Argonaut Insurance Exchange v. Industrial Accident Commission

BRAY, J.— Petition for writ of review on the ground that due process was denied petitioner at the hearing and in the denial of its petition for reconsideration.

Record

Frank A. Thrasher was employed by Lester P. Cahill as a gardener in Potter Valley and was injured in the course of his employment. Petitioner was Cahill’s insurance carrier until midnight, November 12th. Thrasher’s application to the commission alleged November 12th as the date of injury. He testified that the correct date was November 10th. The commission found November 11th to be the date. This evidently was an error as there is no evidence whatever concerning that date. The real controversy is whether the accident occurred in Thanksgiving week, which was after the Argonaut’s coverage of Cahill had expired. After an award to Thrasher against Argonaut, the latter petitioned for reconsideration. On its denial Argonaut filed its petition for writ of review. Although served in this proceeding, Thrasher has not appeared. The commission filed an answer in which it admits the asserted lack of due process and asks that in the interests of justice the findings, conclusions and award, and the order denying petitioner’s petition for reconsideration, be vacated and the matter remanded for further proceedings. Cahill filed an answer denying that petitioner was in anywise denied due process.

Was Petitioner Denied Due Process?

Although Cahill claims that he was covered by the policy expiring November 12, 1951, he gave petitioner no notice of the accident. Thrasher filed his application to the commission about October 2, 1952, almost 10 months after the injury. Petitioner’s first knowledge of the injury was on October 3d when it received notice that on October 2d the commission had issued its order joining petitioner as Cahill’s insurance carrier and had set a hearing at Ukiah for October 24th. October 17th, petitioner filed its answer stating that it expected to raise issues as to the nature and extent of disability, liability for medical treatment and average earnings at the time of injury. “Should other issues not now known to be proper and necessary later develop, we reserve the right to raise such additional issues in accordance with provisions of law and the rules of your Commission.”

[147]There can be little doubt that the referee acted arbitrarily. Thrasher was sworn as a witness. Shortly thereafter the referee stated that Argonaut had not filed an answer. He was then informed that it had been filed October 17th. He stated: “I don’t have it. If you file your answers late, they don’t catch up with the file and we don’t know what you’re doing with the record or the nature of your answer. Let me see a copy of it, please. Besides that, your answer comes in too late. Mr. McAleer [counsel for petitioner] : We received rather short notice on this. Referee : Tour client is the one that has to answer, not you, sir, so you’d better have the mechanics of your client’s office checked up so they can comply with the statute.” Thereupon Attorney Bruner stated that he was appearing for Cahill as “there is some question of coverage raised by the insurance carrier. Referee : There’s none raised by the answer. Mr. McAleer: We would like to raise that issue at this time, Mr. Referee. Referee : You’re not going to raise it. Does the employer have a policy here? Mr. Bruner: Yes, your Honor. Referee: Let me see the policy. I will take no issue on the matter of coverage, except to show who the insurance carrier was with an outstanding policy on the date of the alleged injury. . . . Mr. McAleer: I take it you will not allow me to raise the issue of intoxication ? Referee : I will not hear that evidence if you didn’t raise it in the answer. Mr. McAleer: May I make a statement at this time ? Referee : I will hear no statement at this time. Your client has been sworn, sir. I’m getting a little tired of nurse-maiding the insurance companies along and I’m not going to do it any more in cases where they obviously should know better.” During the examination of Thrasher his attorney stated: “. . . there was a question in Mr. Thrasher’s mind as to the exact date of the injury. We have listed it as November 12th on the application but since then, he has checked the calendar and-” Thrasher then gave the date as November 10th. A Mrs. Matlock testified on cross-examination that Mrs. Cahill informed her that the Ca-hills had no insurance covering Thrasher at the time of the accident. On motion this evidence was stricken. Argonaut’s attorney then asked for a short recess. The referee replied: “I have too many eases to try. I have six cases on the calendar. What do you want a recess for ? Mr. McAleer : The Cahills were brought here as witnesses and I had no opportunity to investigate their testimony before the hearing.