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Homer R. Vernon Employee v. Steven L. Mabe Builders6/15/1993
GREENE, Judge.
Plaintiff appeals from a 19 March 1992 Opinion and Award For the Full Commission affirming and adopting as its own an Opinion and Award of Deputy Commissioner Morgan S. Chapman filed 21 September 1990, denying plaintiff's motion to set aside a Form 26 agreement.
The evidence before the deputy commissioner at the hearing on plaintiff's motion established that plaintiff suffered a compensable back injury on 16 October 1986, and on 13 August 1987, reached maximum medical improvement. Plaintiff's doctor, David L. Kelly, rated plaintiff as having a fifteen percent permanent disability of the back and stated that he did not think that plaintiff was going to be able to return to work. A copy of Dr. Kelly's report was sent to plaintiff's rehabilitation nurse, Edna Foster (Foster), as well as to Margaret Howell, claims adjuster for defendant Nationwide Insurance (Nationwide). At the time, nurse Foster reported to Nationwide. On 24 August 1987, plaintiff signed a document entitled "Supplemental Memorandum of Agreement As To Payment of Compensation," commonly referred to as an Industrial
Commission Form 26 agreement, which is used for the payment of, among other things, permanent partial disability benefits. The Industrial Commission approved the agreement on 4 September 1987. Pursuant to the agreement, defendants paid plaintiff benefits for permanent partial disability for a period of forty-five weeks, ending on 27 May 1988. On 7 September 1989, plaintiff moved to set aside the Form 26 agreement on the grounds of duress, undue influence, fraud, misrepresentation, or mutual mistake.
After a hearing on 21 March 1990, Deputy Commissioner Morgan S. Chapman made the following pertinent findings: Prior to plaintiff signing the Form 26 agreement, plaintiff told nurse Foster that he did not believe he could return to work. Foster responded that she thought that there was probably something plaintiff could do. Plaintiff did not understand what Foster was talking about insofar as she discussed his disability rating. Deputy Commissioner Chapman also found:
4. Shortly after August 28, 1987, plaintiff received a copy of a letter sent by [the insurance adjuster] to his employer which indicated the percentage of his rating and the amount of compensation to which the rating would give rise. The employer was instructed to sign the enclosed Form 26 Agreement, to have the employee sign it and then return it to [the adjuster]. [The adjuster] stated in the letter that payments would begin once the agreement had been approved by the Industrial Commission. Plaintiff's wife read both the letter and the agreement to him.
5. Plaintiff, who was illiterate and not knowledgeable about workers' compensation benefits, still did not understand what the rating was about, but he made no effort to learn anything more. He did not call an attorney, the insurance adjuster or the Industrial Commission before he signed the agreement. The executed agreement was subsequently submitted to the Commission along with Dr. Kelly's office note of August 13, 1987 in which the doctor not only gave plaintiff the permanent partial disability rating but also stated that he did not believe that plaintiff was going to be able to return to work. The agreement was approved, and defendants began paying compensation to plaintiff pursuant to the award.
7. The evidence does not demonstrate that the settlement agreement executed by the parties in this case was entered into by reason of fraud, misrepresentation, undue influence or mutual mistake. The only communication between the parties regarding the settlement occurred on the date plaintiff last saw Ms. Foster and in th
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