State ex rel. Iowa Nat. Mut. Ins. Co. v. Florida Indus. Commission, No. 31891

• Court: United States State Supreme Court of Florida
• Writing for the Court: THOMAS J. COLLINS; ROBERTS
• Citation: 151 So.2d 636
• Parties: STATE of Florida ex rel. IOWA NATIONAL MUTUAL INSURANCE COMPANY, and Wilson Leonard's Hardware Store, Petitioners, v. The FLORIDA INDUSTRIAL COMMISSION, Joseph A. Scarlett, and Henry Hudson Parker, Respondents.
• Docket Number: No. 31891
• Decision Date: 03 April 1963

Page 636

151 So.2d 636 STATE of Florida ex rel. IOWA NATIONAL MUTUAL INSURANCE COMPANY, and Wilson Leonard's Hardware Store, Petitioners,
v.
The FLORIDA INDUSTRIAL COMMISSION, Joseph A. Scarlett, and Henry Hudson Parker, Respondents. No. 31891. Supreme Court of Florida. April 3, 1963.

Page 637

Monroe E. McDonald of Sanders, McEwan, Schwarz & Mims, Orlando, for petitioners.

Edward H. Hurt, Orlando, for Henry Hudson Parker.

Burnis T. Coleman and Patrick H. Mears, Tallahassee, for Florida Industrial Commission.

THOMAS J. COLLINS, Circuit Judge.

This is a workmen's compensation case and the question, primarily, is the interpretation of the second sentence of section 440.20(10), Florida Statutes, F.S.A., as relates to a lump sum discharge, often referred to as a 'wash out.' It is before us on original prohibition at the suggestion of the employer, Wilson Leonard's Hardware Store, and the insurer, Iowa National Mutual Insurance Company.

The factual picture is this: Respondent workman, Henry Hudson Parker, is a married white male, and at the time of the injury was 58 years of age. He is a high school graduate, was the manager of a department store in Franklin, Louisiana, manager of a shoe store in Dallas, Texas, salesman for Studebaker in New Orleans, Louisiana, and at the time of the accident was employed as a salesman in an Orlando hardware store. While lifting a keg of nails in this last employment he felt a 'pain in his back,' which was later diagnosed as a herniated intervertebral disc in the lumbar area of the spine at L-4-5.

Insurer afforded to Parker all medical treatment requested by him and paid him compensation for temporary total disability from October 15, 1960, until February 24, 1961, when he had reached maximum benefits from medical treatment, absent surgery. The treating physician advised this course to diminish the remaining partial disability in the back but Parker refused to submit to surgery and, thereupon, the carrier refused to make further payments.

Parker was rated as having a 25% permanent partial disability of his body as a whole and had prior to February 24, 1961, received $30.00 weekly. Future medical expenses were anticipated.

Page 638

In the light of this impasse between Parker and the carrier and the desire of the former to move to New Orleans and establish himself in business, a joint petition was filed as provided for by the second sentence of 440.20(10), supra, reciting the 25% disability, controversy between the workman and carrier, anticipated future medical expenses, and the desire of Parker to move to New Orleans to engage in business. The lump sum of $4,000.00 was agreed upon. The deputy commissioner approved the proposed commutation on March 21, 1961, ordering that the carrier 'Pay the employee in a lump sum of $4,000.00 in complete discharge of the liability of the employer-carrier for future payment of compensation and remedial treatment as a result of the injuries which he sustained on or about September 16, 1960. The order approving the final settlement is not subject to modification under Florida Statutes 440.28.'

Before the entry of the approval order the deputy commissioner referred the matter to the Rehabilitation Department of the Commission for investigation. See Rules of Procedure, in Workmen's Compensation Cases before the Florida Industrial Commission, 16(3c). Such investigation was made and its report and recommendations submitted to the deputy commissioner. The report reflects a sedulous labor of craftsmanship, thoroughly covering the salient economic points as relating to a lump sum settlement. Rule 16, supra, provides that 'the stipulation [meaning the petition] and the report and recommendations of the Rehabilitation Department will be deemed a part of the record of the proceeding.'

Parker appeared before the deputy commissioner and due to the brevity of the investigation the questions and answers are set forth in full, Deputy Commissioner Haines inquiring:

'Q. Mr. Parker, are you aware of the consequences of the lump sum settlement and stipulation which is before you now?

'A. Yes, sir.

'Q. You have been informed then that you will receive the sum of four thousand dollars?

'A. Yes, sir.

'Q. In complete settlement of the claim you have against the carrier?

'A. Yes, sir.

'Q. And that the Florida Industrial Commission then can no longer modify or change this?

'A. Yes sir I understand that.

'Q. You believe this is in your best interest?

'A. I do sir, yes, sir.'

Apparently the approving order was based upon the joint petition, report of the Rehabilitation Department and the testimony of the employee. The $4,000.00 was paid and the matter was in a complete state of quiescence until on or about March 8, 1962, when the employee filed before the deputy commissioner a petition to modify, 'requesting that the stipulation heretofore entered herein be...