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.
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.
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."
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
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.
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 evidence
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.
Thus, given the absence of any Board rule pertaining to medical reports which parallels its affidavit rule,
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.
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,
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.
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.
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
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.
In appealing this order to the superior court, appellants argued that the Board could not have drawn a causal connection between low salt diets, hypertension, and kidney failure without considering the medical reports they purportedly declined to consider. Further, appellants argued that the Board should not have considered the medical letters because no opportunity to cross-examine had been furnished the employer.
The superior court actually cited AS 44.62.570(b)(3) in its order. That subsection concerns inquiry as to whether there was a prejudical abuse of discretion. Reading the order as a whole, we are convinced that the statutory basis of remand was AS 44.62.570 (d).
The Board's rules parallel AS 44.62.460 (b) in that 8 AAC § 45.120(b) provides in part:
In Schoen we noted that the Board's rules provide that affidavits may be introduced in lieu of oral testimony, but that an opposing party has the right to cross-examine the affiant. "If no notice of intention to cross-examine is filed, the right to cross-examine is deemed waved. Nothing in the affidavit rule indicates that it applies to medical reports, and the procedure in this case indicates that the Board interprets the rule to be inapplicable to medical reports." Employer's Commercial Union Ins. Group v. Schoen, 519 P.2d 819, 822 (Alaska 1974).
8 AAC § 45.120(d) provides:
Affidavits in lieu of oral evidence:
In Schoen we cited Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). There the Supreme Court rejected a social security disability claimant's allegation that he had been denied the right to cross-examine physicians whose reports formed the basis for disallowing his claim, because the claimant had the opportunity to subpoena the doctors but had not exercised it. Richardson would be on all fours with the instant case regarding cross-examination but for one crucial factor. As the United States Supreme Court noted in Richardson, 402 U.S. at 397, 91 S.Ct. at 1425, 28 L.Ed.2d 850,
Section 404.926 of Volume 20 of the Code of Federal Regulations provides in part that, "Subpoenas ... shall be issued in the name of the Secretary ... and the Social Security Administration shall pay the cost of the issuance and the fees and mileage of any witness so subpoenaed... ." Present Alaska law requires the party requesting subpoena to bear such costs. Thus, neither Schoen nor Richardson stands for the proposition that a party may waive its right of cross-examination if it refuses to bear the cost of producing the party to be cross-examined.