CLENDANIEL v. INDUSTRIAL ACCIDENT COMMISSION (1940)

The petitioner, Fred Clendaniel, applied for a writ of review to have annulled an order made by the Industrial Accident Commission refusing to reopen a decision denying him compensation for an injury he claimed to have sustained during the course of his employment as a waiter at the Horseshoe Tavern. The original injury consisted of a slight puncture or laceration of the thumb, which developed into a critical case of blood poisoning and confined him in a hospital for approximately six weeks, during eight or nine days of which time he remained in an unconscious condition. He claimed to have sustained the injury on the night of March 31, 1937, by striking his thumb on the end of a protruding nail while cleaning a cabinet in the tavern. Working nearby at the time was a Chinese cook who saw the injured thumb immediately after the accident happened and suggested certain first aid for its treatment. On May 10, 1937, the cook went to China, and on May 20, 1937, shortly after Clendaniel was discharged from the hospital, the employer's insurance carrier instituted the proceedings before the commission for an adjustment of the claim for compensation. Part of the testimony was taken before one referee, and part before another, and on the report of the latter the commission on November 18, 1937, denied Clendaniel any compensation upon the ground that he failed to establish that his injury arose out of and in the course of his employment. On March 1, 1938, the cook returned from China, and shortly thereafter Clendaniel applied to the commission for a reopening of the case so that he might avail himself of the benefit of the cook's testimony as to the happening of the accident. The motion to reopen was partially heard before a third referee, and was concluded before Miss McGuire, the referee on whose recommendation the adverse decision was based; and on her recommendation also the commission on September 8, 1939, denied the application to reopen the case.

One of the main grounds of opposition to the annulment of the order refusing to reopen the case is that the evidence is conflicting upon the issue as to whether Clendaniel injured his thumb during the performance of his duties at the restaurant, and that the testimony to be adduced from the Chinese cook is cumulative. The consideration and determination of that question necessarily requires a review of the testimony given on the merits. In this regard the record discloses the following: Clendaniel had been working at the tavern about three years. On the evening of Wednesday, March 31, 1937, he went to work at the usual time, 5 o'clock. After having served thirty dinners, and about 8:30, he started his weekly job of cleaning the cabinet which stood between the kitchen and the dining room, facing and three feet away from the open doorway of the kitchen. It was eight feet long, six feet nine inches high, and eighteen inches deep, with a solid wooden back made of thin paneling, and on the side facing the kitchen were three shelves. The lowest shelf was about waist high, and was used as a workboard or cutting shelf for cutting pies, cakes and breads, and mixing salads. About two feet above this workboard was a pie shelf, and about a foot below the top of the cabinet, five feet seven inches from the floor, was a “top” shelf, which was used to hold salt, pepper, vinegar, oil and other condiments. On the dining room side of the cabinet was a shelf which had been added about a year prior to the injury, on which were placed glasses, and the nail upon which petitioner claims to have injured his thumb was one which he claims was placed there when that shelf was installed, having been driven into the bracing of the shelf on the left-hand side thereof, and protruding through to the kitchen side about three-eighths of an inch. The point was bent down and to the right, being about two and a quarter inches from the surface of the top shelf. Petitioner testified that he had taken everything off the top shelf, and was washing it with a rag and soap and water, when he stuck his thumb on the nail; that it bled a little, but not much, and he did not pay much attention to it; that almost immediately he showed it to the Chinese cook who was washing dishes in the kitchen, and who told him to put lemon juice on it; that about an hour later he showed his thumb to a Mrs. Geimann, a regular customer of the tavern, who warned him to take care of the injury, that she had a friend who stuck his finger and almost lost his arm. Continuing he testified that about 1:30 he mixed some salad dressing, and noticed at that time that his thumb had begun to burn; that afterwards he told the bartender that he could not help him dry the glasses that night, as he generally did, because his thumb was sore; that Mrs. Geimann came back about 1 o'clock, and again told petitioner to take care of his thumb; that about 2:15 he left for home, which was only a block away; that his thumb was sore, and was beginning to turn black, so he put some mercurochrome on it. The testimony further shows that on Thursday morning, the day following the happening of the alleged injury, Clendaniel reported to the manager of the tavern that he would not be able to work, but did not explain why; that he then went to his doctor's office, Drs. Rhodes and Butler, and the doctor whom he saw there instructed him to soak the thumb in epsom salts and to go home and remain in bed; that he followed the advice so given, and on Friday and Saturday again visited the doctor, staying in bed the rest of those days. Sunday morning the pain from the thumb had extended up to the armpit; the thumb was badly swollen, and he noticed red streaks up his arm. About 12:30 that night he went to the emergency hospital, and the next morning was taken to St. Mary's Hospital, where he remained about six weeks. Clendaniel gave the name of the insurance carrier to his doctor, who sent in a report of the case dated April 1, 1937, which was purported to have been mailed on Saturday, April 3d, and was received at the office of the insurance carrier on Tuesday, April 6th.

