Wolfe v. Webb

No. 90-389
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992

RODNEY WOLFE,
Claimant, Respondent,
and Cross-Appellant,
v.
BOYD E. WEBB
Employer,
and
STATE COMPENSATION MUTUAL INSURANCE FUND,
Defendant and Appellant.

APPEAL FROM: Workers' Compensation Court,
The Honorable Timothy Reardon, Judge presiding.

COUNSEL OF RECORD:
For Appellant/Cross-Respondent:
William J. Mattix, Crowley, Haughey, Hanson,
Toole & Dietrich, Billings, Montana.
For Respondent/Cross-Appellant:
Lloyd E. Hartford, Attorney at Law,
Billings, Montana.

Submitted on Briefs: May 10, 1991
J/\rJ 2 7992
*

Decided: January 2, 1992
Cd Jsuad~i
Q t E R K OF SUPREME COURT
SfATE OF MONTANA

Clerk
Justice Terry N. ~rieweilerdelivered the opinion of the Court.
Claimant Rodney Wolfe filed his petition in the Workerst
Compensation Court asking that court to reopen his case, which had
been settled with defendant State Compensation Insurance Fund on
March 8, 1983. Claimant alleged that at the time of the prior
settlement the parties were mutually mistaken about material facts
concerning claimant's physical condition.
The Honorable Nat Allen was appointed by the Workers1
compensation Court to serve as the hearing examiner, and this case
was tried before the hearing examiner on April 11 and 12, 1990.
Following a trial and the submission of written arguments by the
parties, the Workers' Compensation Court adopted the hearing
examiner's recommendation and entered judgment for claimant which
set aside the partiest earlier settlement agreement, reinstated
temporary total disability benefits, and awarded attorney fees to
claimant. The court refused to impose a statutory penalty on
defendant in addition to the benefits which were awarded. From
that judgment, defendant appeals, and claimant cross-appeals. We
affirm the judgment of the Workers' Compensation Court.
Defendant raises the following issues on appeal:
1. Did the Montana Workers' Compensation Court have
jurisdiction to reopen the full and final compromise settlement
which had been agreed upon by the parties?
2. Did the express language in the settlement agreement
preclude the Workers' Compensation Court from setting it aside?
2
 3. Did the Workerst Compensation Court abuse its discretion
and commit reversible error when it adopted the findings of fact,
conclusions of law, and judgment proposed by claimant after making
minor changes of its own?
4. Was there substantial evidence to support the Workers1
compensation Courtts determination that a mutual mistake of fact
existed at the time the parties entered into their settlement
agreement?
5. Was there substantial evidence to support the Workers1
Compensation Courtls award of temporary total disability benefits
retroactive to October 1, 1985?
6. Was claimant entitled to an award of costs and attorney
fees?
For his cross-appeal, claimant raises the following issue:
Did the Workerst Compensation Court err by failing to impose
a statutory 20 percent penalty on defendant in addition to the
benefits that were awarded?
FACTUAL BACKGROUND

