Keller v. Liberty Northwest, Inc.

December 28 2010
DA 10-0125
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 279
KIMBERLY M. KELLER,
Petitioner and Appellant,
v.
LIBERTY NORTHWEST, INC.,
Respondent and Appellee.
APPEAL FROM: Workers’ Compensation Court,
Cause No. WCC 09-2309
Honorable James Jeremiah Shea, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Howard Toole; Howard Toole Law Offices; Missoula, Montana
For Appellee:
Larry W. Jones; Law Offices of Larry W. Jones; Missoula, Montana
Submitted on Briefs: October 6, 2010
Decided: December 28, 2010
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Petitioner and Appellant Kimberly Keller appeals from the judgment of the
Workers’ Compensation (WC) Court, denying her request for rescission of two
settlement agreements related to a workplace injury. Keller contends that the settlements
were premised on a mutual mistake of fact. The WC Court denied Keller’s request to
reopen her settlement agreements on the basis that Keller failed to prove that Liberty
Northwest (Liberty), her insurer, had no knowledge of the correct diagnosis of her injury
at the time the parties entered into the agreements. Keller timely appealed.
¶2 Keller raises the following issues on appeal:
¶3 1. Whether the WC Court erred in requiring Keller to prove that Liberty had no
knowledge that Keller’s medical condition included either scapular winging or long
thoracic nerve injury at the time the parties entered into settlement agreements.
¶4 2. Whether the WC Court properly rejected Keller’s request for rescission of her
two workers’ compensation settlements.
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Kimberly Keller began working at A Full Life Agency in 2003. She served as the
county coordinator for A Full Life’s in-home care services in Superior, Montana. On
January 3, 2005, a coworker called in sick, and Keller filled in as an in-home care
provider. The client was a large, partially paralyzed woman, and Keller’s back was
injured when she attempted to break the client’s fall. Keller felt a “searing pain” in her
neck and back at the time. When the pain failed to abate, Keller saw Jennifer Strine, a
physician’s assistant in Thompson Falls, Montana.
2
¶6 Strine examined Keller on February 8, and found that Keller had a “thoracic strain
and right scapular dysfunction secondary to muscular weakness.” Strine informed Keller
that she should no longer work due to her injury. Keller saw physical therapist Honani
Polequaptewa soon afterwards, who found “acute low back pain” and “right scapular
winging.” Keller continued to suffer from severe lower back pain, headaches, and
tenderness in her upper spine. Strine was called in to Keller’s physical therapy
appointment on March 4 when Keller experienced muscle spasms and pain in her lower
back and buttocks. Strine noted that Keller’s scapula had continued to “wing” (i.e., stick
out), and diagnosed her with lumbrosacral and gluteal spasm secondary to physical
therapy, and scapular winging “most likely due to a long thoracic nerve inflammation or
damage.”
¶7 Strine referred Keller to Dr. Maurice Brown of Mission Valley Orthopaedic
Surgery and Sports Medicine on March 10, 2005. Strine provided her notes to
Dr. Brown, including her observance of Keller’s right scapular winging. Keller went to
Dr. Brown’s office on April 6, 2005. At this appointment, Keller was initially examined
by Cody Brown (Cody), a physician’s assistant working under Dr. Brown. Cody’s report
listed a number of issues, including chronic headaches, mid and lower back pain, sciatica,
right lower extremity paresthesias, and right scapular winging. Cody noted that
“excessive winging of the scapula” was present when Keller was asked to lean forward
with outstretched arms. Cody reported that his findings were “consistent with nerve
entrapment of the cervical spine/thoracic spine, resulting in scapular winging.”
3
¶8 Dr. Brown saw Keller on April 27, 2005, after reviewing the results of an MRI he
had ordered several days prior. The MRI revealed four distinct “paracentral disk
protrusions” in Keller’s spine. Dr. Brown also noted Keller’s raised scapula, observing
that “the right scapula and shoulder are intermittently raised in a protective position
causing the appearance of scapular winging; however, this was noted to be absent several
times during today’s evaluation.” In late May, Dr. John Hatheway also saw Keller. After
a physical examination, and review of Keller’s MRI results, Hatheway concluded that
Keller’s back pain was related to one of the disk protrusions detected by the MRI and
Dr. Brown.
