Wis.LIRC WC Decision: Lemerond - July 7, 2000 - ND � 10.5 - Review of Compromise - mutual vs. unilateral mistake - compromise agreement using unambiguous terms will not be set aside because of mistake of one of the parties as to the meaning of the agreement

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

JAMES MICHAEL LEMEROND, Applicant

RUSSEL METALS, Employer

INSURANCE CO OF STATE OF PA, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997032867

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed July 7, 2000
lemeron.wsd : 175 : 5 ND � 10.5

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in his petition for commission review that the administrative law judge erred in dismissing his application for review of the compromise agreement entered into by the parties in August 1998. The applicant contended at the hearing that the compromise agreement should be set aside on the basis of mutual mistake and gross inequity. The applicant points to the fact that the claim which led to the compromise agreement was brought only for a left knee injury and he states that clearly the terms of the agreement were meant to apply only to the left knee. The applicant also contends that the compromise agreement was ambiguous since it referred to "an injury" and "an accident" since there was no dispute that the applicant sustained multiple injuries on February 24, 1997. However, the commission finds that the fact that the compromise agreement refers to "an injury" and "an accident" does not render the compromise agreement ambiguous. The commission agrees with the administrative law judge that the use of the singular language in the compromise agreement is broad rather than narrow and encompasses all aspects of the litigation meaning all of the various body parts involved. This interpretation is consistent with the terms of the agreement which refers to a full and final compromise of all claims. The applicant points to the fact that the claim was only brought for a left knee injury. However, there is no language in the compromise agreement which specifically limits its terms to the left knee only. In order for their to be mutual mistake there must be some misunderstanding on the part of both parties. In this case, a review of the evidence does not indicate that there was a mutual disagreement about the meaning of the terms involved. For example, a mutual mistake could occur if the parties referred to an injury in March 1997 in the compromise agreement rather than to the date of February 24, 1997 when the injury occurred.

The compromise agreement contained in Exhibit 5 uses the term full and final compromise agreement in several places and does not specifically refer only to a left knee injury. In addition, the administrative law judge appropriately noted that the agreement refers to the medical expense in Exhibit B which includes medical expenses beyond the left knee to include other body parts. The applicant had an opportunity to review the contents of the agreement and did not raise any questions about the language in the compromise agreement but rather signed the agreement including the terms full and final compromise of all claims. The applicant can cite no cases which stand for the proposition that a compromise agreement using unambiguous terms should be set aside because one of the parties realizes at a later date that the language may have not been drafted with the meaning which one of the parties intended. The commission agrees with the employer who states that the applicant is arguing that a unilateral mistake and not a mutual mistake is sufficient to reopen a compromise agreement. However, nothing in the Worker's Compensation Act authorizes reopening a compromise agreement in this situation. Given the fact that there was no evidence of mutual mistake, fraud, duress or gross inequity, the administrative law judge appropriately dismissed the applicant's claim to reopen the compromise agreement. The commission agrees with the administrative law judge that this determination is not necessarily that the outcome set forth is just but that the law specifically dictates the outcome set forth herein.

cc: ATTORNEY STEVEN D HITZEMAN
PRIEVANT GOLDBERG UELMEN GRATZ MILLER & BRUEGGEMAN SC

ATTORNEY ROBERT J JANSSEN
STELLPFLUG JANSSEN NELL & MANNER SC

ATTORNEY JEFF STRANDE
PIEHLER & STRANDE SC

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