Claimant was injured on March 28, 1980, while employed by
Boyd E. Webb who was insured against claims for workers1
compensation benefits by defendant Montana State Compensation
Insurance Fund.
Mr. Webb was involved in the business of installing oil and
gas lines and irrigation pipe. Claimant was employed by Webb as
a backhoe operator and laborer.
3
 On the date of his injury, claimant was working in a six foot
ditch and installing pipe when the sides of the ditch caved in and
buried him up to his neck. As a result of this accident, he
sustained crushing injuries across his upper body, including a
fracture of his left clavicle and dislocation of his right clavicle
where it formed a joint with his sternum. He also reported pain
in one or more of his shoulders.
Claimant was initially treated for his injuries in Powell
Hospital in Powell, Wyoming, but was eventually referred to D. R.
Huard, M.D., an orthopedic surgeon in Billings, Montana. Dr. Huard
treated claimant for approximately 16 months. ~uringthat time he
performed two surgical procedures. In the first procedure, he
grafted bone at the location of the fracture to the left clavicle
because that fracture had failed to properly unite. In a second
procedure, he resected, or cut away, the end of the right clavicle
where it had previously formed a joint with the sternum. He did
so in order to alleviate significant discomfort that claimant
continued to experience as a result of the dislocation of that
joint.
During the course of Dr. Huard's treatment, his records
indicate that claimant also complained of pain in the area of his
right shoulder. However, that was not his primary complaint and
no treatment was rendered for that complaint at that time.
On May 11, 1981, Dr. Huard released claimant to return to
work.
4
 After returning to work, claimant continued to experience
significant pain due to his injuries and was referred for further
treatment to Peter V. Teal, M. D., a second orthopedic surgeon. Dr.
Teal advised him that his pain could be lessened by resection of
the entire right clavicle, but that since the clavicle provided
stability to the shoulder, a significant cosmetic deformity would
also result. For that reason, claimant postponed further surgery,
but by January 1982, when he could no longer stand the pain, Dr.
Teal removed two-thirds of the remaining right clavicle.
By May 1982, claimant had returned to work on a self-employed
basis doing oilfield salvage work. In early 1983, he went back to
work for another employer. However, the physical nature of that
work caused him a substantial amount of pain and discomfort in his
right arm and shoulder. He went to the bank and borrowed $13,500
which he used to purchase a pickup truck, trailer, tools, and
equipment with which he could become self-employed in the oil pipe
salvage business.
By that time, he had received a physical impairment rating
from Dr. Teal equal to 10 percent of his right upper extremity.
Although he was still in pain, he was unaware of any other injuries
which had resulted from his industrial accident in 1980.
In order to repay the money which he had borrowed to invest
in equipment for self-employment, claimant entered into settlement
discussions with William Visser, a claims supervisor for appellant.
Visser offered, and claimant, who was unrepresented at the time,
5
agreed to accept, $7000 in full settlement of his claim for any
future disability benefits. On March 8, 1983, the Division of
Workers' Compensation approved the full and final compromise
settlement agreement which had been signed by the parties. The
written agreement included the following provision:
The claimant understands that by entering into a full and
final compromise settlement, both the named insurer and
the 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, or it may change
in the future.
Claimant testified that following settlement of his claim he
continued to experience right shoulder problems. Toward the end
of 1984 he moved to Jerome, Idaho where he took a job for Rocky
Mountain Industries as the manager of their pipe yard. However,
by October 1, 1985, he could no longer continue to perform that job
due to right shoulder pain and he returned to Montana where he
lived at the time of trial.
After returning to Montana, claimant worked sporadically as
a farm laborer, but this work also aggravated his right shoulder.
He returned to Dr. Teal who, based upon an arthroscopic
examination, found a defect in the cartilaginous rim of the glenoid
cavity. The glenoid cavity, with the head of the humerus, form
the shoulder joint. On April 17, 1987, Dr. Teal readmitted
claimant to the hospital where he performed surgery to repair and
reattach the cartilaginous rim to the glenoid cavity and hopefully
prevent further subluxation of the right shoulder. Claimant
continued to experience difficulties with his shoulder following
surgery, and by November 24, 1987, Dr. Teal s records indicate that
he was inquiring about possible replacement of his shoulder with
a mechanical joint.
A further arthroscopic procedure was done to repair damage in
the claimant's right shoulder in February 1988. On May 17, 1'988,
Dr. Teal increased claimant's impairment rating from 10 percent of
his right upper extremity to 15 percent. He cautioned claimant
against returning to any form of heavy labor and suggested that he
be rehabilitated so that he could return to the job market and
perform lighter duties.
Other orthopedic surgeons who have also examined claimant
since Dr. Teal's last surgical procedure concur in the opinion that
claimant will never be able to return to moderate or heavy work,
and that there is no additional treatment which would be of further
assistance to him.
Neither claimant nor his treating physician were aware, in
1983, of the additional damage to claimant's right shoulder which
resulted in the 1987 surgery, additional physical impairment, and
further restrictions on claimant's physical activities.
William Visser testified that neither was he aware of the
possibility of a detached glenoid rim in claimant's right shoulder
at the time that he settled with claimant, but that if he had known
about the condition he probably would not have entered into the
settlement agreement.
7
 Based on these facts, the Workers' Compensation Court
concluded that there had been a mutual mistake of material fact
sufficient to justify setting aside the agreement entered into
between the parties on March 9, 1983. The court found that
claimant was temporarily totally disabled, and had been since he
terminated his work in Jerome, Idaho on October 1, 1985. Temporary
total disability benefits were awarded retroactive to that date.
Based on its decision in favor of claimant, the Workers1
Compensation Court awarded attorney fees. However, the court
refused to impose an additional 20 percentpenalty, concluding that
appellant was not unreasonable when it rejected claimant's request
to set aside the earlier agreement.

