                                                  No.     86-260

                   I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                        1986




HAPS WEGlWLLER,

                       C l a i m a n t and A p p e l - l a n t ,

           -vs-
L.E.    MYERS COMPANY,               Employer,

           and

NATIONAL UNION F I R E INSURANCE
COMPANY OF PITTSBURGH,

                       D e f e n d a n t and R e s p o n d e n t .




APPEAL FROM:           T h e Workers' C o m p e n s a t i o n C o u r t , T h e H o n o r a b l e
                       T i m o t h y R e a r d o n , J u d g e presiding.


COUNSEL OF RECORD:


           For A p p e l l a n t :

                       Keefer,        R o y b a l , H a n s o n , Stacey       &   J a r u s s i ; G e n e R.
                       J a r r u s s i , B i l l i n g s , Montana


           For R e s p o n d e n t :

                       J a m e s G.    Edmiston, B i l l i n g s , Montana




                                                        S u b m i t t e d on B r i e f s :   Sept. 4 ,      1986

                                                           Decided:           November 13, 1 9 8 6


      i ;i1 $'     1986
Filed:




                                                        Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.


       Claimant, Hans Wegmuller, appeals the May                    9, 1986,
decision of the Workers' Compensation Court holding that the
doctrine of res judicata bars claimant from reopening the
final judgment in his cause before that court.                 We affirm the
order of the lower court.
       Claimant injured his back while working as a supervisory
foreman for the L. E. Myers Co.                  In claimant's original
action seeking Workers' Compensation benefits, the parties
had stipulated that given the claimant's age and permanent
total benefit rate, the present value of his future permanent
total benefits would be $94,883.               The Workers' Compensation
Judge was asked to determine two issues:
       1)    Was the claimant permanently totally disabled or
permanently partially disabled?
       2.    Was the claimant entitled to receive benefits in a
lump-sum?
       After a hearing, the Workers' Compensation Judge found
claimant to be permanently totally disabled and entitled to a
lump-sum     payment   of    his     benefits.        Employer's    insurer,
National Union Fire Insurance of Pittsburgh, paid claimant
his    lump-sum award       less previous advances.             Although no
satisfaction of judgment was ever filed by claimant, it is
undisputed that the award was paid.
       Subsequently,        Willis        v.   Long    Construction     Co.
(Mont. 1984), 690 P.2d 434, 41 St.Rep. 2050, was issued by
this    Court,   holding     that     a    lump-sum    award   of   Workers'
Compensation benefits could not be discounted to present
value.      Claimant then sought, by petition filed February 28,
1985, to reinstate his bi-weekly benefit payments.
      Another Workers' Compensation claimant, Richard A. Cole,
had   filed      a    similar action      prior    to Wegmuller's.          The
Workers' Compensation Judge dismissed Cole's petition in an
order grounded          on    res judicata.        We    affirmed the lower
court's judgment in Cole v. Greyhound Lines, Inc.                       (Mont.
1986), 716 P.2d 611, 43 St.Rep. 562.               Immediately after --
                                                                     Cole,
was issued, the Workers' Compensation Judge, citing --
                                                    Cole,
denied Wegmuller's petition also.
      On appeal, claimant presents this Court with one issue:
      Did the Workers' Compensation Court err in applying
      the doctrine of - judicata and
                           res                   refusing
      claimant's request for reinstatement of bi-weekly
      benefits for permanent total disability?
      We find no error.
      Claimant        seeks    to    distinguish Cole.          In Cole, the
precise     issue      of     whether   claimant's       benefit   should   be
discounted to present value was raised by the parties.                       In
the instant case, the parties merely stipulated to the value
of claimant's lump-sum award, assuming discounting applied.
Thus, alleges claimant, the lower court never resolved the
issue of whether the payment should be discounted and -
                                                      res
judicata does not apply.
      However, the issue of whether the award should have been
discounted was not treated by the Workers' Compensation Court
because it was not raised by claimant.                   Claimant's case, as
presented     to      the    lower    court, was        fully   litigated   and
decided.    Claimant's stipulation with respect to his lump-sum
award became part of the judgment. The judgment was not
appealed to this Court. As in Cole, "[tlhe litigation has
ended.      An       award has been paid       .   ..       The parties are
entitled to a final judgment."               Cole, 716 P.2d at 613, 43
St.Rep. at 564.
    Finally,
    According to Wheeler v. Carlson Transport (Mont.
    1985), 704 P.2d 49, 42 St.Rep. 1177, a final
    judgment of the Workers1 Compensation Court can
    only be reopened upon one of two conditions:    1)
    the benefits may be changed, reviewed, diminished
    or increased onlv when     "the disability of the
    claimant has changed."    Section 39-71-2909, MCA;
    and 2) a decision may be vacated and a new trial
    granted when the applicant1 rights are materially
                                s
    affected by newly discovered evidence which could
    not,   with    reasonable  diligence,  have   been
    discovered in time for the trial.          Section
    25-11-102 (4), MCA.
Cole, 716 P.2d at 613, 43 St.Rep. at 564-565.   Claimant has
failed to alleae the existence of either of these criteria.
                2




    Affirmed.