The testimony so given by Clendaniel was taken on June 15, 1937, before the first referee, and the hearing was resumed on July 28, 1937, before Miss McGuire, at which time the witnesses above referred to by Clendaniel were produced. Mrs. Geimann testified that between 10 and 11 o'clock that night petitioner told her he had scratched his thumb on the work bench, and showed it to her, and that she saw that it was a fresh scratch, and advised him to be careful of it and put something on it; that she returned to the tavern about 1 o'clock and again cautioned him to be sure and take care of it. Stone, the bartender, testified that petitioner complained to him about 10 o'clock that his finger was sore, telling him at this time “that he stuck it on something back there, and I thought he said a fork or a nail”; that later, just before 2 o'clock, Clendaniel told him he could not help him wipe the glasses because his finger was so sore; that he looked at Clendaniel's thumb, and saw a punch hole; that before Clendaniel left he asked for some whiskey to put his thumb in. Further testimony was given by Dunn, the proprietor of the tavern, to the effect that a day or two after March 31st he met Clendaniel on the street and noticed that his hand was bandaged; that Clendaniel told him he had hurt his hand “the other night” but did not say how; that Dunn told him to go back to the tavern and find a list of doctors who would take care of him. Monroe, another waiter at the tavern, also testified that he saw Clendaniel in the hospital, and that Clendaniel told him he had stabbed his thumb “on a nail out there on the work board” (referring to the whole cabinet); that he understood that “when he was wiping off this upper shelf” he “stabbed [it] on the upper nail”. In addition to the foregoing testimony Clendaniel produced as a witness an engineer who had made an inspection of the cabinet on June 8, 1937. After explaining in detail the construction of the cabinet, he testified that he found a nail driven through above the upper shelf which protruded through about three-eighths of an inch and had been bent down. Petitioner testified again at the second hearing, before Miss McGuire, but he was not called upon to relate again the circumstances under which he claimed to have injured his thumb. His testimony was limited to incidental matters thereto.

