Fireman's Fund Indemnity Co. v. Industrial Accident Commission

AGEE, J. Petitioners by writ of review attack an order made by respondent commission granting to respondent Gomez a permanent disability rating, additional temporary disability benefits, and further medical treatment.1 The hearing before the referee which resulted in this order was held on April 16,1963.

On April 9, 1963, the attorney for Gomez had him examined by a Dr. Citret. This doctor had never seen Gomez before. Petitioners received a copy of his report on April 11, 1963. In it he recommended a spinal fusion operation.

Only Gomez and an investigator employed by petitioners testified at the hearing. Dr. Citret’s report was admitted in evidence, he not being present. At the conclusion of the hearing, petitioners requested a continuance for the purpose of cross-examining Dr. Citret on his report. The referee denied the request and ordered that the matter stand submitted. The sole issue on appeal is whether this denial was error.

In Massachusetts Bonding & Insurance Co. v. Industrial Acc. Com., 74 Cal.App.2d 911 [170 P.2d 36], Mr. Justice Dooling writing the opinion, it was held to be a denial of due process to deprive the compensation insurance carrier of the opportunity to cross-examine two doctors whose reports were admitted in evidence at the hearing but who were not themselves present.

In that ease, one of the reports had been served one day before the hearing and the other was served at the hearing. In the instant ease, the report was served five days before the hearing and Saturday and Sunday were two of these days.

Respondents do not challenge the authority of Massachusetts, supra, and concede that the right to cross-examine in the instant situation is fundamental. Their position is, however, that the petitioners herein waived this right.

There was no statutory waiver. The commission’s own rules provide as follows: “The right of cross-examination of a physician on his written report may be deemed waived where the report of the physician has been . . . served upon [352]the parties twenty days or more prior to the hearing of the ease unless the physician is produced at the time, or unless good cause has been shown for not producing the physician.” (Italics added.) (Rule 10794.5, Rules of Practice and Procedure of the Ind. Ace. Com.)

There was not sufficient time between the receipt of Dr. Citret’s report and the date of the hearing within which to comply with the 10-day subpoena requirement as to medical witnesses. (Rule 10824.5, Rules of Practice and Procedure of the Ind. Ace. Com.)