No. 86-260 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

HAPS WEGlWLLER, Claimantand Appel-lant,
-vsL.E. MYERS COMPANY, Employer, and NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Defendant and Respondent.

APPEAL FROM: TheWorkers' CompensationCourt, TheHonorable Timothy Reardon, Judgepresiding.
COUNSEL OF RECORD:
For Appellant: Keefer, Roybal, Hanson, Stacey & Jarussi; GeneR. Jarrussi, Billings, Montana
For Respondent: JamesG. Edmiston, Billings, Montana

Submittedon Briefs: Sept. 4, 1986 Decided: November 13, 1986

i;i1$' 

## 1986 Filed:

ClerkMr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court.
Claimant, Hans Wegmuller, appeals the May 9, 1986, decision of the Workers' Compensation Court holding that the doctrine of res judicata bars claimant from reopening the final judgment inhis cause before that court. We affirm the order of the lower court. Claimant injured hisback while working as a supervisory foreman for the L. E. Myers Co. In claimant's original action seeking Workers' Compensation benefits, the parties had stipulated that given the claimant's age and permanent totalbenefit rate,thepresent value ofhis futurepermanent total benefits would be $94,883. The Workers' Compensation Judgewas asked todetermine two issues: 1) Was the claimant permanently totally disabled or permanently partially disabled? 2. Was the claimant entitled to receive benefits in a lump-sum? After a hearing, the Workers' Compensation Judge found claimant tobe permanently totally disabled and entitled to a lump-sum payment of his benefits. Employer's insurer, National Union Fire Insurance of Pittsburgh, paid claimant his lump-sum award less previous advances. Although no satisfaction of judgment was ever filed by claimant, it is undisputed that the awardwaspaid. Subsequently, Willis v. Long Construction Co. (Mont.1984), 690 P.2d 434, 41 St.Rep. 2050, was issued by this Court, holding that a lump-sum award of Workers' Compensation benefits could not be discounted to present value. Claimant then sought,by petition filed February 28, 1985,to reinstate hisbi-weekly benefitpayments.Another Workers' Compensationclaimant,RichardA. Cole, had filed a similar action prior to Wegmuller's. The Workers' Compensation Judge dismissed Cole's petition in an order grounded on res judicata. We affirmed the lower court's judgment in Cole v. Greyhound Lines, Inc. (Mont. 1986), 716 P.2d 611, 43 St.Rep. 562. Immediatelyafter -- Cole,
was issued, the Workers' Compensation Judge, citing -- Cole, denied Wegmuller's petition also. On appeal, claimant presents this Court with one issue: Did the Workers' Compensation Court err in applying the doctrine of 

### - res judicata and refusing claimant's request for reinstatement of bi-weekly benefits forpermanent total disability? We find no error. Claimant seeks to distinguish Cole. In Cole, the precise issue of whether claimant's benefit should be discounted to present value was raised by the parties. In the instant case, the parties merely stipulated to the value of claimant's lump-sum award, assuming discounting applied. Thus, alleges claimant, the lower court never resolved the issue of whether the payment should be discounted and 

### - res judicatadoesnot apply. However,the issue ofwhether the award should have been discountedwas not treatedby theWorkers' CompensationCourt because it was not raised by claimant. Claimant's case, as presented to the lower court, was fully litigated and decided. Claimant's stipulationwith respect to his lump-sum award became part of the judgment. The judgment was not appealed to this Court. As in Cole, "[tlhe litigation has ended. An award has been paid 

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# . . The parties are entitled to a final judgment." Cole, 716 P.2d at 613, 43 St.Rep. at 564.Finally, According to Wheeler 

### v. Carlson Transport (Mont. 1985), 704 P.2d 49, 42 St.Rep. 1177, a final judgment of the Workers1 Compensation Court can only be reopened upon one of two conditions: 1) the benefits may be changed, reviewed, diminished or increased onlv when "the disability of the claimant has changed." Section 39-71-2909, MCA; and 2) a decision may be vacated and a new trial granted when the applicant1 s rights are materially affected by newly discovered evidence which could not, with reasonable diligence, have been discovered in time for the trial. Section 25-11-102(4),MCA. Cole, 716 P.2d at 613, 43 St.Rep. at 564-565. Claimant has failed to alleae the existence of either of these criteria.

2 Affirmed.