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.
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 case, one of the reports had been served one day before the hearing and the other was served at the hearing. In the instant case, the report was served five days before the hearing and Saturday and Sunday were two of these days.
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
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. Acc. Com.)
Neither did the court in Massachusetts, supra. There the request was stated as follows: "`That the Commission refer this case to independent examiners, orthopedic and neurological, to determine the apparent conflict between the reports filed by the applicant and the reports filed by the defendant. If that request be granted, I am agreeable that the case shall stand submitted upon the receipt and filing of such reports. That not being true, I would like the opportunity to cross-examine and offer further testimony in rebuttal of reports of Drs. Kistler and Haldeman.'"
The entire basis of respondents' position herein is that the petitioners were required to anticipate that Dr. Citret's report would be offered and received in evidence at the hearing and that they (petitioners) should have done something to make the doctor available for cross-examination immediately thereafter.
The instant case and Massachusetts, supra, are indistinguishable
The order herein attacked is annulled and the proceeding remanded to the commission for further hearing.
Shoemaker, P.J., and Taylor, J., concurred.