dissenting.
I respectfully dissent. Howes was effectively denied opportunity to cross-examine adverse medical experts and did not receive a fair hearing.
James Howes worked in the warehouse for Leingang Steel Siding in Mandan. On July 10, 1985, shortly before 5:00 P.M., he was loading windows into a horse trailer. As he hurried out of the trailer, he struck his head on a bar across the back of the trailer. Dr. Larson, who saw him the next day, described his injury:
“He was not rendered unconscious but he did see stars and apparently took a fairly good blow to the head. He then started having headaches which became progressively worse. He started vomiting about 10 p.m. and then came into the emergency room and was admitted. He had noted some blurred vision last night. He noted increased headache pain by coughing or sneezing.”
Dr. Larson diagnosed “craniocerebral trauma.” Howes was released from the hospital on July 15 and returned to work on July 22. The Workers Compensation Bureau paid his medical bills and paid him disability benefits for July 11 through July 21, 1985.
Leingang discharged Howes from employment on March 3, 1986. Leingang later reported to the Bureau that he was “released for poor work attitude/performance. Would not keep at his work. Work performance was not significantly different from pre-injury performance vs post-injury.”
Howes went to Dr. Pate of the Family Practice Center on March 12, 1986. Dr. Pate reported to the Bureau on March 20, 1986:
*739“Concussion with blackout spells and impaired memory.
it ♦ * *
“July, 1985
it * * *
“James Howes may be having seizures at this time and it would not be wise for him to work.”
On April 26, 1986, Howes was hospitalized for headaches and dizziness with vomiting on April 25. Family Practice Center physicians again referred him to Dr. Larson. Upon his release from the hospital on May 14, 1986, Dr. Larson equivocated in his report to the Bureau:
“After admission, he was followed by the FPC physicians and I was asked to see him in consultation. Felt there may be some vascular component initially and he was placed on Inderal therapy but no changes in his headaches at all. He did have a number of psychological tests and evaluations done and they found no problems with his memory. Overally, [sic] his headaches persisted. He was tried on a great number of therapies including Inderal, biofeedback, steroids, and lastly some Sansert. There was improvement in headache toward the end, but still had some problems. Felt that a great deal of the headaches are related to tension. Although some of the headaches have some vascular components to them. He was discharged on Sansert 2 mg b.i.d., Elavil 25 mg t.i.d. and some Tylenol # 3 to be used every 6 hours PRN for severe headaches. He will be followed in the clinic again in 4 weeks.”
On October 6, 1986, the Bureau denied Howe’s claim for the March-May 1986 medical expenses. Picking out references in his medical records to a childhood fall at the age of 6 and to his “having syncopal episodes prior to an automobile accident in October, 1980,” the Bureau concluded that “the greater weight of the evidence indicates that the claimant’s current condition is not in any way related to his employment injury on July 10, 1985.”
Howes requested a hearing and sought a deposition of Dr. Larson. Instead, the Bureau wrote Dr. Larson with questions:
“Given Mr. Howes' medical history, complaints and examination results, do you have an opinion as to whether the headaches he presently complains of are ‘more likely that [sic] not’, or ‘probably’ caused by the July 10, 1985 horse trailer incident (hit top of head on crossbar)? If so, what is your opinion?
“Is it just as likely that Mr. Howes’ headache complaints are related to some other faetor such as some other trauma? seizure disorder? muscle spasm? or even smoking allergy? Please explain if you can. Is there anything else you can .add that might help?”
The Bureau also advised Howe’s counsel:
“Dr. Larson has, in the past, expressed reluctance to participate in a deposition. I hope he is more willing to help here, but I doubt it.”
A few days later, without responding to the questions, Dr. Larson suggested:
“... an evaluation by Doctor Saxvik at Medcenter One may be the best way to obtain a comprehensive view of Mr. Howes’ problem.”
In late March 1987, the Bureau arranged for Howes to enter Medcenter One as an inpatient for four days of “complete medical assessment,” including “psychological, psychiatric, neurologic, physical therapy, occupational therapy, social service, and orthopedic evaluations as necessary.” Med-center One reported to the Bureau on April 8, 1987.
