Sullivan v. Mayo

• Decision Date: 17 June 1960
• Parties: John P. SULLIVAN, Petitioner, v. Nathan MAYO, Commissioner of Agriculture, United States Fidelity and Guaranty Company, and Florida Industrial Commission, Respondents. Nathan MAYO, as Commissioner of Agriculture, of the State of Florida, and United States Fidelity and Guaranty Company, a corporation, Petitioners, v. John P. SULLIVAN and Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 424

121 So.2d 424

John P. SULLIVAN, Petitioner, v. Nathan MAYO, Commissioner of Agriculture, United States Fidelity and Guaranty Company, and Florida Industrial Commission, Respondents.

Nathan MAYO, as Commissioner of Agriculture, of the State of Florida, and United States Fidelity and Guaranty Company, a corporation, Petitioners, v. John P. SULLIVAN and Florida Industrial Commission, Respondents.

Supreme Court of Florida.

June 17, 1960.

W. J. Oven, Jr., and Caldwell, Parker, Foster, Madigan, Oven & Moriarty, Tallahassee, for John P. Sullivan, petitioner-respondent.

Keen O'Kelley & Spitz, A. Frank O'Kelley, H. O. Pemberton, Burnis T. Coleman and Paul E. Speh, Tallahassee, for respondents-petitioners.

THORNAL, Justice.

By two petitions for certiorari we are requested to review an order of the Florida Industrial Commission approving a lump sum advance payment of workmen's compensation benefits to petitioner Sullivan, subject to conditions requiring security to the insurance carrier.

We are called upon to determine whether the statute applicable to this particular case authorizes the lump sum advance payment and permits the Industrial Commission to require security from the employee to the carrier as a condition to the award.

An earlier order regarding this settlement was before the District Court of Appeal, First District. Sullivan v. Mayo et al., 106 So.2d 4. In order to eliminate potential confusion as to jurisdiction we note at the outset that the order presently under consideration was an entirely different order from the one formerly considered by the Court of Appeal. When the former order was entered the Court of Appeal had jurisdiction to review the same under Section 5(3), Article V, Florida Constitution, F.S.A., which authorizes those courts to 'issue writs of * * * certiorari.' Sullivan v. Mayo, supra. Since the Court of Appeal decision last mentioned the Florida Legislature has enacted Chapter 59-422, Laws of Florida 1959, F.S.A. § 440.20(10). This section provides that applications for lump sum settlements shall be considered and determined in accordance with Sections 440.25 and 440.27, Florida Statutes, F.S.A. Chapter 59-422, supra, took effect July 1, 1959. The order of the full Industrial Commission now submitted for review was entered February 5, 1960, and the order of the deputy commissioner now involved was entered August 13, 1959. Section 440.27, Florida Statutes, F.S.A., which is referred to in Chapter 59-422, supra, conveys to this Court appellate jurisdiction over workmen's compensation orders. Consequently, the 1959 statute governing lump sum settlement orders similarly conveys jurisdiction to this Court to review those orders even though they are not technically workmen's compensation orders. We interpolate that the forum in which a review may be obtained is a procedural matter and not a substantive right. As we shall see, Chapter 59-422, supra, could not affect substantive rights of the parties involved because it was enacted long after the date of the injury. However, the matter of the review forum is not substantive but rather procedural and is, therefore, governed by the 1959 act.

