Gamble v. Sears

No. DA 06-0172

IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 131

MARY ANN GAMBLE,

Petitioner and Respondent,

v.

SEARS, the parent SEARS HOLDINGS
CORPORATION, subsidiaries and affiliates
KMART, the parent SEARS HOLDINGS
CORPORATION, subsidiaries and affiliates,

Respondent and Appellant.

APPEAL FROM: Montana Workers’ Compensation Court, WWC No. 2005-1337
Honorable James J. Shea, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Michael P. Heringer, Don M. Hayes, Brown Law Firm, P.C.,
Billings, Montana

For Respondent:

Mark M. Kovacich, Lewis, Slovak & Kovacich, P.C.,
Great Falls, Montana

Submitted on Briefs: October 10, 2006

Decided: June 5, 2007

Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Sears Holdings Corporation appeals from the judgment of the Workers’

Compensation Court rescinding the settlement agreement in Mary Ann Gamble’s injury

claim.

¶2 The Appellant raises the following issues for review:

¶3 (1) Did the court err in rescinding the parties’ settlement agreement?

¶4 (2) Did the court err in concluding that Gamble’s failure to comply with

§ 39-71-1101(2), MCA, did not absolve Sears of liability for the cost of medical

treatment?

¶5 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶6 K-Mart Corporation (“K-Mart”) hired Mary Ann Gamble (“Gamble”) in 1988 to

work at its retail store in Great Falls, Montana. After working in several capacities at the

store during the following years, Gamble was promoted to the position of manager of the

housewares department in 1996. Thereafter, on May 16, 1997, she was injured in an

accident that occurred during the course and scope of her employment.

¶7 As department manager, Gamble was required to lift and move pieces of furniture,

appliances, and other items. Her injury occurred while she was moving a desk, weighing

approximately 150 pounds, which was contained in a box. As she attempted to remove

the box from a shelf, it fell onto the top of her head. She instantly experienced severe

pain in her neck. Her left knee was also injured in this accident, eventually requiring

2
surgery, but only her neck injury is at issue in this appeal. Gamble reported her injuries

to K-Mart’s personnel department and filed an injury claim form that day. 1

¶8 During the period in which K-Mart employed Gamble, it was self-insured for

workers’ compensation purposes. Thus, K-Mart accepted liability for Gamble’s injury

claim and paid benefits accordingly. Sears Holdings Corporation (“Sears”) is the

successor to K-Mart and has assumed liability for K-Mart’s workers’ compensation

claims.

¶9 After the accident, Gamble experienced a number of symptoms including

continuous pain in her neck, particularly at the base of her skull, a limited range of

motion in her neck, severe headaches on a regular basis, as well as numbness and a

burning sensation on the right side of her face. Additionally, the act of leaning forward—

to pick up a piece of merchandise from the floor, for example—caused nausea and

vomiting. The severity of Gamble’s condition caused her to frequently cut short her

work shifts at the store. Ultimately, her symptoms did not subside until September of

2004 after she underwent surgery to fuse a fractured bone in her neck.

¶10 Although Gamble visited a chiropractor shortly after the accident, she did not seek

additional medical treatment for a number of months, as she hoped her neck would heal

on its own. Then, in the fall of 1997, after Gamble missed part of a day of work due to a

particularly severe headache which brought on an extended bout of nausea and vomiting,

her manager expressed concern over her frequent absence from work and directed her to

1
The personnel department lost the original claim form and later directed Gamble to fill out
another one. Consequently, the claim form in the record is dated January 19, 1998.

3
see a physician. Accordingly, in November of 1997, Gamble went to Dr. Jerry Speer, a

board-certified family practitioner in Great Falls. Based on his examination, Dr. Speer

believed Gamble was suffering from “a muscular rotational injury with underlying

osteoarthritic problems.” He prescribed anti-inflammatory medication and referred

Gamble to Dr. Dale Schaefer, a board-certified neurosurgeon.

¶11 After examining Gamble in December of 1997, Dr. Schaefer initially believed that

she was suffering from a soft-tissue injury. Thus, he recommended pain medication and

a course of physical therapy. Gamble completed six weeks of physical therapy and

reported that it did not relieve her symptoms. As an additional diagnostic measure, Dr.

Schaefer then ordered a cervical myelogram and CAT scan. After reviewing the films

from these tests, Dr. Schaefer came to believe that Gamble was suffering from arthritic

degenerative or spondylitic changes in her neck, rather than a soft-tissue injury, and

therefore concluded that he could not offer treatment that would benefit her.

Consequently, he released Gamble from his care, and she continued to see Dr. Speer.

¶12 In March of 1998, Gamble ceased working at K-Mart due to her persisting

symptoms. Then, in September of 1998, she was examined by a panel of doctors at the

request of the firm administering Gamble’s injury claim, Compensation Adjusters, Inc.

In rendering its report, the panel diagnosed Gamble with, among other things,

“multi-level cervical degenerative changes.” While the panel determined that this

condition likely existed before her on-the-job injury, it also determined that “the

occupational injury represents a significant and permanent aggravation” of her

pre-existing degenerative condition. Further, the panel determined that Gamble had

4
reached a maximum medical improvement plateau, but also noted that she could require

further treatment. Finally, the panel assigned her a 5% whole-person impairment rating

and determined that while continued work as the housewares department manager would

be inappropriate, she “may be able to return to a light duty vocational position with

restrictions.”

¶13 In May of 2001, the parties entered into an agreement that settled Gamble’s claims

for disability and rehabilitation benefits under the Workers’ Compensation Act. At that

time, the parties believed that Gamble’s condition had been properly diagnosed and that

she had achieved maximum medical improvement, in accordance with the panel’s

conclusion. However, the settlement agreement expressly reserved further medical

benefits, apparently because the panel had determined that Gamble could require further

treatment. Yet, because Gamble was not diagnosed with a fracture at the time of

settlement, the reservation of medical benefits did not extend to that condition. Shortly

thereafter, the Department of Labor and Industry approved this settlement agreement.

¶14 In the years following the settlement of her claim, Gamble’s symptoms did not

subside. During this time, Dr. Speer periodically prescribed pain medication and muscle

relaxant medication. He also conducted testing which demonstrated that Gamble was not

suffering from rheumatoid arthritis. Gamble treated with Dr. Speer until he ceased his

full-time family practice in 2003. Then, in the summer of 2004, Gamble went to Dr.

James Legan, who ordered new MRI testing. Based on the results, Dr. Legan determined

that she was suffering from a fracture in her odontoid process, which is a part of the

second vertebra of the neck. He then referred Gamble to Dr. Michael Dube, a

5
board-certified orthopedic surgeon. Dr. Dube ordered a CAT scan in August of 2004.