Did the Montana Workers' Compensation Court have jurisdiction
to set aside the full and final compromise settlement which had
been agreed upon by the parties?
Appellant argues that the substantive law in effect at the
time of claimant's injury establishes his rights under the Workers'
Compensation Act, and that 9 9 39-71-204, -2808, and -2909, MCA
(1985), prohibited the Workers' Compensation Court from rescinding
full and final compromise settlements.
Appellant further contends that this Court's prior decisions
rescinded full and final compromise settlement agreements because
of mutual mistakes of fact, but affirmed that the Workers1
Compensation Court did not have the authority to do so. Appellant
relies on Kienas v. Peterson (1980), 191 Mont. 325, 624 P.2d 1; Sollie v
.

Peavey Co. (1984), 212 Mont. 197, 686 P.2d 920; Hutchinson v. Piercepacking

Co. (1985), 219 Mont. 18, 710 P.2d 64; Bowen v. Anaconda Co. (1986),
220 Mont. 185, 714 P.2d 142; Weldele v. Medley Development (1987), 227

Mont. 257, 738 P.2d 1281; and Kimesv. Charlie'sFarnily Dining (1988), 233
Mont 175, 759 P.2d 986.
The seminal case on the subject of reopening workers1
compensation settlements was Kienas. In that case, the claimant

entered into a full and final settlement agreement based upon
diagnosis of a back injury which did not take into account the
possibility that the injury had aggravated claimant's cerebral
palsy. Later medical information indicated that claimant's back
injury may have in fact aggravated his underlying neurological
condition. The Workers1 Compensation Court refused to set aside
the settlement agreement, and we reversed. We held that:
The full and final compromise settlement entered into by
the parties is a contract. The law of contracts applies
in construing and determining the validity and
enforceability of the settlement agreement.
Kienas, 624 P.2d at 2. We held that under 5 28-2-102, MCA, consent

of the parties was a prerequisite to a valid contract and that
pursuant to 5 28-2-401, MCA:
"(1) An apparent consent is not real or free when
obtained through:
 (e) mistake.
"(2) Consent is deemed to have been obtained through one
of the causes mentioned in subsection (1) only when it
would not have been given had such cause not existed."
section 28-2-408, MCA:
"Mistake may be either of fact or law.Ig
Section 28-2-409, MCA:
"Mistake of fact is a mistake not caused by the neglect of a legal duty on the
part of the person making the mistake and consisting in:

" ( I ) an unconscious ignorance or forgetfulness of a fact, past or
present, material to the contract; or

It (2) belief in the present existence of a thing material to the contract which
does not exist or in the past existence of such a thing which
has not existed.It
Kienas, 624 P . 2d at 3 (emphasis in original) .
We held in Kienas that because neither party to that contract

was aware of the exact nature or extent of the claimant's injury
when the agreement was entered into, the parties were laboring
under a material mistake of fact which required that the agreement
be set aside.
We did not discuss statutory limitations on the Workers1
Compensation Courtfs authority to set aside settlement agreements
because that issue was not presented in Kienas and it was not the

