Allied Compensation Insurance v. Industrial Accident Commission

367 P.2d 409, 57 Cal. 2d 115, 17 Cal. Rptr. 817, 1961 Cal. LEXIS 187
CourtCalifornia Supreme Court
DecidedDecember 22, 1961
DocketS. F. 20813
StatusPublished
Cited by40 cases

This text of 367 P.2d 409 (Allied Compensation Insurance v. Industrial Accident Commission) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allied Compensation Insurance v. Industrial Accident Commission, 367 P.2d 409, 57 Cal. 2d 115, 17 Cal. Rptr. 817, 1961 Cal. LEXIS 187 (Cal. 1961).

Opinions

TRAYNOR, J.

Marge E. Lawler Lintz sustained a back injury in the course of her employment as a celery trimmer. Allied Compensation Insurance Company, hereinafter re[118]*118ferred to as Allied, the compensation carrier, voluntarily furnished medical care and temporary compensation. After substantial treatment an operation was performed. Although Mrs. Lintz’s condition showed improvement, some disability remained.

Upon her application for compensation she was examined orally before a commission referee. Medical reports were also introduced. Prom this evidence the referee formulated a statement of disability. The commission’s Permanent Disability Eating Bureau rated the disability as stated at 32% per cent. The referee summarized the oral evidence and then adopted the 32% per cent figure in his findings and award of April 22, 1960.

Mrs. Lintz’s petition for reconsideration was granted to secure the opinion of an independent medical examiner as to the extent of her disability “if the parties so agree.” Mrs. Lintz agreed to the examination on condition that it involve no cost to her. Allied offered to pay only half the cost, although it also offered to abide by the practice of the commission in similar cases. Panel One of the commission apparently concluded that the parties had failed to agree as to who should bear the costs of the examination and proceeded to redetermine Mrs. Lintz’s disability on the basis of the medical reports introduced at the first hearing, the referee’s report, and his summary of Mrs. Lintz’s testimony. Inasmuch as no transcript of her testimony was requested by the parties or ordered by the commission, no member of the deciding panel was familiar with it except as it was summarized by the referee and referred to in the briefs of the parties.

Panel One informally secured from the rating bureau information as to what ratings would be recommended if various factors of disability were included in the disability statement. The parties were not notified of this inquiry or of the bureau’s answer. The panel then formulated a new disability statement and submitted it to the bureau formally. The recommended rating was 77 per cent. Allied was granted a hearing for cross-examination of the rating expert and presentation of evidence in rebuttal to his report. The expert testified that the difference between the first and second ratings was caused solely by the inclusion in the second statement of Mrs. Lintz’s limitation “to sedentary occupations....” One of the medical reports stated that she “could probably do some sedentary work, but anything requiring prolonged standing, lifting or pending would not be feasible for an indefinite time.” The [119]*119other medical reports indicated that her injury was less severe and that she was not so narrowly limited occupationally. The referee concluded that “applicant’s demeanor on the stand” was consistent with these latter reports. Allied’s efforts at this hearing to introduce additional evidence relating to her disability and occupational classification were unsuccessful. A motion for a further hearing at which this evidence might be introduced was denied. The commission adopted the 77 per cent figure in its award after reconsideration.

Allied seeks annulment of the commission’s award. Its principal contention is that it was denied a fair hearing because the second disability statement was formulated without reference to the entire record. It is clear that the commission is required to make an independent examination of the record when, as here, it rejects the findings and recommendations of its referee. (Lab. Code, § 5315 ; National Auto & Cas. Ins. Co. v. Industrial Acc. Com., 34 Cal.2d 20, 30 [206 P.2d 841] ; Pacific Indem. Co. v. Industrial Acc. Com., 28 Cal.2d 329, 339 [170 P.2d 18] ; California Shipbuilding Corp. v. Industrial Acc. Com., 27 Cal.2d 536, 544 [165 P.2d 669] ; Helmick v. Industrial Acc. Com., 46 Cal.App.2d 651, 656 [116 P.2d 658] ; Taylor v. Industrial Acc. Com., 38 Cal.App.2d 75, 82 [100 P.2d 511] ; see also Gov. Code, § 11517, subd. (a) ; Cooper v. State Board of Medical Examiners, 35 Cal.2d 242, 246 [217 P.2d 630, 18 A.L.R.2d 593] ; Hohreiter v. Garrison, 81 Cal.App.2d 384, 399 [184 P.2d 323].) The extent of that independent examination has not, however, been clearly defined. In the first Morgan case the United States Supreme Court held generally that “The one who decides must hear.” (Morgan v. United States, 298 U. S. 468, 481 [56 S.Ct. 906, 80 L.Ed. 1288].) The requirement of a hearing may be satisfied, however, even though the members of the commission do not actually hear (Cooper v. State Board of Medical Examiners, supra, p. 246 ; Morgan v. United States, supra, pp. 480-482 ; McGraw Electric Co. v. United States (E.D. Mo.), 120 F.Supp. 354, 358, affd. 348 U. S. 804 [75 S.Ct. 45, 99 L.Ed. 635]), or even read, all of the evidence. (Lumbermen’s Mut. Cas. Co. v. Industrial Acc. Com., 29 Cal.2d 492, 501 [175 P.2d 823] ; Morgan v. United States, supra, pp. 480-482 ; Taub v. Pirnie, 3 N.Y. 188 [144 N.E.2d 3, 5] ; Wisconsin v. Industrial Com., 272 Wis. 409 [76 N.W.2d 362, 369-370] ; see also United States v. Morgan, 313 U. S. 409, 420 [61 S.Ct. 999, 85 L.Ed. 1429].) “Evidence may be taken by an examiner. Evi[120]*120denee thus taken may be sifted and analyzed by competent subordinates.” (Morgan v. United States, supra, 298 U. S. 468, 482 ; Lumbermen’s Mut. Cas. Co. v. Industrial Acc. Com., supra, p. 501.) The obligation of the panel members was to achieve a substantial understanding of the record by any reasonable means, including the use of the referee’s summary. (See 2 Davis, Administrative Law Treatise, §§ 11.02-11.04, pp. 38-57.)

Panel One admittedly considered the entire record, excepting only the complete transcript of Mrs. Lintz’s testimony. The commission now contends that the transcript is not a part of the record within the meaning of the California statutes and cases. This view has been suggested by at least one commentator. (Bancroft, Some Procedural Aspects of the California Workmen’s Compensation Law, 40 Cal. L. Rev.

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Bluebook (online)
367 P.2d 409, 57 Cal. 2d 115, 17 Cal. Rptr. 817, 1961 Cal. LEXIS 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allied-compensation-insurance-v-industrial-accident-commission-cal-1961.