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South v. Transportation Ins. Co.3/18/1996
it was not material to the contract because "massage therapist" was only one of seven jobs approved for South to pursue. It contends that South remains free to pursue any of the remaining six jobs, and that rescission is therefore unnecessary and inappropriate.
We are not persuaded that the "massage therapist" job was not material to the contract simply because the contract also included six other jobs which South might have tried instead. What she might have done is entirely irrelevant; what she did was act in conformity with the contract to her detriment. Since, of the seven choices, "massage therapist" was the job she chose, it is entirely material whether she was able to do it or not.
Nor are we persuaded that the contract should not be set aside because it still provides six other jobs South is free to explore. Those jobs were approved after her first injury , but prior to her re-injury; no evidence was presented that any of those jobs would be appropriate now, after the re-injury. In fact, the existing settlement agreement in no way takes into account the ramifications of the re-injury.
At the trial before the Workers' Compensation Court, South's doctor testified that it was more probable than not that the massage training caused her re-injury. The insurer subsequently elicited testimony from the doctor conceding that, hypothetically, any number of events could cause a re-injury to a weakened back, from coughing to mowing the lawn. But these hypothetical scenarios cannot overcome South's allegation that the massage training caused the re-injury, coupled with the doctor's testimony that the training more likely than not was the cause of it.
South alleged a mutual mistake regarding the propriety of including "massage therapist" as a possible career for someone with a back injury . She further alleged that her attempt to pursue this career, in conformity with the settlement agreement, caused her to re-injure her back. The Worker's Compensation Court was presented with uncontroverted testimony that such a career is in fact inappropriate and that it more likely than not caused South's re-injury.
We hold that both parties, at the time of the contract, mistakenly believed "massage therapist" to be an appropriate job for South to pursue. We further find that the inclusion of "massage therapist" as a job option was a material part of the contract at issue, because that was the option that South did in fact pursue. Because both parties, at the time of the contract, were mutually mistaken regarding a material fact, South is entitled to rescission of the settlement agreement.
The settlement agreement is set aside.
JUSTICES TRIEWEILER, NELSON and LEAPHART concur.
JUSTICE ERDMANN dissenting.
I respectfully dissent. I agree with the majority's determination that the Workers' Compensation Court did not err when it concluded that the parties were not mistaken in regard to the nature and extent of South's injury at the time the settlement agreement was entered into. I disagree, however, with the majority's conclusion that the parties were mutually mistaken in regard to the massage therapist position.
The majority states that the Workers' Compensation Court failed to consider South's contention of mutual mistake regarding the residual labor market issue. In fact, the Workers' Compensation Court made both factual findings and conclusions of law specifically addressing this issue. The relevant factual findings are as follows:
18. Dr. Moseley testified that with the exception of the masseuse position the claimant is presently capable of performing all the jobs previous
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