Opinion
Argued June 15, 1981.
Decided June 22, 1981.
Appeal from the Superior Court, Androscoggin County.
Samp Stone, Frederick S. Samp (orally), Auburn, Hardy Wolf, William Hardy, Lewiston, for plaintiff.
Marshall, Raymond, Beliveau, Dionne Bonneau, Paul R. Dionne (orally), Lewiston, for defendants.
Before McKUSICK, C.J., and GODFREY, ROBERTS and CARTER, JJ.
MEMORANDUM OF DECISION.
Lorette Smith appeals from a pro forma decree dismissing her petition to annul an approved agreement for mistake of fact. 39 M.R.S.A. § 102. Smith suggests that Cannon v. Folsom, Me., 401 A.2d 997 (1979) entitles her to annulment as a matter of law because "the compensation agreement incorrectly states the average weekly wage." Even if there were a mistake of fact, § 102 also requires proof that the employee's signing of the agreement was as a result of the mistake, Cannon, 401 A.2d at 1000, n. 5. Since the record supports the Commissioner's finding that the agreement was not the result of mistake, we must affirm the decision herein. Dunton v. Eastern Fine Paper Co., Me., 423 A.2d 512, 518 (1980).
We have previously indicated that disposal of a petition on the merits and adverse to the petitioner should be by "denial" rather than "dismissal" of the petition. E.g., Ronco v. Diamond Machine Co., Inc., Me., 424 A.2d 1093, 1094, n. 2 (1981).
The entry is:
Judgment affirmed.
It is ordered that the employer pay to the employee an allowance of $350.00 for his counsel fees plus his reasonable out-of-pocket expenses for this appeal.
All concurring.