Part of the evidence adduced at the first hearing consisted also of a written statement taken by an adjuster for the insurance carrier on April 22, 1937, at the hospital while Clendaniel was still in a greatly weakened condition. The adjuster was an acquaintance of Clendaniel's, and took the statement in the course of a general conversation. Afterwards he wrote it out, and read it to Clendaniel, who signed it with his left hand. The circumstances related therein as to the happening of the accident were substantially the same as those testified to by Clendaniel, except that it is stated therein that Clendaniel was scrubbing “the top of the salad counter” where he struck his thumb on the nail. The insurance adjuster also was a witness at the second hearing. At that time he testified that he had made three inspections of the cabinet in the course of his investigation of the case; that the first inspection was made the same day he had called on Clendaniel at the hospital, and that because of the way Clendaniel had explained the accident to him, he had assumed that the nail was on or about the salad counter; and that he was unable to find anything on the top of the salad board on which anyone might have cut his finger. About three weeks later, during the evening while he was eating dinner at the tavern, the manager called his attention to a row of rusty nail heads above the top shelf about even with his head; and the adjuster testified that he looked over the back of the cabinet and ran his fingers over the nail heads, but did not find anything that would cause an abrasion. His third inspection was made during the daytime on June 14, 1937, the day before the first hearing. Clendaniel was present at the tavern, and pointed out to the adjuster the nail upon which he claimed to have injured his thumb. The adjuster's description of the nail was identical with the descriptions given by the other witnesses; that is, he said it was one which had been driven into the side of the support for the shelf on the dining room side of the cabinet, and protruded through to the kitchen side some three-quarters of an inch and had been bent down. However, not having found this particular nail on his previous inspection of the upper shelf, the adjuster testified that at that time it was not there.

At the conclusion of the second hearing the referee visited the premises; and on November 18, 1937, the findings and award were filed, denying petitioner compensation on the ground that “the evidence does not establish that the defendant suffered an injury arising out of and in the course of his employment”. It is stated in the petition filed in the present proceeding, and not denied by the commission, that “The referee advised that she had been impressed particularly by two points in the case, which had led to her decision:—(a) That an injury of the kind described sustained at 8:00 or 9:00 P.M. could not bring about such a blackening of the thumb due to infection as early as 10:00 A.M. of the following morning [when he visited his doctor]. (b) That the top shelf was so dusty and dirty on July 28, 1937, when the referee viewed it that petitioner must have been falsifying when he said he washed it on March 31, 1937 (nearly four months before)”; and evidently it was mainly on those grounds that the referee recommended denial of compensation. In this connection it may be here stated, however, that as to the first ground, no medical testimony was introduced before the referee at the hearing on the merits; consequently the conclusion drawn by her as to the possibility of infection finds no support in the record; and as to the second, all the testimony on the subject shows, without contradiction, that the upper shelf had been washed on numerous occasions.

Following the rendition of the commission's decision a petition for rehearing was filed by petitioner, and it was denied by an order made ex parte; and no further proceedings were had until April 7, 1938. On that date petitioner filed a petition pursuant to the authority granted by sections 5803–5805 of the Labor Code, St.1937, p. 301 (formerly section 20(d) of the Workmen's Compensation Act, St.1917, p. 850) to reopen the case so that the testimony of the Chinese cook, who had just returned from China, could be produced and considered on a hearing on the merits; and two hearings on the petition to reopen were had. The last one took place before Miss McGuire, at which time, in support of the petition to reopen, the Chinese cook was produced and through an interpreter he related the facts petitioner sought to have considered on the merits along with the other facts. In this regard the cook stated in substance that on the night in question he was standing about four feet away from Clendaniel, and saw him washing off the upper shelf of the cabinet; that there was a nail on the shelf that had been driven through and bent over, on which Clendaniel caught his thumb; that Clendaniel told him he hurt his thumb on the nail; that he showed him his thumb, and it was bleeding; that it was not a cut but a puncture, and that he put lemon juice on it and “kind of” wrapped it up for Clendaniel; that when Clendaniel was making the salad dressing at 1:30 that night he told the cook again that his thumb was hurting, and when Clendaniel left at 2 o'clock the cook again saw the thumb; that it was not bleeding at that time, but “there was a little black dot on the puncture” and a little swelling “on the black spot”. There was also introduced in evidence at the same hearing a report from the doctor who first treated Clendaniel, wherein he stated that the examination, which took place about twelve hours after the alleged injury, disclosed a puncture wound of the right thumb; that the thumb was red, swollen, inflamed and tender; that the appearance was characteristic of an acute fulminating streptococcic infection in an early stage, and that “the picture was typical of an early cellulitis due to the described wound and could easily have been created in this twelve-hour period”.

