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South v. Transportation Ins. Co.3/18/1996
ept one of the six remaining positions, she essentially argues that the agreement was for the masseuse position or nothing. In agreeing with South's argument, the majority has ignored the essence of the agreement and has rewritten its terms. The fact that South cannot perform one of seven positions for which she was approved is not material to the overall contract.
I note that the majority properly cites the standards of review we use in appeals from decisions of the Workers' Compensation Court, which are whether that court's findings are supported by substantial evidence and whether its conclusions are correct. Unfortunately, the majority then completely ignores and fails to apply those standards to the decision before us.
The majority's substitution of its judgment for that of the fact finder is evidenced by the statement: "We are not persuaded that the `massage therapist' job was not material to the contract" (emphasis added), in derogation of the Workers' Compensation Court's specific findings that it was not persuaded the job was material, based in large part on its credibility finding regarding South. Similarly, the majority "finds" that the job was a material part of the contract, in direct contravention of the Workers' Compensation Court's findings relating to that issue.
There was substantial evidence to support the Workers' Compensation Court's conclusion that there was no "mutual" mistake in regard to the masseuse position since the agreement was not conditioned on South's ability to ultimately qualify for that particular position. The Workers' Compensation Court correctly concluded that there was no mistake as to a "material" fact, since the agreement approved seven positions from which South could choose. She can still choose from six of the positions and there is no legal basis on which to rescind the settlement agreement. I would affirm the Workers' Compensation Court.
CHIEF JUSTICE TURNAGE and JUSTICE GRAY join in the foregoing dissenting opinion.
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