Workers1 Compensation Court which set aside the agreement. What
was clear from the Kienas decision is that settlement agreements for

workerst compensation benefits, like other agreements, are subject
to the law of contracts, and that a Montana court which is not
otherwise limited by statute has the authority to set those
contracts aside based upon a mutual mistake regarding the nature
and extent of a claimant's injuries.
In S l i , we affirmed the Workers Compensation Court s refusal
ole

to reopen a full and final compromise settlement because we
concluded that the parties were not laboring under a material
mistake as to the nature and extent of the claimant's injuries.
However, in dictum which did not appear to be necessary to this
Court's decision, we stated that:
It is also important to consider Section 39-71-204, MCA,
which limits the power of the Workerst Compensation Court
to amend a compromise settlement:
I1Exceptas provided in 39-71-2908, the division or
the workerst compensation judge shall not have the
power to rescind, alter, or amend any order
approving a full and final compromise settlement of
compen~ation.~
Section 39-71-2908, MCA allows the Workerst Compensation
judge to disapprove an order allowing full and final
compromise settlement within 10 days of the judge's
receipt of an order. This Court has held in several
cases that these statutes preclude reopening of Workers1
Compensation settlements.

In Weldele, where the claimant was allowed by the Workers1

Compensation Court to reopen a case that had been settled on a
compromise basis because of a mistake regarding the nature and
extent of his physical injury, we affirmed the trial court's
authority to do so, in spite of the prohibition in 5 39-71-204(2),
MCA (1985), because:
"[Clonsent to the contract is lacking if it is entered
into through mutual mistake of a material fact by the
parties.'' Kienas, 38 St.Rep. at 321. It is well settled
that if there is no consent, there is no contract.
Weldele, 738 P.2d at 1283. Two members of this Court dissented from

that decision based upon the statutory prohibitions which are
relied upon by the defendant in this case. The dissenters
distinguished Kienas for the reason that the Workers1 Compensation

Court had not set aside the agreement in that case. It was set
aside by this Court under the theory that "[olur appellate power
is not limited to Section 39-71-204 not 39-71-2909, MCA." Weldele,

738 P.2d at 1284 (Gulbrandson, J., dissenting) (quoting Kienas v
.

P t r o (1981), 38 %.Rep.
eesn 320, 321 (op. on reh'g)). The dissenters

felt that the Workers1 Compensation Court's decision in Weldele

should be reversed based upon language found in our opinion in
S l i , which was discussed previously.
ole

Finally, in Kimes we again affirmed a Workers1 Compensation

Court decision setting aside a full and final compromise settlement
agreement based upon a mistake of fact regarding the nature and
extent of claimantIs physical injury. In response to the dissent's
argument that the Workers1 Compensation Court lacked jurisdiction
to set aside the agreement, we stated:
 While the dissent argues that the Workerst Compensation
Court does not have statutory authority to set aside this
full and final compromise agreement, the parties did not
raise that argument. Further, this Court is not so
limited where there has been mutual mistake. We conclude
that the uncontradicted medical evidence establishes a
material mistake of fact relating to both the nature and
extent of Mr. Kimes s injury. We hold that the full and
final settlement entered in this case may be reopened on
the basis of this material mistake of fact.
Kimes, 579 P.2d at 988.