We now recur to a brief history and factual background of the instant matter. Mr. Sullivan was injured in the course of his employment of December 23, 1955. Reference to Sullivan v. Mayo, 106 So.2d 4, will reveal that in May 1957, he filed a petition for a lump sum settlement of his weekly compensation. After an extensive hearing the deputy commissioner on October 16, 1957, concluded that Mr. Sullivan, a paraplegic as a result of the industrial accident, had a life expectancy of 27.19 years. He also decided that it was to the best interest of the employee to award the lump sum settlement which would be the commuted value of his compensation for a period of 1,414 weeks. Upon review the full commission concluded that the lump sum settlement provisions of the Workmen's Compensation Act were not intended to apply to cases of permanent total disability and that it would be inapplicable to the requested settlement in the instant case. On appeal the district court of appeal, Sullivan v. Mayo, supra, reversed. That court correctly held that the Florida Workmen's Compensation Act contained no restriction against awarding a lump sum settlement when all future payments were properly commuted to present value even though it covered the life expectancy of one permanently and totally disabled. The court of appeal also held that the full commission was the agency to determine whether or not it was to the best interest of a claimant to have his compensation paid in lump sum. This ruling was made pursuant to the provisions of Chapter 29778, Laws of Florida 1955, which took effect July 1, 1955, prior to Mr. Sullivan's injury. The cause was remanded to the full commission for further proceedings consistent with the opinion of the court of appeal.

Upon remand, the full commission reconsidered the record and decided that it failed to sustain a conclusion that it would be to the best interest of Mr. Sullivan to award a lump sum settlement. It ordered that the petition for such settlement be dismissed.

After the entry of the order of the full commission upon the remand, Mr. Sullivan filed a further petition for a lump sum settlement setting out additional factors which he deemed sufficient to meet the original objections of the full commission. This further petition was filed March 4, 1959. Supporting evidence was heard by the deputy commissioner May 6, 1959. On August 13, 1959, the deputy commissioner entered an order by which he found that 'at the date of the previous hearing, he (Sullivan) had a life expectancy of at least 19 years.' The deputy concluded that it would benefit the claimant to grant him lump sum 'payment' in an amount sufficient to retire two outstanding mortgages. He ordered the carrier to pay the claimant the sum of $18,000 'which shall be applied against the compensation to be due the claimant as hereinafter set out' and which was directed to be used to retire two mortgages and pay an attorney's fee. The deputy further ordered 'that a sum which, when reduced by the statutory discount, would equal the payment heretofore ordered shall be counted as payment of the appropriate number of the claimant's consecutive compensation payments for a period ending August 13, 1975; and nothing herein shall be construed to affect claimant's rights to payments subsequent to that date * * *' As mentioned above, the order of the deputy was entered August 13, 1959. By his order he concluded that the rights of the parties were governed by Florida Statutes then in force. The deputy obviously concluded that the rights of the parties, both substantive and procedural should be governed by Chapter 59-422, Laws of Florida 1959, which took effect July 1, 1959. We will mention this holding hereafter as we discuss the law applicable to the instant ruling. The last order of the deputy was reviewed by the full commission which, on February 5, 1960, affirmed the finding of benefit to the claimant and the award of $18,000 in advance payment. It modified the order of the deputy by adding a condition that the carrier shall receive as security for the advance payment of compensation either an assignment of the existing mortgages which were to be paid off, or be given a new mortgage in the amount of $18,000 without interest, and with a provision that the mortgage note be reduced by $35.00 per week. None of the parties is satisfied with the ultimate order. The claimant asks us to quash that aspect of the order which requires security. The carrier and employer ask us to quash that aspect of the order awarding advance payment. We proceed to consider the various contentions.

The claimant Sullivan contends that there is no provision in the Compensation Act authorizing a requirement of security to the carrier when a lump sum award is made to an employee.

The carrier and employer contend that under the statute applicable when Mr. Sullivan was injured, there was no provision for an advance payment of part of the compensation as distinguished from a commuted lump sum payment of the entire amount to come due with resulting total discharge of the carrier.

We will first dispose of the problem of the statute applicable. It is well established in Florida that the substantive rights of the respective parties under the Workmen's Compensation Law are fixed as of the time of the injury to the employee. This is so because the acceptance of the provisions of the Workmen's Compensation Law by the employer, the employee, and the insurance carrier constitutes a contract between the parties which embraces the provisions of the law as of the time of the injury. Consequently, a subsequent enactment could not impair the substantive rights of ...