The results of that test clearly showed that Gamble was suffering from an odontoid

fracture that had failed to heal properly. He recommended that Gamble undergo a bone

fusion surgery without delay, and informed her of the serious risks associated with such a

procedure. Gamble agreed to undergo the procedure and Dr. Dube successfully

performed surgery in September of 2004. Consequently, Gamble’s symptoms subsided

dramatically.

¶15 Thereafter, Dr. Dube was presented with the results of an x-ray taken in March of

1998, less than a year after Gamble’s injury occurred. Upon review, he concluded that

Gamble’s odontoid fracture was visible in these x-ray films. Dr. Dube further concluded,

based on the eroded bone margins and callous formation he found at the site of the

fracture, the 1998 x-ray films, and Gamble’s symptoms, that her odontoid fracture was

caused by the 1997 accident at K-Mart.

¶16 In June of 2005, Gamble filed a petition for trial with the Workers’ Compensation

Court (“WCC”). In the petition, Gamble contended that she had not reached maximum

medical improvement when the settlement agreement was executed, contrary to the

parties’ belief, because her odontoid was fractured at that time. Thus, Gamble contended,

both parties’ consent to the settlement agreement was based on a mutual mistake

regarding the nature of her physical condition. Additionally, Gamble asserted that Sears

had acted unreasonably in refusing to recognize the mutual mistake and provide coverage

for the medical expenses she incurred as a result of the fracture. Upon these contentions,

6
Gamble requested that the WCC rescind the settlement agreement and award attorney

fees and a penalty against Sears for its unreasonable conduct. 2

¶17 In response, Sears argued that no mutual mistake of fact had occurred and that the

settlement agreement should not be rescinded. Sears also argued that it was not liable for

the cost of any treatment rendered by Dr. Legan or Dr. Dube, regardless of whether

Gamble’s odontoid fracture was caused by the 1997 accident, because she had failed to

obtain authorization to treat with either of these doctors.

¶18 The WCC held a trial in January of 2006. In rendering its judgment shortly after

trial, the court found that Gamble’s odontoid fracture was caused by the 1997 accident at

K-Mart and that it was present when the parties entered into their settlement agreement in

2001. Thus, because Sears and Gamble believed that she had been properly diagnosed

and had reached maximum medical improvement at the time of settlement, the WCC

found that the parties were mistaken regarding a fact that was material to the agreement.

Accordingly, the WCC rescinded the settlement agreement, thereby reopening Gamble’s

claim. Further, the WCC rejected Sears’ argument that Gamble’s failure to request

authorization to change treating physicians absolved Sears of liability for the cost of

treatment rendered by Dr. Legan and Dr. Dube. In doing so, the court observed that no

one knew Gamble’s odontoid fracture was related to the 1997 accident until after Dr.

Dube performed the bone fusion surgery. Finally, the court denied Gamble’s request for

2
Sections 39-71-611 and 39-71-2907, MCA, respectively provide for an award of attorney fees
and the assessment of a penalty against an insurer that unreasonably denies liability or delays or
refuses to make payments.

7
an award of attorney fees and a penalty, finding that Sears had not acted unreasonably in

opposing her effort to reopen the claim.

¶19 Sears now appeals from the judgment.

STANDARD OF REVIEW

¶20 We conduct de novo review of the WCC’s conclusions of law in order to

determine whether they are correct. Flynn v. Uninsured Employers’ Fund, 2005 MT

269, ¶ 11, 329 Mont. 122, ¶ 11, 122 P.3d 1216, ¶ 11. As for the WCC’s findings of fact,

however, our review is both deferential and limited in scope. We simply review the

WCC’s factual findings to determine whether they are supported by substantial credible

evidence. In re Abfalder, 2003 MT 180, ¶ 10, 316 Mont. 415, ¶ 10, 75 P.3d 1246, ¶ 10.

We have stated that substantial credible evidence is that which a reasonable mind could

accept as adequate to support a conclusion. Simms v. State Compensation Ins. Fund,

2005 MT 175, ¶ 11, 327 Mont. 511, ¶ 11, 116 P.3d 773, ¶ 11. Indicating the high level of

deference this Court accords to the WCC’s factual findings, we have stated that evidence

will be considered substantial even if it is contradicted by other evidence, even if it is

somewhat less than a preponderance, and even if it is inherently weak. EBI/Orion Group

v. State Compensation Mut. Ins. Fund, 249 Mont. 449, 453, 816 P.2d 1070, 1073 (1991);

Simms, ¶ 11; Wolfe v. Webb, 251 Mont. 217, 230, 824 P.2d 240, 248 (1992). However, it

must be more than a mere “scintilla” of evidence and it must rise above the level of

“trifling or frivolous.” Simms, ¶ 11; EBI/Orion Group, 249 Mont. at 453, 816 P.2d at

1073. As for the scope of our review, we do not resolve conflicts in the evidence, and we

do not consider whether evidence supports findings that are different than those made by

8
the WCC; rather, we confine our review to determining whether substantial credible

evidence supports the findings actually made by the WCC. Kloepfer v. Lumbermen’s

Mutual Casualty Co., 276 Mont. 495, 498-99, 916 P.2d 1310, 1312 (1996); Montana

State Fund v. Murray, 2005 MT 97, ¶ 19, 326 Mont. 516, ¶ 19, 111 P.3d 210, ¶ 19; In re

Abfalder, ¶ 10.

¶21 The “substantial credible evidence” standard of review is further defined by rules

regarding our consideration of witness testimony. As for witnesses who testify in person

at trial, we defer to the WCC’s findings concerning credibility and the weight to be

accorded to this testimony. Kuntz v. Nationwide Mutual Fire Ins. Co., 1998 MT 5, ¶ 35,

287 Mont. 142, ¶ 35, 952 P.2d 422, ¶ 35; Wilson v. Liberty Mutual Fire Ins., 273 Mont.

313, 319, 903 P.2d 785, 788 (1995). It is the WCC’s job to resolve any inconsistencies in

a witness’s testimony. Walls v. Travelers Indemnity Co., 281 Mont. 106, 111, 931 P.2d

712, 716 (1997). Ultimately, because an assessment of testimony is best made upon

observation of the witness’s demeanor and consideration of other intangibles that are only

evident during live testimony, we will not substitute our judgment for the WCC’s

judgment regarding credibility and the weight accorded to live testimony. Wilson, 273

Mont. at 319, 903 P.2d at 788.

