NO. 83-532 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

WAYNE R. SOLLIE, 

Claimant and Appellant, 

-vsPGAVEY COMPANY, Employer, 

and 

TRAVELERS INDEINITY COMPANY, 

Defendant and Respondent. 

APPEAL FROM: The IJorkers' compensation Court of the Statec.of 

Montana, The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hennessey Law Office; Joseph P. Hennessey, Billings, 

Montana 

For Respondent : 

Crowley, Haughey, Hanson, Toole & Dietrich; Randy 

Bishop, Billings, Montana 

Submitted on Briefs: June 6, 1984 

Decided: August 30, 1984 

. (' Filed: 3,lJl-j 2: +j ,234 

- Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Wayne E. Sollie (Sollie) petitioned the Workers' 

Compensation Court to set aside, on the grounds of mutual 

mistake, a previous full and final compromise' settlement 

entered into by Sollie and his employer's insurance company. 

After submission upon an agreed written record, the Workers' 

Compensation Court refused to set aside the compromise 

settlement. Sollie appea-1s this refusal. We affirm. 

The issue is whether the Workers' Compensation Court 

erred in refusing to set aside the compromise settlement on 

the grounds of mutual mistake. 

Sollie is a 66 year old married male residing in 

California. On August 11, 1976 Sollie was injured in an 

industrial accident while an employee of Peavey Company 

(Peavey) , an employer whose carrier was Travelers Indemnity 

Company (Travelers). Sollie was injured while attempting to 

raise an overhead door at a grain elevator. As he raised the 

door, it suddenly reversed direction and dropped back upon 

him as a result of a broken cable. Sollie immediately felt 

pain in his lower back and was unable to straighten up. He 

was taken to the hospital emergency room and was hospitalized 

for approximately 2 weeks. In the latter part of September, 

Sollie returned to work but reinjured himself and was forced 

to stop working. He has not been employed since that time. 

Sollie was treated by a physician in Glendive and was 

later referred to an orthopedic surgeon in Billings. By 

report dated June 1, 1977 that orthopedic surgeon determined 

that Sollie had a degenerative lumbar disc disease affecting 

various levels of the lumbar spine and a spondylolysis at the 

L-5 level. The orthopedic surgeon assigned Sollie a 

permanent partial impairment rating of 20% of the whole man. 
Sollie continued to suffer pain and in October 1978 was 

examined by a Billings surgeon who suggested surgery to fuse 

the lumbar vertebrae. After seeking a second opinion, Sollie 

concluded that there was a chance the surgery would be 

unsuccessful and he elected not to undergo surgery. 

Sollie was represented by an attorney different than his 

counsel on appeal. The trial attorney negotiated with 

Travelers over a period of time. Ultimately a compromise 

settlement was reached on April 18, 1979. Up to that date 

Sollie had received. $13,198.39 in compensation benefits and 

$2,859.90 in medical benefits. Sollie executed a petition 

for full and final compromise settlement which listed the 

benefits received, stated that a controversy existed between 

Sollie and Travelers regarding the amount and duration of 

compensation, and agreed that a lump sum of $8,100 would be 

acceptable as a full and final compromise settlement, 

representing compensation for 100 weeks. Further medical and 

hospital benefits were expressly reserved by Sollie. Sollie 

petitioned the Division of Workers' Compensation, with the 

concurrence of Travelers, for approval of the petition. The 

petition was approved by the Division Administrator on June 

4, 1979 and on June 12, 1979, the Workers' Compensation Court 

entered its order concurring in the full and final compromise 

settlement. The court found that this was a reasonable and 

fair settlement under the circumstances. 

Dr. Nelson, a diplomat of the American Board of 

Neurology and Psychiatry, examined Sollie on March 9, 1983, 

nearly four years after the compromise settlement. In the 

proceedings on setting aside the compromise settlement, the 

medical reports of the original examining physicians were 

admitted in evidence and compared to the testimony of Dr. 

Nelson. In addition, the deposition of the trial attorney 
who had represented Sollie was taken. After consideration of 

this evidence, the Workers' Compensation judge entered 

extensive findings of fact, conclusions of law and judgment. 

The court refused to set aside the compromise settlement and 

determined that Sollie was not entitled to further 

compensation benefits, costs or attorneys fees. 

Did the Workers1 Compensation Court err i.n refusing to 

set aside the compromise settlement on the grounds of mutual 

mistake? Sollie contends there was a mutual mistake by both 

Sollie and Travelers as to the nature and extent of his 

injury. He argues that this mistake affords a basis for 

setting aside the compromise settlement on the authority of 

Kienas v. Peterson (Mont. 1980), 624 P.2d 1, 37 St.Rep. 1747. 

