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Pacific Western Construction Co. v. Industrial Commission5/17/1990
ning capacity issues by latter decisions. In Gray the court said:
The scope and criterion of the Commission review of such proposed settlements is succinctly set forth in Brigham Young University v. Industrial Commission of Utah, [74 Utah 349, 279 P. 889 (1929)], and need not be here repeated. The sole issue is the genuineness and bona fides of the parties regarding the issue of compensability. If reasonable men would differ as to whether the claim is compensable or not, the stipulation and settlement should be approved.
24 Ariz. App. at 503, 539 P.2d at 977.
In Brigham Young University v. Industrial Commission of Utah, supra at 361, 279 P. at 893, relied upon in Gray, the Utah Supreme Court stated in part:
We have examined the record, not for the purpose of determining whether the award should be affirmed or annulled, but to ascertain whether the claim of the parties is well founded, and whether on the record the right of recovery is uncertain, and for the purpose of ascertaining the bona fides of the parties and whether there were good grounds justifying a settlement. We find such to be the case. Indeed, on the record it may well be said that the right to recover is quite doubtful. The making of a settlement under such circumstances is not detrimental to the interests of the state or of the public. It rather subserves such interest. The right of parties sui juris to settle their own controversy and avoid litigation is a valuable and resolute right, and may be exercised by them under all circumstances, unless the state, under a proper exercise of police power has circumscribed, restricted, or prohibited it. Holding as we do that no such inhibition or restriction either expressly or by necessary implication is manifested by the act, we think the parties had the undoubted right to make the settlement which was made by them.
There is evidence in the record that claimant's attorney approached the carrier prior to the hearing scheduled to determine lost earning capacity. A dispute existed because of a prior back injury which could have reduced the claimant's $303 per month award for lost earning capacity. Claimant wanted to avoid this result by offering to accept $30,000, which placed at the then-prevailing rate of interest, would have insured continued monthly payments of $303 or more and avoided the risk of a lesser amount at the conclusion of the scheduled hearing. Whether these factors proved the dispute was bona fide, whether reasonable minds would differ about the dispute over lost earning capacity and whether the settlement was reasonable were not considered by the administrative law judge. The parties had the right to settle their dispute in 1980. Safeway v. Industrial Commission, supra, gives us the best example of why a claimant can benefit from settlement. The commission
should not refuse to approve or nullify good faith settlements meeting the criteria in Gray in order to place the parties back to 1980 and reopen the dispute over the issue of lost earning capacity which might result in a loss to the claimant.
We set aside the award and remand for further hearings consistent with this opinion and, if the commission nullifies the 1980 settlement, for further hearings to determine loss of earning capacity and the carrier's credit plus interest for the $30,000 paid to claimant in 1980.
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