Abron v. Workmen's Comp. Appeals Board

Opinion

COBEY, J.

Petitioner Eugene L. Abron, seeks annulment of a decision and order of the Workmen’s Compensation Appeals Board (hereafter Board) on reconsideration finding that his industrial injury was not proximately caused by the serious and wilful misconduct of his employer (hereafter Employer) respondent, National Supply, a division of Armco Steel. The decision rescinded the prior award made on this ground by one of its referees against the Employer in the amount of $3,156.15. (Lab. Code, § 4553.)

1

Petitioner contends that this decision and order should be annulled because the Board, through its referee, denied petitioner constitutional due process of law in that: (1) his request for a prehearing inspection by his expert witness on safety procedures of both the Employer’s premises where the injury occurred and of certain equipment involved in the injury was arbitrarily denied, and (2) his counsel’s examination of this witness at the subsequent hearing on the issue of the Employer’s possible serious and wilful misconduct was unduly restricted. Both of these contentions have merit and we will, therefore, annul the Board’s award for further proceedings before it consistent with the views expressed in this opinion.

[235]

Facts

Prior to the ordered injection of a dry powder by petitioner, a furnace helper, into a blast furnace, compressed air was blown through a Blastcrete gun for two minutes to remove wáter and other foreign material from the gun. Despite this safety precaution, water remaining in the gun was injected into the furnace. This resulted in the explosion that injured petitioner.

2

Water and molten metal form a highly explosive mixture.

Discussion

1.

The Referee’s Denial of Petitioner’s Request for Limited Prehearing Discovery.

Some two weeks before the hearing of the issue of possible serious and wilful misconduct by the Employer, petitioner’s counsel, by letter, requested the referee hearing the case to order the Employer to permit petitioner’s safety expert to inspect the place where petitioner was injured and certain of the equipment involved in the injury—namely, the Blastcrete gun and compressor lines. The occasion for this request was the Employer’s refusal to permit petitioner’s safety expert such access. About a week later, by letter to petitioner’s counsel, the referee declined the request on the grounds that petitioner had not shown good cause for the requested order and that, in any event, discovery is not permitted in proceedings before the Board.