FLANSBURG v PACK RIVER CO IND

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No. 13474 I N THE SUPREME COURT OF THE S T A T E O F MONTANA 1977 JOHN FLANSBURG, C l a i m a n t and A p p e l l a n t , PACK R I V E R COMPANY, E r n p l - o y e r and I N D U S T R I A L INDEMNITY COFIPANY, D e f e n d a n t and R e s p o n d e n t . Appeal from: Workers' C o m p . C o u r t W i l l i a m E. Hunt, Judge p r e s i d i n g . C o u n s e l of R e c o r d : For A p p e l l a n t : H o y t and B o t t o m l y , G r e a t F a l l s , M o n t a n a John C . H o y t a r g u e d and Tommy L e w i s appeared, G r e a t Falls, Montana For R e s p o n d e n t : Wenz and I w e n , G r e a t F a l l s , M o n t a n a Joseph R . M a r r a a r g u e d and C h a r l e s R . Johnson a r g u e d , G r e a t Falls, Montana Marra, Submitted: Decided: Filed: January 2 7 , 1 9 7 7 17 1 m Mr. Justice Frank I. Haswell delivered the Opinion of the Court. Claimant and his employeps Plan I1 insurer agreed to a $9,000 lump sum settlement of a claim under the Workmen's Compensation Act. A dispute subsequently arose whether this settlement was for permanent partial disability benefits or permanent total disability benefits. The Workers' Compensation Court held it was a valid and binding settlement of permanent partial disability benefits from which claimant appeals. The controlling issue is the sufficiency of the evidence to support the finding that the agreement was a valid and binding settlement of permanent partial disability benefits. Claimant John Flansburg sustained an injury arising out of and in the course of his employment with Pack River Company on October 7, 1973. He was paid biweekly benefits from October 8, 1973, to May 19, 1975, at the temporary total disability rate of $110. During this period he was granted two lump sum advances of $800 each representing compensation for 13 plus weeks at the temporary total disability of $60 per week to be credited against the total compensation when finally determined. On March 16, 1975, claimant's treating physician submitted a medical report in which he rated claimant's spine as being 30% impaired. On March 25, 1975, a meeting was held, attended by claimant, his wife, his attorney, and the claims supervisor for Industrial Indemnity Company, the employer's workers compensation insurer. This resulted in an agreement for a $9,000 final com- promise settlement, reservation of medical and hospital benefits under the Workmen's Compensation Act, and a waiver by the insurer of " * * * repayment of any Social Security payments or over- payments claimant may receive in the future." Claimant and the insurer petitioned the Workmen's Compensation D i v i s i o n (WCD) f o r a p p r o v a l o f t h i s s e t t l e m e n t . The WCD approved t h e p e t i t i o n and o r d e r e d t h e c l a i m c l o s e d a s f i n a l l y s e t t l e d , s u b j e c t t o t h e r i g h t o f t h e WCD, f o r good c a u s e , t o r e s c i n d , a l t e r o r amend t h e f i n a l s e t t l e m e n t w i t h i n 4 years. Payment was made by t h e i n s u r e r . T h e r e a f t e r it d e v e l o p e d t h a t t h e f e d e r a l Social Security Administration interceded t o r e d u c e c l a i m a n t ' s s o c i a l s e c u r i t y d i s a b i l i t y b e n e f i t s by a n o f f s e t permitted i n p a r t i a l d i s a b i l i t y cases. C l a i m a n t t h e n p e t i t i o n e d t h e Workers' Compensation C o u r t f o r a h e a r i n g t o d e t e r m i n e t h a t c l a i m a n t was t o t a l l y disabled o r i n t h e a l t e r n a t i v e t o rescind t h e approval of t h e s e t t l e m e n t by t h e WCD. A h e a r i n g was h e l d a t which t h e Workers' Compensation C o u r t d e t e r m i n e d t h a t t h e f u l l and f i n a l s e t t l e m e n t a g r e e m e n t e n t e r e d i n t o between c l a i m a n t and t h e i n s u r e r on March 25, 1 9 7 5 , i n t h e amount o f $9,000, was a v a l i d and b i n d i n g s e t t l e m e n t o f permanent p a r t i a l d i s a b i l i t y b e n e f i t s . C l a i m a n t ' s p e t i t i o n was denied. Our f u n c t i o n on a p p e a l i s t o d e t e r m i n e w h e t h e r t h e r e i s s u b s t a n t i a l e v i d e n c e t o s u p p o r t t h e f i n d i n g o f t h e Workers' Compensation C o u r t . , Kimball v . C o n t i n e n t a l O i l Co., 550 P.2d 912, 3 3 St.Rep. 517. Mont . I n c a s e s of t e s t i m o n i a l c o n f l i c t , a s h e r e , t h e a p p l i c a b l e law h a s been s t a t e d i n t h i s l a n g u a g e i n C a r t w r i g h t v. I n d u s t r i a l A c . B r d . , 1 1 5 Mont. 596, 599, 147 P.2d 909: "Our f u n c t i o n i n t h i s c a s e i s t o d e t e r m i n e w h e t h e r o r not t h e r e i s s u b s t a n t i a l evidence t o support A s can be t h e judgment o f t h e d i s t r i c t c o u r t . i m m e d i a t e l y a s c e r t a i n e d from t h e f o r e g o i n g summary of t h e evidence, t h e r e i s a complete t e s t i m o n i a l c o n f l i c t between t h e p a r t i e s . I n such a s i t u a t i o n , t h e i s s u e becomes o n e o f c r e d i b i l i t y o f t h e w i t n e s s e s which i s and must b e c o n c l u d e d by t h e I n d u s t r i a l A c c i d e n t Board which had t h e o p p o r t u n i t y to observe the witnesses as they testified * * *." Although the evidence is conflicting in some respects, we find substantial evidence to support the finding of the Workers' Compensation Court that the agreement was a full, final, valid, and binding settlement of permanent partial disability benefits under the Workmen's Compensation Act. The supporting evidence consists in part of the following: (1) The testimony of Jerry Friesen; (2) the medical evidence of claimant's treating physician of a 30% impairment of the spine; (3) the absence of any medical evidence of total permanent disability; (4) the correlation of the settlement amount of $9,000 with 150 weeks X claimant's permanent partial compensation rate of $60 per week; (4) the correlation of the 30% disability rating with the 150 week period out of a 500 week maximum; (5) the "compensation advice" form accompanying the settlement draft indicating a weekly compensation rate of $60, claimants rate for permanent partial disability; (6) the absence of any relationship between the $9,000 settlement and the $110 weekly rate to which claimant would be entitled for permanent total disability; and (7) the incredible situation of fully and finally settling a claim for permanent total disability for $9,000 that had a mathematical potential of approximately $125,000 in benefits based on claimant's life expectancy. We note that the order of the WCD provides that the settlement can be reopened at any time within four years for good cause. Section 92-826, R.C.M. 1947. The judge of the Workers' Compensation Court has continuing jurisdiction to change the award at any time within four years if claimant's disability changes. Section 92-848(4), R.C.M. 1947. We have noted the additional and peripheral arguments raised by claimant in this appeal and find that none would affect our decision in this case. The findings of fact and conclusions of law of the Workers1 - 4 - Compensation Court are affirmed in all respects. Justice . , We. conpur : /" c ~ ; L £Justice i L,. Justices V

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