¶22 Conversely, we are in as good a position as the WCC to assess testimony

presented at trial by way of deposition. McIntyre v. Glen Lake Irrigation District, 249

Mont. 63, 67, 813 P.2d 451, 454 (1991); White v. Ford, Bacon & Davis Texas, Inc., 256

Mont. 9, 13, 843 P.2d 787, 789 (1992). Therefore, we conduct de novo review of

deposition testimony. White, 256 Mont. at 13, 843 P.2d at 789. However, this

9
independent review of deposition testimony is only one component of our task on appeal.

We must then consider the deposition testimony in the context of the other relevant

evidence in order to properly assess the factual findings at issue. McIntyre, 249 Mont. at

67-68, 813 P.2d at 454; White, 256 Mont. at 13, 843 P.2d at 789. As we have stated,

even where we conduct de novo review of deposition testimony, we are ultimately

restricted to determining whether substantial credible evidence supports the WCC’s

findings. Weber v. Public Employees’ Retirement Board, 270 Mont. 239, 245, 890 P.2d

1296, 1299 (1995).

DISCUSSION

¶23 (1) Did the court err in rescinding the parties’ settlement agreement?

¶24 A settlement agreement is a contract; therefore, we apply contract law to

determine whether the agreement is valid and enforceable. Wolfe, 251 Mont. at 223, 824

P.2d at 244.

¶25 The parties must give their consent to enter into a contract. Wolfe, 251 Mont. at

227, 824 P.2d at 246 (citing § 28-2-102(2), MCA). The requisite consent must be given

freely, and consent cannot be given freely when it is based on a mistake. Wolfe, 251

Mont. at 227, 824 P.2d at 246 (citing § 28-2-301(1) and § 28-2-401(1)(e), MCA). Either

a mistake of fact or a mistake of law will preclude freely given consent.3 Wolfe, 251

Mont. at 224, 824 P.2d at 244 (citing § 28-2-408, MCA). A mistake of fact, which

3
We have addressed both scenarios in cases appealed from the WCC. See, e.g., Kienas v.
Peterson, 191 Mont. 325, 330, 624 P.2d 1, 3 (1980) (addressing the parties’ mutual mistake
regarding facts relevant to the claimant’s physical condition) and Brown v. Richard A. Murphy,
Inc., 261 Mont. 275, 282, 862 P.2d 406, 410 (1993) (addressing a mutual mistake regarding the
law of subrogation rights).

10
Gamble alleges in this case, is defined as “a mistake not caused by the neglect of a legal

duty on the part of the person making the mistake,” and consisting of “an unconscious

ignorance or forgetfulness of a fact, past or present, material to the contract” or a belief in

“the present existence of a thing material to the contract which does not exist” or a belief

in “the past existence of such a thing which has not existed.” Wolfe, 251 Mont. at 224,

824 P.2d at 244 (citing § 28-2-409, MCA).

¶26 Pursuant to these rules, it is well established that a settlement agreement must be

rescinded if, when the parties entered into it, they were mutually mistaken regarding a

fact that was material to the agreement.4 Kienas v. Peterson, 191 Mont. 325, 328-30, 624

P.2d 1, 2-3 (1980); Weldele v. Medley Development, 227 Mont. 257, 260, 738 P.2d 1281,

1283 (1987); Kimes v. Charlie’s Family Dining, 233 Mont. 175, 177, 759 P.2d 986, 988

(1988); Wolfe, 251 Mont. at 223-28, 824 P.2d at 244-46; South v. Transportation Ins.

Co., 275 Mont. 397, 401, 913 P.2d 233, 235 (1996).

4
We recognize that it is not strictly accurate to say that the agreement must be “rescinded”
based on a mutual mistake of material fact, because such a mistake technically precludes the
formation of a contract, Weldele, 227 Mont. at 260, 738 P.2d at 1283, and rescission cannot
technically occur unless a contract has first been formed, see Black’s Law Dictionary 1332
(Bryan A. Garner ed., 8th ed., West 2004) (citations omitted). Nonetheless, our cases have often
used the term “rescind” to describe the appropriate remedy where a mutual mistake occurs. See,
e.g., South, 275 Mont. at 401, 913 P.2d at 235; Brown, 261 Mont. at 282, 862 P.2d at 411;
Whitcher v. Winter Hardware Co., 236 Mont. 289, 292, 769 P.2d 1215, 1216 (1989). This
technical inconsistency is similar to that which is present in the commonly used expression “void
contract.” The so-called “void contract” is actually a contradiction in terms because a “contract”
is defined in terms applicable only to a valid agreement; however, the phrase “void contract” is
convenient and therefore used universally. Black’s Law Dictionary at 350 (citations omitted).
Similarly, in our workers’ compensation cases, we continue to use the term “rescind” as a
convenient means of characterizing the remedy that must follow where the parties’ consent to an
agreement was based on a mutual mistake of material fact.

11
¶27 A “material” fact is “a vital fact upon which [the parties] based their bargain.”

South, 275 Mont. at 401, 913 P.2d at 235 (internal quotation marks omitted). Thus, we

have stated that a mutual mistake regarding a material fact is a mistake that is “so

substantial and fundamental as to defeat the object of the parties in making the contract.”

South, 275 Mont. at 401, 913 P.2d at 235 (internal quotation marks omitted). Finally, we

have determined in several cases that the nature and extent of a claimant’s physical

condition is a fact that is material to an agreement settling an injury claim. 5 Kienas, 191

Mont. at 330, 624 P.2d at 3; Weldele, 227 Mont. at 261, 738 P.2d at 1283; Kimes, 233

Mont. at 178, 759 P.2d at 988; Wolfe, 251 Mont. at 231, 824 P.2d at 248.

¶28 Here, Gamble had not been diagnosed with an odontoid fracture when she entered

into the settlement agreement with K-Mart. It is undisputed that if Gamble’s fracture

existed at that time, the parties were mutually mistaken as to a material fact—i.e., the

nature of her physical condition—and the agreement must therefore be rescinded. 6 Thus,

in order to resolve the first issue raised in this appeal, we need only determine whether

5
In addressing the contract law principles relevant to this case, Sears cites our unpublished
decision in Romans v. Liberty Mutual Fire Ins. Co., 2001 MT 64N, despite the fact that we
expressly designated it as a noncite opinion and stated in the very first paragraph of the decision
that it “shall not be cited as precedent.” Thus, we admonish Sears for disregarding our express
instruction regarding the Romans decision.
6
Although Sears does not dispute this application of the law, it nonetheless directs our attention
to a portion of the settlement agreement which provides that Gamble’s claim cannot be reopened
even if the parties are mistaken as to the nature or extent of her physical condition. That
provision states in part: “both the Insurer and Claimant agree to assume the risk that the
condition of the Claimant, as indicated by reasonable investigation to date, may be other than it
appears.” However, this provision is of no consequence. In Wolfe, this Court held that such a
provision is not enforceable because it directly conflicts with Montana law regarding the
formation of a contract—i.e., freely given consent is a prerequisite, and consent cannot be freely
given when it is based on a mistake. Wolfe, 251 Mont. at 227-28, 824 P.2d at 246. In other
words, parties may not agree to enter into a legally invalid contract.

