Consolidate Western Steel Division v. Industrial Accident Commission

DRAPER, P. J.

Was there a showing of “good cause” to reopen a decision of respondent commission almost 41 months after injury and 30 months after the commission denied compensation? That is the question presented here.

Applicant Williams asserts that on July 22, 1958, he sustained a back injury arising out of his employment by petitioner. His application for compensation was filed on March 4, 1959. Following hearings before a referee, the commission on June 9, 1959, issued its “take nothing” award, based upon a finding that applicant “did not sustain any injury arising out of and in the course of his employment as alleged.” The referee’s report stated that “ [t]here is no convincing evidence that the employee sustained any injury as alleged. His testimony is not credible, and it is not believed.” No petition for reconsideration was filed.

On November 8, 1960, the commission wrote to counsel on both sides that applicant had called at the commission office. “As long as he was here, an examination was made by our Medical Bureau.” Copy of the report of the medical director, Dr. Barritt, was furnished with the letter.

On December 15, 1960, almost 29 months after the alleged injury, and 18 months after the take nothing award, applicant filed his petition to reopen. After hearing, another referee found that no good cause was shown and on June 5, 1961, issued his order denying petition to reopen. Williams, in propria persona, then petitioned for reconsideration. The ref

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eree found that “the petition is devoid of merit—totally so,” and recommended denial. The commission dismissed the petition because Williams had not served the employer, which the commission referred to as “technical difficulties.” Nonetheless, on its own motion, it granted reconsideration by order dated August 4, 1961. The commission then appointed an independent medical examiner, Dr. Parker. Upon filing of his report, Panel One reported that: the order of June 9, 1959, “was based, in part, on absence of medical findings necessary to support the case as well as the credibility oi the witness”; the independent medical examiner “found that there was medical corroboration of applicant’s claim. Hence a denial of the claim based on the credibility of the witness was founded on an incorrect appraisal of the case.” The resultant order of January 5, 1962, vacated the order of June 9, 1959, denying compensation and the order of June 5, 1961, denying reopening, granted the petition to reopen, and awarded temporary total disability commencing July 23, 1958, “and continuing indefinitely.” This petition followed.