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does not show the nature and purport of the newly discovered evidence on which it is based, and why with reasonable diligence it could not have been presented at the prior hearing," where supplementary proceedings offer adequate relief," where notices. prerequisite to the relief sought have not been given,78 and where defective service complained of is not alleged to have been prejudicial. It is not ground for a rehearing that the decision was not

76 A petition for a rehearing upon the ground of newly discovered evidence must show the nature and purport of such evidence, so that the Commission may ascertain its materiality, weight, and why it could not, with reasonable diligence, have been produced at the prior hearing; otherwise the petition will be denied. Hewitt v. Red River Lumber Co., 2 Cal. I. A. C. Dec. 286. It is not sufficient to allege the possession of new evidence as to disability; the evidence itself must be stated or outlined, if the petitioner desires the Commission to consider it as a ground for rehearing. The continuing jurisdiction of the Commission over awards enables it to alter or amend them for good cause shown, and further hearings will be allowed upon proper showing. (Wk. Comp., etc., Act, § 25 [d]) Daly v. Mahoney Bros., 1 Cal. I. A. C. Dec. 625.

77 Where the award of the Commission has been entered ordering the defendant to pay the reasonable value of medical and surgical treatment furnished the applicant within 90 days from the accident, without specifying the amount thereof, and an application for a rehearing is requested upon the ground that medical bills have not been approved by the Commission, or the reasonable value of the medical services determined, such application for a rehearing should be denied, for the reason that the claims for treatment can be approved at any time upon request, and it is not necessary to reopen the case to do so. Supplementary proceedings are sufficient for this purpose. Billingsley v. United Tuna Packing Co., 2 Cal. I. A. C. Dec. 133.

78 Where an employer in a petition for rehearing alleges that the Commission erred in not dismissing the proceeding as to the employer and making the insurance carrier solely liable for compensation awarded to an employé, and it appears from the record that the notices required by section 34 (e) of the Compensation Act as a prerequisite to the substitution of the insurance carrier and relief of the employer from liability had not been given, such petition for rehearing will be denied, and the employer not relieved from liability. Sutton v. Wurster Construction Co., 2 Cal. I. A. C. Dec. 705.

79 Where a defendant claims, in an application for a rehearing, that the Commission had never secured jurisdiction over his person, and where the record shows that service of summons was made upon the defendant by mailing a copy of the application to him, with a notice of its having been

tendered by a full Commission,8° that the award is unreasonable," that incompetent evidence was admitted, where there was ample competent evidence,82 that individual stockholders of the defendant corporation had no opportunity to defend previously, that one

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filed, and of the time and place set for hearing, in accordance with the rules of the Commission, and the defendant nowhere urges in his request that he has been prejudiced or prevented from defending upon the merits of the proceeding by any defect in the service of summons or failure to receive noti fication of the pendency of the proceeding, the request for rehearing will be denied. Silva v. Common, 1 Cal. I. A. C. Dec. 644.

80 The fact that a decision is not rendered by a full Commission is no ground for the granting of a rehearing, section 4 of the Act specifically providing that a majority of the Commission is sufficient for the exercise of any power. Mann v. Locke, 2 Cal. I. A. C. Dec. 415.

81 Stevens v. Tittle, 2 Cal. I. A. C. Dec. 146.

Where, following an award by the Commission against the employer for the reasonable value of medical treatment furnished, it appears that the medical treatment received by the applicant was in fact furnished him under a hospital agreement free from expense to him at that time, this fact does not entitle the employer to a rehearing, for the reason that the award was only for the reasonable value of such services, the amount thereafter to be approved by the Commission, and the Commission would thereafter decline to prove any claim against the employer, unless he failed to establish the facts above mentioned. Petersen v. Pellasco, 2 Cal. I. A. C. Dec. 199. The grounds for application for a rehearing on an award for compensation are stated in the Act (section 82), and do not include the ground that the award was unreasonable. Section 83 does allow an application for a rehearing upon this ground, but this section applies only to safety rules and regulations, and does not apply to awards granting or denying compensation. Saunders v. Oxnard Home Telephone, 1 Cal. I. A. C. Dec. 636.

82 Where a written statement elaborating previous oral testimony, without objection, is permitted to be filed, even though such statement may be irrelevant and hearsay, and not admitting of cross-examination, and therefore inadmissible in a court, the Commission will not grant a rehearing on the ground that it acted in excess of its powers, especially when there is ample evidence otherwise. Markt v. National Brewing Co., 2 Cal. I. A. C. Dec. 881.

83 Where a suit is against a corporation, and the corporation has defended by its duly appointed officers, the Commission cannot permit individual stockholders to be heard on petition for rehearing in determining controversies, and it is no ground for rehearing for them to set up the claim that

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party is dissatisfied with the findings of a referee which have been. accepted by the Commission,* that labor unions provided counsel for the applicant,85 or that labor controversies existed at the place where the applicant was injured and resided.86 In default of some very serious mistake as to the facts, a rehearing will not be granted to correct a finding based upon a stipulation mutually entered into at a prior regular hearing.87

Where, on certiorari to review an award of the Industrial Accident Commission, it does not appear from the record what part of the award was given for disability which would have existed after a certain date on account of the original injury, or how much was allowed for an additional injury, it is essential that the Commis

they had no opportunity to defend previously. English v. Cain, 2 Cal. I. A. C. Dec. 399.