The Hutchinson and Bowen decisions are distinguishable from this

case based on their facts and are not relevant to our discussion.
What we have then are a series of decisions by this Court that
agreements settling claims for workerst compensation benefits are
subject to contract law and can be set aside, at least by this
Court, based upon a mutual mistake of fact regarding the nature and
extent of the claimant's injury. We also had in effect, at the
time of claimant's injury, statutes which appellant argues
procedurally barred the Workerst Compensation Court, as opposed to
this Court, from setting aside full and final compromise settlement
agreements. Section 39-71-204 (2), MCA (1985), provided in relevant
part that:
Except as provided in 39-71-2908, the division or the
workerst compensation judge shall not have the power to
rescind, alter, or amend any order approving a full and
final compromise settlement of compensation.
Section 39-71-2908, MCA, is not applicable. Section
39-71-2909, MCA (1985), provided that:
[Tlhe 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 compromise settlement of compensation.
When this case was tried in April 1990, however, both of the
sections relied upon by the defendant had been amended to remove
any limitation on the Workersf Compensation Court's authority to
set aside full and final compromise settlement agreements. Section
39-71-204, MCA (1987), now makes no reference to any limitation on
the authority of the court to set aside such agreements, and
5 39-71-2909, MCA (1987), simply provides as follows:
The judge may, upon the petition of 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.
We have previously held that compromise settlement agreements
can be set aside based upon contract law. Whether the decision to
set aside that agreement is made in this Court or the Workersf
Compensation Court is merely a procedural difference and does not
effect the substantive rights of either party. Therefore, the
amendment to the workersv compensation statutes which eliminated
any restriction on that court's authority to review and rescind
compromise settlement agreements was a change in the procedural
law. We have previously held that procedural rules in effect at
the time that a case proceeds to trial are the rules that are to
be applied to the resolution of that dispute. State Comp. Ins. Fund v.

Sky Country, Inc. (1989), 239 Mont. 376, 379, 780 P.2d 1135, 1137; Weiss

v. State (1986), 219 Mont. 447, 449, 712 P.2d 1315, 1316.
 We conclude that at the time of the trial in this case, there
was no statutory prohibition on the Workerst Compensation Courtts
authority to set aside compromise settlement agreements, and that
therefore, pursuant to § 39-71-2905, MCA, the Workers1 Compensation
Court had jurisdiction to decide this dispute since it related to
benefits provided for by the Workersf Compensation Act.

Did the express language in the settlement agreement preclude
the Workersf Compensation Court from setting aside that agreement?
The defendant contends that the following language found in
its contract with the claimant prohibits setting that agreement
aside based upon a mutual mistake about the claimant's physical
condition.
The claimant understands that by entering into a full and
final compromise settlement both the named insurer and
the 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, or it may change
in the future.
However, as previously noted, we held in Kienas that It[t]he law

of contracts applies in construing and determiningthe validity and
enforceability of the settlement agreement.If Kienas, 624 P.2d at 2.

The law of contracts in Montana, as it relates to the
formation of a valid and enforceable contract, is set forth in
Title 28, ch. 2, of the Montana Code Annotated. Section 28-2-102,
MCA, requires that to be enforceable the parties must give their
consent to a contract. Section 28-2-301, MCA, requires that
consent must be freely given; and 5 28-2-401, MCA, provides that
consent cannot be freely given when it is based upon mistake.
Section 28-2-409, MCA, requires that before a contract is voidable
based upon mistake of fact, the mistake must be material; and we
have previously held that a mistake about the nature or extent of
the claimantfs physical condition is a "materialw mistake of fact
when applied to a workersf compensation settlement agreement. See

Kienas, 624 P.2d at 3.

In order to enforce the aforementioned provision in the
appellantfs settlement agreement, we would have to ignore the
public policy of the State of Montana as set forth in the above
statutes and decisions of this Court. Any contractual provision
which would require for its enforcement that we do that is
wunlawfulllaccording to the following provisions of 5 28-2-701,
MCA, which state:
What is unlawful. That is not lawful which is:
(1) contrary to an express provision of law;
(2) contrary to the policy of express law, though not
expressly prohibited; or
(3) otherwise contrary to good morals.
According to 5 28-2-707, MCA, any provision in a contract
which is unlawful is void.
Whether or not there was a mutual mistake was a question of
fact to be decided by the Workers1 Compensation Court. The
Workers1 Compensation Courtls finding that the parties were
mistaken about a material fact after considering the language
inserted into the contract by the State Fund was supported by
substantial evidence.
For these reasons, we hold that the language of the settlement
agreement relied upon by the appellant did not preclude the
Workersf Compensation Court from setting aside that agreement.
I11