Social Worker Scott D. Boehm concluded that “[t]here does not appear to be any glaring significant psychosocial problem which is interferring with his rehabilitation process.” Jeff Lange, Rehabilitation Physical Therapist, concluded that “[d]ue to the fact that this patient states that his headache is generally around a 1-2, and that his severe headaches come only 1-2 times a month, I do not feel that this would significantly interfere with any employment.” Dick Elefson, MAC, had no specific recommendations and “deferred” his diagnostic impression. Dr. Townes reported a “normal eye examination. I can find no ocular explanation for headache and no evidence *740for any residium from prior traumatic episode.” Dr. Lampman’s assessment was:
“Mild continuous frontal vertical headaches with occasional exacerbations, probably not limiting his occupation. This man did have a report of trauma to the head, but never had a concussion. Therefore this cannot be classified as a postconcussive syndrome. All we have to go on is his description of headache and his occasional requirement for Tylenol with Codeine to relieve flares. As I see it, not much more can be said at this point from a clinical standpoint.”
Dr. Larson was again consulted and once more hedged in his report to the assessment team:
“This is a gentleman that presents with some episodes of spells dating back to age 14. Was on Phenobarbitol therapy for a period of time, however, all the EEGs have been normal. He has had several blows to the head, one in an auto accident in October of 1980 and then in 1985 struck his head on a bar across a horse trailer, but not rendered unconscious in that. He continues to complain of headaches and is unresponsive to most forms of therapy.
“Psychological testing in the past have shown some problems with tension and nervousness and feel that this has a considerable bearing on his headaches. I could find no other specific organic reason for the headaches. CT scan of the head and brain done here last few days again is normal. His usage of medicine at the present time is down to practical nothing, taking he indicates about five Tylenol per month. With some of the more severe headaches, may use a few occasional Tylenol #3, but again the headaches do not seem to be troublesome in that he had been able to work and hold a job then.”
Dr. Greg S. Peterson, Medical Director for Medcenter One Rehabilitation, summarized:
“Mr. Howes has had a long history of nonspecific ‘spells’ of unknown etiology. His headaches do not appear to be related to his 7-10-85 work related head trauma. There is no evidence of memory loss and the patient’s reports of retrograde memory loss are not at all characteristic of patients with head trauma. The headaches that prompted admission to the hospital in April of 1986 would not appear to have any direct relationship to his work related injury. There was no evidence of disability on our evaluation.”
Dr. Peterson concluded:
“(1) Release to work without restrictions.
“(2) Workmen’s Compensation does not appear to be responsible for payment for the hospitalization in April of 1986 for evaluation of headaches.
“(3) It does not appear that Workmen’s Compensation should be responsible for any future medical bills for headaches unless a new work related head injury occurs.”
The Bureau scheduled a “formal hearing.” The notice to Howes did not mention cross-examination but directed: “You will present at the hearing all witnesses and evidence known to you” on the issue of “whether the claimant is entitled to any further benefits ... in connection with an alleged injury sustained on July 10, 1985.” Strikingly, the notice of the hearing to the employer, the claimant’s true adversary, emphasized the right to cross-examine:
“The hearing itself, will consist of presentation of the claimant’s own case first, followed by an opportunity for the employer to cross examine. The Bureau, through its legal counsel, will also have a chance to cross examine the witnesses. The direct and cross examination will continue until each party has presented all of its case. Although not required, you may want to retain legal counsel to represent you, especially since the claimant will almost always be represented by the claimant’s attorney.” (My emphasis).
Counsel for Howes promptly wrote the Bureau:
“[I]f the Bureau intends to rely upon evidence not presented at the pending formal hearing, please provide me with a copy of such evidence and please consid*741er this to be a request to cross-examine the person(s) furnishing such evidence pursuant to Section 28-32-07, N.D.C.C.”
Counsel for the Bureau responded:
“Enclosed is an updated copy of the file. The Bureau will rely upon the entire file in addition to evidence adduced at the hearing.
“If you are requesting that persons be subpoenaed, let me know which persons.”