84 When a question of fact is submitted to be determined by an expert with the consent of the parties, then, unless circumstances of extraordinary character arise, the Commission will accept the findings made by such referee as conclusive upon the issue referred to him, and will not grant a rehearing because of dissatisfaction of either party with the finding made. Estell v. Los Angeles Ice & Cold Storage Co., 1 Cal. I. A. C. Dec. 501.

85 It is not ground for a rehearing that the injured employé was furnished an attorney by a labor union to aid him in presenting his case. The fact that the labor union of Stockton provided counsel for the applicant is not only not worthy of condemnation, but it is a system which the Commission should be glad to have the labor unions of California follow in all proper Schebrosky v. Morrison & O'Neil, 1 Cal. I. A. C. Dec. 401.

cases.

86 A rehearing will not be granted for the purpose of having the witnesses all brought down to San Francisco and there re-examined, because of unfortunate labor controversies at the place where the applicant was injured and resides. Taking witnesses from Stockton to San Francisco would not make their testimony any more impartial than if they were examined at Stockton. Schebrosky v. Morrison & O'Neil, supra.

87 Daly v. Mahoney Bros., 2 Cal. I. A. C. Dec. 34.

The objection that the evidence does not justify the findings as to the extent of the disability or the rating thereof, if permanent, cannot be raised where both facts are determined by the report of the medical referee to whom the parties have stipulated, and by whose report they had previously agreed to abide, and to which report they had not objected for 30 days subsequent to its admission and prior to the award.

Id.

sion rehear the case and allow only for such disability as would have existed if the additional injury, the slipping of a broken bone, had not occurred, unless they should find that it naturally resulted from the original injury.88 Where the evidence warrants it, compensation for increased disability resulting from the accident may be awarded by supplementary order after notice, without the necessity of the filing of a verified application for a rehearing. The request for such relief is not in the nature of a petition for a rehearing, as it does not call into question the correctness of any prior decision by the Commission. It calls instead for supplemental relief, which can be given without any other formality than notice and an opportunity to be heard.89

The Commission will reopen a case if a disablement clearly traceable to the accident shall, within two hundred and forty-five weeks from the accident, become apparent and compensable, and application made to modify the findings and award to conform to the new condition.90 Where compensation is requested upon the ground that applicant's disability has increased since the former. award of compensation, such request is not a new proceeding within the period of limitations of the Compensation Act, but is the exercise of the power conferred upon the Commission to reopen a case.91

Where an insurer's application for a rehearing does not complain of the Commission's failure to credit the employer with a sum paid by him to the employé, an objection to the award based on such failure is waived."2 A specification in such an application that the evidence did not authorize a finding that the employé was

88 Pacific Coast Casualty Co. v. Pillsbury, Indus. Acc. Com., 171 Cal. 319, 153 Pac. 24.

89 Salvatore v. New England Casualty Co., 2 Cal. I. A. C. Dec. 355.

90 (Wk. Comp. Act, § 82 [b]) Estell v. Los Angeles Ice & Cold Storage Co., 1 Cal. I. A. C. Dec. 501.

91 Salvatore v. New England Casualty Co., 2 Cal. I. A. C. Dec. 355.

92 Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 52, 151 Pac. 658.

disabled in whole or in part from the time of his injury to a date subsequent to the hearing before the referee does not present the objection that compensation was allowed for a longer period than that of actual disability as shown by the evidence."3

When a rehearing is granted to receive further evidence, the issue must be clear and the evidence confined strictly thereto.9*

§ 236. Proceedings under original federal Act

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Questions of fact, or mixed questions of law and fact, under this. Act, are not to be determined by the Attorney General, but are committed to the determination of the Secretary. The question whether an employé is an artisan or laborer is one coming fairly within the discretion of the Secretary of [Commerce and] Labor to decide. In absence of any showing that the duties performed were not those of a laborer, it is presumed that the finding of the Secretary is correct. In the absence of new and controlling evidence that the settlement was made upon an erroneous or incomplete showing of facts, the head of a department cannot reopen a case that has been disallowed by a predecessor.7 The duty of determining whether a claim for compensation has been established involves a discretion on the part of the Secretary, which cannot be delegated to another.98 It is otherwise where such evidence is offered.99

93 (Wk. Comp. Act, § 81, subd. c) Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398.

94 De Long v. Krebs, 1 Cal. I. A. C. Dec. 592.

95 In re Hutton (Op. Atty. Gen.) Op. Sol. Dept. of L. (1915) 409.

96 In re Adler (Dec. Comp. of Treas.) Op. Sol. Dept. of L. (1915) 67 (15 Comp. Dec. 845).

97 In re Erickson, Op. Sol. Dept. of L. (1915) 774.

98 In re Villafranca, Op. Sol. Dept. of L. (1915) 676.

99 Claim had been disapproved by the former head of the Department of Commerce and Labor, which action was subsequently sustained by the head of the Department of Labor. Upon the furnishing of new evidence the claim was reopened and allowed. In re Kinney, Op. Sol. Dept. of L. (1915)

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