Langendorf United Bakeries, Inc. v. Industrial Accident Commission

[104]

NOURSE, P. J.

Petitioner seeks review of an award of 100 per cent permanent disability for injuries claimed to have occurred to the respondent Holt during the course of his employment.

There is no dispute that the employee suffered a blow on the elbow while applying a wrench, and jerked his head backward and fell to the floor; that he thereafter complained of severe pains in his neck, arm and lower back. The back pains are the basis upon which the permanent award was made. Concededly the weight of the medical evidence is that the back pains were not caused by the industrial injury. The real cause was a subject of uncertainty and conflicting conclusions of the medical experts.

The petitioner attacks the award on two grounds—(1) that the evidence is insufficient to support the findings of permanent injury, and (2) that petitioner was denied due process when the referee refused to give him the right to cross-examine two of the medical witnesses.

We will limit our discussion to the second ground. In the proceedings before the referee there was a sharp conflict in the evidence as to whether the back injuries were the result of the accident and as to whether any injuries caused permanent disability under the terms of the statute. At the conclusion of the hearing it was agreed that two physicians might submit their reports in writing and the referee then entered an order that the cause should “stand submitted on the filing” of these reports. The petitioner herein protested orally and in writing that it was denied the right of cross-examination of these witnesses, that the subject matter of these reports covered the basic issue of the controversy, to wit, the permanency of the employee’s industrial injury, and that it was vital to petitioner’s case that it be permitted to develop that issue by cross-examination of these witnesses. This request was denied and therein lies the error.

The denial of the right of cross-examination, both where the evidence in chief was admitted during the course of the hearing and where it was received after the hearing was closed, has been held a deprivation of due process in

Walker Min. Co.

v.