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Revised Copy - Handed down 3/4/98 Calogero, C.J. opinion News Rel #16

SUPREME COURT OF LOUISIANA 97-C-1225 OLIDA CHAISSON versus CAJUN BAG AND SUPPLY CO., ET AL.

KNOLL, J., concurring in part and dissenting in part. I agree with the majority opinion that the double hearsay evidence at issue in this case was not competent evidence and that the hearing officer was clearly wrong in relying upon such evidence in her reasons for judgment. I additionally agree that this clear error by the hearing officer necessitates a de novo review of the record on the issues of the claimant's entitlement to worker's compensation benefits. Nevertheless, I disagree with the majority opinion's statement that the relaxed evidentiary standard provided by the legislature for worker's compensation administrative hearings contemplates the admission of incompetent evidence into the record. While I recognize that a hearing officer may allow evidence into the record that might not be admissible under the Louisiana Code of Evidence, I disagree that the hearing officer may allow even incompetent evidence into the record, only to later disregard such evidence when arriving at his or her factual findings. In my view, the hearing officer should evaluate the evidence for competence before admitting it into the record. Any evidence deemed incompetent should not be allowed, and the party seeking to introduce such evidence should be given an opportunity to make a proffer. The standard laid down by the majority in the instant case is no standard at all. Under the majority's standard, any and all evidence may be admitted into the record,

as long as the hearing officer does not clearly rely on incompetent evidence in arriving at his or her findings of fact. Such a standard obviates the need for evidentiary objections. In contrast, I find that incompetent evidence should not be admitted into the record, and that any incompetent evidence actually admitted should be subjected to "harmless error" analysis, regardless of whether such evidence was actually relied on or noted in the hearing officer's findings of fact. This review is similar to the appellate review of a district court judgment when the court has admitted evidence which is inadmissible under the Louisiana Code of Evidence. See Archon v. Union Pacific R.R., Inc., 94-C-2728 (La.6/30/95), 657 So.2d 987. Turning to the merits of the case, I disagree with the majority's finding that the plaintiff is not entitled to supplemental earnings benefits. After disregarding the inadmissible and incompetent double hearsay evidence, it is clear to me that the claimant has proved her entitlement to SEB. The record evidence clearly reflects that Mrs. Chaisson was injured in the course and scope of her employment. Although Dr. Budden noted that her condition was degenerative, she was asymptomatic prior to her workplace accident on January 17,1991. Subsequent to the accident, her degenerative condition became acutely and consistently symptomatic. Furthermore, a subsequent MRI revealed two herniated discs at L4-5 and L5-S1. Where, as here, the employee suffered from a pre-existing medical condition, she may still prevail if she proves that the accident "aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed." Walton v. Normandy Village Homes Ass'n, Inc. 475 So.2d 320 (La.1985); Peveto v. WHC Contractors, 93C-1402 (La.1/13/94), 630 So.2d 689. Clearly, Mrs. Chaisson is entitled to the presumption in Walton, that her subsequent injuries were caused by her workplace accident.

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Under the provisions of LSA-RS 23:1221(3)(A), an employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. LA. REV. STAT. ANN.

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Louisiana Law