Opinion
NO. 2013 CA 1632
05-02-2014
HARTFORD CASUALTY INSURANCE COMPANY v. STATE OF LOUISIANA WORKERS' COMPENSATION SECOND INJURY BOARD
Jennifer S. Lambert Metairie, Louisiana Attorney for Plaintiff/Appellant, Hartford Casualty Insurance Co. James D. "Buddy" Caldwell Attorney General Karl L. Scott Meredith J. Trahant Baton Rouge, Louisiana Attorneys for Defendant/Appellee, Louisiana Worker's Compensation Second Injury Board
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
19th Judicial District Court,
In and for the Parish of East Baton Rouge,
State of Louisiana
Trial Court No. C555618
The Honorable Wilson Fields, Judge Presiding
Jennifer S. Lambert
Metairie, Louisiana
Attorney for Plaintiff/Appellant,
Hartford Casualty Insurance Co.
James D. "Buddy" Caldwell
Attorney General
Karl L. Scott
Meredith J. Trahant
Baton Rouge, Louisiana
Attorneys for Defendant/Appellee,
Louisiana Worker's Compensation
Second Injury Board
BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ.
WHIPPLE, C.J.
Hartford Casualty Insurance Company appeals a judgment of the district court that dismissed its claim for reimbursement from the Louisiana Workers' Compensation Second Injury Board. We affirm.
FACTS
Hartford instituted this suit by filing a petition for review of the Second Injury Board's denial of its claim for reimbursement from the Second Injury Fund. Hartford alleged that it is the workers' compensation insurer for Krispy Kreme and that it paid workers' compensation benefits and medical expenses on behalf of Krispy Kreme's employee, Brian Amond, as a result of a work-related injury. Hartford further alleged that Krispy Kreme had been aware that Amond suffered from a pre-existing permanent disability, and that the work-related injury would not have occurred but for that pre-existing permanent disability. Alternatively, Hartford alleged that Amond's injuries were materially and substantially greater than that which would have resulted in the absence of the pre-existing permanent disability. Hartford pled its entitlement to appeal of the Second Injury Board's decision by trial de novo, pursuant to LSA-R.S. 23:1378(E).
After the matter was submitted to the trial court on briefs, the district court gave oral and then written reasons for judgment in which it set forth its finding that Hartford failed to establish its entitlement to reimbursement from the Second Injury Fund. Hartford now appeals the district court's judgment dismissing its claim.
DISCUSSION
When an employer knowingly hires or retains in its employment an employee with a pre-existing disability and the employer is required to pay compensation benefits as a result of the employee becoming injured in the course and scope of his employment, the employer may apply for reimbursement from the Second Injury Fund. LSA-R.S. 23:1371; LSA-R.S. 23:1378; Home Depot v. State Workers' Comp. Second Injury Bd, 2005-0674 (La. App. 1st Cir. 3/29/06), 934 So. 2d 125, 127. The procedure for applying for reimbursement is set forth in LSA-R.S. 23:1378, which requires that claims for reimbursement first be submitted to the Louisiana Workers' Compensation Second Injury Board. Appellate review of a decision of the Board is governed by LSA-R.S. 23: 1378(E), which provides:
The decision of the board shall be final; however, an appeal therefrom may be taken by any of the parties within thirty days after the date of the decision of the board. If an appeal is taken, the board shall be made party defendant, and service and citation shall be made in accordance with applicable law upon the attorney general or one of his assistants. The appeal shall be to the Nineteenth Judicial District Court, parish of East Baton Rouge. All appeals in all such cases shall be tried de novo, (emphasis added).The employer or insurer seeking reimbursement from the Second Injury Fund bears the burden of proving its entitlement to reimbursement. Nabors Drilling USA v. Davis, 2003-0136 (La. 10/21/03), 857 So, 2d 407, 416; Louisiana Workers' Compensation Corp. v. Louisiana Workers' Compensation Second Injury Bd., 2008-1276 (La. App. 1st Cir. 12/23/08), 5 So. 3d 211, 215. The employer or insurer must offer evidence proving: (1) that the employee had a preexisting permanent partial disability at the time of the subsequent injury, (2) that the employer had actual knowledge of the employee's preexisting permanent partial disability before the occurrence of the injury forming the basis of the compensation claim, and (3) that the permanent partial disability merged with the injury to produce a greater disability. LSA-R.S, 23:1378(A); Nabors, 857 So. 2d at 416.
In the trial court, the parties herein stipulated that Amond suffered from a pre-existing disability at the time of the work-related accident and that the preexisting condition merged with the subsequent injury. Therefore, the only issue to be tried was whether Amond's employer, Krispy Kreme, had actual knowledge of Amond's pre-existing injury prior to the work-related accident.
In both the district court and this court, the parties' arguments focus on the sole evidence relied on by Hartford, i.e. Amond's deposition testimony. Hartford asserts that Amond's deposition testimony establishes Krispy Kreme's knowledge by a preponderance of the evidence. Hartford further asserts that Amond died in 2007 and therefore, his 2004 deposition testimony constitutes testimony of an unavailable witness and is exempted from the general rule against inadmissibility of hearsay statements pursuant to LSA-C.E. art. 804. On appeal, the Second Injury Board argues that Amond's deposition testimony is hearsay and on this basis, should not be considered.
