Brokaw v Walgreen Company and Zurich-American Insurance Company, 2008 ACO #69
The parties entered into a Voluntary Pay Agreement indicating that the Defendant would be responsible for medical expenses, responsible for reimbursement to group carrier, and responsible for an attorney fee to be charged at 30 percent of the amount of the Blue Cross Blue Shield lien.

The Voluntary Pay Agreement indicated that the Defendant will pay $6,039 to satisfy the lien obligation of $9,150. In addition the Defendant will pay Plaintiff $332.62 in out-of-pocket medical expenses and $360.90 for mileage expenses. Regarding the balance owing to Healthcare Midwest, the Defendant will pay the outstanding medical bills only. These will be paid pursuant to the fee schedule. The balance currently stands at $933.88.

The record indicates that three weeks after the Order was entered and the Voluntary Pay Agreement was executed, the Defendant was apprised by a representative of the Defendant’s that Blue Cross Blue Shield was willing to waive its lien. The Plaintiff’s rejected the request of the Defendants to waive the attorney fees.

A Claim for Review was filed by the Defendants.

The Defendant argued that there was a mutual mistake and that their counsel did not have authority to dismiss the Application and enter the Voluntary Payment Agreement with the terms provided on that Agreement.

The Workers’ Compensation Appellate Commission concluded that the Defendant’s arguments were too late and, in any event, did not justify release.

The Workers’ Compensation Appellate Commission advised that they would be justified in denying the Defendant-Appellant’s request to grant their motion for reinstatement of the Plaintiff’s Application for Mediation or Hearing on the basis that the Defendants failed to comply with the Rule 7 (4) that a motion or response to a motion representing the existence of facts not in the record and adopted by the Magistrate shall be accompanied by an affidavit from a person with personal knowledge of any facts stated in the motion.

However, the Workers’ Compensation Appellate Commission continued with their analysis despite the Defendant’s failure to comply with Rule 7 (4) and held that there were no facts that would justify a mutual mistake, or erroneous belief, which is shared and relied on by both parties, about a material fact that affects the substance of the transaction, or a lack of authority in Defendant’s counsel to enter into the agreement. The Court held that changing one’s mind is not a basis upon which to overturn an agreement. As such, the Workers’ Compensation Appellate Commission denied the Defendant’s Motion for Reinstatement of the Plaintiff’s Application for Mediation or Hearing.