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No. 00-654 IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 64N

KESTER C. ROMANS,

Petitioner/Appellant,

v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Respondent/Insurer/Respondent. SUPERVALU, INCORPORATED, Employer.
APPEAL FROM: Workers' Compensation Court, State of Montana The Honorable Michael McCarter, Judge presiding.
COUNSEL OF RECORD: For Appellant: Kester C. Romans (pro se), Livingston, Montana For Respondent: William J. Mattix, Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P., Billings, Montana

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Filed:

__________________________________________ Clerk Justice Jim Regnier delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent but shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court. ¶2 On March 25, 1999, Kester C. Romans petitioned the Montana Workers' Compensation Court to set aside his Compromise and Release Settlement with Liberty Mutual Fire Insurance Company (Liberty Mutual) on the basis of mutual mistake of fact. After a hearing, the Montana Workers' Compensation Court entered its Findings of Fact, Conclusions of Law and Judgment concluding that there was no mutual mistake of fact and no basis to set aside the settlement. Romans filed a motion for a new trial which was denied. Romans appeals. One issue is dispositive: Did the Workers' Compensation Court err in determining that the parties were not laboring under a mutual mistake of fact at the time Romans settled his workers' compensation claim with Liberty Mutual? BACKGROUND ¶3 On October 12, 1993, Kester Romans injured his right foot while employed as a stocker at a grocery store in Livingston, Montana. His employer was insured for workers' compensation purposes by Liberty Mutual. On the day following the injury, Romans was examined by Dr. John G. Peterson, who diagnosed Achilles tendinitis secondary to the injury, wrapped his ankle, and prescribed ice, elevation, and anti-inflammatory medication. He also excused Romans from work the next day. ¶4 Romans proceeded with a protracted course of treatment, the nature and extent of which is not entirely relevant to the issues in this appeal. Of significance, however, was a

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¶13 Liberty Mutual contends the Workers' Compensation Court correctly decided the case in that there was no mutual mistake of fact - both Romans and Liberty Mutual were fully aware of his condition at the time of the settlement. The Workers' Compensation Court concluded that there was no basis for rescinding Romans' 1997 settlement because no credible evidence was presented to support a conclusion that the parties were mutually mistaken about Romans' condition. We agree. ¶14 A contract, such as a full and final settlement, may be rescinded when "the parties share a common misconception about a vital fact upon which they based their bargain." Mitchell v. Boyer (1989), 237 Mont. 434, 437, 774 P.2d 384, 386 (citations omitted). Where findings in medical reports following a settlement are consistent with those prior to the settlement, where the impairment rating is substantially unchanged, and where the claimant is in much the same condition as at the time of settlement, there is no mutual mistake of fact to justify reopening a settlement. Kimes v. Charlie's Family Dining & Donut Shop (1988), 233 Mont. 175, 178-179, 759 P.2d 986, 988. Such is the case at hand. ¶15 The general consensus among the physicians who examined and treated Romans was that any injury that Romans may have sustained to his back during the functional capacity evaluation was nothing more severe than a strain. For example, Dr. Snider indicated that symptoms exhibited by Romans were most likely related to his long term smoking habit, and opined that Romans should receive a permanent physical impairment rating of zero. Dr. Snider and Dr. Vallin examined Romans' MRIs and indicated they were normal. The medical evaluation panel at St. Patrick Hospital also concluded that Romans' impairment rating was zero and that his test results did not indicate any injuries. Romans has not brought forth any persuasive evidence that his true condition was somehow hidden from both him and Liberty Mutual at the time the settlement was reached. Of further significance is Romans' trial testimony that he felt that he was totally disabled before he entered into the settlement. ¶16 Where there is substantial evidence to support the findings of the Workers' Compensation Court, we will not overturn the decision. See Strickland v. State Compensation Mut. Ins. Fund (1995), 273 Mont. 254, 257, 901 P.2d 1391, 1393. In this case, there is substantial evidence supporting the determination of the Workers' Compensation Court that both parties were aware of the nature of Romans' back condition when entering into a settlement agreement. ¶17 Affirmed.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-654%20Opinion.htm (5 of 6)3/27/2007 4:30:14 PMfile:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-654%20Opinion.htm /S/ JIM REGNIER We Concur: /S/ KARLA M. GRAY /S/ TERRY N. TRIEWEILER /S/ JAMES C. NELSON /S/ W. WILLIAM LEAPHART

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