                                             No.    80-100

                   I N THE SUPREME COURT O THE STATE O M N A A
                                          F           F OTN

                                                    1981




KENNETH KIENAS,

                               Claimant and Appellant,



JAMES G.     PETERSON, Employer

             and

STATE COMPENSATION INSURANCE FUND,

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




Appeal from:        Workers' Compensation C o u r t , The H o n o r a b l e
                    W i l l i a m E. Hunt, J u d g e p r e s i d i n g .


C o u n s e l o f Record:

         For Appellant:

                    D a t s o p o u l o s , MacDonald & L i n d , M i s s o u l a , Montana
                                                                              r - -
                                                                                    - - - --

         F o r Respondent :

                    G a r r i t y , Keegan & Brown, H e l e n a , Montana

         F o r Amicus C u r i a e :

                    M a r r a , Wenz, J o h n s o n & Hopkins, G r e a t F a l l s
                    Gough, S h a n a h a n , J o h n s o n & Waterman, H e l e n a ,
                    Montana
                    Crowley, Haughey, Hanson, T o o l e & D i e t r i c h ,
                    B i l l i n g s , Montana


                                            Submitted on Rehearing:                Nov.   1 2 , 1980

                                                                       Decided   :MAR 4 - 1981

Filed:
         MPR 4   - ke:
                    A
                    fq
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
     This is an opinion on rehearing.
     @   October 22, 1980, this Court issued Kienas v. State
Fund (1980),         Mont   .   -I   - P.2d      ,   37 St.Rep. 1747.
There we set aside a full and final compromise settlement agree-
ment entered into by an injured workman (Claimant Kenneth
Kienas) and the Workman Compensation State Fund.        The agreement
was set aside because of mutual mistake of a material fact by
both parties upon entering into the agreement.        We remanded the
case to the Workers' Compensation Court to determine the extent
of the injuries that were sustained by claimant and for appro-
priate compensation.
     Subsequently, a petition for rehearing was filed with this
Court on our decision in Kienas.       We reaffirm our decision and
will address several issues raised by the rehearing petition.
     Petitioner argues that the Workers' Compensation Court
had no power to alter or rescind a full and final compromise
settlement agreement four years after the parties had executed
the same.   Section 39-71-204, MCA.      However, in Kienas, the
Workers' Compensation Court did not set aside the agreement.
This Court set aside the agreement.      Our appellate power is
not limited to section 39-71-204 or 39-71-2909, MCA.        See sec-
tion 3-2-204, MCA.
     It is a universally accepted tenet of contract law, statu-
tory in our state, that consent to the contract is lacking if it
is entered into through mutual mistake of a material fact by
the parties.   We found such a mutual mistake in the compromise
settlement agreement in this case.      In applying ordinary contract
law to reach our result, we are not unduly broadening the pos-
sibilities of reopening workers' compensation settlements.         We
are s i m p l y f i n d i n g h e r e t h a t a c o n t r a c t t o s e t t l e d i d n o t e x i s t

i n t h e f i r s t place.

        The p e t i t i o n f o r r e h e a r i n g i s d e n i e d .



                                                                        I/+       -
                                                         Justice        --    J




W e concur:




                       .
                       .   .-
       Justices




T h i s c a u s e was s u b m i t t e d p r i o r t o J a n u a r y 5 , 1981.
