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 :
Marra, 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
Submitted: January 2 7 , 1 9 7 7
Decided: 17 1
m
Filed:
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 bind-
ing 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 sub-
mitted a medical report in which he rated claimant's spine as
being 30% impaired.
On March 25, 1975, a meeting was held, attended by claim-
ant, 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., Mont .
, 550 P.2d 912, 3 3 St.Rep. 517. 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
t h e judgment o f t h e d i s t r i c t c o u r t . A s can be
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 disabil-
ity for $9,000 that had a mathematical potential of approxi-
mately $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
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