12
substantial credible evidence supports the WCC’s finding that Gamble’s odontoid

fracture was caused by the 1997 accident at K-Mart and was present when the parties

entered into their settlement agreement.

¶29 Before assessing the relevant evidence, however, we address three preliminary

issues related to the standard of review. First, Sears challenges the credibility of

Gamble’s testimony regarding the mechanism of her injury and the onset of certain

symptoms. Particularly, Sears argues that Gamble’s testimony that the desk “fell” on her

is inconsistent with her prior statements describing the incident as a “lifting” accident.

Sears also argues that Gamble was inconsistent in her testimony regarding the burning

sensation and numbness she experienced in her face. At trial, Gamble testified that she

had continually experienced these symptoms since the accident, but also stated that she

could not remember exactly when the symptoms began. Additionally, Sears emphasizes

that Gamble did not report these particular symptoms to Dr. Schaefer even though the

symptoms had allegedly been present since the accident.

¶30 The applicable standard of review in this case does not allow us to render our own

judgment regarding the alleged inconsistencies that Sears identifies. As noted above, it is

the WCC’s job to resolve any inconsistencies in a witness’s testimony, and this Court

defers to the WCC’s findings regarding the credibility of testimony rendered in person at

trial. Walls, 281 Mont. at 111, 931 P.2d at 716; Kuntz, ¶ 35; Wilson, 273 Mont. at 319,

903 P.2d at 788. We have consistently adhered to this rule because an assessment of

testimony is best made upon observation of the witness’s demeanor and consideration of

other intangibles that are only evident during live testimony. See Wilson, 273 Mont. at

13
319, 903 P.2d at 788. Here, because Gamble testified in person at trial, the WCC was

able to observe her demeanor, consider any inconsistencies in her testimony, and

ultimately judge her credibility based on these considerations and in light of the other

evidence presented. The WCC did so and, as expressly stated in the written judgment,

found that Gamble’s testimony was credible. 7 Therefore, we consider Gamble’s trial

testimony to be credible. Further, we note that Gamble’s husband testified in person at

trial. He provided testimony that was consistent with Gamble’s, and the WCC expressly

found his testimony to be credible as well.

¶31 Second, Sears argues that substantial credible evidence supports a finding that

Gamble’s odontoid fracture was caused by a “natural progression of [her] underlying

degenerative disk disease” rather than the 1997 accident. In supporting this argument,

Sears presents a lengthy and detailed description of Gamble’s medical history, which it

characterizes as “overwhelming” evidence, and points to medical testimony which

conflicts with the evidence that the WCC relied on in reaching its findings. In addition,

Sears relentlessly emphasizes the fact that none of the doctors who examined her prior to

settlement ever diagnosed an odontoid fracture. Of course, it goes without saying that

Gamble was not diagnosed as having an odontoid fracture prior to settlement; if she had

been, there would be no basis for this litigation. More importantly, however, our

standard of review renders these arguments irrelevant.

7
We note that even if some portion of a witness’s testimony is shown to be false or unreliable,
the WCC is not required to discount the entirety of that witness’s testimony. Walls, 281 Mont. at
111, 931 P.2d at 716.

14
¶32 It is the WCC’s job to make factual findings, while our limited appellate role is to

merely review those findings. Kloepfer, 276 Mont. at 498-99, 916 P.2d at 1312. In

conducting our review, we do not resolve evidentiary conflicts or consider whether

evidence supports factual findings that the WCC did not make; rather, our inquiry is

restricted to determining whether substantial credible evidence supports the findings

actually made by the WCC. Murray, ¶ 19; In re Abfalder, ¶ 10; Kloepfer, 276 Mont. at

498-99, 916 P.2d at 1312. To that end, we simply review the evidence that the WCC

relied on in making its findings, rather than conducting a far-reaching and comprehensive

evidentiary analysis, as advocated by Sears, which would render our role no different

than that of the WCC. Although we do conduct de novo review of testimony presented

by way of deposition, that independent review function is only one element of our task on

appeal, and it remains subordinate to the ultimate determination of whether substantial

credible evidence supports the findings actually made by the WCC. McIntyre, 249 Mont.

at 67-68, 813 P.2d at 454; White, 256 Mont. at 13, 843 P.2d at 789; Weber, 270 Mont. at

245, 890 P.2d at 1299. Therefore, we will not consider the merits of Sears’ argument.

¶33 Third, Sears argues that we should make our own finding, entirely independent of

the WCC’s finding, as to whether Gamble’s odontoid fracture existed at the time of

settlement. In support of this argument, Sears argues that Gamble’s physical condition at

the time of settlement is simply a “medical question” which we can resolve de novo

because all the medical testimony in this case was received in the form of transcribed

depositions—evidence that we can review just as well as the WCC.

15
¶34 We have stated that “our review of medical evidence presented through

depositions must be considered in the context of the other evidence presented at trial

which was relevant to the medical issue.” Wilson, 273 Mont. at 317, 903 P.2d at 787.

Here, in addition to the medical testimony presented through depositions, Gamble’s

testimony given in person at trial was relevant to the issue of her physical condition at the

time of settlement. Indeed, as explained below, her testimony was integral to the WCC’s

factual findings. Thus, because Gamble rendered pertinent testimony at trial regarding

her physical condition, and because we do not conduct de novo review of testimony

presented in person at trial, Kuntz, ¶ 35, we cannot make an independent factual finding

as to whether Gamble’s odontoid fracture existed at the time of settlement. Rather, we

simply review the WCC’s finding on this issue to determine whether it is supported by

substantial credible evidence. In re Abfalder, ¶ 10.

¶35 We now turn to the evidence that the WCC relied on in making the critical finding

of fact in this case—i.e., the finding that Gamble’s odontoid fracture resulted from the

1997 accident at K-Mart and was present when the parties entered into their settlement

agreement.

¶36 Dr. Dube testified that the 2004 CAT scan reveals Gamble was suffering from an

“old fracture” which he characterized as a “nonunion” fracture because it had failed to

heal properly. In support of this conclusion, Dr. Dube explained that the human body

naturally produces new bone matter in attempting to heal a fracture. He further stated

that the 2004 CAT scan results show evidence of “old attempts at healing where the bone

margins were very eroded,” as well as “callous formation” at the site of the fracture. This

16
analysis was confirmed by a set of x-ray films taken in March of 1998, less than one year

after Gamble’s injury occurred. Upon reviewing these films, Dr. Dube testified that they

show a lucency in Gamble’s odontoid which demonstrates the presence of a fracture in

the same location as shown in the 2004 CAT scan.