Furthermore, in his petition to reopen, petitioner stated that he had located and would produce at a retrial the carpenter who installed the outside shelf, who would testify that the protruding nail was one he had driven into the outside shelf through the back wall of the cabinet at the time the shelf was installed. Other testimony was produced at these hearings to reopen, but it does not call for special attention as it added nothing substantial to what has already been set out.

We are of the opinion that in the foregoing state of the record the commission exceeded its powers in refusing to reopen the case upon the ground that the testimony sought to be introduced on the merits on retrial was cumulative. As defined by section 1838 of the Code of Civil Procedure, “Cumulative evidence is additional evidence of the same character, to the same point”; and “Evidence is not cumulative merely because it tends to establish the same ultimate or principally controverted fact” (Black's Law Dictionary.) Here the ultimate controverted issue to be determined was whether petitioner injured his thumb during the course of his employment; and while the testimony of the witnesses produced by petitioner at the hearing on the merits tended to establish petitioner's case on the general issue, the testimony of the cook, which petitioner sought to have the commission consider on a retrial related to matters of fact entirely different in point of time and in substance from those covered by the testimony of the other witnesses. That is to say, the testimony given by Mrs. Geimann and the bartender was to the effect that an hour or so after petitioner claimed he had hurt his thumb he showed it to them and made certain statements to them as to how it was injured, but neither of them saw him cleaning the cabinet where he claimed he hurt his thumb; whereas, according to the cook, he actually saw petitioner washing the upper shelf of the cabinet at the time he was injured; the nail was there on which he stuck his thumb, and immediately upon being hurt petitioner showed his thumb to him and it was bleeding. Moreover, on a retrial petitioner would have had the benefit of the doctor's testimony that the injury was of such a nature as would produce an acute fulminating streptococcic infection within twelve hours after it was inflicted; also of the carpenter's testimony that he had placed the nail there prior to the time of the injury.

The power of the court to review the commission's order on petition to reopen under sections 5803–5805 of the Labor Code is the same as that to review an original award of the commission. Section 5810 of said code provides: “The orders, findings, decisions, or awards of the commission made and entered under this division may be reviewed by the courts specified in sections 5950 to 5956 within the time and in the manner therein specified and not otherwise”; and section 5952 provides: “The review by the court shall not be extended further than to determine whether: (a) The commission acted without or in excess of its powers. (b) The order, decision, or award was procured by fraud. (c) The order, decision, or award was unreasonable. (d) If findings of fact are made, such findings of fact support the order, decision, or award under review.” It is well settled, of course, that the determination of the commission as to what constitutes “good cause” for rescinding, altering or amending its orders, decisions or awards is entitled to great weight; but such determination is not conclusive. It depends largely upon the circumstances of each case. Bartlett Hayward Co. v. Industrial Acc. Comm., 203 Cal. 522, 265 P. 195. And we are convinced that under the circumstances here present the commission's refusal to reopen the case to allow petitioner to introduce the new evidence on the merits was not only unreasonable, but amounted to a denial to an injured employee of a substantial right to which he was entitled under the provisions of the Labor Code, namely, the right to lay before the commission on a hearing on the merits all available facts to establish his claim to compensation. In other words, the commission is vested with a sound discretion to regulate and control the proceedings before it, and its decisions will not be disturbed on certiorari for mere errors of procedure. But that authority will not justify an arbitrary or unreasonable denial of the right of a litigant to procure and produce competent evidence when the application therefore is seasonably made and presented with due diligence according to the established rules of procedure. (Walker Mining Co. v. Industrial Acc. Comm., 35 Cal.App.2d 257, 95 P.2d 188); and after a complete examination of the facts here presented it is our conclusion that this is such a case. Admittedly petitioner suffered a most severe case of blood poisoning as the direct result of the injury to his thumb; and there was not a single affirmative fact or circumstance developed at any stage of the case tending to show that he received the injury to his thumb at any other time or place than as claimed by him. In this situation, to preclude him from presenting the new evidence, now available to him, to substantiate his claim for compensation, would, in our opinion, amount to a denial of substantial justice.