At the outset of the hearing on August 5, 1987, counsel for Howes stated:
“If the Bureau intends to rely on medical evidence in the file, to which I have not been allowed an opportunity to examine the expert witnesses, I would request that opportunity prior to a decision.”
The Bureau’s counsel responded:
“It’s my understanding that this case is going to follow the same policy that the Bureau has used in considering the entire record, which includes medical records from various examining doctors, and the like. I believe that [counsel for claimant] has been given access to the entire file.... The Bureau generally has no objection to subpoenaing witnesses, but often denies the payment in connection with cross-examination. And I think that, if anything, that’s what’s being done here.”
Counsel for Howes reiterated:
“I ... maintain that if the Bureau uses evidence, it’s the Bureau’s responsibility to make that — not simply the summary of evidence but the source of the evidence available to the claimant for examination at the Bureau’s expense, as opposed to the claimant bringing in his own witnesses at the Bureau’s expense.”
Only Howes testified at the hearing. Howes identified his headaches as following his July 10, 1985 injury and disclaimed any prior continuing symptoms from a childhood fall from a garage at age 6 or from an auto accident at age 15.
On September 14, 1987 the Bureau adhered to its order denying further benefits. The Bureau found:
“IX.
“... During the rehearing process, the Bureau undertook further investigation and review of additional evidence submitted on behalf of Mr. Howes. The Bureau’s further investigation included medical assessment by a team of medical experts at Medcenter One.
“X.
“The greater weight of the evidence, including testimony adduced at the formal hearing and medical reports in connection with claimant’s medical assessment, indicated that the claimant’s continued complaints and hospitalization are not the result of the July 10,1985, incident in the horse trailer.”
Howes appealed. He expressed his issues on appeal in terms of the Bureau’s duty to develop and clarify medical evidence and in terms of due process, claiming that the “Bureau’s consideration of and reliance upon evidence to which Howes was not afforded the right of cross-examination clearly violated ... due process.”
I agree that Howes was effectively denied opportunity to cross-examine adverse medical experts and, therefore, did not have a fair hearing. NDCC 28-32-19(4).
We have no occasion in this case to contemplate the constitutionally dictated scope of a fair hearing. We need only apply the Administrative Agencies Practice Act, NDCC Ch. 28-32, in a uniform manner, consistent for all agencies, and specifically correlated with the mandates of the Workers Compensation Act. The Bureau’s procedures are “governed by the provisions of chapter 28-32” and the Bureau must “ascertain the substantial rights of all the parties.” NDCC 65-02-11.
The Bureau seeks the power to short-cut evidentiary rules. And, for its actions apart from required trial-type hearings, we have properly recognized that the Bureau may reasonably consider its records without “an occasion to confront witnesses.” See, for example, Beckler v. North Dakota Workers Compensation Bureau, 418 N.W.2d 770, 775 (N.D.1988). But, at a *742trial-type hearing, the Administrative Agencies Practice Act, fairly applied, requires that a claimant be “afforded the same opportunity to present evidence and to examine and cross-examine witnesses as is permitted under section 28-32-06.” NDCC 28-32-06(6).
NDCC 28-32-06 makes the practice in district court govern the admissibility of evidence “insofar as circumstances will permit.” Thus, a trial-type hearing is mandated by the statute before an employee-claimant can be denied benefits when there are genuinely disputed and material facts. While the Bureau may waive the usual rules of evidence if “necessary to ascertain the substantial rights of all the parties,” it can use “only evidence of probative value.” NDCC 28-32-06. (My emphasis). Only evidence “offered and made a part of the official record of the hearing” can be considered, “except as otherwise provided in this chapter.” Id. No exception is made for hearsay reports of experts without opportunity for cross-examination to test their opinions.
If the Bureau considers anything “in addition to the evidence presented at any formal hearing,” it must do more than just give a copy to the claimant. NDCC 28-32-07. The Bureau must “afford” the claimant an opportunity “to cross-examine the person furnishing such information at a ... public hearing ... upon at least ten days’ notice.” Id. “Afford” means, principally, “to manage to pay for or incur the cost of; ... GIVE, FURNISH.” Webster’s Third New International Dictionary (1971).
