No. 88-396 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

GLORIA RIGHTNOUR, 

Claimant and Respondent, 

v. 

KARE-MOR, INCORPORATED, 

Employer and Appell.ant, 

and 

INTERMOIJPJTAIN INSURANCE COMPANY, 

Defendant and Appellant. 

APPEAL FROM: The Workers' Compensation Court of the State of Montana, 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larry W. Jones, Esq.; Garlingt.on, Lohn & Robinson, 

Missoula, Montana 

For Respondent: 

R. Lewis Brown, Jr., Esq., Butte, Montana 

David L. Holland, Esq., Butte, Montana 

Submitted on Briefs: December 16, 1988 

Decided: February 9, 1989 0 

r ' Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This case was originallv before this Court in Rightnour 

v. Kare-Mor, Inc. (Mont. 1987), 732 P.2d 839, 44 St.Rep. 141, 

where we concluded that claimant Gloria Rightnour was 

entitled to medical benefits which were reserved from the 

settlement agreement. IJpon Rightnour ' s petition, the 

Workers' Compensation Court then reopened the final 

settlement and awarded claimant permanent total disability 

benefits. This appeal arises from that order and judgment. 

We affirm. 

The facts of this case are well set forth in Rightnour, 

supra, but simply stated, the facts are these: Rightnour 

suffered a compensable injury to her lower back while 

employed by the defendant employer in January, 1983. 

Appellant accepted liability, and after Rightnour reached a 

state of maximum healing, a settlement agreement between the 

parties was reached. In March, 1984, Rightnour tripped and 

fell while caring for children in her home and re-injured 

her lower back. New to the facts of this appeal, however, is 

the appellant's revelation that Rightnour was self-employed 

when the 1984 injury occurred. 

Appellant raises two issues for our review: 

1. Was the Workers' Compensation Court correct in 

concluding that good cause existed to reopen the final 

settlement? 

2. Was the Workers' Compensation Court correct in 

concluding that, based on this Court's prior decision, 

Rightnour was entitled to disability benefits? 

The parties agree that a final settlement may be 

reopened by the Workers' Compensation Court within four years 

from the date the settlement was accepted by that court, if 
there was either a mutual mistake of a material fact, a 

change in disability, or good cause shown. Section 

39-71-204, MCA, (1983) provides in part: 

(1) Except as provided in 

subsection (2), the division shall have 

continuing jurisdiction over all its 

orders, decisions, and awards and may, at 

any time, upon notice, and after 

opportunity to be heard is given to the 

parties in interest, rescind, alter, or 

amend any such order, decision, or award 

made by it upon good cause appearing 

therefor. 

(2) The division or the workers' 

compensation judge shall not have power 

to rescind, alter, or amend any final 

settlement or award of compensation more 

than 4 years after the same has been 

approved by the division. Rescinding, 

alterinq, or amending a final settlement 

within the 4-vear period shall be bv 

agreement between the claimant and the 

insurer. If the claimant and the insurer 

cannot agree, the dispute shall be 

considered a dispute for which the 

workers ' compensation judge has 

jurisdiction to make a determination. 

Section 39-71-2909, MCA, (1983) provides: 

The judge may, upon the petition of 

a claimant or an insurer that the 

disability of the claimant has changed, 

review, diminish, or increase, in 

accordance with the law on benefits as 

set forth in chapter 71 of this title, 

any benefits previously awarded by the 

judge or benefits received by a claimant 

through settlement agreements. However, 

the judge may not change any final 

settlement or award of compensation more 

than 4 years after the settlement has 

been approved by the division or any 

order approving a full and final 

compromjs~ settlement of compensation. 
The hearing examiner found Rightnour had presented 

sufficient medical evidence that her disability has increased 

since the settlement was entered. Dr. Murphy concluded that 

Rightnour's impairment rating increased from 20% to 35%; 

Rightnour has been restricted to a five to eight pound weight 

restriction on repetitious lifting; and a rehabilitation 

consultant concluded that Rightnour is no longer able to 

engage in any occupation in her normal labor market. We find 

sufficient evidence existed to enable the Workers' 

Compensation Court to reopen the settlement agreement. 

Appellant next contends the Workers' Compensation Judge 

erroneously concluded that, because the insurer was liable 

for Rightnour's medical benefits, it logically follows that 

the insurer is also liable for her disability benefits. As 

stated in Rightnour, the Workers' Compensation Court 

concluded: 

[Tlhe claimant has proven to a reasonable 

degree of medical certainty that the 

original compensable injury of January 

19, 1982 and the two subsequent surgeries 

weakened her back, and combined with the 

fall in her home in March, 1984, resulted 

in a third surgery being required. Such 

surgery and other medical bills related 

to that fall are the natural consequence 

of the original injury. 

Rightnour, 732 P.2d at 831. We agree the Workers' 

Compensation Court has not reached an erroneous conclusion. 

Appellant argues that, under the facts as it now knows 

them, i.e., that Rightnour was self-employed when the 1984 

injury occurred, it is not liable for the disability 

benefits. In other words, now that it has conducted proper 

discovery, appellant wants to relitigate or contest the same 

liability issue. However, it is of no benefit to the 

appellant that it failed ta take F.i.qhtnour ' s deposition and 
therefore did not learn that she was self-employed. As 

stated in 46 Am.Jur.2dI Judgments, 5 443: 

Clearly, the enforcement of the rule of 

res judicata may not be avoided by the 

discovery of new evidence bearing on a 

fact or issue involved in the original 

action, as distinguished from a 

subsequent fact or event which creates a 

new legal situation, even though the 

newly discovered evidence might have been 

sufficient to justify a new trial in the 

first case. . . 

Furthermore, 46 Am.Jur.2dI Judgments, 474, reads in 

part: 

[Tlhe operation of a judgment as res 

judicata is not affected by a showing 

that the unsuccessful partv might have 

prevailed if he had been sufficiently 

diligent. Hence, the application of the 

rul-e does not depend upon whether the 

case was as comprehensively or 

pursuasivelv presented at the first trial 

as at the second. In accord with these 

principles, a litigant may not avoid the 

effect of the doctrine, as to an issue 

presented for determination in the prior 

action, by failing to offer proof of it. 

Appellant failed to bring this evidence before the 

court during the initial litigation and is now bound by that 

determination. Also of interest is the appellant's actual or 

constructive knowledge that Rightnour was self-employed. 

Rightnour wrote to the insurer prior to the execution of the 

settlement agreement and informed them she was going to open 

a "Children's Day Care Home" to earn a living. Appellant 

was, or should have been, well aware that Rightnour was 

self-employed and the failure to raise this defense does not 

prevent the appl.ication of res judicata to the initial 

judgment. 
Finally, appellant's suggestion that it is excused from 

adequately developing this defense because the law has 

changed is also unpersuasive. Whatever the appellant's 

interpretation may be of our decision in Guild v. Bigfork 

Convalescent Center (Mont. 1987), 747 P.2d 217, 44 St.Rep. 

2139, its understanding of the law as it stood at the time of 

the initial litigation included the defense of injury during 

other employment. Belton v. Carlson Transport (1983), 202 

Mont. 384, 658 P.2d 405. There is no excuse for failing to 

raise Rightnour's other employment as a defense. 

The judament of the Workers' Compensation Court is 

affirmed. 

We concur: 

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