Idaho Maryland Mines Corp. v. Industrial Accident Commission

WARNS, J. pro tem.

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Petitioner seeks a writ of review and annulment of a finding and award of the Industrial Accident Commission in which workmen’s compensation benefits were made to the applicant, Hattox, one of the respondents herein.

Petitioner alleges that the commission awarded workmen’s compensation benefits in favor of the respondent Hattox and against petitioner, without giving petitioner notice of the pendency of the proceedings. The record shows that petitioner petitioned for reconsideration in said proceedings, in accordance with the provisions of section 5506 of the Labor Code and section 473 of the Code of Civil Procedure, and that said petition was denied. It is contended that the commission abused its discretion in refusing reconsideration.

Applicant Hattox was awarded permanent disability due

[695]

to silicosis suffered as a result of Ms employment by various mining companies, including the petitioner.

The primary question is whether there is support for the referee’s determination and report in the proceeding for reconsideration that petitioner had been notified of the time and place of the hearing application by Hattox for adjustment of claim. The referee’s report on petition for reconsideration states that the petitioner was served with a notice of the time and place of hearing of application for adjustment of applicant’s claim. The referee in support of this finding refers to the record he had before him. Such record is not before this court, but respondent alleges notice was mailed to the petitioner on August 20, 1958. The record reveals an affidavit of service by mail executed by a staff member of the commission, wherein it is averred that such employee mailed notice in the required manner.

It further appears that on April 9, 1958, the commission had issued an order joining as parties defendant various mining companies and insurers, including petitioner herein, and that the application and order were served on all parties by mail. It does not appear that the notice mailed petitioner was returned to the commission. Further, on May 5, 1958, the attorney for Hattox served a copy of the applicant’s employment record and two medical reports on all parties, including the petitioner. An affidavit of service by mail in the usual form was duly filed. The letter addressed to the petitioner was not returned to the sender.