Respondents call attention to certain discrepancies in the evidence, and contend that they constitute conflicts sufficient to justify the commission in finding that petitioner's injury did not occur in the course of his employment, and that therefore its order refusing to reopen the case is conclusive. In this regard it is pointed out that appellant in conversations with others about his injury referred to the place where he hurt his thumb as the salad counter and the work bench; and that the doctor's report referred to it as a table; also that petitioner testified that when he showed his thumb to the cook the latter told him to put lemon juice on it, but that he did not do so, whereas, according to the cook's testimony, petitioner did apply the lemon juice. Attention is also called to the adjuster's testimony that on his second inspection of the cabinet he was unable to find the nail on which petitioner claimed to have injured his thumb; and also to the fact that petitioner did not complain to the manager or proprietor that he had sustained an industrial injury, nor so report it to the doctor. Under well-settled rules, however, there must be a real and substantial conflict in the evidence to render the commission's order immune to inquiry by a reviewing court (Gamberg v. Industrial Acc. Comm., 138 Cal.App. 424, 32 P.2d 413; Thoreau v. Industrial Acc. Comm., 120 Cal.App. 67 7 P.2d 767); and we are of the opinion that the claimed conflicts here relied upon amount to no more than minor discrepancies which do not bring the case within the foregoing rule of immunity. There is, of course, no dispute as to the elementary proposition that the commission is the exclusive judge as to the credibility of the witnesses and the weight to be given to the evidence before it, and that no finding of fact will be disturbed if there is any substantial evidence to support it. Market Street R. Co. v. Industrial Acc. Comm., 193 Cal. 178, 224 P. 95. However, as said in Moquin v. Industrial Acc. Comm., 33 Cal.App.2d 511, 92 P.2d 413, the law under which the respondent commission functions in cases like this is founded on sound public policy, and with the objective of protecting, in a proper case, a workman against economic insecurity. This law favors the payment of compensation, and mere conjecture on the part of the commission that the injury may not be a compensable one should not militate against the employee's receiving this benefit. And the court went on to say in substance that mere discrepancies in the testimony would seem to be insufficient to destroy the credibility of the employee as a witness, and certainly insufficient to destroy the force of the facts proved by other witnesses, or to justify the denial of an award for compensation, where the fact of the injury is indisputable, and no positive evidence is presented that he sustained the injury elsewhere than in the course of his employment, nor even any evidence from which a reasonable inference to that effect could be drawn. See, also, Bussey v. Industrial Acc. Comm., 26 Cal.App.2d 211, 79 P.2d 169, to the same effect.

Respondents contend that where, as here, a party has failed to seek a writ of review of the original award, and later petitions the commission to reopen the case on the ground of newly discovered evidence, and the commission finds such evidence merely cumulative and denies the petition, the appellate court has no right to order the case reopened. This is doubtless the law, if the evidence relied upon as newly discovered was in fact merely cumulative, or could with reasonable diligence have been produced at the original hearing. But such is not the case here. As we have pointed out, the evidence of the Chinese cook was not cumulative, and could not have been presented at the prior hearings because he was in China and it was uncertain when he would return; and it will be remembered that the proceedings before the commission were not instituted by the petitioner, but by the insurance carrier, and that it was heard and determined during the absence of the cook in China.