¶9 Keller saw Dr. Carter Beck in September. Dr. Beck evaluated Keller and found
that she suffered from a “complex pain syndrome,” focused in her mid-spinal region.
Dr. Beck attributed the pain to problems with Keller’s disk protrusions, identifying a
specific protrusion as the likely cause of many of Keller’s problems. Dr. Beck
recommended that Keller seek out a “comprehensive multidisciplinary pain clinic.” He
also stated that Keller was not a candidate for surgery to relieve her symptoms.
¶10 Keller continued to experience severe pain and continued seeking medical
attention. In November 2005, she was evaluated by Dr. Randale Sechrest. Dr. Sechrest
noted that Keller had seen several physicians, including Drs. Brown, Hatheway, and
Beck. Dr. Sechrest reviewed Keller’s prior records and exam results, and performed his
own physical exam. He concluded that Keller had a combination of “chronic pain and
possible disk pathology” in her thoracic spine. In June of 2006, Keller again saw
Dr. Sechrest, who opined that she had reached maximum medical improvement. Keller
4
also saw Dr. Patrick Johnson in late 2005, who attributed Keller’s pain to both
“psychological factors and a medical condition including chronic mid-back pain.”
¶11 In August 2006, Keller was evaluated by Dr. John Schumpert. Dr. Schumpert
performed an independent medical evaluation (IME) of Keller, and noted that physician’s
assistant Strine had found right scapular winging, right thoracic strain, and right scapular
dysfunction. Dr. Schumpert also noted that Cody Brown had observed right scapular
winging in his examination in April 2005, but that no physicians had made the diagnosis.
After his own physical evaluation, Dr. Schumpert concluded that although Keller’s right
scapula was “prominent,” he did not observe scapular winging. Instead, Dr. Schumpert
diagnosed Keller’s raised scapula as a symptom of dextroscoliosis. He noted that Keller
had “chronic thoracic region myofascial pain, and chronic right thoracic nonverifiable
radicular complaints.”1
¶12 Keller returned to physician’s assistant Strine in September 2006. Strine again
found scapular winging, and informed Keller of her findings. Strine noted forward
curvature and retraction of Keller’s scapula, revealing “significant right scapular
winging.”
¶13 Keller’s pain continued unabated. In late 2006, she retained attorney David
Sandler for settlement negotiations. On January 12, 2007, Keller settled her indemnity
benefits in the amount of $27,582.64, reserving settlement of medical benefits. She saw
Dr. Ray Nelson in March of 2007, who noted Keller’s extensive injury history and failure
to control her pain despite several cortisone injections in the areas of disk protrusion.
1
“Radicular” pain is pain which is “radiated” along the sensory distribution of a nerve.
5
Dr. Nelson also noted that several of the medical personnel who had evaluated Keller
recommended breast reduction surgery as a possible source of pain relief.
¶14 In August 2007, no longer represented by Sandler, Keller settled her medical
benefits for $7,500.00. The settlement reflected the parties’ dispute over whether
Keller’s proposed breast reduction surgery was a medical necessity. It was approved in
early September by the Department of Labor and Industry. Keller’s pain had still failed
to lessen as of the date of this settlement, and she testified that she was still experiencing
the same pain symptoms at the time of settlement as she was experiencing at the time of
her injury. Keller underwent breast reduction surgery, but the surgery provided her with
no relief of her pain symptoms.
¶15 In August 2008, Keller was referred to Dr. Dean Ross. Dr. Ross performed an
electrodiagnostic test to investigate the cause of Keller’s raised scapula, which he
described as “striking cosmetically.” The testing produced evidence of a “chronic right
long thoracic neuropathy,” which caused “profound serratus anterior weakness and
scapular winging.” Dr. Ross found “very prominent winging of the right scapula seen at
rest and certainly provoked most completely with shoulder abduction and protraction.”
¶16 Dr. Ross reviewed physician’s assistant Strine’s initial treatment notes from 2005,
and testified that the scapular winging noted by Strine was “more probably than not”
caused by a “long thoracic nerve injury.” He concluded that the symptoms noted in
Keller’s medical records indicated that Keller’s long thoracic nerve injury was present
from the date of the initial injury, and had simply been ignored or missed by other
treating physicians. Keller returned to Dr. Beck for another evaluation in October 2008.
