STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BRYAN A ROEMER, Applicant

ROWLEY CONSTRUCTION, Employer

SOCIETY INSURANCE A MUTUAL CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2004-041873


The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on October 24, 2008. Rowley Construction and Society Insurance Company (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue is the applicant's request to reopen the compromise approved by department order dated March 30, 2006. The compromise resolved the applicant's claims stemming from a conceded work injury that occurred on or about November 5, 2004.

The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's dismissal of the request to reopen the compromise, but modifies the administrative law judge's decision as set forth below:

MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Delete the sentence that begins in the fourth line from the bottom of page 3 of the administrative law judge's decision, and substitute therefor the following sentence:

"Attorney Gustafson testified that he believed Attorney Larson believed the compromise language dealing with Wis. Stat. § 102.29, was '...just a piece of fluff that meant nothing to her'." (T. 59).

The rest and the remainder of the administrative law judge's Findings are affirmed and reiterated as if set forth herein.

NOW, THEREFORE, this

ORDER

The Findings and Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. The request to reopen the compromise approved by the department on March 30, 2006, is denied.

Dated and mailed July 9, 2009
roemebr : 185 : 5 ND § 10.5

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

The applicant argues that his compromise should be reopened either on the alleged basis of mutual mistake, or on the alleged basis of gross inequity. However, the commission finds that neither of these reasons for reopening a compromise is applicable in this matter.

Mutual mistake involves an error or misunderstanding made by all parties to a compromise, resulting in a mutually unintended consequence. An example might be all parties miscalculating the applicable average weekly wage when completing a compromise agreement. With regard to what constitutes gross inequity, the commission reserves the right in any particular case to consider all the relevant factors that might demonstrate such inequity. The commission has routinely found that simply agreeing to a "bad deal" does not constitute gross inequity.(1)

In the case at hand, the parties were aware of the uncertainties inherent in the applicant's worker's compensation claim. The applicant's "mistake" made concerning the viability of a presumed third party claim was a unilateral error in strategy, attributable in part to incomplete information, and in part to questionable legal advice. There was no evidence of unfairness, overreaching, or other inequity in the settlement negotiations. Rather, the applicant and his attorneys took a risk and ended up regretting the outcome. As noted by the administrative law judge in his decision, the applicant was not a credible witness. Based on Attorney Gustafson's credible testimony concerning his pre-compromise discussions with the applicant, the applicant knew when he entered the compromise that he was taking a risk in compromising a potential claim for loss of earning capacity.

cc: Attorney Stuart Spaude
Attorney Joseph Danas


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Footnotes:

(1)( Back ) See Debbie McCaslin v. Reynolds Wheels Intl. and Ace American Insurance Co., WC Claim No. 1998-035358 (LIRC Sept. 27, 2002); Toni L. Palmer v. Toro Co., WC Claim No. 86012679 (LIRC June 10, 1993).

 


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