City of Los Angeles v. Industrial Accident Commission

SHINN, P. J. William A. Clark, respondent, an employee of the City of Los Angeles, in support of his application for benefits under the workmen’s compensation laws, filed with the respondent, Industrial Accident Commission, a medical report of examination made by respondent, Dr. Robert A. Roback. The report was accompanied by a bill in the amount of $95 and claim for lien in behalf of Dr. Roback against any award in favor of respondent Clark. The charges were for X-rays, examination and report and are not contested by Clark or the city. At the hearing before the Industrial Aeei[312]dent Commission on August 6, 1962, Dr. Robaek was subpoenaed by and did appear and testify for the petitioner, the City of Los Angeles. He spent the entire afternoon in connection therewith. He was paid $4.00 as a witness fee and a further sum as a mileage allowance of 15 cents per mile, one way, to the place of hearing. (Lab. Code, § 131.)1 At the hearing Dr. Robaek testified that he had received less than $10 at the time he was subpoenaed and that he expected to make a charge of $100 for appearing at the hearing. The referee found, inter alia, that the applicant actually, reasonably, and necessarily incurred expenses of $190 for medical reports and testimony to prove a contested ease, payable to Dr. Robaek. The award of this sum included $95 for the doctor’s appearance at the hearing.

The city filed a petition of reconsideration contending that the award in favor of respondent Clark, insofar as it ordered payment of medical-legal costs in the amount of $190 to Dr. Robaek, was contrary to law. The petition was denied, the commission thereby affirming its original findings and award. The city now petitions for review of the award.

, There is no dispute as to the material facts. Petitioner contests the validity of the award of the additional $95 to Dr. Robaek for his appearance and testimony at the hearing. It argues,that since Labor Code section 131 provides for the payment of witness fees for appearance under subpoena, the commission has no jurisdiction to require the employer, City of Los Angeles, to pay in excess of ordinary fees in the absence of an express agreement to pay more. There was no .evidence of such an agreement.

In support of the award, respondent commission recognizes that generally, in civil cases, a physician who has acquired knowledge of a patient or of specific facts in connection with a patient may be called upon to testify to those facts without any compensation other than that which a witness ordinarily receives for attendance in court (City & County of San Francisco v. Superior Court, 37 Cal.2d 227 [231 P.2d 26, 25 A.L.R.2d 1418]), but argues that workmen's compensation proceedings are to be governed by a different rule.