Did the Workersf Compensation Court abuse its discretion and
commit reversible error when it substantially adopted the findings
of fact, conclusions of law, and judgment proposed by the claimant?
Appellant argues that the Workers' Compensation Court
committed reversible error by substantially adopting the proposed
Findings, Conclusions, and Judgment of the claimant.' Appellant
relies on prior decisions of this Court such as Sawyer-AdecorInt'l., Inc.

v. Anglin (1982), 198 Mont. 440, 646 P.2d 1194, in which we expressed

our disapproval of adopting verbatim the prevailing party's
proposed findings of fact and conclusions of law. However, we have
approved the verbatim adoption of findings and conclusions where
they are comprehensive and detailed and supported by the evidence.
Pipinich v. Battershell (1988), 232 Mont. 507, 759 P.2d 148. In that case

we noted:

h heclaimant8s proposals were not adopted in their entirety.
The hearing examiner rejected claimant's proposed Conclusion that
claimant was entitled to assessment of a 20 percent statutory
penalty based upon the unreasonable refusal of appellant to reopen
his case.
 However, Montana law allows verbatim adoption of findings
and conclusions where they are comprehensive and
detailed, supported by the evidence before the court, and
are not clearly erroneous. Olson v McQueary (Mont. 1984),
.
[212 Mont. 173,] 687 P.2d 712, 715, 41 St.Rep. 1669;
R.L.S.
v.Barkhoff (1983), 207 Mont. 199, 674 P.2d 1082, 1085.
Pipinich, 759 P.2d at 150.

Furthermore, since Sawyer-Adecor was decided, Rule 52 (a),

M.R.Civ.P., was amended in 1984 to provide:
The court may require any party to submit proposed
findings of fact and conclusions of law for the court's
consideration and the court may adopt any such proposed
findings or conclusions so long as they are supported by
the evidence and law of the case.
While it is true that pursuant to 1 39-71-2903, MCA, the
Workersf Compensation Court is governed by the Montana
Administrative Procedure Act, rather than the Montana Rules of
Civil Procedure, there is nothing in the Administrative Procedure
Act, nor in the rules of the Workers' Compensation Court, which
would prohibit the verbatim adoption of the prevailing partyts
proposed findings, conclusions, and judgment. In that event, we
have previously stated that:
The Workers8 Compensation Court, while not governed by
the Rules of Civil Procedure, may be guided by them, and
to the extent that reference to those rules lies within
the discretion the court may exercise under S2.52.224,
A.R.M. [now 24.5.349;ARM], such reference is acceptable.
Moen v Peter K e i & Sons Co. (1982), 201 Mont. 425, 434, 655 P.2d 482,
. iwt
 Upon review of the record in this case and the trial court's
findings and conclusions, we hold that the Workers' Compensation
Court did not err in substantially adopting claimant's proposed
Findings, Conclusions, and Judgment.

Was there substantial evidence to support the Workerst
Compensation Court's determination that a mutual mistake of fact
existed at the time the parties entered into their settlement
agreement?
Appellant argues that to find a mutual mistake the trial court
had to find that the cartilaginous rim of claimant's right glenoid
cavity was detached at the time the settlement agreement was
entered into, and that it was detached as a result of claimant's
work related accident that occurred in 1980. Appellant contends
that there was insufficient medical evidence to establish these
facts and therefore, the necessary mistake of a material fact was
not proven. The scope of our review of factual findings made in
the Workers' Compensation Court is limited. The well-settled
standard of review in cases appealed fromthe Workers' Compensation
Court is stated in Nielsen v. Beaverpond, Inc. (1983), 203 Mont. 339, 661

lIrOur function in reviewing a decision of the Workers'
Compensation Court is to determine whether there is
substantial evidence to support the findings and
conclusions of that court. We cannot substitute our
judgment for that of the trial court as to the weight of
evidence on questions of fact. Where there is
 substantial evidence to support the findings of the
Workersf Compensation Court, this Court cannot overturn
the decision. Steffesv. 93LeasingCo.,Inc. (U.S.F.&G.) (1978), 177
Mont. 83, 86, 87, 580 P.2d 440, 452.' [Pinionv.H.C.SmithCo.
(1980), - Mont , . I 619 P.2d at [I671 168.11 [37
St.Rep. 1355, 13571; Novakv. Montgomey Wardand Co. (1981),
Mont., [I95 Mont. 219, 2221 638 P.2d 390, 392, 38 St.Rep.
1803; Rets v. Sweet Grass County (1978), 178 Mont. 337, 583
P.2d 1070, 1071, 1072.

