), 243 Mont. 363, 365, 792 P.2d 1094, 1095. Conclusions 

### of law, "whether the conclusions are made 

### by an agency, workers1 compensation court, or trial court," will be upheld if the tribunal's interpretation of the law is correct. Steer, Inc. 

### v. Dept. of Revenue (Mont. 1990), 803 P.2d 601, 603,47 St.Rep. 2199, 2200. We will also uphold the result reached below 

### if 

### correct, regardless of the reasons given for the conclusion. Jerome v. Pardis (19891, 240 Mont. 187, 192, 783 P.2d 919, 922. 

### The Full and Final Compromise Settlement entered into by the parties is a contract. In Kienas v. Peterson (1980), 191 Mont. 325, 624 P.2d 1, this court established that under general principles 

### of contract law a full and final compromise settlement could be set aside in limited situations if the parties to theagreement were operating under a mutual mistake of fact. Section 28-2-409, MCA, describes what constitutes a mistake of fact: What constitutes mistake of fact. Mistake of fact is a mistake not causedby the neglect of a legal duty on the part of thepersonmaking themistake and consisting in: (1) an unconscious ignorance or forgetfulness of a fact,past or present, material to the contract; or (2) belief in the present existence of a thing material to the contract which does not exist or in the past existence of such a thing which has not existed. Section 27-2-203, MCA, sets forth the applicable statute of limitations for an action to reopen a full and final compromise settlement on grounds of mutual mistake. Actions for relief on ground of fraud or mistake. The period prescribed for the commencement of an action for relief on the ground of fraud or mistake is within 2 years, the cause of action in such casenot tobe deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake. Actual knowledge of themutual mistake isnot required to start the running of the statute of limitations. DrAgostinov. Swanson

(lggO), 240Mont. 435, 443, 784 P.2d 919, 924. Rather, the statute of limitations begins to run when the facts are such that theparty bringing the actionwould have discovered themistake had he or she exercised ordinary diligence. D'Aqostino, 240 Mont

# . at 443, 784

Here, the Workers' Compensation Court concluded that, based upon the medical evidence presented, it could find nothing to indicate that the parties were mutually mistaken about the condition of the claimant's back at the time of the settlement. In addition, the court ruled that the claimant's petition wasbarred by thetwo-year statute of limitations, apparently reasoning that because there was no mutual mistake of fact at the time the settlementwas entered into in January 1986, the two-year period for bringing the action expired in January 1988, Our review of the record shows that even if the parties were mutuallymistaken astothe conditionof the claimant'sback at the time they entered intothe settlement,asthe claimant asserts, the claimant's petition was barred by the statute of limitations. Contrarytotheclaimant'sassertions, therecord clearly indicates that the claimant discovered no later than October 1986 that additional back surgery was a possibility. Dr. Teal testified that,based upon the findings of the September 1986 CT scanand the October 1986 myelogram, he discussed with the claimant the possibility of further surgery, advised him to consider it and requested him to return in November to discuss it further. The claimant did not return to Dr. Teal until July 1987. In his deposition,Dr. Teal explained thathedid not discusssurgery with the claimant at that time because he was "impressed 

# . . .with the severity of [theclaimant's] emotional depression and felt thatwe shouldn't be--we should be treating that and shouldn't be putting him through an operation." Furthermore,inOctober 1986, theclaimant's attorneynotified the administrative law judge in the claimant's social security claim of Dr. Teal's conclusion that surgery was a possible course of treatment. Moreover, when the administrative law judge ruled 

### in the claimant's favor, the decision awarding social securitydisability benefits was based inpart on themedical findingsthat surgerywas possible for the claimant in the future. Given this evidence, the two-year period in which to bring 

### a claimbased onmutual mistake pursuant to 5 27-2-203, MCA, expired, at the latest, in October 1988. Because the claimantdid not file his petition to reopen the settlement until July 1990,his claim

was barred by the statute of limitations. Accordingly, the result reached by the Workers' Compensation Court is correct. Affirmed. 

# -y#!* Chief Justice

### August 13, 1991 CERTIFICATEOFSERVICE 

### Iherebycertifythat thefollowingorderwassentbyUnitedStatesmail,prepaid,tothe followingnamed:

JohnS.Yoder YODERLAW

### OFFICE P.O.

### Box3333 Billings,MT 59103-3333 Michael

### P.Heringer ANDERSON, BROWN,GERBASE,CEBULL, FULTON, HARMON &

### ROSS P.O. Drawer

### 849 Billings,MT 59103-0849 EDSMITH 

### CLERKOFTHESUPREME COURT STAT%% 

### MONTANA