¶37 While defense counsel emphasized that the 1998 x-ray films were not interpreted

as showing an odontoid fracture at the time they were taken, Dr. Dube testified that such

fractures often go undetected in the reasonable interpretation of radiology studies. While

defense counsel also emphasized that a 1998 CAT scan of Gamble’s neck was not

interpreted at that time as showing an odontoid fracture, Dr. Dube testified that the CAT

scan technology of 1998 was substantially inferior to present-day technology, and it did

not allow for easy detection of an odontoid fracture. Further, while defense counsel

deemed it significant that Gamble continued to work for some time after her 1997

accident, Dr. Dube testified that a fractured odontoid often does not prevent a person

from engaging in normal activity for some time.

¶38 Dr. Dube also testified that odontoid fractures do not occur in the absence of

trauma, and that the kind of trauma Gamble experienced in her 1997 accident at K-Mart

is consistent with her fracture. Further, Dr. Dube testified that the symptoms Gamble

experienced after her accident, particularly the pain at the base of her skull, are consistent

with the presence of an odontoid fracture. Ultimately, Dr. Dube opined that Gamble’s

odontoid fracture was caused by her accident at K-Mart in 1997.

¶39 The testimony of Dr. George Ro, a board-certified radiologist, was consistent with

that of Dr. Dube. Dr. Ro reviewed the 2004 CAT scan results and testified that they

17
show a “chronic” (i.e., aged or long term) fracture that had occurred “in the past

remotely.” Additionally, he reviewed the 1998 x-ray films and testified that they show a

nonunion fracture as demonstrated by a lucency in Gamble’s odontoid. Further, Dr. Ro

testified that the lucency present in the 1998 x-ray films was consistent with the fracture

that was evident in the 2004 CAT scan results. Finally, Dr. Ro testified that fractures

may be overlooked in the reasonable interpretation of imaging studies.

¶40 Sears claims that the testimony of Dr. Dube and Dr. Ro is not credible and argues

that we should therefore reverse the WCC because it “relied exclusively upon the

deposition testimony of Drs. Ro and Dube” in rendering its findings. First, we note that

the WCC did not rely exclusively on the testimony of these two doctors. In fact, the

court also relied extensively on Gamble’s testimony. Specifically, the WCC relied on

Gamble’s description of how the accident occurred, which was evidence of substantial

trauma consistent with an odontoid fracture. The court also relied on Gamble’s

description of the symptoms she experienced after the accident—symptoms that are

consistent with an odontoid fracture. Further, the court relied on Gamble’s testimony that

she had been tested for rheumatoid arthritis and the test showed that she does not have

that condition. The actual test results were not available in this litigation. Thus, the

court’s reliance on Gamble’s testimony was significant because the absence of

rheumatoid arthritis ruled out the possibility, advocated by Sears, that her odontoid

fracture was caused by that disease after the parties entered into their settlement

agreement. Finally, the WCC relied on Gamble’s testimony that she had not experienced

any trauma to her neck since the accident, such as falling or being struck in the head,

18
which ruled out the possibility that a traumatic force could have caused her odontoid

fracture after the settlement.

¶41 Sears argues that the testimony of Dr. Dube and Dr. Ro should be disregarded

because it is based in part on the 1998 x-ray films which are inferior to MRI and CAT

scan studies of Gamble’s neck which were completed prior to settlement and were not

interpreted by other physicians as showing an odontoid fracture. However, except for the

1998 x-ray films, the results of all pre-2004 radiographic studies of Gamble’s neck were

destroyed before this litigation ensued, for reasons not made clear in the record, and were

therefore not available for review. Thus, we cannot fault Dr. Dube and Dr. Ro for relying

in part on the 1998 x-ray films, despite the fact that these films are inferior to the MRI

and CAT scan studies.

¶42 Sears also argues that Dr. Dube’s testimony should be disregarded because it is

based in part on Gamble’s testimony which Sears claims is not credible. We reject this

argument because, as noted above, the WCC expressly found Gamble’s testimony to be

credible and we must defer to the court’s judgment in that regard.

¶43 As noted above, while our overall review of the WCC’s factual findings is

deferential and limited in scope, we conduct de novo review of deposition testimony

because we are in as good a position as the WCC to evaluate such evidence. White, 256

Mont. at 13, 843 P.2d at 789. Here, Dr. Dube’s testimony and Dr. Ro’s testimony were

received at trial in the form of transcribed depositions. Their testimony regarding

Gamble’s condition prior to settlement, and particularly their assessment of the 1998

x-ray films, conflicted with medical testimony offered by Sears. However, the WCC

19
found the testimony of Dr. Dube and Dr. Ro to be credible and therefore accorded it

substantial weight. Having conducted de novo review of these two depositions, and

having paid particular attention to defense counsel’s extensive questioning of these

physicians, we agree with the WCC’s assessment.

¶44 Viewed in light of our highly deferential standard of review, the evidence relied on

by the WCC is clearly sufficient to support the critical finding of fact in this case. The

evidence establishes that Gamble’s injury was consistent with her on-the-job accident,

and that her symptoms were in turn consistent with the injury. Additionally, the evidence

provides a basis for ruling out other potential causes of injury, which we have previously

indicated is an important factor in determining whether the evidence is sufficient to

support a WCC decision to rescind a settlement agreement for a mutual mistake of

material fact. Wolfe, 251 Mont. at 231, 824 P.2d at 248 (where the WCC rescinded the

settlement agreement based on the claimant’s shoulder injury that was not diagnosed at

the time of settlement, we identified claimant’s testimony that he had sustained no trauma

to his shoulder after the industrial accident as an important element of the evidence

deemed sufficient to support the WCC’s decision). Further, the evidence provides an

explanation as to why Gamble’s injury was not diagnosed until 2004, which we have

indicated is another important factor. Weldele, 227 Mont. at 261, 738 P.2d at 1283

(where the WCC rescinded a settlement agreement because the claimant’s thoracic outlet

syndrome was undiagnosed at the time of settlement, our decision to affirm the WCC was

based in part on medical testimony that this condition is difficult to diagnose).

