Pence v. Industrial Accident Commission

PETERS, J.

The question presented in this proceeding is whether petitioner Pence was unduly restricted in the production of rebuttal testimony at the hearing held to challenge the recommendations of the commission’s rating expert. We are of the opinion that Pence was so restricted. For that reason the award must be annulled and the matter remanded to the commission for further proceedings.

On August 15, 1963, Pence, while working as a cement finisher in Pasadena for Del E. Webb Corporation, suffered an industrial injury that caused him to leave his work. At that time he was 64 years old. The commission, on May 11, 1964, held a hearing pursuant to Pence’s application for a temporary and permanent disability award. Pence testified about the facts surrounding the injury, and further testified that as a result of the injury he is unable to work in very warm climates and that, although he presently is employed, he has been forced to reject offers of employment in areas away from the coast. Pence also introduced medical testimony. Cyprus Insurance Company, the construction firm’s insurer, had presented medical exhibits prior to the hearing. At the termination of the hearing, the referee allowed the insurance company 20 days to file additional medical reports, and the matter was otherwise submitted with the discretion to refer the case to the Permanent Rating Bureau.

The referee did request a rating from the bureau pursuant to the following instructions:

‘‘ Cement finisher

“Please rate on the following factors of disability:

“Disability from heat exhaustion and myocardial insufficiency. Applicant should avoid high temperatures or extreme sunshine. In his usual work, applicant must rest 5 minutes every hour. ’ ’

The bureau recommended a rating of 9% per cent disability, and the report was served on the parties with the notice that the report had been received in evidence and that the case would be submitted for decision in seven days unless good cause to the contrary was shown. Both sides requested an additional hearing, and the requests were granted. The commission’s notice of the hearing stated that its purpose was to “Cross examine Mr. Tee [the rating expert] & Rebuttal.”

At the hearing, Mr. Tee testified that he classified Pence’s

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