Mesmer & Rice v. Indus. Accident Comm'n

[467]

ANGELLOTTI, C. J.

The Industrial Accident Commission, in a proceeding duly instituted by respondent Wilson, made an award in his favor against petitioners as compensation for injuries alleged and found to have been suffered by him in the course' of his employment by petitioner Mesmer & Rice. Petitioners seek by means of a writ of review to have this award annulled.

On the trial before the commission it was stipulated that Wilson received an injury and that such injury arose out of, and happened in the course of, his employment. The only question apparently was as to the nature, extent, and duration of the disability caused thereby. The claim of petitioners before the commission was that the disability for which compensation was sought was due to a certain disease with which it was claimed Wilson was afflicted, rather than to the injury confessedly received by him at the time of his accident. A great deal of evidence was introduced before the referee by the respective parties on this issue, and it is not claimed here that there was not sufficient evidence to support the conclusion that the disability for which compensation was awarded was due to the injury. The claim is that the award is void because made before all the evidence was taken, and because of the reception of evidence of unsworn reports of certain doctors, without notice to petitioners.

It appears that at the close of the taking of the evidence before the referee it was suggested by Wilson’s attorney that the physician of the commission examine Wilson and determine definitely for the information of that body whether his disability was due to the disease. This suggestion was acceded to by the attorney for the petitioners. The record fairly shows that, although the latter at first requested that the examination should be made under certain specified conditions, including the holding of the applicant in a hospital under the direction of Dr. Southworth “for a period of six or eight weeks, or such time as Dr. Southworth should determine,” it was finally understood that Wilson was to submit himself to an examination by Dr. H. E. Southworth, the physician of the' commission, who was to take whatever measures he might deem necessary to reach a conclusion, and that his report was to be made to the referee, to be used by the Industrial Accident Commission in arriving at a conclusion,