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Hartford Accident and Indemnity Co. v. Workers' Compensation Appeals Board6/15/1982
evidence in the case some out-of-court report to him by an unidentified person that a wall had existed around that title company's parking lot for more than two years, all without the right of the defendants to cross-examine the declarant with respect to his or her knowledge and the accuracy of the information imparted and indeed, to inquire into the matter of whether the WCJ had the correct parking lot or not.
It is perhaps even more appalling that the Board would countenance such procedure. Its statement in its opinion and decision after reconsideration that defendants' due process rights were not abridged because the WCJ gave 15 days' notice of his intention to strike the testimony of Officer Cahill is no answer at all. In the first place, the notice of intention to strike the testimony of Officer Cahill in no way cured the WCJ's receipt of evidence on his own motion without notice or opportunity to be heard. Secondly, promptly upon receiving the notice of intention to strike the testimony of Officer Cahill, the defendants requested that the matter be reopened for further hearing, and their request was denied.
As to the striking of Officer Cahill's testimony we observe that if the WCJ was dissatisfied with the state of the evidence he should have reopened the matter for the presentation of further evidence. His letter inquiry was improper because any answer received would have constituted more evidence received in the absence of the parties in derogation of their right of cross-examination. Further, the conclusion of the WCJ that the officer must not have witnessed the incident because he failed to answer the letter was wholly speculative. The record is devoid of any showing that Officer Cahill ever actually received the letter.
Notice and opportunity to be heard are fundamental procedural rights to which every litigant is entitled in workers' compensation proceedings
as in all other proceedings of an adjudicatory nature. (See Robert G. Beloud, Inc. v. Workers' Comp. Appeals Bd. (1975) 50 Cal. App. 3d 729, 734 [123 Cal. Rptr. 750].)
We do not believe the evidence establishes as a matter of law that the decedent's death resulted from intoxication; however, we do not decide the question because in further proceedings it is likely that additional evidence concerning the decedent's alleged intoxication will be presented. We, of course, do not intimate or express any opinion as to what the result should be in further proceedings, but the present order and decision of the Board must be and it is hereby annulled.
Disposition
We do not believe the evidence establishes as a matter of law that the decedent's death resulted from intoxication; however, we do not decide the question because in further proceedings it is likely that additional evidence concerning the decedent's alleged intoxication will be presented. We, of course, do not intimate or express any opinion as to what the result should be in further proceedings, but the present order and decision of the Board must be and it is hereby annulled.
Judges Footnotes
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