6
Dr. Beck studied the results of Dr. Ross’s nerve conduction study, and noted that the
study verified the diagnosis of “long thoracic nerve palsy.” He concluded that Keller’s
continued pain in her neck and right shoulder was attributable to the nerve palsy, and
remarked that he had never seen a patient exhibit such pronounced symptoms from this
type of injury.
¶17 Dr. Beck testified that scapular winging is one sign of long thoracic nerve palsy,
and that long thoracic nerve radiculopathy (a problem with the long thoracic nerve root)
is essentially synonymous with scapular winging. Dr. Beck reconfirmed that he had not
identified scapular winging in his initial examination of September 2005, but
acknowledged that Dr. Brown’s records had included a mention of a raised right scapula
giving the appearance of winging, although Dr. Brown had concluded that the winging
was not actually present. Dr. Beck opined that the raised scapula in Dr. Brown’s 2005
diagnosis was more likely than not the result of Keller’s long thoracic neuropathy, which
remained undiagnosed until Dr. Ross’s 2008 test.
¶18 Keller petitioned the WC Court for reinstatement of her medical benefits and
rescission of the two settlement agreements (the indemnity benefits and the medical
benefits). Trial was held in October 2009 before the Hon. James J. Shea in Missoula.
Keller testified that she was unaware that her condition included right scapular winging
or long thoracic nerve injury at the time of settlement. Because the settlement
negotiations were premised on mistaken diagnoses, she argued, the settlements were
entered into on the basis of a mutual mistake of fact. Given this mutual mistake, Keller
contended, the settlements were neither valid nor enforceable, and should be set aside.
7
¶19 The WC Court denied Keller’s request for rescission. It concluded that to
demonstrate a mutual mistake of fact, Keller had to show that Liberty had no knowledge
of Keller’s actual injuries (scapular winging and long thoracic neuropathy) at the time of
settlement. Although the court found Keller’s testimony credible, it ruled that Keller’s
testimony that she was under a mistaken impression as to the true cause of her injury only
showed a unilateral mistake of fact, rather than a mutual mistake. Concluding that Keller
had presented no evidence that Liberty was unaware of Keller’s true injury, the court held
that she had failed to carry her burden of proof. Having determined that the settlement
agreements should not be set aside, the court did not reach the issue of whether Keller’s
request for rescission was time-barred by the statute of limitations in § 27-2-203, MCA,
as was argued by Liberty. Keller timely appealed.
STANDARD OF REVIEW
¶20 We review the WC Court’s conclusions of law to determine whether they are
correct. Schmill v. Liberty Northwest Ins. Corp., 2009 MT 430, ¶ 8, 354 Mont. 88, 223
P.3d 842; Lanes v. Mont. St. Fund, 2008 MT 306, ¶ 16, 346 Mont. 10, 192 P.3d 1145.
We review the WC Court’s findings of fact to determine whether they are supported by
substantial credible evidence. Schmill, ¶ 8; Lanes, ¶ 16; Van Vleet v. Montana Ass’n of
Counties Workers’ Comp. Trust, 2004 MT 367, ¶ 9, 324 Mont. 517, 103 P.3d 544.
Substantial credible evidence is “evidence that a reasonable mind might accept as
adequate to support a conclusion; it consists of more than a mere scintilla of evidence but
may be somewhat less than a preponderance.” Lanes, ¶ 16 (citing S.L.H. v. State Comp.
Mut. Ins. Fund, 2002 MT 362, ¶ 42, 303 Mont. 364, 15 P.3d 948).
8
¶21 If there is conflicting evidence, we consider whether “substantial evidence
supports the Workers’ Compensation Court, not whether the evidence might support
contrary findings.” Schmill, ¶ 8 (quoting Caekaert v. State Compen. Mut. Ins. Fund, 268
Mont. 105, 110, 885 P.2d 495, 498 (1994)). In conducting our review, we do not resolve
evidentiary conflicts or consider whether evidence supports factual findings that the WC
Court did not make; rather, our inquiry is restricted to “determining whether substantial
credible evidence supports the findings actually made by the [WC Court].” Gamble v.
Sears, 2007 MT 131, ¶ 20, 337 Mont. 354, 160 P.3d 537 (emphasis added).