In support of their contention respondents rely on the cases of Fidelity & Casualty Co. v. Industrial Acc. Comm., 67 Cal.App. 648, 228 P. 348; Silva v. Industrial Acc. Comm., 68 Cal.App. 510, 229 P. 870; Mantyla v. Industrial Acc. Comm., 130 Cal.App. 139, 19 P.2d 799; Mustain v. Industrial Acc. Comm., 130 Cal.App. 447, 19 P.2d 1031; Ingram v. Department of Industrial Relations, 208 Cal. 633, 284 P. 212; Merritt–Chapman & Scott Corp. v. Industrial Acc. Comm., 6 Cal.2d 314, 57 P.2d 501, 502. In our opinion the above cases are not here controlling. The decisions in the Fidelity and Silva cases were rendered prior to the decision in Bartlett Hayward Co. v. Industrial Acc. Comm., supra; and as said in Merritt–Chapman & Scott Corp. v. Industrial Acc. Comm., supra, “The leading case defining the power of the Industrial Accident Commission under this section [20(d) ] is the case of Bartlett Hayward Co. v. Industrial Acc. Comm., 203 Cal. 522, 265 P. 195. Prior to the decision in this case it was held * that the power of the commission was limited to alter or amend its awards to the situation where the disability of the person in whose favor such award was made had either increased, diminished, or terminated. The case of Bartlett Hayward Co. v. Industrial Acc. Comm. held that the Legislature, in enacting section 20 (d) of the Workmen's Compensation Act in 1917, intended thereby to broaden the power of the commission and to enlarge and expand the continuing jurisdiction of the commission beyond the power theretofore possessed by it merely to review, grant or regrant, diminish, increase, or terminate any compensation awarded upon the ground that the disability had recurred, increased, diminished, or terminated, and to embrace the power to rescind, alter, or amend its orders, decisions, and awards within the period of 245 weeks ‘upon good cause appearing therefor.’ Since the decision in the Bartlett Hayward Company Case, the appellate courts have consistently held that the continuing jurisdiction of the commission under section 20 (d) of said act is only limited by the expiration of the period of time therein prescribed and by the requirement that ‘good cause appear’ for rescinding, altering, or amending the former decision of the commission.” In the Mustain case no claim was made that the petition for review should have been filed at the time of the original award, and the order refusing to reopen the case was affirmed on the ground that no new and further disability was alleged. In the Mantyla case it was held that “ordinarily” the commission's refusal to reopen the case should be upheld where the ground specified is one which might have been considered on a review of the original award, but it was further held, as in the Mustain case, that the evidence there supported the commission's findings. It was also held that the testimony sought to be introduced in the Mantyla case was merely cumulative, and there was no showing that such evidence could not with due diligence have been produced at the original hearing. Nor do we find anything inconsistent with the decision herein in either the Ingram or Merritt–Chapman & Scott cases. The Ingram case simply held that the power of the commission to reopen should be exercised with great caution, and in cases where fraud, inadvertence, mistake or excusable neglect are clearly shown; and the Merritt–Chapman & Scott case held that the petitioner therein, after having applied some five different times for a reopening of the case after the original award, was not entitled to have the case reopened, one of the grounds thereof being that “the various petitions presented do not contain any allegation nor give any good reason why such evidence was not produced at an earlier hearing”, which is not, of course, the case here. However, in that case the court goes on to say: “It is self-evident, we think, that, if the words, ‘good cause appearing’ are to have any place or purpose in said statutory provision, the power of the commission to change its former orders or awards may not be predicated upon a mere change of opinion by the commission as to the correctness of its original decision, but there must exist some good ground, not within the knowledge of the commission at the time of making the former award or orders, which renders said original award or orders inequitable. * In other words, the existence of some fact or circumstance which warrants the conclusion that the challenged award is inequitable is a necessary element to the exercise of the continuing jurisdiction of the commission under the authority of section 20 (d).” The above language would seem to be particularly applicable to the present case, for it is apparent that the unavailability of the cook's testimony at the time of the original hearing presents good cause for reopening the case, and warrants the conclusion that the award, made without said testimony having been presented on the merits, is inequitable.

The orders denying the petition to reopen, and denying the rehearing on the petition to reopen, are annulled, and the cause is remanded to the commission for further proceedings not inconsistent with the views herein expressed.

KNIGHT, Justice.

We concur: PETERS, P.J.; WARD, J.