No. 86-260 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

HAPS WEGlWLLER, 

Claimant and Appel-lant, 

-vsL.E. MYERS COMPANY, Employer, 

and 

NATIONAL UNION FIRE INSURANCE 

COMPANY OF PITTSBURGH, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Keefer, Roybal, Hanson, Stacey & Jarussi; Gene R. 

Jarrussi, Billings, Montana 

For Respondent: 

James G. Edmiston, Billings, Montana 

Submitted on Briefs: Sept. 4, 1986 

Decided: November 13, 1986 

i ; i 1 $' 1986 Filed: 

Clerk 
Mr. 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 in his cause before that court. We affirm the 

order of the lower court. 

Claimant injured his back 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 

total benefit rate, the present value of his future permanent 

total benefits would be $94,883. The Workers' Compensation 

Judge was asked to determine 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 to be 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 award was paid. 

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 his bi-weekly benefit payments. 
Another Workers' Compensation claimant, Richard A. 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. Immediately after -- 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 for permanent 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 

judicata does not apply. 

However, the issue of whether the award should have been 

discounted was not treated by the Workers' Compensation Court 

because it was not raised by claimant. Claimant's case, as 

presented to the lower court, was fully litigated and 

decided. Claimant's stipulation with 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 . . . 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 2 of either of these criteria. 

Affirmed.