Annotate this Case

1974 OK 3
518 P.2d 311
Case Number: 45954
Decided: 01/15/1974
Supreme Court of Oklahoma


¶0 Original proceeding to review Trial Judge's order, affirmed on en banc appeal, denying claim for compensation. Bruce L. Evans, Trial Judge.

Order vacated with directions.

Frank A. Greer, Greer & Greer, Tulsa, for petitioner.

Dennis Downing, Tulsa, and Larry Derryberry, Atty. Gen., Oklahoma City, for respondents.

WILLIAMS, Vice Chief Justice.

¶1 Petitioner hereinafter called claimant, brings this proceeding to review State Industrial Court en banc order, which affirmed a trial judge's order denying claim for compensation. Since this order must be vacated, and the cause remanded for further proceedings, evidentiary summation is unnecessary other than for matters disclosing basis of claim for compensation and events leading to the trial court's order.

¶2 Claim for compensation alleged accidental injury while in respondents' employ, while working with and breathing toxic chemical fumes. Respondents filed general denial, and specifically denied accidental injury arising out of or in course of employment.

¶3 Facts summarized evolved from hearing on September 22, 1971. Claimant had worked for respondents approximately ten years, the last two years in an unventilated area where tape recorder heads were assembled. Assembly required use of chemicals and solvents in proximity to the face and body while cleaning and soldering components. After beginning work in this department claimant began suffering nausea, severe headaches, shortness of breath and fainting spells. On occasions claimant was sent to Glass-Nelson Clinic for examination and treatment, but would recuperate and return to work a few days later. Other employees in this department also had difficulty.

¶4 On May 2, 1966 claimant was using chemicals (Chlorothane) and became violently ill, was taken to the lounge and revived by the nurse, but returned to her work area and later went home. On May 5th, claimant again was sent to the clinic where she was seen by Dr. B. and remained under treatment approximately 30 days. The physician reported (May 20, 1966) claimant was treated for multiple hemorrhages on body, with markedly reduced blood clotting ability. The doctor strongly recommended claimant not be unduly exposed to toxic chemical fumes, as this likely caused blood clotting disturbance.

¶5 Claimant attempted to return to work the week following the May 2nd episode, but on Friday became ill again, was taken to the lounge at a supervisor's direction and then went home. Over the weekend claimant began suffering pain, severe headache, nausea and vomiting, necessitating hospitalization. Dr. B. was unavailable and Dr. C. was called to attend claimant. On Monday claimant advised respondents' personnel manager of her illness and Dr. C.'s attendance, was informed this was all right and was instructed to advise respondents upon leaving the hospital. Claimant's hospitalization continued for approximately a month, during which claimant regularly advised respondents as to her condition. Claimant attempted to return to work once during the following year, but was overcome by onset of same symptoms.

¶6 Within the period between injury and hearing, claimant was hospitalized on sixteen occasions for treatment, and consultation from other physicians concerning developing aspects of her condition. In June 1968, claimant was hospitalized for bronchial diagnosis, and after consultation with specialists, a left lower lobectomy was performed. In January, 1969 a right scalenotomy with segmental rib resection was performed, by specialists called in by Dr. C., to alleviate claimant's chest and breathing problems. Respondents paid no temporary compensation, and claimant was charged with expenses for medical treatment during five years.

¶7 Upon hearing claimant offered in evidence a medical report of Dr. C., dated July 10, 1970. This report outlined claimant's medical course and treatment after May 2, 1966, attributed primary cause of disability to chemicals encountered in working environment, and evaluated resulting disability as total and permanent. Respondents stipulated the physician would so testify if called as a witness, and agreed to admission of the report, but refused to waive cross-examination of Dr. C. The same course of action was taken in respect to a report of Dr. J., one of the surgeons who attended claimant when hospitalized for medical procedures and surgery in 1968 and 1969. Respondents introduced no medical evidence but on cross-examination elicited claimant's admissions of having suffered medical problems in the past. There was no medical evidence, however, connecting any past medical problems with the conditions alleged to have resulted from claimant's work connected episodes.

¶8 At the close of hearing claimant offered into evidence a report of respondents' Dr. B., which was admitted by agreement. Respondents' counsel then stated the court would be advised when numerous depositions to be taken would be completed. The trial judge advised the parties the case would be continued, to be submitted on these depositions. No deposition hearings were held, and no action was taken in the case until June 6, 1972, when the trial judge, in pertinent part, entered the following order:

"That Claimant failed to submit medical testimony to sustain an award for compensation for disability or medical expenses due to an injury arising out of and in the course of her employment with said Respondent, and therefore, Claimant's claim for compensation is hereby denied."

