No. 8 8 - 3 9 6
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
GLORIA RIGHTNOUR,
Claimant and Respondent,
v.
KARE-MOR, INCORPORATED,
Employer and Appell.ant,
and
INTERMOIJPJTAIN INSURANCE COMPANY,
Defendant and Appellant.
APPEAL FROM: The Workers' Compensation Court of the State of Montana,
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larry W. Jones, Esq.; Garlingt.on, Lohn & Robinson,
Missoula, Montana
For Respondent:
R. Lewis Brown, Jr., Esq., Butte, Montana
David L. Holland, Esq., Butte, Montana
Submitted on Briefs: December 16, 1 9 8 8
Decided: February 9 , 1989
0
' Clerk
r
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This case was originallv before this Court in Rightnour
v. Kare-Mor, Inc. (Mont. 1987), 732 P.2d 839, 44 St.Rep. 141,
where we concluded that claimant Gloria Rightnour was
entitled to medical benefits which were reserved from the
settlement agreement. IJpon Rightnour ' s petition, the
Workers' Compensation Court then reopened the final
settlement and awarded claimant permanent total disability
benefits. This appeal arises from that order and judgment.
We affirm.
The facts of this case are well set forth in Rightnour,
supra, but simply stated, the facts are these: Rightnour
suffered a compensable injury to her lower back while
employed by the defendant employer in January, 1983.
Appellant accepted liability, and after Rightnour reached a
state of maximum healing, a settlement agreement between the
parties was reached. In March, 1984, Rightnour tripped and
fell while caring for children in her home and re-injured
her lower back. New to the facts of this appeal, however, is
the appellant's revelation that Rightnour was self-employed
when the 1984 injury occurred.
Appellant raises two issues for our review:
1. Was the Workers' Compensation Court correct in
concluding that good cause existed to reopen the final
settlement?
2. Was the Workers' Compensation Court correct in
concluding that, based on this Court's prior decision,
Rightnour was entitled to disability benefits?
The parties agree that a final settlement may be
reopened by the Workers' Compensation Court within four years
from the date the settlement was accepted by that court, if
there was either a mutual mistake of a material fact, a
change in disability, or good cause shown. Section
39-71-204, MCA, (1983) provides in part:
(1) Except as provided in
subsection (2), the division shall have
continuing jurisdiction over all its
orders, decisions, and awards and may, at
any time, upon notice, and after
opportunity to be heard is given to the
parties in interest, rescind, alter, or
amend any such order, decision, or award
made by it upon good cause appearing
therefor.
(2) The division or the workers'
compensation judge shall not have power
to rescind, alter, or amend any final
settlement or award of compensation more
than 4 years after the same has been
approved by the division. Rescinding,
alterinq, or amending a final settlement
within the 4-vear period shall be bv
agreement between the claimant and the
insurer. If the claimant and the insurer
cannot agree, the dispute shall be
considered a dispute for which the
workers ' compensation judge has
jurisdiction to make a determination.
Section 39-71-2909, MCA, (1983) provides:
The judge may, upon the petition o f
a claimant or an insurer that the
disability of the claimant has changed,
review, diminish, or increase, in
accordance with the law on benefits as
set forth in chapter 71 of this title,
any benefits previously awarded by the
judge or benefits received by a claimant
through settlement agreements. However,
the judge may not change any final
settlement or award of compensation more
than 4 years after the settlement has
been approved by the division or any
order approving a full and final
compromjs~ settlement o f compensation.
The hearing examiner found Rightnour had presented
sufficient medical evidence that her disability has increased
since the settlement was entered. Dr. Murphy concluded that
Rightnour's impairment rating increased from 20% to 35%;
Rightnour has been restricted to a five to eight pound weight
restriction on repetitious lifting; and a rehabilitation
consultant concluded that Rightnour is no longer able to
engage in any occupation in her normal labor market. We find
sufficient evidence existed to enable the Workers'
Compensation Court to reopen the settlement agreement.
Appellant next contends the Workers' Compensation Judge
erroneously concluded that, because the insurer was liable
for Rightnour's medical benefits, it logically follows that
the insurer is also liable for her disability benefits. As
stated in Rightnour, the Workers' Compensation Court
concluded:
[Tlhe claimant has proven to a reasonable
degree of medical certainty that the
original compensable injury of January
19, 1982 and the two subsequent surgeries
weakened her back, and combined with the
fall in her home in March, 1984, resulted
in a third surgery being required. Such
surgery and other medical bills related
to that fall are the natural consequence
of the original injury.
Rightnour, 732 P.2d at 831. We agree the Workers'
Compensation Court has not reached an erroneous conclusion.
Appellant argues that, under the facts as it now knows
them, i.e., that Rightnour was self-employed when the 1984
injury occurred, it is not liable for the disability
benefits. In other words, now that it has conducted proper
discovery, appellant wants to relitigate or contest the same
liability issue. However, it is of no benefit to the
'
appellant that it failed ta take F.i.qhtnour s deposition and
therefore did not learn that she was self-employed. As
stated in 4 6 Am.Jur.2dI Judgments, 5 443:
Clearly, the enforcement of the rule of
res judicata may not be avoided by the
discovery of new evidence bearing on a
fact or issue involved in the original
action, as distinguished from a
subsequent fact or event which creates a
new legal situation, even though the
newly discovered evidence might have been
sufficient to justify a new trial in the
first case. . .
Furthermore, 4 6 Am.Jur.2dI Judgments, 474, reads in
part:
[Tlhe operation of a judgment as res
judicata is not affected by a showing
that the unsuccessful partv might have
prevailed if he had been sufficiently
diligent. Hence, the application of the
rul-e does not depend upon whether the
case was as comprehensively or
pursuasivelv presented at the first trial
as at the second. In accord with these
principles, a litigant may not avoid the
effect of the doctrine, as to an issue
presented for determination in the prior
action, by failing to offer proof of it.
Appellant failed to bring this evidence before the
court during the initial litigation and is now bound by that
determination. Also of interest is the appellant's actual or
constructive knowledge that Rightnour was self-employed.
Rightnour wrote to the insurer prior to the execution of the
settlement agreement and informed them she was going to open
a "Children's Day Care Home" to earn a living. Appellant
was, or should have been, well aware that Rightnour was
self-employed and the failure to raise this defense does not
prevent the appl.ication of res judicata to the initial
judgment.
Finally, appellant's suggestion that it is excused from
adequately developing this defense because the law has
changed is also unpersuasive. Whatever the appellant's
interpretation may be of our decision in Guild v. Bigfork
Convalescent Center (Mont. 1987), 747 P.2d 217, 44 St.Rep.
2139, its understanding of the law as it stood at the time of
the initial litigation included the defense of injury during
other employment. Belton v. Carlson Transport (1983), 202
Mont. 384, 658 P.2d 405. There is no excuse for failing to
raise Rightnour's other employment as a defense.
The judament of the Workers' Compensation Court is
affirmed.
We concur:
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