317 P.2d 237 | Okla. | 1957
William E. Bristow, hereinafter called claimant, filed his first notice of injury and claim for compensation stating that he sustained an accidental injury while employed by Cookson Stone Company while drilling in rock. The accident occurred on or about the 29th day of November, 1954. The State Industrial Commission entered an order denying an award. This proceeding is brought by claimant against the employer and its insurance carrier, State Insurance Fund, hereinafter called petitioners, to review the order denying the award.
The record discloses that claimant was an employee of Cookson Stone Company and at the time he was injured was drilling a hole in a rock for the purpose of breaking the rock into small pieces. The hose was blown off the compressor of the drilling machine and claimant was knocked backward off a ledge. He was taken to a hospital and given medical treatment in the hospital and later at home. He was paid temporary total disability in an amount not in dispute.
The State Industrial Commission thereafter conducted hearings to determine the extent of disability. Each party filed medical reports and the case was submitted. On July 48, 1955, the trial commissioner
On November 28, 1955, the parties appeared before the trial commissioner at which time the record discloses Dr. M was not present at this hearing. The claimant re-asserted his right to cross-examine Dr. WL and Dr. M. The trial commissioner stated that claimant had the right to cross-examine Dr. M. The attorneys for claimant stated that it would be impossible to get the doctor at the hearing and asked for a continuance for the purpose of .offering further testimony and insisted on the right to cross-examine both doctors. Thereupon the proceeding was closed and under date of November 28, 1955, an order denying an award was entered in all respects identical with the order of July 18, 1955. An appeal was taken to the Commission en banc, the order was affirmed and this is the order we now review.
At the hearing of July 18, 1955, there was on file a report of Dr. WL. Claimant was sixty-four years old when the accidental injury occurred. It was the theory of petitioners that the disability of claimant was due to disease and not to the accidental injury. The report of Dr. WL supported this theory. Claimant did not receive a copy of the report of Dr. WL prior to the award of July 18, 1955. When the award was appealed to the Commission en banc it ordered a doctor chosen by it to examine claimant. When this doctor made his report claimant immediately made known his desire to cross-examine both Dr. WL and the doctor chosen by the Commission en banc.
We think the question presented is, did claimant have an opportunity to present his evidence after the award was appealed to the Commission en banc and returned to the trial commissioner.
We have discussed the right of the State Industrial Commission to vacate its award in Shell Pipe Line Corp. v. Newman, Okl., 278 P.2d 238. The argument made therein was that the Commission en banc could only affirm or deny an award. We specifically held that the State Industrial Commission had the right to vacate and remand to the commissioner for further hearing. When the State Industrial Commission entered its order for claimant to be examined by a doctor chosen by the Commission en banc because the medical evidence was insufficient, the effect of the action of the State Industrial Commission was to vacate the order made by the trial commissioner on July 18, 1955. Claimant states he had no opportunity to cross-examine Dr. WL and never waived the same. The trial commissioner found claimant had waived the right to cross-examine by appearing before him on July 18th after the report was filed on July 14, 1955, and by failure to raise the issue on appeal to the Commission en banc.
We are of the opinion that under the facts of this case it is immaterial when, claimant had an opportunity to see the report of Dr. WL filed July 14, 1955. We likewise hold that under such facts it is immaterial whether claimant waived the right to object to the report by not raising-the issue on appeal to the -Commission en.
The order denying an award is vacated and the cause is remanded to the State Industrial Commission for further proceedings not inconsistent with the views herein expressed.