DISCUSSION
¶22 Our review today requires us to examine two issues rooted in contract law. We
apply contract law to determine whether settlement agreements are valid and enforceable.
Kruzich v. Old Republic Ins. Co., 2008 MT 205, ¶ 24, 344 Mont. 126, 188 P.3d 983
(citing Gamble, ¶ 24). While Keller seeks “rescission” of her agreements, the doctrine of
mutual mistake prevents effective formation of a contract, and so Keller’s argument is
actually that no contract ever existed. Gamble, ¶ 26 n. 4, Kruzich, ¶ 24. We have long
used the term “rescind” to describe the appropriate remedy in mutual mistake cases,
however, and will do so here as well. Keller argues that no contract existed because the
parties’ consent to the agreement was not effective, as consent cannot be given
effectively when based on a mistake. Kruzich, ¶ 24.
¶23 Mistakes may be either mistakes of law or mistakes of fact. Id. at ¶ 25. Keller
contends that the parties entered into the settlement agreements under a mistake of fact,
9
specifically, the nature and extent of her injury. Section 28-2-409, MCA, sets out the
applicable definition.
28-2-409 What constitutes mistake of fact. Mistake of fact is a mistake
not caused by the neglect of a legal duty on the part of the person making
the mistake and consisting in:
(1) an unconscious ignorance or forgetfulness of a fact, past or present,
material to the contract; or
(2) belief in the present existence of a thing material to the contract
which does not exist or in the past existence of such a thing which has not
existed.
Thus, parties to a contract can make a mutual mistake if they are “unconsciously
ignorant” or “forgetful” of a fact material to the contract. A fact is material when it is a
“vital fact upon which the parties based their bargain.” South v. Transportation Ins. Co.,
275 Mont. 397, 401, 913 P.2d 233, 235 (1996) (internal quotation marks omitted). We
have described a mutual mistake regarding a material fact as “so substantial and
fundamental” a mistake “as to defeat the object of the parties in making the contract.”
South, 275 Mont. at 401, 913 P.2d at 235 (internal citation and quotation marks omitted).
Unsurprisingly, contract law does not uphold agreements which defeat the object of the
parties. Consent is not considered effective when the parties’ agreement is premised on a
mutual mistake, and thus the settlement agreement may be set aside. Kienas v. Peterson,
191 Mont. 325, 328-30, 624 P.2d 1, 2-3 (1980); Weldele v. Medley Dev., 227 Mont. 257,
260, 738 P.2d 1281, 1283 (1987); Kimes v. Charlie’s Family Dining & Donut Shop, 233
Mont. 175, 177, 759 P.2d 986, 988 (1988); Wolfe v. Webb, 251 Mont. 217, 223-28, 824
P.2d 240, 244-46 (1992); South, 275 Mont. at 401, 913 P.2d at 235.
10
¶24 Given the subject matter of workers’ compensation settlement agreements, the
most commonly alleged mutual mistakes predictably relate to mistaken beliefs as to the
claimant’s injuries. In several prior cases, we have determined that the nature and extent
of a claimant’s physical condition can constitute a fact that is material to an agreement
settling an injury claim. Kienas, 191 Mont. at 330, 624 P.2d at 3; Weldele, 227 Mont. at
261, 738 P.2d at 1283; Kimes, 233 Mont. at 178, 759 P.2d at 988; Wolfe, 251 Mont. at
231, 824 P.2d at 248; Gamble, ¶ 27; Kruzich, ¶ 39.
¶25 In the seminal Kienas case, we rescinded a settlement agreement on the basis of
mutual mistake as to the claimant’s medical condition. The claimant, Kienas, injured his
back in a workplace accident. Unbeknownst to the parties at the time, the incident
severely aggravated Kienas’ existing cerebral palsy (of which the parties were aware).