The introduction of evidence in general is governed by LSA-R.S. 13:3723, which provides;
Whenever, during the trial of any suit or process, whether civil or criminal, before any of the district courts, either party may desire to offer in evidence any record, paper, or document belonging to the files or records of the district court of the parish in which the trial is proceeding, the presiding judge at the request of such party shall direct the clerk of the district court to produce such record, document, or paper, in order that it may be used in evidence. The clerk in any such case shall not have to make a copy of any such record, document, or paper, unless the case in which it is offered is appealed, in which case the transcript of appeal shall be made up from the papers themselves. (Emphasis added).
However, evidence not properly and officially offered and introduced cannot be considered, even if physically placed in the record. Denoux v. Vessel Management Services, Inc., 2007-2143 (La. 5/21/08), 983 So. 2d 84, 88. Additionally, documents attached to memoranda do not constitute evidence. Id.
As there was no indication in the record that Amond's deposition had in fact been introduced into evidence at a trial on the merits, this court issued an order to the trial court to supplement the record. In response thereto, this court was informed by a letter from the court reporter for the district judge that although a trial was scheduled on January 11, 2012, on that date, a status conference was held, during which the parties met with the trial judge and agreed to submit the matter on briefs.
Although LSA-R.S. 23:1378(E) provides that appeals of a decision by the Second Injury Board shall be tried de novo, the parties herein submitted the matter on briefs. Thus, no evidence was properly and officially introduced (or even proferred) by Hartford on the knowledge issue because Hartford failed to do so.
Hartford's failure to properly and officially introduce Amond's deposition into evidence precludes this court from considering that testimony in ascertaining whether the trial court committed manifest error in its ruling. Reed v. Peoples State Bank of Many, 36,531 (La. App. 2nd Cir. 3/5/03) 839 So. 2d 955, 958 (exhibits which were not filed into evidence in the trial court are not part of the record on appeal; thus, if a party's brief refers to exhibits not filed into evidence in the trial court, an appellate court may not consider those exhibits, since they are outside the record). Because Hartford cannot show manifest error in the trial court's conclusion that it did not meet its burden of demonstrating the knowledge element of its reimbursement claim, the trial court properly dismissed Hartford's claim for reimbursement from the Second Injury Fund.
CONCLUSION
For these reasons, the judgment of the district court dismissing Hartford's claim is hereby affirmed. Costs of this appeal are assessed to Hartford Casualty Insurance Company.
AFFIRMED.
HARTFORD CASUALTY INSURANCE COMPANY
VERSUS
STATE OF LOUISIANA WORKERS COMPENSATION SECOND INJURY BOARD
2013 CA 1632
CRAIN, J., dissenting.
The record before us reflects that the district court did not conduct a trial de novo as required by Louisiana Revised Statute 23:1378E. Instead, a status conference was held and the matter was submitted for decision on briefs. Consequently, the admissibility of the Amond deposition was not determined. In fact, no evidence was introduced that could be considered by either the trial court or this court. See Denowc v. Vessel Management Services, Inc., 07-2143 (La. 5/21/08), 983 So. 2d 84, 89.
Under the authority granted by Louisiana Code of Civil Procedure article 2164, the "appellate court shall render any judgment which is just, legal, and proper upon the record on appeal." Comment (a) to Article 2164 confirms the breadth of our authority by declaring that the "purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point was made, argued or passed on by the court below." Additionally, the Louisiana Supreme Court has stated, "[I]t is well settled that an appellate court is empowered under [Article 2164] to remand a case to the district court for the taking of additional evidence where it is necessary to reach a just decision and to prevent a miscarriage of justice." Alex v. Rayne Concrete Serv., 05-1457 (La. 1/26/07), 951 So. 2d 138, 155.
To prevent a miscarriage of justice, I would vacate the district court's judgment dismissing Hartford's claims and remand this matter for the trial de novo required by Section 1378E. Cf. Home Depot v. State Workers' Comp. Second Injury Bd., 05-0674 (La. App. 1 Cir. 3/29/06), 934 So. 2d 125; Franklin v. City of Baton Rouge, 525 So. 2d 674 (La. App. 1 Cir. 1988); see also Barton v. Barton, 05-1190 (La. App. 1 Cir. 6/9/06), 938 So. 2d 779, 782 (where this court vacated a child support judgment and remanded for an evidentiary hearing to provide a basis for a determination of the motion for modification of child support); Takersley v. Kozielski, 50 So. 3d 962, 964 (La. App. 3 Cir. 11/3/10), 50 So. 3d 962, 964 (where it was determined that there had never been a proceeding at which evidence could have been formally introduced, therefore the trial court's judgment was vacated and the matter remanded for a proper hearing and introduction of evidence).
For these reasons, I respectfully dissent.