Even without problems of procedural unfairness, Howe’s claim appears to me to be evidentially close and difficult to weigh. Howes is not entitled to compensation benefits if his headaches in the spring of 1986 came from tensions of his loss of employment. Choukalos v. North Dakota Workers Compensation Bureau, 427 N.W.2d 344 (1988). At the other extremity of consideration, he is not entitled to benefits if his headaches came from a distant childhood incident or from symptoms existing before July 1985. But, if the more recent and apparently more severe “craniocere-bral trauma” of July 10, 1985 was a substantial contributing factor to his following headaches, Howes is entitled to benefits. Ordinarily, the proximity and the seriousness of his 1985 work injury would weigh heavily in Howes’ favor. The medical team’s assessments did not explain why they attributed Howes’ headaches after July 1985 to earlier incidents rather than the more recent and more serious trauma. It is plain that a trial-type hearing was essential to sift and weigh the facts and opinions about this claim before it could be fairly denied.
Only the “weight” of paper reports supports the Bureau’s decision to attribute Howes headaches to remote incidents, in spite of Howes’ testimony disputing the seriousness of those events and disclaiming any continuing effects from them. The Bureau’s findings, after the formal hearing, rest entirely on the team’s written assessments, and particularly Dr. Peterson’s sweeping conclusions for the team.1 Thus, those uncritiqued and unexplained medical reports are the crucial evidence on this claim.
Full disclosure of the facts is fundamental to fact finding. Cross-examination is essential to full disclosure. Model State Administrative Procedure Act § 10(3); 2 Am.Jur.2d Administrative Law § 424 (1962). This court has often emphasized the crucial importance of cross-examination in a trial-type hearing when an agency sought to deny it. Colgate-Palmolive Company v. Dorgan, 225 N.W.2d 278, 281 (N.D.1974). See also Insurance Services Office v. Knutson, 283 N.W.2d 395, 399 (N.D.1979).
*7433 Larson’s Workmen’s Compensation Law § 79.83(a) expresses this importance eloquently:
“Pair play rules include the right of cross-examination, rules against ex parte statements, necessity of having all evidence on the record, and restrictions on determinations made by independent investigation conducted by the tribunal. These rules are based on fundamental notions of fairness. Nothing is more repugnant to Anglo-American traditions of justice than to be at the mercy of witnesses one cannot see or challenge, or to have one’s rights stand or fall on the basis of unrevealed facts that perhaps could be explained or refuted.” (Footnotes omitted).
Justice Frankfurter, in his renowned concurring opinion in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170, 71 S.Ct. 624, 647, 95 L.Ed. 817 (1951) put the principle succinctly: “[A] democratic government must ... practice fairness; and fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights.”
The Bureau’s position was that Howes had opportunity to cross-examine. The Bureau offered to subpoena any of the physicians but only at Howes expense. The Bureau rationalized this severe course by disclaiming any need for its own or adverse witnesses’ testimony at a formal, trial-type hearing. Instead, the Bureau urged that a claimant must obtain the testimony of any medical witness, even those adverse to him, at his own expense. The Bureau relied on NDCC 28-32-09 which says, “Any witness who is subpoenaed” under the Administrative Agencies Practice Act must “be paid by the party or agency at whose instance the witness appears or his deposition is taken.”
An expert whose written opinion is adverse does not “appear” at the “instance” of a claimant. An expert’s opinion is ex-cludable hearsay and cannot fairly stand alone at a trial-type hearing unless the expert is available and “appears” at the hearing for cross-examination. NDREv 801(c). “[T]he hearsay rule is not a mere technical rule but is a basic rule of exclusion to protect the right of cross-examination.” 4 Jones on Evidence § 30:7, p. 343 (1972).2 “[W]hen a statement is offered to prove the truth of the matter asserted ... there is a lack of the safeguards used to insure credibility of the declarant. It is this lack of an oath and cross-examination of the declarant that warrants the exclusion of evidence as hearsay.” Explanatory Note, NDREv 801, North Dakota Court Rules p. 467 (West Publishing Company; 1988).3
Expert opinions are not excepted from the hearsay rule. NDREv 802 and 803. Medical experts are not excepted from cross-examination to test the footings of their opinions. NDREv 705. Cross-exam is the predicate for admission of a written report of an expert in a trial-type hearing.