20
¶45 The evidence relied on by the WCC certainly rises above the level of “trifling or

frivolous,” it constitutes far more than a mere “scintilla” of evidence, and we conclude

that a reasonable mind could accept it as adequate to support the finding that Gamble’s

odontoid was fractured in the 1997 accident at K-Mart. See Simms, ¶ 11; EBI/Orion

Group, 249 Mont. at 453, 816 P.2d at 1073. It is irrelevant that contradictory evidence

presented by Sears may adequately support a different finding—it is not our role to

resolve conflicts in the evidence or to determine whether the evidence would support

findings contrary to those made by the WCC. Murray, ¶ 19; Kloepfer, 276 Mont. at

498-99, 916 P.2d at 1312. Thus, we hold that substantial credible evidence supports the

WCC’s finding that Gamble’s odontoid fracture was caused by the 1997 accident at

K-Mart and was present when the parties entered into their settlement agreement.

¶46 Because Sears does not dispute the WCC’s application of the law, the remainder

of our analysis is straightforward. It is undisputed that the parties mutually believed

Gamble had reached maximum medical improvement at the time of settlement, and that

this belief was “a vital fact upon which they based their bargain.” South, 275 Mont. at

401, 913 P.2d at 235 (internal quotation marks omitted). It is also undisputed that if

Gamble’s odontoid fracture existed at the time of settlement, she had not reached

maximum medical improvement, and the parties’ mistaken belief regarding her physical

condition was “so substantial and fundamental as to defeat the object of the parties in

making the contract.” South, 275 Mont. at 401, 913 P.2d at 235 (internal quotation marks

omitted). Consequently, it is undisputed that if Gamble’s odontoid fracture existed at the

21
time of settlement, the parties were mutually mistaken regarding a material fact, and the

settlement agreement must therefore be rescinded.

¶47 Accordingly, because we have affirmed the WCC’s finding that Gamble’s

odontoid fracture existed when the parties reached their settlement, we hold that the

WCC did not err in rescinding the settlement agreement.

¶48 (2) Did the court err in concluding that Gamble’s failure to comply with
§ 39-71-1101(2), MCA, did not absolve Sears of liability for the cost of
medical treatment?

¶49 Section 39-71-1101(1), MCA, provides that a worker may choose his or her initial

treating physician. Section 39-71-1101(2), MCA, provides:

Authorization by the insurer is required to change treating physicians. If
authorization is not granted, the insurer shall direct the worker to a
managed care organization, if any, or to a medical service provider who
qualifies as a treating physician, who shall then serve as the worker’s
treating physician.

Here, Gamble initially chose Dr. Speer as her treating physician. While he referred

Gamble to Dr. Schaefer for treatment of her neck at one point, Dr. Speer remained

Gamble’s treating physician even after the parties entered into their settlement agreement

which expressly reserved medical benefits. However, Dr. Speer ceased his medical

practice in 2003. Gamble then went to Dr. Legan who conducted an examination and,

based upon his findings, referred her to Dr. Dube who subsequently performed the bone

fusion surgery.

¶50 Sears attempts to avoid liability for the extant costs of treating Gamble’s odontoid

fracture even if that injury is properly found to have been caused by her accident at

K-Mart. Specifically, Sears argues that it was automatically absolved of all liability for

22
the cost of treatment rendered by Dr. Legan and Dr. Dube because Gamble obtained this

treatment without first securing Sears’ authorization to change treating physicians,

thereby failing to comply with § 39-71-1101(2), MCA. In its judgment, the WCC ruled

that Sears was not absolved of liability based on Gamble’s failure to comply with the

authorization rule of § 39-71-1101(2), MCA. This ruling is a conclusion of law which

we review de novo. Flynn, ¶ 11.

¶51 While § 39-71-1101(2), MCA, states that “[a]uthorization by the insurer is

required to change treating physicians,” it does not contain a penalty provision, nor does

Sears point to any statutorily established penalty that would be applicable where a

claimant fails to comply with this statute. Further, § 39-71-1101(2), MCA, was enacted

in 1993 and we have not had occasion to interpret it. However, we did interpret the

authorization rule now set forth in this statute when it was previously contained in

Montana’s administrative rules. Sears relies on two such cases.

¶52 First, Sears relies on Garland v. Anaconda Co., 177 Mont. 240, 581 P.2d 431

(1978). The claimant in that case, Douglas Garland, suffered a back injury in the course

and scope of his employment, and it rendered him unable to continue working for a

period of time. Garland, 177 Mont. at 241, 581 P.2d at 431-32. In the subsequent

weeks, Garland was treated several times by a chiropractor who eventually determined,

seventeen days after his injury occurred, that Garland could return to work at that time.

Garland, 177 Mont. at 241, 581 P.2d at 432. Shortly after the chiropractor made this

determination, Garland went to an orthopedist who provided treatment and advised him

not to return to work for several more weeks. Garland, 177 Mont. at 242, 581 P.2d at

23
432. At that time, § 24-3.18 (22)-S18080 of the Montana Administrative Code required,

as is required presently by § 39-71-1101(2), MCA, that a claimant must obtain

authorization to choose a new treating physician over the one initially selected. Garland,

177 Mont. at 242-43, 581 P.2d at 432.

¶53 Garland’s employer paid benefits for the seventeen-day period between his injury

and the date on which the chiropractor determined that Garland could return to work.

Garland, 177 Mont. at 241-42, 581 P.2d at 432. However, because Garland had not

obtained authorization to treat with the orthopedist, his employer refused to pay benefits

for the subsequent time period in which the orthopedist had advised Garland not to work.

Garland, 177 Mont. at 242, 581 P.2d at 432. Consequently, Garland filed a petition in

the WCC to obtain benefits. Garland, 177 Mont. at 242, 581 P.2d at 432. The WCC

ruled that the employer had properly denied benefits based simply on Garland’s failure to

comply with the administrative rule requiring authorization to treat with the second

doctor. Garland, 177 Mont. at 244, 581 P.2d at 433. On appeal, we recognized that a

failure to comply with the authorization rule could result in a loss of coverage for

treatment rendered by the unauthorized doctor, but we nonetheless held that the WCC

had erred. Garland, 177 Mont. at 244, 581 P.2d at 433. Specifically, we held that the

WCC should have considered the medical reports and diagnosis rendered by the second

doctor rather than simply treating Garland’s failure to comply with the authorization rule

as a categorical bar to coverage. Garland, 177 Mont. at 244, 581 P.2d at 433.

Accordingly, we vacated the WCC’s judgment and remanded for consideration of the

orthopedist’s findings. Garland, 177 Mont. at 244, 581 P.2d at 433.

24
¶54 Second, Sears relies on Carroll v. Wells Fargo Armored Service Corp., 240 Mont.

151, 783 P.2d 387 (1989). The claimant in that case, Laine Carroll, suffered a back

injury in the course and scope of his employment, for which the insurer accepted liability.

