No. 13474 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

JOHN FLANSBURG, 

Claimant and Appellant, 

PACK RIVER COMPANY, Ernpl-oyer 

and INDUSTRIAL INDEMNITY COFIPANY, 

Defendant and Respondent. 

Appeal from: Workers' Comp. Court 

William E. Hunt, Judge presiding. 

Counsel of Record: 

For Appellant : 

Hoyt and Bottomly, Great Falls, Montana 

John C. Hoyt argued and Tommy Lewis appeared, 

Great Falls, Montana 

For Respondent: 

Marra, Wenz and Iwen, Great Falls, Montana 

Joseph R. Marra argued and Charles R. Johnson argued, 

Great Falls, Montana 

Submitted: January 27, 1977 

Decided : 17 1m 

Filed: 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Claimant and his employeps Plan I1 insurer agreed to 

a $9,000 lump sum settlement of a claim under the Workmen's 

Compensation Act. A dispute subsequently arose whether this 

settlement was for permanent partial disability benefits or 

permanent total disability benefits. The Workers' Compensation 

Court held it was a valid and binding settlement of permanent 

partial disability benefits from which claimant appeals. 

The controlling issue is the sufficiency of the evidence 

to support the finding that the agreement was a valid and binding settlement of permanent partial disability benefits. 

Claimant John Flansburg sustained an injury arising out 

of and in the course of his employment with Pack River Company 

on October 7, 1973. He was paid biweekly benefits from October 

8, 1973, to May 19, 1975, at the temporary total disability rate 

of $110. During this period he was granted two lump sum advances 

of $800 each representing compensation for 13 plus weeks at the 

temporary total disability of $60 per week to be credited against 

the total compensation when finally determined. 

On March 16, 1975, claimant's treating physician submitted a medical report in which he rated claimant's spine as 

being 30% impaired. 

On March 25, 1975, a meeting was held, attended by claimant, his wife, his attorney, and the claims supervisor for 

Industrial Indemnity Company, the employer's workers compensation 

insurer. This resulted in an agreement for a $9,000 final compromise settlement, reservation of medical and hospital benefits 

under the Workmen's Compensation Act, and a waiver by the insurer 

of " * * * repayment of any Social Security payments or overpayments claimant may receive in the future." 

Claimant and the insurer petitioned the Workmen's Compensation 
Division (WCD) for approval of this settlement. The 

WCD approved the petition and ordered the claim closed as 

finally settled, subject to the right of the WCD, for good 

cause, to rescind, alter or amend the final settlement within 

4 years. 

Payment was made by the insurer. Thereafter it developed 

that the federal Social Security Administration interceded to 

reduce claimant's social security disability benefits by an 

offset permitted in partial disability cases. 

Claimant then petitioned the Workers' Compensation 

Court for a hearing to determine that claimant was totally 

disabled or in the alternative to rescind the approval of the 

settlement by the WCD. 

A hearing was held at which the Workers' Compensation 

Court determined that the full and final settlement agreement 

entered into between claimant and the insurer on March 25, 1975, 

in the amount of $9,000, was a valid and binding settlement of 

permanent partial disability benefits. Claimant's petition was 

denied. 

Our function on appeal is to determine whether there is 

substantial evidence to support the finding of the Workers' 

Compensation Court. Kimball v. Continental Oil Co., Mont . 

, 550 P.2d 912, 33 St.Rep. 517. In cases of testimonial 

conflict, as here, the applicable law has been stated in this 

language in Cartwright v. Industrial Ac. Brd., 115 Mont. 596, 599, 

147 P.2d 909: 

"Our function in this case is to determine whether 

or not there is substantial evidence to support 

the judgment of the district court. As can be 

immediately ascertained from the foregoing summary 

of the evidence, there is a complete testimonial 

conflict between the parties. In such a situation, 

the issue becomes one of credibility of the witnesses which is and must be concluded by the 

Industrial Accident Board which had the opportunity 
to observe the witnesses as they testified * * *." 

Although the evidence is conflicting in some respects, 

we find substantial evidence to support the finding of the 

Workers' Compensation Court that the agreement was a full, 

final, valid, and binding settlement of permanent partial 

disability benefits under the Workmen's Compensation Act. 

The supporting evidence consists in part of the following: 

(1) The testimony of Jerry Friesen; (2) the medical evidence 

of claimant's treating physician of a 30% impairment of the 

spine; (3) the absence of any medical evidence of total 

permanent disability; (4) the correlation of the settlement 

amount of $9,000 with 150 weeks X claimant's permanent partial 

compensation rate of $60 per week; (4) the correlation of the 

30% disability rating with the 150 week period out of a 500 

week maximum; (5) the "compensation advice" form accompanying 

the settlement draft indicating a weekly compensation rate of 

$60, claimants rate for permanent partial disability; (6) the 

absence of any relationship between the $9,000 settlement and 

the $110 weekly rate to which claimant would be entitled for 

permanent total disability; and (7) the incredible situation of 

fully and finally settling a claim for permanent total disability for $9,000 that had a mathematical potential of approximately $125,000 in benefits based on claimant's life expectancy. 

We note that the order of the WCD provides that the 

settlement can be reopened at any time within four years for 

good cause. Section 92-826, R.C.M. 1947. The judge of the 

Workers' Compensation Court has continuing jurisdiction to 

change the award at any time within four years if claimant's 

disability changes. Section 92-848(4), R.C.M. 1947. 

We have noted the additional and peripheral arguments 

raised by claimant in this appeal and find that none would 

affect our decision in this case. 

The findings of fact and conclusions of law of the Workers1 

-4- 
Compensation Court are affirmed in all respects. 

Justice 

We. ,. conpur : /" 

c~;L£ Justice 

i 

L,. Justices V