Holmes Eureka Lumber Co. v. Industrial Accident Commission

THOMPSON, J.

By means of a writ of

certiorari

the petitioners seek to review an order of the Industrial Accident Commission, denying their application for rehearing after a final award of compensation was made in favor of Oley J. Hanson, an employee of the Holmes Eureka Lumber Company. It is contended the commission exceeded its jurisdiction in making the award based on reports of physicians which were received in evidence after the hearing was concluded without affording petitioners an opportunity to cross-examine the physicians or rebut their evidence, contrary to the provisions of section 5704 of the Labor Code of California.

[152]

The claimant, Oley J. Hanson, was injured August 23, 1935, in the course oí his employment, while he was hauling logs for the Holmes Eureka Lumber Company. The Lumbermen’s Mutual Casualty Company was the insurer of the lumber company. After a hearing, the claimant, in February, 1939, was awarded compensation on a basis of fifty and one-half per cent disability. After approximately one year the claimant petitioned the commission for increased compensation on account of permanent disability of his injured leg. The hearing on that petition was held at Eureka on April 18,1940. Both the claimant and these petitioners were represented at that hearing by counsel. The claimant and one other nonmedical witness were examined. No medical witnesses were then examined and no reports of physicians were then filed. The record discloses no application at that hearing to subsequently file medical reports. All that the record shows is that, at the close of the testimony, the referee made the following order: “Case held open ten days; otherwise submitted.” This language implies that the proceedings were to remain open for either party, upon application therefor, to supply additional evidence within ten days, in the absence of which the cause would then be deemed to stand submitted. It accords with reason and justice that such additional evidence should be permitted to be adduced only upon notice to the adverse party with full opportunity to be heard and rebut such evidence if he so desires.

April 22, 1940, the attorney for the claimant sent to the commission four written medical reports. Two of these reports were signed by Dr. J. F. Walsh, and two of them were signed by Dr. Carl Wallace. They were filed on the last-mentioned date and notice thereof was immediately forwarded to the attorney for these petitioners. It is significant that these medical reports were dated and evidently rendered by the physicians on the following dates: October 30, 1939, November 15, 1939, April 13, 1940, and April 15, 1940. All of them were evidently made prior to the hearing, and they were either in the possession of the claimant at the time of that hearing or they were accessible to him.