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 WilliamE. Hunt, Judge presiding. Counsel of Record: For Appellant: Hoyt and Bottomly, Great Falls, Montana John C. Hoyt argued and Tommy Lewis appeared,

GreatFalls, Montana For Respondent: Marra, Wenz and Iwen, GreatFalls, Montana Joseph R. Marra argued and Charles R. Johnson argued,

GreatFalls, Montana

Submitted: January 27, 1977 Decided: 

## 171m 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 settlementwas for permanent partial disability benefits or permanent total disability benefits. The Workers' Compensation Court held it was a valid and binding settlementof permanent partial disability benefits fromwhich 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, reservationof medical and hospital benefits under the Workmen's CompensationAct, and a waiver by the insurer of 

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## * * * repayment of any Social Security payments or overpayments claimantmay receive in the future." Claimant and the insurer petitioned the Workmen's CompensationDivision (WCD) for approval of this settlement. The WCD approved the petition and ordered the claim closed as finally settled, subject totheright of theWCD, forgood cause, torescind, alteror amend the final settlement within 4 years.Payment was made by the insurer. Thereafter it developed that the federal Social SecurityAdministration interceded to reduce claimant's social securitydisabilitybenefits by an offsetpermitted inpartial disabilitycases. Claimant then petitioned theWorkers' Compensation Court for a hearing todetermine that claimant was totally disabled or inthe alternative torescind the approval of the settlement by theWCD. A hearing was held atwhich theWorkers' Compensation Court determined that the fulland final settlement agreement entered intobetween claimant and the insurer on March 25, 1975, inthe amount of $9,000, was a valid and binding settlement of permanent partial disabilitybenefits. Claimant's petitionwas denied. Our function on appeal istodetermine whether there is substantial evidence to support the finding of theWorkers' Compensation Court. Kimball v. Continental OilCo., Mont

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, 550 P.2d 912, 33 St.Rep. 517. In cases of testimonial conflict, ashere, the applicable law has been stated in this language inCartwright v. Industrial Ac. Brd., 115Mont. 596, 599, 147 P.2d 909: "Our function in thiscase is todetermine whether ornot there is substantial evidence to support the judgment of thedistrictcourt. Ascan be immediately ascertained from the foregoing summary of theevidence, there is a complete testimonial conflict between theparties. In such a situation, the issuebecomes one of credibility of the

### witnesses which is and must be concluded by the Industrial Accident Board which had the opportunityto observe the witnesses as they testified 

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## * *." 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 CompensationAct. 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 150weeks X claimant's permanent partial compensation rate of $60 per week; (4)the correlation of the 30% disability rating with the 150week period out of a 500 week maximum; (5)the "compensation advice" form accompanying the settlementdraft 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 claimantwould 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 findingsof fact and conclusions of law of the Workers1 -4-Compensation Court are affirmed in all respects.

Justice We.

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