Nine months after the injury, he settled with the State Fund. After settlement, however,
Kienas sought to rescind the settlements on the basis of mutual mistake, arguing that the
agreements had failed to take into account the aggravation of his cerebral palsy. The WC
Court denied his petition, but we reversed on the basis of mutual mistake, concluding that
“[n]either party at the time of entering the full and final compromise settlement knew of
the exact nature or extent of the injury suffered by claimant.” Kienas, 191 Mont. at 329,
624 P.2d at 7.
¶26 In Weldele, the claimant suffered from shoulder, wrist, and elbow pain. Treating
physicians noted the possibility of thoracic outlet syndrome, but ultimately dismissed it
as a cause of the claimant’s injuries. The agreed-upon diagnosis was carpal tunnel
syndrome and rotator cuff syndrome. The parties settled. After settlement, the claimant
11
was, in fact, diagnosed with thoracic outlet syndrome resulting from his on-the-job
injury. We upheld a finding of mutual mistake, concluding that the parties “were
mistaken” as to the nature of the claimant’s injury, which amounted to “an unconscious
ignorance of a material fact on the part of both parties upon which the final settlement
was based.” Weldele, 227 Mont. at 261, 738 P.2d at 1283.
¶27 We need not set out our entire catalogue of workers’ compensation cases
involving mutual mistake here, as we have recently had occasion to do so. See Kruzich,
¶¶ 32-38 (discussing Kienas, at ¶ 32; Weldele, at ¶ 33; Kimes, at ¶ 34; Wolfe, at ¶ 35-36;
South, at ¶ 37-38). The rule distilled from these cases is that if parties to a workers’
compensation settlement agreement are mutually mistaken as to a material fact
concerning the nature and extent of the claimant’s injury—as in the case of a
misdiagnosis—then the settlement agreement may be set aside. Of course, threshold
requirements must still be met, and in Kruzich, we rejected a similar claim because the
parties were not mistaken as to a fact that existed at the time of settlement. Kruzich, ¶ 40
(concluding that no mutual mistake existed at the time of settlement because the
claimant’s Parkinson’s disease was not present until ten years after the settlement).
Liberty claims that our holding in Kruzich precludes Keller’s claims. The opinions of
Dr. Ross and Dr. Beck, however, make abundantly clear that Keller’s scapular winging
and long thoracic nerve injury were in existence at the time the parties entered into the
settlement agreement, and were caused by Keller’s workplace injury. Thus, Kruzich does
not dispose of Keller’s claims.
12
¶28 Liberty also claims that the standard of review set out in Gamble prohibits this
Court from consideration of the merits of Keller’s claims. Gamble, as quoted in the
standard of review section above, reiterated that we do not disturb the factual findings
made by the WC Court, and do not consider whether the evidence might support factual
findings not actually made by the WC Court. Gamble, ¶ 20. Liberty asserts that Keller’s
argument can be summarized as offering evidence in rebuttal of factual findings made by
the WC Court. This argument is plainly inapposite. Keller disputes conclusions of law
made by the WC Court, not findings of fact. The factual findings made by the WC Court
concern Keller’s injury and treatment history, and are not in dispute. Keller argues that
the WC Court erred in its legal conclusions, by using an incorrect legal standard for
mutual mistake, and in determining that no mutual mistake existed on that basis.
¶29 We agree with Keller that the WC Court erred in imposing an incorrect burden of
proof. The court opined, “[i]n order to find that the alleged material mistake was mutual
to both Keller and Liberty, I must find that Liberty had no knowledge that Keller’s
medical condition included either scapular winging or long thoracic nerve injury at the
time the parties entered into the settlement agreements.” This is an incorrect statement of
the law.
¶30 Both statutory and case law confirm that mutual mistake may still exist when
parties know about a theory of injury, if that theory is disregarded, forgotten, or not
considered even though raised as a possibility. In Weldele, for example, the thoracic
outlet syndrome was initially suspected, but was disregarded as a possibility by the
consensus of treating physicians. The parties were certainly aware of the thoracic outlet
13
syndrome, as it was mentioned repeatedly in the medical records. The parties’
knowledge of the disregarded claim was clearly not a dispositive factor. The statutory
definition of “mutual mistake” further reveals the inaccuracy of the WC Court’s litmus
test, as the statute contemplates that parties might be merely “forgetful” of a fact—which
assumes, of course, that they knew of the fact at one time. Similarly, the statute
contemplates that parties might be “unconsciously ignorant,” whereas the WC Court’s
test seems to require that the parties be entirely ignorant, not just unconsciously so. The
test for mutual mistake is an inquiry into whether the parties considered or relied on a fact
in making their bargain, not a mere chronological examination into whether parties knew
of a fact prior to entering into the agreement. Put simply, the parties’ reliance on a
misdiagnosis can suffice.
