Pacific Employers Insurance v. Industrial Accident Commission

MARKS, J. This is a petition filed by an insurance carrier to annul a permanent disability rating and award of the Industrial Accident Commission on the ground that a report forming a basis of the award was received by the commission after the open hearing of the case, and that petitioner was denied the right to cross-examine the witness making the report upon which the award was based and to introduce evidence in rebuttal of the report. (Sec. 5704, Labor Code.)

In May, 1936, William I. Gale was employed by the Seaboard Oil Company and was injured on the eleventh day of that month. Petitioner was the employer’s insurance carrier.

After proceedings duly had Gale was paid the compensation found to be due him and returned to work. On December 3, 1940, Gale filed another application. A hearing was had and an additional award was made. A rehearing was granted and another hearing was had. Medical reports were filed which clearly showed serious injury to his left leg and ankle, due to the previous injury, and the improper union of the bones. That the injury resulted in a permanent disability seems clear from these reports. No effort was made at or prior to the final open hearing to determine the percentage of this disability. This question was referred to R. E. Haggard, superintendent of the permanent disability rating department of the commission who, on June 9, 1941, recommended a 29%% permanent disability rating. A copy of this report was served on petitioner with the following notice attached:

“NOTICE IS HEREBY GIVEN that the above entitled case will be submitted for decision seven days from the date hereof unless good cause be shown to the contrary in writing..

“Dated at San Francisco,

California, this 11th day of June, 1941.

Raymond G. Lindley

Referee

Industrial Accident Commission.”

[715]On June 18, 1941, petitioner served and filed a written request to have the case set down for further hearing “for the purpose of giving defendants the opportunity to cross-examine Mr. R E. Haggard on his Report of Permanent Disability Rating for the Information of the Commission, dated June 9, 1941, and to offer testimony in rebuttal thereto. Copy of this report was mailed by your Commission to this defendant on June 11, 1941.”