Thus, the rules of evidence, applicable to administrative actions by NDCC 28-32-06, contradict the notion that a claimant must bear the expense of the “appearance” of an adverse witness for cross-examination. The opportunity to test an opposing witness cannot be fairly and effectively denied by imposing the cost and duty of causing his appearance on an adversary. 2 Davis, Administrative Law § 12.9.
I regard the Bureau’s position as a callous misreading of the statute. To adopt *744its position would seriously distort the Administrative Agencies Practice Act. It would allow any agency to shift the cost of bringing an expert witness before it, by simply obtaining a written opinion and relying on it. It is not difficult to visualize that every agency would insist that petitioners were “afforded” cross-examination by the “privilege” of subpoenaing, at their own expense, adverse witnesses whose written reports the agency wants to use. That should not be.
Moreover, the Bureau’s position was completely inconsistent with its duties to a claimant under the Workers Compensation Act. The Bureau did nothing for the hearing; only Howes offered evidence. That was not a trial-type “hearing”! Weber v. North Dakota Workmen’s Compensation Bureau, 377 N.W.2d 571 (N.D.1985).
Nothing in the Workers Compensation Act shifts the cost burden of probing the reasons for an adverse medical opinion to a claimant. As one would expect of most claimants, Howes was not even “able to afford any more medical bills” for his headaches, let alone expenses for depositions of physicians. The Bureau is statutorily obligated to pay the reasonable attorneys fees and costs of a claimant from its general fund “after action by the bureau which reduces or denies a claim.” NDCC 65-02-08.
Furthermore, the Bureau insisted that Howes’ attorney agree to “follow the guidelines of the Workmen’s Compensation Bureau on payment of attorney fees and costs in my representation of the claimant” with Bureau payment “as the sole and exclusive remuneration” to the attorney. The Bureau may have reasonable discretion to limit depositions and witness examinations in proper cases, for example, where cumulative. See NDREv 403 and Hayes v. North Dakota Workers Compensation Bureau, 425 N.W.2d 356 (N.D.1988). But, it cannot fairly prevent cross-examination by effectively shifting the entire expense of its witness to the claimant. The Bureau cannot thus renege on its duty to provide “sure and certain” relief to claimants who are statutorily excluded from “every other remedy.” NDCC 65-01-01.
No administrative agency, not even the Bureau, should be allowed to effectively deny cross-examination in trial-type hearings by shifting the cost of its witnesses to claimants. Therefore, I respectfully dissent. Howes was not “afforded” an opportunity for cross-examination and was not accorded a fair hearing.
. The majority opinion cheerfully recharacter-izes “Dr. Larson [as] Howes’ own doctor ... not sought out by the Bureau as its own expert....” It is true that Dr. Larson was Howes' treating physician in July, 1985, but it cannot be fairly concluded that "once the claimant's doctor, always the claimant’s doctor.” Dr. Larson was consulted and paid by the Bureau for the team assessment. His vague report contained no conclusion negativing Howes’ claim; Dr. Peterson came up with the harsh conclusions for the team.
. See also V Wigmore on Evidence § 1362, p. 3 (1974) and 4 Weinsteins on Evidence ¶ 800(01), p. 800-10 and 11 (1988).
. Notes of the Advisory Committee on Proposed Rules [of Evidence] said:
“Emphasis on the basis of the hearsay rule today tends to center upon the condition of cross-examination. All may not agree with Wigmore that cross-examination is 'beyond doubt the greatest legal engine ever invented for the discovery of truth,’ but all will agree with his statement that it has become a 'vital feature’ of the Anglo-American system. 5 Wigmore § 1367, p. 29. The belief, or perhaps hope, that cross-examination is effective in exposing imperfections of perception, memory, and narration is fundamental. Morgan, Foreword to Model Code of Evidence 37 (1942).” Introductory Note: The Hearsay Problem, Federal Rules of Evidence, Federal Civil Judicial Procedure and Rules, p. 312-313 (West Publishing Company; 1988).