Carroll, 240 Mont. at 153, 783 P.2d at 389. After treating for more than a year with the

physician he had initially chosen, Carroll requested the insurer’s authorization to go to

another doctor; however, the insurer specifically refused to grant the authorization.

Carroll, 240 Mont. at 156, 783 P.2d at 390; Appellant’s Brief at 19-20. Nonetheless,

Carroll went to the very doctor which the insurer had refused to authorize. Carroll, 240

Mont. at 156, 783 P.2d at 390; Appellant’s Brief at 19-20. The insurer refused to pay the

costs of treatment rendered by the second doctor because it had denied Carroll the

authorization to change treating physicians, and because Carroll’s initial treating

physician had not referred him to this second doctor. Carroll, 240 Mont. at 156, 783

P.2d at 390. The WCC concluded that the insurer was not liable for the costs of

treatment rendered by the second doctor based on Carroll’s violation of the authorization

rule. Carroll, 240 Mont. at 156, 783 P.2d at 390; Appellant’s Brief at 19. In affirming,

this Court cited Garland which, as noted above, recognized that a failure to obtain

authorization to change treating physicians could in some cases result in a loss of

coverage for treatment rendered by the unauthorized doctor. Carroll, 240 Mont. at 156,

783 P.2d at 390.

¶55 Here, in seeking to avoid liability for the cost of treatment provided by Dr. Legan

and Dr. Dube, Sears argues that Garland and Carroll establish an unqualified rule that a

claimant’s failure to obtain authorization to change treating physicians absolves the

25
insurer of all liability for the cost of treatment rendered by the unauthorized physician.

However, Garland rejects the categorical imposition of such a severe penalty for failure

to comply with the authorization rule. Indeed, we concluded that the WCC erred in

Garland by treating a violation of the authorization rule as an absolute bar to coverage

for treatment rendered by an unauthorized physician. Garland, 177 Mont. at 244, 581

P.2d at 433.

¶56 This Court also refused to treat a violation of the authorization rule as a categorical

bar to coverage in Hutchison v. General Host Corp., 178 Mont. 81, 582 P.2d 1203

(1978). The injured worker in that case, Betty Hutchison, received treatment from a

number of doctors without obtaining the insurer’s authorization to change treating

physicians. Hutchison, 178 Mont. at 91-92, 582 P.2d at 1209. Consequently, the insurer

argued that it was absolved of liability based on Hutchison’s failure to comply with the

authorization rule. Hutchison, 178 Mont. at 91-92, 582 P.2d at 1209. As we had done in

Garland, we again rejected the categorical imposition of such a severe penalty for failure

to comply with the authorization rule, noting that the rule must not be applied so as to

defeat the general purpose of the Workers’ Compensation Act. Hutchison, 178 Mont. at

92-93, 582 P.2d at 1209. Ultimately, because the insurer had refused to pay any benefits

from the outset, we held the WCC correctly determined that Hutchison’s failure to

comply with the authorization rule did not absolve the insurer of liability for treatment

rendered by unauthorized physicians. Hutchison, 178 Mont. at 92-93, 582 P.2d at 1209.

¶57 Consistent with Garland and Hutchison, we again refused to hold that a violation

of the authorization rule categorically bars coverage in Linton v. City of Great Falls, 230

26
Mont. 122, 749 P.2d 55 (1988). The claimant in that case, Richard Linton, suffered an

injury in the course and scope of his employment, for which the insurer accepted liability.

Linton, 230 Mont. at 125, 749 P.2d at 57. After Linton received treatment from one

physician initially, he obtained the insurer’s authorization to treat with another physician.

Linton, 230 Mont. at 125, 749 P.2d at 57. Subsequently, Linton went to yet another

physician, Dr. Bill Tacke, without obtaining the insurer’s authorization to do so. Linton,

230 Mont. at 126, 131, 749 P.2d at 58, 61. Dr. Tacke recommended that Linton undergo

a course of physical rehabilitation treatment intended to manage chronic pain. Linton,

230 Mont. at 126, 749 P.2d at 58. Despite Linton’s failure to obtain authorization to treat

with another physician, the WCC ruled that the insurer was liable for the cost of the

rehabilitation treatment Dr. Tacke had recommended. Linton, 230 Mont. at 126, 749

P.2d at 58. On appeal, the insurer did not dispute that the rehabilitation treatment was

appropriate for Linton’s condition, but argued that it could not be held liable for the cost

of this treatment because Linton had not obtained authorization to treat with Dr. Tacke.

Linton, 230 Mont. at 131, 749 P.2d at 61. In rejecting this argument and affirming the

WCC’s decision, we noted that the court had, in accordance with Garland, considered the

actual diagnosis of Linton’s condition in considering his failure to comply with the

authorization rule. Linton, 230 Mont. at 132, 749 P.2d at 61. Ultimately, because the

WCC had determined that the treatment recommended by Dr. Tacke was appropriate in

light of Linton’s condition, we held that the WCC had not erred in concluding that the

insurer could not avoid liability based on Linton’s failure to comply with the

authorization rule. Linton, 230 Mont. at 132, 749 P.2d at 61-62.

27
¶58 As Garland, Hutchison, and Linton demonstrate, a claimant’s failure to comply

with the authorization rule does not necessarily absolve the insurer of liability for the cost

of treatment rendered by an unauthorized physician. Although we held that the claimant

in Carroll was properly denied coverage for the cost of treatment from an unauthorized

doctor, our decision in that case did not establish that the same penalty must be imposed

whenever a claimant fails to comply with the authorization rule. As noted above, the

insurer in Carroll specifically refused the claimant’s request for authorization to treat

with a particular physician, but the claimant nonetheless obtained treatment from that

very physician. This circumstance distinguishes the Carroll case from Garland,

Hutchison, Linton, and the instant case.

¶59 Moreover, to categorically impose the penalty advocated by Sears, without regard

to the facts of each case, would directly conflict with Montana’s public policy underlying

the Workers’ Compensation Act. Viewing the statutory authorization rule in isolation,

one might perhaps conclude that the failure to obtain authorization to change treating

physicians should necessarily result in a loss of coverage for the treatment provided by

the unauthorized physician. However, we cannot view § 39-71-1101(2), MCA, in

isolation. As we have often held, in interpreting a statute we must view it as a part of a

whole statutory scheme and construe it so as to forward the purpose of that scheme. Orr

v. State, 2004 MT 354, ¶ 25, 324 Mont. 391, ¶ 25, 106 P.3d 100, ¶ 25. Further, we have

held that statutes must be construed in a way that avoids absurd results. Orr, ¶ 25.

