COMMERCIAL UNION COMPANIES v. SMALLWOOD

OPINION

RABINOWITZ, Justice.

In October of 1973, appellee William S. Smallwood filed an application for adjustment of claim with the Alaska Workmen's Compensation Board, alleging that as a result of his employment with appellant Burgess Construction Company he suffered renal failure which necessitated the removal of his kidneys.1

The evidence presented at the Board hearing consisted of the testimony of Smallwood and of Phil Tannehill, another truck driver. In addition, Smallwood's attorney introduced, over objection, medical reports furnished by Doctors Tenckhoff and Wood, two treating physicians. Tannehill testified that he was employed as a truck driver on the North Slope Haul Road during the same period that Smallwood was working for Burgess Construction on that and similar roads. According to Tannehill, the road conditions were so bad that travel took place at speeds between 10 and 25 miles per hour.2

Smallwood related that he began driving on the North Slope road in 1968 and was one of the first to begin working on this project. Smallwood characterized the working conditions as extremely primitive, making driving very bumpy and taking a heavy toll on the drivers. He stated that on some occasions his urine looked like "strawberry soda pop."3

Under these primitive conditions, Smallwood often carried his own food, consisting of canned goods and sandwiches, in his cab. He attempted to use as little salt as possible, although on occasion he had to eat at mess halls where "you pretty well got to eat what you get." During this period, Smallwood experienced numerous periods of fatigue but assumed they were due to overwork. He made several trips to physicians to treat colds, and none of these established any acceleration of his kidney problems. By 1970 his kidneys had deteriorated to the point that he requested he be taken off the job. After a transfer to another camp, Smallwood returned to Fairbanks where he was given a less taxing job. Within three months, suffering from kidney failure, he was admitted to the Fairbanks Memorial Hospital.

Prior to the June 4, 1974, hearing held before the Board, Smallwood's counsel furnished appellants with a copy of his medical records from 1965 through the operation. In November of 1973 appellants were provided with a medical report authored by Dr. H. Tenckhoff containing a description and diagnosis of Smallwood's kidney failure. Subsequent reports by Dr. Tenckhoff and Dr. Wood were sent to appellants as received, the last being sent at least 30 days prior to the June 1974 hearing. In essence, these medical reports establish that hypertension is a cause of kidney failure. Both physicians agree that medical attention could have controlled the hypertension problem. Dr. Tenckhoff also asserts, and Dr. Wood apparently agrees, that if working and living conditions were such that for extended periods Smallwood was unable to adhere to dietary restrictions and did not obtain medical treatment, "... it remains entirely plausible ... that accelerated hypertension should have developed as it did... ."4

Prior to the hearing, appellants objected in writing to the introduction of any medical reports unless given the opportunity to cross-examine the physicians making the reports.5 At the hearing appellants objected to the introduction of these medical reports, and while the reports were received, in its order awarding Smallwood compensation the Board expressly disavowed any consideration of, or reliance upon, them.6 The matter was then appealed to the superior court where an order was issued remanding the case to the Workmen's Compensation Board for reconsideration.7 The superior court's order directed the Board to take the medical reports into account, and further held that appellants had waived their right to cross-examine the physician authors by virtue of their failure to exercise the right of cross-examination prior to the June 1974 Board hearing. The superior court judge reasoned that because appellants had knowledge of the identity of Smallwood's physicians and "ample opportunity" to inquire into and examine the physicians' reports prior to the hearing, appellants waived any right to cross-examine physicians. Appellants now bring this appeal from the superior court's order of remand.

We hold that in the particular factual circumstances of this case appellants did not waive their right to cross-examine the authors of the medical reports which Smallwood profferred to the Board. Approximately four months prior to the Board's hearing in the case at bar, this court addressed the question of the scope of the right of cross-examination in workmen's compensation proceedings. Employers Commercial Union Insurance Group v. Schoen, 519 P.2d 819 (Alaska 1974). Schoen served to illuminate the tension between the Alaska Workmen's Compensation Board's stated preference for written evidence8 and the constitutional and statutory9 rights of cross-examination, in a factual context where the challenged medical reports were submitted to the insurer on the morning of the hearing before the Board. Recognizing that a procedural system where intention to cross-examine can be noted prior to the hearing10 "... may survive constitutional and statutory scrutiny on a case-by-case basis because the system would subject the right of cross-examination to waiver rules without denying the right altogether" and that, in Schoen, the insurer had "... no opportunity to comply with such a rule ... .",11 we affirmed the superior court's remand to the Workmen's Compensation Board to allow cross-examination. Of particular significance to the resolution of this appeal is the conclusion we reached in Schoen that:

Appellants persuasively argue that they attempted to invoke this absolute right of cross-examination at the June 1974 hearing when they objected to the admission of the medical reports of Dr. Tenckhoff and Dr. Wood.13 We think this position is sound and find nothing in the conduct of appellants which constituted a waiver of their right to cross-examine the authors of the medical reports. Appellants first objected to the use of the medical reports approximately five months prior to the June 1974 Board hearing.14 Nothing in our decision in Schoen would have alerted appellants that a failure on their part to make "inquiry" regarding the disclosed medical reports would result in a waiver of their right to cross-examine Smallwood's physicians.15 On the contrary, we explicitly said in Schoen that:

Thus, given the absence of any Board rule pertaining to medical reports which parallels its affidavit rule,17 and in light of the absence of a system requiring notice of intention to cross-examine to be filed before hearing when medical reports are served upon opposing parties pursuant to the Board's current medical report rules, we are of the view that the superior court erred in its conclusion that appellants had waived their right to cross-examine Dr. Tenckhoff and Dr. Wood.18

Additionally we note that the better reasoned, and weight of, authority is to the effect that the right of cross-examination does not carry a price tag. We have not been referred to any court decision holding that a party waived his right of cross-examination when to exercise that right would have required that party to bear the initial cost of producing the witness at the hearing.19 Yet, if appellants in the case at bar desired to exercise their right to cross-examine the physician-authors of the medical reports introduced by Smallwood, they would have had the burden of bearing the cost of subpoenaing them.20 In light of the decisional law which enunciates the rule that the constitutional right of cross-examination is not dependent upon a monetary prerequisite, we further conclude that appellants did not waive their right of cross-examination in the case at bar by virtue of their failure to subpoena the authors of the medical reports.

We think it appropriate to mention one additional facet of this appeal. Our study of the record leaves us convinced that the superior court did not weigh the evidence and determine whether the Board's decision was supported by substantial evidence. What occurred here was a remand by the superior court to the Board for inclusion of what the court considered to be erroneously excluded evidence,21 without requiring any further hearing. A remand is appropriate when the superior court determines that vital evidence has been erroneously excluded before the Board.22 As we said in Schoen, in the circumstances of such a remand, this court is "... not inclined to deviate from our previous procedure of requiring the initial examination of the sufficiency of evidence to be made in the superior court rather than undertaking ourselves a review of the record for the first time."23

On the other hand, since we have held that appellants did not waive their right to cross-examine either Dr. Tenckhoff or Dr. Wood, we conclude that the superior court's remand to the Board should be modified to include the right of cross-examination and the right of either party to adduce additional medical evidence. The claim in this case is based on highly technical medical considerations pertaining to the cause of the claimant's renal failure. While valid awards can stand in the absence of definite medical diagnosis, this would appear to be the type of case in which it is impossible to form a judgment on the relation of the employment to the disability without medical analysis.24

We thus conclude that the case should be remanded to the superior court with directions to remand to the Board in accordance with the views expressed in this opinion.25 Inherent in our disposition is the requirement that the Board devise an equitable procedure whereby on remand Smallwood may present his evidence without attaching a financial precondition to appellants' right of cross-examination.

It is apparent that this case illustrates the compelling need for the Alaska Workmen's Compensation Board to promulgate rules which will effectuate the Workmen's Compensation Act's policy of providing inexpensive and expeditious resolutions of claims for compensation while affording due process to all concerned parties. We therefore strongly recommend that the Board adopt procedures which will fill the present procedural void relating to medical reports and the right of cross-examination. In Employers Commercial Union Ins. Group v. Schoen, 519 P.2d 819, 823 (Alaska 1974), this court alluded to the possibility of the Board's adopting a procedural system for medical reports similar to the one in effect for affidavits, or a system requiring a notice of intention to cross-examine to be filed before hearing when the medical reports are served upon opposing parties, pursuant to the Board's current medical report rules.

Some statutory workmen's compensation schemes place a burden upon the hearing body itself to pay the costs of such cross-examination. Several courts have simply stated that to the extent a hearing body chooses to rely on certain information, it must assure the parties of their constitutional rights concerning the manner in which the evidence is considered. E.g., Jones v. Industrial Commission, 1 Ariz.App. 218, 401 P.2d 172 (1965). Another possible means of effectuating the right to cross-examination might be to simply tax the extra costs of such examination to the losing party. Additionally, testimony presented by deposition, when notice is given and adequate time for discovery allowed, could substitute for the right to cross-examine at the hearing. Compare Employers Commercial Union Insurance Group v. Schoen, 519 P.2d at 822-23 (Alaska 1974).

Reversed and remanded for further proceedings in accordance with this opinion.26