Roberson v. Industrial Accident Commission

NOURSE (Paul), J. pro tem.

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Petitioner, in the course of his employment by Bethlehem Pacific Coast Steel Corporation, sustained an injury to his back. In due course he made application for compensation for temporary disability, and upon the employer’s petition to reopen the commission took further medical evidence and an independent medical examiner was

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appointed by the commission. Upon his report having been received, and he having been cross-examined by applicant, petitioner here, the matter was referred by the referee who heard the matter to the commission’s rating expert. The rating expert filed a written report, and within the time allowed by law petitioner filed a request with the commission that the matter be set down for further hearing for the purpose of cross-examination of the rating expert.

Simultaneously with filing this request, petitioner requested an extension of time in which he might show cause why the matter should not be submitted for decision upon the report of the rating expert. These two documents were filed with the commission on May 5, 1956; and on May 14, 1956, applicant filed a request for a further extension of time within which “to show good cause why the above case should not be submitted for decision upon the instructions and report of the Permanent Disability Rating Specialist.” On May 21 applicant filed written objections to the report of the rating expert, and after stating his objections prayed that the matter be resubmitted to the rating expert with certain specified instructions.

Immediately thereafter the referee filed his report recommending that applicant’s objections be denied, but in this report did not mention applicant’s request for cross-examination of the rating expert; and on May 29 the referee filed his formal findings of fact and award. Thereafter, and within the time required by law, applicant filed his petition for reconsideration, asserting as one of the reasons therefor that he had been denied the right to cross-examine the rating expert. This petition for reconsideration was denied by the referee, and his decision was affirmed by Panel II of the commission upon the ground that by filing the applications for extension of time to show cause why the matter should not be submitted for decision upon the instructions and report of the rating expert and by filing objections to that report, applicant abandoned and waived his right to cross-examine the rating expert.