Carmichael v. Industrial Accident Commission

[312]

McMURRAY, J. pro tem.

*

Petitioner seeks annulment of

the

respondent commission’s order denying reconsideration of its order of August 20, 1964, which found no good cause had been shown to rescind its order approving compromise and release of petitioner’s claim issued on June 14, 1963.

Petitioner injured his back on December 13, 1962. On June 3,1963, the parties, acting through counsel, executed a compromise and release which recited among other things “. . . that [petitioner] sustained an injury arising out of and in the course of his employment as follows: Injured back while lifting side gate on truck ...” and that “ [t]he employee’s present disability is in dispute ...” and that “ [t]he parties hereby agree to settle any and all claims on account of said injury by the payment of the sum of $1,500.00 .. .’’in addition to prior payment of $771.70 temporary disability indemnity and $362.02 paid for medical expenses by employer.

The release and compromise was on an Industrial Accident Commission form and the eleventh paragraph thereof reads: “Upon approval of this Compromise Agreement by the Industrial Accident Commission, a panel thereof, a Commissioner, or a Beferee, and payment in accordance with the provisions hereof, said employee releases and forever discharges said employer and insurance carrier from all claims and causes of action, whether now known or ascertained, or which may hereafter arise or develop as a result of said injury, including any and all liability of said employer and said insurance carrier and each of them to the dependents, heirs, executors, representatives, administrators or assigns of said employee.”

Petitioner sought an order to set aside the foregoing compromise and release and a hearing was held on that question on June 10, 1964. Petitioner there attempted to show that the compromise and release was obtained by fraud or, in the alternative, by reason of mistake of fact. No evidence of fraud appears in the record.

The alleged mistake of fact urged by petitioner was that the two doctors furnished by the employer’s insurer told him that he was able to return to work and that he had completely recovered from his injury and that the residual pain he said he had in his legs was in his mind.