Kienas involved a 32 year old man who suffered an injury to 

his lower back. He was examined by various doctors, 

including an orthopedic surgeon who found some problems with 

the lower lumbar region and ultimately found that Kienas had 

progressed as far as he could in healing. At that point the 

orthopedic surgeon estimated Kienas' impairment rating as 5%. 

In making that rating the orthopedic surgeon did not take 

into account Kienasl preexisting neurological condition, 

cerebral palsy. After negotiations in which Icienas was not 

represented by an attorney, a full and final compromise 

settlement for $4,040.54 was agreed upon. Kienas later asked 

to set aside the compromise settlement on the basis of later 

neurological examinations, which found that Kienas was 

totally disabled and that the accident could have aggravated 

his cerebral palsy and muscular condition. This Court noted 

that a totally disabled person would have been entitled to 

receive in excess of $115,000 in benefits. Kienas, 624 P.2d 
The Court then stated: 

"The full and final compromise settlement entered 

into by the parties is a contract. The law of 

contracts applies in construing and determining the 

validity and enforceability of the settlement 

agreement. The pertinent statutes provide: 

"Section 28-2-409, MCA: 

"Mistake ---- of fact is a mistake - not caused 9 - the 

neglect - of - a legal duty on -- the part -- of the person 

making the mistake - and consisting - in: 

" (1) an unconscious ignorance or forgetfulness of 

-- a factTpast or present, material -- to the contrac5 

or 

(2) belief -- in the present existence of a - - thing 

material -- to the contract which -- does not exist. . ." 

624 P.2d at 2-3, 37 St.Rep. at 1749-50 (Court's 

emphasis). 

This Court then made the following comments regarding the 

element of mistake on the part of both parties: 

"We find both parties were mistaken, and. there is 

evidence of an unconscious ignorance of a fact that 

is material to the contract. Neither party at the 

time of entering the full and final compromise 

settlement knew of the exact nature or extent of 

the injury suffered by claimant. Neither party was 

aware of any possible disability caused by injury 

on the preexisting cerebral palsy condition . . . . It was not until the hearing to reopen the 

agreement that testimony from a neurologist 

indicated that the injury could have aggravated or 

accelerated the prior cerebral palsy." 624 P.2d at 

3, 37 St.Rep. at 1750. 

This Court then concluded that the settlement should be 

set aside and stated: 

"The facts in this case are unique. The parties 

were laboring under a material mistake as to the 

nature of and the extent of claimant's injuries. 

The need to fairly compensate the injured worker is 

the intent and the purpose of the workers' 

compensation law. The full and final compromise 

settlement, therefore, must be set aside for a 

mutual mistake of a material fact as to the nature 

and the extent of the injury caused by claimant's 

accident. Claimant knew of the cerebral palsy; 

however, claimant, as well as respondent, did not 

know of the extent of the injury caused by the 

accident. There is ample evidence on the record 

for this Court to conclude that the injury 

sustained by claimant could have accelerated the 
cerebral palsy." 624 P.2d at 3, 37 St.Rep. at 

1750-51. 

Sollie contends that Kienas is directly applicable here. 

Sollie suffered a compensable injury to the L-5 level of his 

spine. He argues that in diagnosing that condition, the 

treating orthopedic surgeon noted there was an underlying 

condition of intervertebral disease, but did not mention that 

the injury could have aggravated or compounded the underlying 

condition. He argues that based upon the medical evidence 

then available, all parties believed that Sollie's accident 

caused a "mechanical" injury which would soon heal and cause 

no further problem. Sollie contends that this mutual mistake 

misled the parties into the completion of the compromise 

settlement. 

The Workers' Compensation Court disagrees with Sollie's 

analysis of the evidence. The court analyzed the medical 

evidence and quoted from the June 1, 1977 medical report of 

Dr. Frankel, which in part stated: 

"The patient has gotten along reasonably well since 

he was last seen. He has some days of recurring 

low back discomfort and other days he gets along 

very well. He is having some pain in his right 

knee and has some occasional discomfort in his left 

shoulder which I think are unrelated to his current 

back problem. 

". . . I repeated his x-rays and - the patient 

continues -- to show fairly wide spread degenerative 

intervertebral disc disease involving at least the 

lower three levels. In addition, he probably has a 

spondylolysis of the pars at L-5 visible 

particularly in the right oblique. 

