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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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Submitted on Briefs: January 11, 2001 

Decided: April 18, 2001 

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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functional capacities evaluation performed on May 9 and 10, 1994, by physical therapist 

Gary Lusin. Lusin performed a standardized five hour evaluation over a two day period 

and concluded that Romans was capable of returning to work with a light or medium 

physical demand level. Romans claims that Lusin injured his low back during the 

evaluation. 

¶5 On August 1, 1994, Romans underwent an independent medical evaluation by Dr. 

William Shaw. Romans related to the physician that he developed low back pain following 

the functional capacities evaluation. He also indicated that he still suffered pain in his foot. 

Dr. Shaw's examination showed no physical evidence of back trauma or injury, and Dr. 

Shaw referred Romans to a foot specialist, Dr. James Elliot. 

¶6 Romans continued to be treated by a variety of doctors. Liberty Mutual provided 

vocational rehabilitation services, but ultimately Romans was uninterested. In April of 

1996, however, the rehabilitation specialist reported that Romans indicated that he had 

applied for social security benefits and railroad disability benefits, and that he believed 

himself to be unemployable. On June 7, 1996, he was examined by Dr. Thomas Hildner. 

Romans told Dr. Hildner that he injured his back while working for the railroad three 

years prior to the examination. He also told Dr. Hildner that he had been unable to work 

since the railroad injury due to the back pain. Romans was awarded disability benefits 

under the Railroad Retirement Act.

¶7 On January 10, 1997, Romans' attorney wrote a letter to Liberty Mutual stating that 

Romans was experiencing low back pain which he attributed to the functional capacities 

evaluation conducted in May 1994 and requested an evaluation of his back pain by an 

orthopedist. An independent medical evaluation was scheduled with Dr. John Vallin, a 

specialist in physical medicine and rehabilitation. After an examination, Dr. Vallin 

reported that Romans displayed overly exaggerated symptoms and "perceive[d] himself as 

much more disabled than he is in reality." In his report, Dr. Vallin stated that he believed 

that Romans sustained a mild lumbar strain that he recovered from completely in 1994. A 

subsequent MRI of his lumbar spine indicated some manifestations of early degenerative 

disk disease associated with normal aging but no objective findings that explained back 

pain.

¶8 In February 1997 Romans' attorneys terminated their representation of Romans. The 

attorneys noted that, in their opinion, Romans had unreasonable expectations. They 

recommended that Romans seek other counsel. In March 1997, without assistance of 

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counsel, Romans entered into a Compromise and Release Settlement with Liberty Mutual, 

providing for a lump sum payment of $19,381.68. The settlement was approved by order 

of the Montana Department of Labor and Industry on April 8, 1997. Romans testified at 

trial that he thought he was totally disabled prior to entering the settlement. Romans 

subsequently consulted with a number of physicians regarding continued pain in his foot 

and back. 

¶9 On July 13 and 14, 1998, Liberty Mutual arranged for Romans to be evaluated by an 

independent medical panel at St. Patrick Hospital in Missoula, Montana. The panel issued 

a report after the examination, indicating that Romans' overall medical prognosis was 

good and that his impairment rating, performed in accordance with the American Medical 

Association guidelines, was 0%. The examiners also determined that there was no clear 

causal relationship between Romans' current complaints and his reported injury. Tests and 

examinations showed no objective indications of Romans' complaints of lower back pain 

and twitching of the right foot or both feet. Several examiners indicated that they believed 

that Romans might be over-exaggerating his symptoms.

STANDARD OF REVIEW

¶10 We review a judgment of the Workers' Compensation Court to determine if the 

findings of fact are supported by substantial credible evidence and whether its conclusions 

of law are correct. See Matthews v. State Compensation Ins. Fund, 1999 MT 225, ¶ 5, 296 

Mont. 76, ¶ 5, 985 P.2d 741, ¶ 5.

DISCUSSION

¶11 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?

¶12 Romans contends that both he and Liberty Mutual were laboring under a mistake of 

fact when they entered into a settlement agreement. Romans argues that at the time of the 

settlement agreement, the parties to the settlement were unaware of the true nature and 

severity of his back injury allegedly sustained during the 1994 functional capabilities 

evaluation. He urges this Court to reverse the Workers' Compensation Court, set aside the 

settlement, and declare him totally disabled. 

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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.

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/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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