SANTA MARIA GAS CO v. INDUSTRIAL ACC COMMISSION ET AL (1941)

In a petition for a rehearing it is urged that the opinion heretofore filed (Santa Maria Gas Co. v. Ind. Acc. Comm., 46 Cal.App.2d 775, 117 P.2d 43) disregards petitioner's contention to the effect that the matter was disposed of by the commission after a final hearing held before a referee who had not conducted the former hearings and without the record of the evidence adduced at the former hearings having been transcribed for consideration by the commission. It is argued in that connection that the opinion of the court in Deter v. Industrial Acc. Comm., 45 Cal.App.2d 664, 116 P.2d 112, is controlling. There the court declared: “Although respondents dispute petitioner's contention that any prejudice resulted therefrom, we are not persuaded that such issue should be permitted on review in the circumstances here presented. To the contrary, it is our conviction that when the commission handed down a decision through the instrumentality of a referee who had neither heard nor read all of the evidence in the case, it acted in excess of its jurisdiction.” (Italics added.)

The issue in the Deter case was whether the injury had occurred during the course of employment and upon a petition for a rehearing the matter was disposed of without the proceedings of the first hearing having been reduced to writing and considered by the referee of the second hearing, who had not conducted the first hearing. It was there urged by respondent board, in substance, that notwithstanding such procedure, no prejudice had resulted therefrom.

There is no resemblance between the situation in the Deter case and the case at bar. Nor does the opinion in the Deter case necessarily invalidate all of the decisions of the Industrial Accident Commission made pursuant to such procedure. It should be noted that the language quoted above from the Deter case includes the expression “in the circumstances here presented”; moreover, the form of the verb in the expressions, “handed down a decision”, “had neither heard” and “acted in excess” should also be noted. The subject is not treated in the abstract and a general rule applicable in all cases is not announced.

In the case at bar the action of the commission about which petitioner complains is the increase of the percentage of disability to 76. This action was based, as the record reveals, upon the evidence produced at the final hearing and an examination of the evidence adduced at the former hearings was, under the circumstances, unnecessary in the determination of such question. The evidence produced at the final hearing was sufficient, as a matter of law, to support the action of the board in fixing the rate of disability at 76 per cent.

The petition for a rehearing is denied.

PER CURIAM.