¶31 Here, even if the parties were mutually aware of the contents of Keller’s medical
records, which contain references to scapular winging and at least some nerve-related
complaints in the thoracic region, it is entirely possible that they entered into the
settlement agreements under a mistaken impression as to the nature and extent of Keller’s
injuries. In Kienas, we examined the factual findings made by the WC Court and
reversed the lower court, concluding that the findings conclusively demonstrated that a
mutual mistake had occurred.2 Here, however, the WC Court halted its analysis before
making the necessary findings to support such a claim.
2
Whether a mutual mistake exists seems to be at least partially a question of fact, properly
resolved only by the trial court, unless the trial court’s record contains all the necessary factual
findings to support a conclusion by an appellate court which does not engage in fact-finding. In
Wolfe, 251 Mont. at 231, 824 P.2d at 248, for example, we referred to the WC Court’s “finding”
14
¶32 Our standard of review does not permit us to engage in the necessary fact-finding
on which to base a conclusion of mutual mistake. “We do not resolve conflicts in the
evidence, and we do not consider whether evidence supports findings that are different
than those made by the WC Court; rather, we confine our review to determining whether
substantial credible evidence supports the findings actually made by the WC Court.”
Gamble, ¶ 20 (emphasis added). Although there was undoubtedly a misdiagnosis of
some degree in Keller’s case, this Court is not the proper forum to settle the factual
inquiry as to what were the “vital facts” on which the parties based their settlement
agreements. Thus, we must remand this case back to the WC Court, so that court can
make the necessary factual findings, and can apply the correct standard for mutual
mistake to these findings.
¶33 The WC Court also did not reach the question of whether the alleged mutual
mistake as to the nature and extent of Keller’s injuries constituted a material fact. As we
have observed above, the “exact nature and extent of the injury suffered” can certainly be
a fact material to the contract. Kienas, 191 Mont. at 329, 624 P.2d at 7. This is not
necessarily the case, however, and we conclude that whether the mistake was material is
a determination properly made by the trial court. It is difficult, from this Court’s vantage
point, to evaluate the dissimilarities, or lack thereof, between the different diagnoses of
Keller’s medical condition. It is conceivable that the fact that the parties relied on
Keller’s incorrectly diagnosed injuries rather than her correctly diagnosed injuries would
as to mutual mistake, suggesting that we considered the question of whether a mutual mistake
existed to be a question of fact.
15
not rise to the level of a material fact, were the treatment, prognosis, and symptoms of the
injuries identical.
¶34 In Sollie v. Peavey Co., 212 Mont. 197, 686 P.2d 920 (1984), for example, the
claimant (Sollie) injured his back while attempting to raise an overhead door at a grain
elevator. He was diagnosed with a degenerative lumbar disc disease and a defect in his
lowest lumbar vertebrae, and was assigned a permanent partial impairment rating of 20%.
After settlement, Sollie sought rescission of the settlement agreements. Basing his
argument on similarity to the facts in Kienas, he contended that the treating physicians
had failed to take into account aggravation of his preexisting disc disease caused by the
accident, just as the parties in Kienas had failed to take into account aggravation of the
claimant’s preexisting cerebral palsy. Because there was no substantial difference
between Sollie’s diagnosis, treatment options, and impairment levels, however, no mutual
mistake of material fact was found, and the parties were held to have effectively
consented to the agreements. Id. at 204, 686 P.2d at 924. In the instant case, it is
conceivable that the parties may not have specifically considered long thoracic nerve
injury or scapular winging in entering into the settlement agreements, but nonetheless had
a sufficiently clear picture of the treatment, prognosis, and likely symptoms of Keller’s
injury. The misdiagnosis might thus be rendered immaterial. The WC Court must be
afforded the opportunity to consider these questions.
¶35 We need not consider any further arguments of the parties. We leave
determination of any outstanding issues, such as Liberty’s statute of limitations argument,
to the judgment of the WC Court. We conclude that the question of whether the statute
16
of limitations bars Keller’s claim is a triable issue and will allow the WC Court to
evaluate this claim on its merits.
¶36 We conclude that the WC Court erred by applying an incorrect burden of proof.
Reversed and remanded for further proceedings in accordance with this opinion.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ MIKE McGRATH
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
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