In defining substantial evidence, we stated in State Highway

Commission v. Arms (1974), 163 Mont. 487, 518 P.2d 35, that:

The evidence may be inherently weak and still be deemed
substantial, and one witness may be sufficient to
establish the preponderance of a case. Batchoff v.
Craney, 119 Mont. 157, 172 P.2d 308.
Arms, 518 P.2d at 37.

Our review then is necessarily limited to whether the
testimony of one qualified and credible witness established that
claimant's labrum or cartilaginous rim of his right glenoid cavity
was injured at the time of his settlement agreement with appellant.
Appellant contends that Dr. Teal, the only medical witness who
testified in this case, was unable to express an opinion. However,
our review of the record requires a contrary conclusion.
Dr. Teal gave the following answers in response to the
following questions:
Q. Alright. Now, would you be able to give an opinion
as to whether or not, absent any other trauma to
that shoulder, that the subluxation and the
detached glenoid was likely the result of the
injury sustained in his industrial accident of
1980?
 A. I think, first of all, that there was an injury
that led to this condition, almost certainly.
Which is to say trauma. There was some trauma that
led to this condition of recurrent subluxation.
And if your question to me, as I think it is,
states in the absence of any other trauma is it my
opinion that this cave-in trauma produced the
injury, then I d have to say yes. If there was no
'
other trauma, then this must have been it.
Q. Okay. Now, is there any other injuries that you
are aware of that involves the right shoulder that
we have not discussed this morning?

A. No.
Claimant clearly and unequivocally testifiedthat he sustained
no trauma to his right shoulder either before or after his
industrial injury that occurred on March 28, 1980. This testimony,
in combination with the above testimony of his treating physician,
provided substantial evidence for the trial court's finding that
claimant's injury to his right shoulder was caused by his
industrial accident, that the parties were unaware of its existence
at the time the settlement agreement was entered into, and that the
existence of this condition was material to a determination of the
disability benefits to which claimant was entitled.
We conclude that there was substantial evidence of a mutual
mistake of fact and that the trial court's finding in that regard
should be affirmed.
 v
Was there substantial evidence to support the Workers1
Compensation Courtls award of temporary total disability benefits
retroactive to October 1, 1985?
Claimant testified that due to the extreme pain in his right
shoulder he had to terminate his employment in Idaho on October 1,
1985. He returned to Montana where he worked sporadically as a
farm laborer between then and his surgery in April 1987. However,
these activities were also limited due to the pain in his shoulder,
and it was because of the continuing pain that further surgery was
performed. There was no evidence that claimant worked regularly or
earned any significant income after his return from Idaho.
The medical reports from the orthopedic specialists who
examined claimant were unanimous in their conclusion that he was
precluded from doing the types of farm work, construction work, and
oilfield work which had been his traditional source of employment
and that following his most recent surgery he should be
rehabilitated for lighter duty work.
Based upon the intermittent work that claimant admitted
performing after his return from Idaho, appellant argues that the
trial court erred by concluding that claimant was temporarily
totally disabled during that period of time. However, appellant's
position is not consistent with our prior decisions. In Jensen v. Zook

