Fireboard Paper Products Corporation v. Industrial Accident Commission

TRAYNOR, J. Applicant Morales suffered four injuries to his back in the course of his employment with petitioner. A referee awarded compensation. A panel of the commission, however, reformulated the factors of permanent disability and obtained a disability rating from its permanent disability rating bureau, which it served on the parties. It then revised the referee's apportionment of disability among the four injuries. The panel granted petitioner’s request for a hearing to cross-examine the rating expert and present evidence rebut[846]ting his recommendation and assigned the matter to a referee. The referee, however, not only permitted cross-examination and rebuttal evidence, but admitted a medical report submitted by petitioner on the extent of applicant’s disability. He also permitted applicant to testify in rebuttal to that report. The case was then again submitted for decision. The referee returned the record to the panel for its decision.

In its decision awarding compensation the panel stated that it gave “no consideration to the medical report of Elton G-. Welke dated July 10, 1961, since it was submitted subsequent to the submission of this case at the hearing held for the sole purpose of cross-examination of the rating specialist.1 . . . The Panel does not feel that it must consider medical evidence offered at the time of cross-examination of the rating specialist although it may do so if it wishes.” Petitioner contends that although the referee could have excluded Dr. Welke’s report as not within the scope of the hearing held to test the rating expert’s recommendation (Allied Compensation Ins. Co. v. Industrial Acc. Com., ante, pp. 115, 121 [17 Cal.Rptr. 817, 367 P.2d 409]), he admitted the report in evidence and it therefore became a proper part of the record that the panel was obliged to consider.

The commission contends that the report did not become a proper part of the record on the grounds that Panel One assigned the case to the referee for the limited purpose of conducting a hearing for cross-examination of the rating expert and presentation of evidence in rebuttal to his recommendation, that this evidence was not relevant to that purpose, and that the referee therefore could not admit it. The commission’s own rules of practice and procedure, however, refute that contention. Buie 10774 provides: “Further hearings will not be granted except: (1) By order of the commission, a panel, commissioner or referee, made in the exercise of sound [847]