¶9 Claimant's basic presentation for review, in conjunction with ancillary arguments which have no bearing upon the dispositive issue, simply asserts the question whether accidental injury arose out of and in course of employment becomes a question of law when facts are undisputed. Thus, it is argued, since uncontroverted evidence shows accidental injury and incurrence of authorized medical expenses, this order must be vacated.

¶10 Respondents defend correctness of the order on the ground claimant offered no competent medical evidence establishing causal connection between claimant's alleged injury and employment. In this connection, respondents point to reservation of their right to cross-examination of medical experts, and insist claimant's failure to produce these witnesses for cross-examination essential to admissibility of the medical testimony, was fatal.

¶11 Neither party directly considers an issue concerning propriety or correctness of effect of the trial court's order entered under circumstances reflected by this record, although perfunctorily alluding to State Industrial Court Rule 12 (85 O.S. 1971, Ch. 4, App.). Pursuant to its own terms, this rule is to be strictly enforced.

¶12 In City of McAlester v. Nave (Okl.) 451 P.2d 681, this Court construed and applied Rule 12. We held a waiver of respondents' right of cross-examination resulted from respondents' failure to comply with requirement of five day written notice of intention to cross-examine a doctor concerning a medical report. The reasoning in Nave, supra, would control herein, except for circumstances disclosed, which provoked the present controversy. The evidence must be taken in the manner prescribed, absent the parties' agreement or waiver. Standard Coal Co. v. State Industrial Commission, 139 Okl. 269, 281 P. 966. Respondents belatedly sought to reserve their right to cross-examination. Upon claimant's agreement, the trial court tacitly approved this arrangement, although respondents had failed to give notice required by the rule.

¶13 As a result of this action, the essential issue concerns effect of failure to exercise the right reserved. Stated differently, under circumstances shown herein the question arises as to which party assumed the burden of going forward with completion of the evidence required for proper submission of the case. Determination of this issue makes it unnecessary to consider the propriety of the trial judge's order made under these circumstances.

¶14 The precise question has not been presented heretofore. State Industrial Court Rules standing alone do not answer it. The construction applied in Nave, supra, principally concerns the waiver of the right. For this reason reference to civil procedural statutes relating to deposition testimony, 12 O.S. 1971 §§ 431 -453 incl., is helpful. Examination of these statutes reveals that the party desiring the deposition of an adverse party must initiate the proceedings by first giving notice, and thereafter complying with other specified requisites in order to make the deposition admissible. These same requirements appear in Uniform Perpetuation of Testimony Act, 12 O.S. 1971 § 538.1 et seq. The party desiring testimony must take the initiative.

¶15 A related question recently was considered in Unit Rig & Equip. Co. v. East, etc. (Okl.) 514 P.2d 396, involving the matter of expert witness fees required for taking deposition of an opposing party's expert witness. The effect of that decision was clear approval of Rule 14, Amended Rules for District Courts, which vests discretion in a district court to require the party taking a deposition of an adverse party's expert to pay a reasonable fee. Clear implication of the decision places burden of affirmative action upon the party seeking deposition testimony.

¶16 We are of the opinion two reasons support our conclusion that respondents were required to initiate affirmative action in taking depositions for cross-examination of claimant's medical experts. First, discovery testimony from an adverse party must be initiated by the party desiring that evidence. Claimant's medical evidence from attending physicians as to cause of injury and disability was complete. Respondents' attack upon this expert testimony could go only to credibility of the witnesses, and quality of this evidence. These were matters of concern to respondents. Respondents' argument that claimant should have produced medical witnesses for cross-examination, in order to make their testimony admissible is not persuasive. There is no showing claimant refused to produce these witnesses. The record does show, however, claimant gave her deposition in response to respondents' demand for taking deposition testimony.

¶17 Secondly, and most important, provisions of Rule 12, allowing written reports as medical evidence, would be nullified unless the party, who reserves the right to cross-examination (a physician who gave a report) is required to assume the obligation to initiate affirmative action to depose the witnesses. To hold otherwise would provide means for avoiding claims for compensation without full and fair hearing contemplated by Workmen's Compensation Act. Pallesen Const. Co. v. Warren (Okl.) 402 P.2d 256.

¶18 The order is vacated and the cause remanded for further proceedings.

¶19 All the Justices concur.