Bros. Const. Co. (1978), 178 Mont. 59, 582 P.2d 1191, claimant sustained
a crushing injury to his left hand while employed as a construction
worker. The defendant appealed from a Workers' Compensation Court
finding that the claimant was permanently totally disabled. The
basis for its appeal was that claimant had been able to do odd jobs
since his injury and therefore, could not be totally disabled. In
that case, the claimant testified that he had done nodd jobs for
friends and relatives, such as back tagging cattle, driving a Cat,
haying and other odd jobs. He also testified that he had
difficulty performing these jobs and he could not perform them for
any length of time. Jensen, 582 P.2d at 1193. The testimony of the

claimant in that case was strikingly similar to the testimony of
the claimant in this case. In spite of that testimony, we
concluded as follows:
We hold that this evidence is sufficient to support the
finding of the Workers' Compensation Court that claimant
is permanently and totally disabled despite the fact that
he can and has done various odd jobs. ...
Because claimant can perform a few odd jobs for short
periods of time does not preclude a finding that claimant
is totally and permanently disabled. This is especially
true where, as here, the evidence shows that the claimant
must work with a substantial degree of pain.
Jensen, 582 P.2d at 1193.

The medical opinions in this case establish that claimant is
no longer capable of returning to his former occupations and that
rehabilitation is necessary. There was no qualified evidence
offered by appellant that claimant was at any time subsequent to
October 1, 1985, capable of returning to regular employment.
 For these reasons, and based upon the foregoing authority, we
hold that the evidence is sufficient to support a finding that
claimant is temporarily totally disabled, and has been since
October 1, 1985.
VI

Was the claimant entitled to an award of costs and attorney
fees?
Appellantrs argument that claimant was not entitled to an
award of costs and attorney fees pursuant to 5 39-71-611, MCA, was
based upon its contention that claimant was not entitled to reopen
his claim and receive further benefits. However, since we have
affirmed the trial court's award of benefits to claimant, we
conclude that he is also entitled to an award of reasonable costs
and attorney fees pursuant to 5 39-71-611, MCA.
CROSS-APPEAL

Did the Workersf Compensation Court err by failing to impose
statutory percent penalty appellant addition the
benefits that were awarded?
Section 39-71-2907, MCA (1985), provided that:
When payment of compensation has been unreasonably
delayed or refused by an insurer, either prior or
subsequent to the issuance of an order by the workersf
compensation judge granting a claimant compensation
benefits, the full amount of the compensation benefits
due a claimant, between the time compensation benefits
were delayed or refused and the date of the order
granting a claimant compensation benefits, may be
increased by the workersr compensation judge by 20%.
 In this case, the trial court adopted claimant's proposed
Finding of Fact No. 61 which stated, in part, that:
Also, the Defendant failed to initiate a good faith
investigation to ascertain if the March 28, 1980,
industrial accident could have caused or resulted in the
glenoid rim becoming detached from the labrum. The fact
that Defendant conducted a review of the file and
thereafter concluded that reopening could not be allowed
simply because the Division had approved the settlement,
in absence of Defendant contacting the treating
physicians, does not constitute a good faith
investigation as contemplated by statute or case law.
Defendant's refusal to reopen the claim and its denial of
the claim for additional benefits was unreasonable.
For his cross-appeal, claimant contends that this finding is
inconsistent with the court's conclusion of law that claimant is
not entitled to the 20 percent statutory penalty.
The trial court concluded that because appellant incurred
medical expense to send claimant a considerable distance to a
highly qualified specialist it should not be penalized.
Where the trial court has arrived at a finding or conclusion
which is supported by substantial evidence, we will not reverse the
lower court, even though the finding or conclusion may have been
arrived at for the wrong reason. Phillipsv. CityofBillings (1988), 233

Mont. 249, 252, 758 P.2d 772, 774. In this case, we conclude that
there was justification for the lower court's refusal to impose the
statutory penalty, even though appellant did fail to properly
investigate and determine whether it was mistaken about the nature
of claimantrs injury at the time of the agreement.
 In addition to the issue of whether or not there was a mistake
of material fact, appellant felt it was justified in rejecting
claimant's request based upon the language in its written agreement
with claimant. Enforceability of such a contract provision had not
previously been ruled upon by this Court. Therefore, we hold that
appellant's reliance on that contract language was not
unreasonable, as required by 5 39-71-2907, MCA.
For these reasons, we affirm the judgment of the Workers'
Compensatior

/ Justice
We concur:

Chief Justice

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