Consistent with these longstanding principles, we stated in Hutchison that the

authorization rule must not be applied in a way that would defeat the general purpose of

28
the Workers’ Compensation Act. Hutchison, 178 Mont. at 92, 582 P.2d at 1209. Section

39-71-105(1), MCA, which the Legislature has entitled the “[d]eclaration of public

policy” underlying the Workers’ Compensation Act, states: “An objective of the

Montana workers’ compensation system is to provide, without regard to fault, wage-loss

and medical benefits to a worker suffering from a work-related injury or disease.” Given

this underlying policy, we must reject Sears’ contention that any failure to comply with

the authorization rule necessarily eliminates medical benefits that are mandated under the

Workers’ Compensation Act. Categorical imposition of the penalty advocated by Sears,

based solely on a mere failure to obtain authorization, could lead to absurd outcomes

wherein an injured worker is deprived of all coverage for the cost of medical treatment

that is undisputedly necessary to address an injury which was plainly sustained in the

course and scope of employment. Such a draconian consequence is not only unjust on its

face, it also directly conflicts with the Workers’ Compensation Act’s underlying purpose

of ensuring medical benefits for work-related injuries without regard to fault. Simply

put, the procedural authorization rule of § 39-71-1101(2), MCA, allows the insurer an

opportunity to choose a treating physician if the claimant no longer prefers the doctor he

or she initially chose; it does not operate as an escape mechanism by which the insurer

can avoid all liability for the cost of undisputedly necessary treatment arising from a

work-related injury.

¶60 As for Gamble’s failure to obtain authorization of Dr. Legan as her treating

physician, we note Sears does not dispute that the services rendered by Dr. Legan were

appropriate for the treatment of Gamble’s condition. Nor does Sears identify any specific

29
factual aspects of this case, other than Gamble’s failure to obtain authorization of Dr.

Legan, that would justify eliminating her coverage for medical treatment that was

undisputedly appropriate. Rather, Sears simply argues that it was automatically absolved

of all liability for the cost of Dr. Legan’s treatment solely because Gamble failed to

comply with § 39-71-1101(2), MCA. As demonstrated by Garland, Hutchison, and

Linton, which accurately reflect the Workers’ Compensation Act’s underlying purpose,

the law does not categorically deprive an injured worker of medical benefits based simply

on a failure to comply with the procedural authorization rule. 8 Thus, because Sears

simply argues for the categorical approach which this Court has repeatedly refused to

employ, we hold that the WCC correctly concluded Sears was not absolved of liability

for the cost of Dr. Legan’s treatment.

¶61 As for Gamble’s failure to obtain authorization of Dr. Dube as her treating

physician, additional facts are relevant, but the outcome is the same. Sears does not

dispute that the services rendered by Dr. Dube were appropriate for the treatment of

8
We note that § 39-71-1101(2), MCA, appears to address the scenario where a claimant seeks to
stop treating with his or her initially-chosen physician in order to obtain care from another
physician. On its face, this statute does not require a claimant to obtain authorization to choose a
treating physician where the claimant’s initially-chosen physician has ceased practicing or
otherwise become inaccessible. Here, when Dr. Speer ended his full-time practice, Gamble was
left without her initially-chosen physician. As a result, she was not in a position to “change
treating physicians” by choosing another physician over Dr. Speer; rather, Gamble had to select a
doctor in the same way that she had done at the outset when she similarly had no treating
physician. Thus, it would appear that Gamble did not attempt to “change treating physicians” as
contemplated by § 39-71-1101(2), MCA. Indeed, the WCC assumed that Dr. Legan became
Gamble’s treating physician when she chose to treat with him after Dr. Speer ended his practice.
Judgment, ¶ 22. However, because the parties have not squarely raised the issue on appeal, our
Opinion here is not a comment on the issue of whether a claimant is actually bound to obtain the
authorization required by § 39-71-1101(2), MCA, where the claimant’s initially-chosen treating
physician ceases to treat patients or otherwise becomes inaccessible.

30
Gamble’s condition. Rather, Sears again simply argues that it was automatically

absolved of all liability for the cost of Dr. Dube’s treatment solely because Gamble failed

to comply with the procedural authorization requirement of § 39-71-1101(2), MCA. We

disagree.

¶62 At the time of settlement, neither of the parties believed Gamble was suffering

from an odontoid fracture. Thus, although the settlement agreement expressly reserved

medical benefits, it did not contemplate continuing medical benefits for the treatment of a

fracture. Subsequently, after Dr. Legan detected Gamble’s odontoid fracture, she went to

Dr. Dube specifically for treatment of that newly discovered condition. Then, after Dr.

Dube performed the bone fusion surgery, he reviewed the 1998 x-ray films and

consequently determined that Gamble’s odontoid fracture was caused by her on-the-job

accident in 1997. In light of these circumstances, the proper resolution of this issue

becomes abundantly clear.

¶63 If Gamble had sought authorization to treat with Dr. Dube, she would have been

asking Sears to pay for treatment of a condition that was not yet determined to be

causally connected to her on-the-job accident. While Sears faults Gamble for not doing

so, it is undisputed, as the WCC noted, that if she had sought authorization, Sears itself

would not have followed the mandates of § 39-71-1101(2), MCA—i.e., the insurer’s

obligation to either authorize the claimant’s preferred physician or direct the claimant to

another care provider for treatment of a work-related injury—precisely because her injury

was not yet causally connected to the 1997 accident at K-Mart. Moreover, it is

undisputed that even if Dr. Dube had opined prior to Gamble’s surgery that her fracture

31
was caused by the 1997 accident, Sears would have refused authorization and disputed

Dr. Dube’s opinion, just as it has done throughout this litigation.

¶64 Because Gamble went to Dr. Dube for treatment of a condition that was unknown

to the parties at settlement and therefore not contemplated by the settlement agreement’s

reservation of medical benefits, and because that condition was not causally connected to

Gamble’s on-the-job accident until after her surgery, we conclude that her failure to

comply with § 39-71-1101(2), MCA, must be excused as a matter of law. To eliminate

her benefits in these circumstances would directly conflict with the underlying purpose of

the Workers’ Compensation Act, and we have stated that the authorization rule must not

be applied in such a way. Hutchison, 178 Mont. at 92, 582 P.2d at 1209. Thus, we hold

that the WCC correctly concluded Sears was not absolved of liability for the cost of Dr.

Dube’s treatment.

CONCLUSION

¶65 We have held that the WCC did not err in rescinding the settlement agreement or

in holding Sears liable for the cost of Gamble’s medical treatment.

¶66 Accordingly, we affirm.

/S/ PATRICIA COTTER

We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM RICE
/S/ BRIAN MORRIS

32