"DISPOSITION: The patient was advised that the 

situation - is permanent, although his symptom level 

ma.y vary. He has mentioned the possibility of job 

training through Voc Rehab. I think this is highly 

desirable, simply because his current problem is 

that of degenerative lumbar disc disease and the 

nature of this condition is a permanent one. 

"With regard to impairment, the patient has 

multiple level degenerative intervertebral disc 

disease, with a spondylolysis at the L-5 level. 

This is compatible with a 20% permanent impairment 

of the whole man." (court's emphasis) 
The Workers' Compensation Court noted that Dr. Nelson's 

findings in 1982 were consistent with Sollie's medical 

reports existing at the time of the compromise settlement. 

The court also noted that Dr. Nelson made a qualified 

estimate based on his examination in 1982 that Sollie had 

"about 20% whole body" impairment. The court found this to 

be consistent with the Frankel report of June 1, 1977. 

The Workers' Compensation Court pointed out that at the 

time of the compromise settlement Sollie did not believe he 

was capable of working. The court quoted from Sollie's 1982 

deposition testimony: 

"Q . (BY MR. SPEAR) Mr. Sollie, is your back 

giving you as much trouble now as it was in April 

of 79? 

"A. There isn't much difference in it really. 

"Q. It's been pretty much the same all along? 

"A. Pretty much the same." 

The court concluded that the claimant had testified that his 

back was in much the same condition in 1982 as it had been on 

the date of the compromise settlement. Accordingly, the 

court concluded that Sollie and Travelers were not laboring 

under a mutual mistake of fact material to their settlement 

contract when they entered into a full and final compromise 

settlement. 

Comparing this case to Kienas, the court pointed out 

that Kienas and his insurer did not know when they entered 

their settlement agreement that the industrial accident 

possibly aggravated the preexisting cerebral palsy. The 

court reasoned that this constituted the mistake of fact 

which was the crucial element in the Kienas decision. The 

court applied this analysis to the present case and stated: 

"The medical testimony and medical reports which 

are part of the record establish that the findings 

upon physical examination of the claimant are the 
same now as they were at the time when Sollie 

agreed to fully and finally compromise his workers' 

compensation claim. Wayne Sollie was advised prior 

to his full and final compromise settlement that 

his medical condition was permanent, but that his 

symptom level might vary. The medical reports, 

which were in the possession of Wayne Sollie, 

clearly revealed the presence of multi-level 

intervertebral degenerative disc disease. 

"Further, at the time the claimant agreed to 

compromise his claim, he had been unemployed for 

more than two years and in fact had applied 

unsuccessfully upon two occasions for social 

security benefits alleging total disability . . . . 

"The testimony of claimant's attorney reveals that 

they were aware of their right to claim permanent 

total disability, but elected to compromise this 

workers' compensation claim because of the medical 

information available to them revealing partial 

impairment. . .. 

"In the present case, claimant has failed to show 

anything but that the parties were fully aware of 

the physical problems of which the claimant 

complained, their cause, and claimant's prospects 

for finding employment in the normal labor market 

throughout the settlement negotiations. Therefore, 

the parties freely consented to the terms of this 

settlement agreement." 

We have reviewed the depositions, transcript and other 

evidence submitted to the Workers' Compensation Court and 

conclude that there is substantial evidence to support the 

court's findings of fact and conclusions of law. 

We hold that in the present case the parties were not 

laboring under a material mistake as to the nature of and the 

extent of Sollie's injuries and that there is no factual 

basis for Sollie's contention that there was a mutual mistake 

of fact at the time of the compromise settlement. 

It is also important to consider section 39-71-204, MCA, 

which limits the power of the Workers' Compensation Court to 

amend a compromise settlement: 

"Except as provided in 39-71-2908, the division or 

the workers' compensation judge shall not have the 

power to rescind, alter, or amend any order 

approving a full and final compromise settlement of 

compensation." 
Section 39-71-2908, MCA allows the Workers' Compensation 

judge to disapprove an order allowing full and final 

compromise settlement within 10 days of the judge's receipt 

of an order. This Court has held in several cases that these 

statutes preclude reopening of Workers' Compensation 

settlements. See State ex rel. Montana Phosphate Products 

Co. v. Industrial Accident Board (1971), 156 Mont. 466, 481 

P.2d 684; Elich v. Industrial Accident Board (1944), 116 

Mont. 144, 154 P.2d 793; Williams v. Industrial Accident 

Board (1939), 109 Mont. 235, 97 P.2d 1115. 

We affirm the Workers' Compensation Court. 

We concur: 

a~-&.$.,'d/Mweeq 

Chief Justice