Flynn v. Ponca City Milling Co. , 71 Okla. 281 ( 1918 )

This is an appeal from an award made by the Industrial Commission in favor of the claimant, Frank Flynn.

Flynn claimed to have been injured by a flour truck striking him in the side, which resulted in the formation of an abscess on the side of his chest.

The principal question at issue at the hearing was whether this abscess was the result of the accident. Without notice to either party, a transcript of the testimony was submitted to the medical adviser of the commission, who gave his written opinion to the effect that the abscess probably resulted from the injury. On this opinion the commission based its findings and conclusion. The statement of this physician was not under oath, and neither party to the cause was given an opportunity to interrogate him or offer additional evidence.

The Attorney General has filed a confession of error, based on this action of the commission, and a motion asking that the cause be remanded to the Industrial Commission for further proceedings.

The cases of Englebretson v. Indus. Accident Com., 170 Cal. 793,151 P. 421, and Pac. Coast. Cas. Co. v. Pillsbury,171 Cal. 319, 153 P. 24, support the confession filed by the Attorney General.

The confession of error and motion to remand will be sustained. The award will be set aside, and the cause remanded to the Industrial Commission for further proceedings.

All the Justices concur, except KANE and RAINEY, JJ., not participating.