dissenting:
I believe that pursuant to Industrial Commission Rule No. 4— (4)(Bj(3), the petitioner demonstrated good cause for not presenting to the arbitrator the additional evidence he wished to adduce before the Commission on review. I also believe that the Commission’s refusal to allow him to present additional evidence was harsh and unwarranted.
After a hearing at which petitioner was the only witness, the arbitrator made a finding that petitioner failed to prove that he sustained accidental injuries arising out of and in the course of employment. The petitioner sought review and 13 months before the hearing on review served notice on the employer that he wished to present additional lay and medical evidence to the Commissioner.
Regarding the lay evidence, at the hearing before the arbitrator petitioner testified that he was injured at work on January 23, 1979, when he slipped from a semitrailer to the ground. Petitioner also stated that he immediately reported the incident to his general foreman, Robert Beasley, who was present at the time of the occurrence. In his application for adjustment of claim, petitioner had also stated that he gave notice to Beasley. And in each medical record introduced into evidence before the arbitrator, including that of employer’s doctor, the medical history reflected that petitioner’s injuries arose out of an accident which occurred at work on January 23,1979.
At the hearing on review, Beasley was sworn in and was prepared to testify as a witness for petitioner. The presiding commissioner, however, sustained the employer’s objection to the testimony on the ground that Beasley was available at the time of the arbitration hearing. Plaintiff thereupon made an offer of proof that Beasley would testify that he was present and in charge of the job as general foreman on January 23, 1979, that he heard some commotion and saw petitioner being helped from the ground, that it was an icy day, that the ground was frozen, and that he permitted petitioner to leave work to see a doctor. Beasley would also testify that on the same day he made a report of the occurrence and sent it to the employer.
I can understand why the petitioner did not attempt to call an agent of the employer as a witness on his behalf at the arbitration hearing. I do not believe that ordinarily claimants should be required or expected to call witnesses who may be adverse to corroborate their claims. It is also understandable that the employer objected to the admission of the additional evidence. Having placed the occurrence and notice of it at issue, it would be extremely embarrassing for the employer to have its own agent testify that he was present when the petitioner was injured, that he permitted petitioner to see a doctor on the same day, and that he immediately furnished a written report of the accident to the employer. I cannot understand, however, why the Commission refused to allow the petitioner to present Beasley’s testimony at the hearing on review in order to correct the arbitrator’s misapprehension of the evidence and to prevent an injustice.
With regard to the additional medical evidence which petitioner sought to offer on review, the arbitrator in her denial of petitioner’s claim stated that all the medical records in evidence indicated that petitioner had not sought any medical treatment after the accident until June 29,1979.
At the hearing before the arbitrator, petitioner testified that immediately after the injury he was treated by Dr. Bone and by a chiropractor, Dr. Beams. Dr. Beams’ records were not placed in evidence before the arbitrator. Dr. Bone’s records were received in evidence and apparently indicate that he first treated petitioner on June 29, 1979. I say apparently, because I find the copy of Dr. Bone’s medical records contained in the record on appeal to be illegible. I note, however, that employer’s counsel questioned petitioner about treatment he received from Dr. Bone in April 1979. When employer’s counsel asked petitioner about the date of his first visit to Dr. Bone after the accident, petitioner replied that he had seen Dr. Bone the day after the accident. Counsel for the employer asked several more questions about petitioner’s first visit to Dr. Bone, and the petitioner insisted that he had seen Dr. Bone right after the accident. Counsel then asked:
“Q. But just once.
A. No, I seen him several times. I went to Beams and I started going to Dr. Kerch.
Q. I’m talking about Dr. Bone, the only medical doctor you saw.”
At the hearing on review, the presiding commissioner sustained the employer’s objection to the introduction of Dr. Beams’ medical records on the ground that they were available at the time of the arbitration hearing. The petitioner then made an offer of proof that Dr. Beams’ records would show that he treated petitioner on January 23, 24, 25, 26, 29, 30, 31, and February 2,1979.
I believe that the petitioner showed good cause for not offering Dr. Beams’ records into evidence at the arbitration hearing. In view of the exchange between employer’s counsel and petitioner at the hearing as set forth above, petitioner and his counsel could well have believed that the employer was not challenging petitioner’s testimony about his treatment by the chiropractor after the accident. Employer’s counsel restricted his cross-examination to petitioner’s visits to Dr. Bone, “the only medical doctor you saw.” On the basis of that alone, petitioner should have been allowed to introduce the chiropractor’s medical record on review to show that petitioner received treatment immediately after the accident.
Moreover, even if the majority is correct in the assertion that the only explanation by the petitioner for the absence of the preferred evidence at the arbitration hearing was time constraints, I believe that under the circumstances before us the Commission should have accepted the additional evidence. The majority suggests that a ruling by us in favor of petitioner based upon his subjective ex post facto evaluation of an arbitrator’s decision would result in an unworkable procedural rule. Of course, I do not accept the fact that we are merely considering petitioner’s subjective evaluation of the arbitrator’s decision. But more importantly, the facts before us, where the employer’s own agent is prepared to expose a spurious defense, are exceptional and will not result in an unworkable rule. I think rather that the holding of the Commission in this case will mandate a claimant to present every possible witness and every iota of evidence imaginable to avoid an arbitrator’s misperception of the evidence and to prevent a harsh and unjust result. I believe that such a mandate is contrary to the humane spirit of the Act and indeed will result in unworkable procedures.
I would remand the cause to the Industrial Commission with instructions to allow petitioner to present the additional evidence at the hearing on review.
BARRY, J., concurs in dissent.