Madison v. J.I. Morgan, Inc.

DISSENTING ON DENIAL OF PETITION FOR REHEARING

BISTLINE, Justice

dissenting on denial of Petition for Rehearing.

There are two votes for the granting of rehearing which has been requested by the claimant, Madison. Under the rules of the Court, however, on a 3-2 majority opinion, a rehearing will not be granted unless at least one person in the majority votes for the rehearing. The rule is probably sound as a generality, but the rule requires a certain amount of flexibility. My own practice which is well known by the other members of the Court, is to honor the request of my vote for a rehearing even though at the time as a member of the majority I doubt that I can be persuaded. As the Court minutes will reflect, and our opinions will show, my view and my vote has been switched on a rehearing. I do not see that as a frailty.

The issue upon which the three-member majority has reversed this case has been described as a pretextual and serving no purpose, either in further proceedings before the Industrial Commission, or on any subsequent second appeal to this Court.

The function of a petition for rehearing is to provide the Court an opportunity to reconsider its decision. Its decision in this case was to reverse the Commission with directions to reopen the hearing, to permit the employer to take the deposition of Ker-by, and for the Commission to redecide the case. These directions include the submission of the deposition to the Commission. Missing, however, is any direction mandating the Commission to receive it in evidence. It is certainly within the prerogative of the Commission to exclude the deposition, simply on the basis that it has the same evidence before it in the form of the letter; the Commission has previously decided that such evidence is not germane to its decision. The Commission has previously ruled as much. That which is not germane is also not relevant.

I submit to those in the majority that, should they be so bold, and should they on reflection continue to assert that the deposition testimony is relevant, then by the same token, so likewise is the letter rele*156vant. Then, all that needs be done by the majority is to deem the contents of the letter admitted into evidence (much the same as the majority in Lundstrom v. Brekke, 115 Idaho 156, 765 P.2d 667, “deemed it clear that the defense was entitled to produce the Reitan letter as a means of impeaching the testimony of Baker.” (115 Idaho 160, 765 P.2d at 671). Then with the letter in evidence, the majority can decide the case as its will dictates, and the litigation will not be further prolonged. An over-worked Commission can attend to other compensation cases.

I am saying that such is what the majority could do. It is not a recommendation. What I recommend is that one member of that majority condescend to vote — not that Commission now be affirmed, but that the point at issue be reconsidered. On reconsideration all that the majority is asked to do is entertain a second thought as to the wisdom of its mandate. Surely one of the three might see that the August 4, 1986, letter from Mr. Kerby to Mr. Madison is just exactly the type of make-work offer based on the (belated, but possible) sympathy of a particular employer (forgetting that he previously had played insurance adjustor helping to make out a case against his faithful and long-time employee) extended to a handicapped former worker. The language, other than parenthetical, is not my own, but excerpted from the Lyons case, 98 Idaho at 406, 565 P.2d at 1363.

It is to be noted that the letter, though it offers full time employment, makes no suggestion whatever as to duration.

As . unsel points out in the brief supporting the petition, the majority opinion denigrates the inherent power of the Commission to an exercise of discretion to interpret its own rules. As also pointed out in that brief, the decision of the Commission carefully explained the purpose of the rule:

The purpose of allowing the record to remain open after hearing is not so that the parties may manufacturer, solicit, or even gather evidence, but rather to allow a reasonable amount of time for the scheduling and taking of post-hearing depositions, usually those of doctors with full and busy schedules who need significant advance notice for such depositions. Allowing deposition testimony such as that contemplated by defendants surety/employer herein would lead to prolongation of the proceeding for rebuttal and possible surrebuttal of the parties. (Record, p. 255-256).

The trial bar may well wonder, as do I, by what authority this Court has now determined that it can dictate to the Commission the rules under which it operates. As is only too well known, the Court is quite busy with its own rules — 883 pages bound volume, 67 pages pocket parts.

A rehearing should be had, in which event this dissent could be discarded.