We find it most often allowed in cases which involve a claim for death benefits due the dependents of deceased employees who testify as to statements of the decedent just prior to his death. See, generally, Arrington v. Singer Sewing Machine Company, 16 So.2d 145 (La.App. 2nd Cir., 1943); Clifton v. Arnold, 87 So.2d 386 (La.App. 1st Cir., 1956); Allen v. Milk Haulers, Inc., 278 So.2d 871 (La.App. 1st Cir., 1973); Montgomery v. Delta Concrete Products Company, 290 So.2d 769 (La.App. 1st Cir., 1974), not considered 294 So.2d 823 (La.); Johnson v. Cajun Enterprises, 293 So.2d 617 (La.App. 3rd Cir., 1974); and Doss v. American Ventures, Inc., 224 So.2d 470 (La.App. 4th Cir., 1969), writs refused 254 La. 829, 227 So.2d 373, appeal after remand 248 So.2d 358 (La.App. 4th Cir., 1971) reversed on other grounds 261 La. 920, 261 So.2d 215. The deposition of Habighorst is, also, of substantially diminished evidentiary value. Reasonable written notice of the deposition was lacking and cannot be substituted by oral communication with plaintiff's attorney's office.
Arrington v. SingerSewing Mach. Co., 16 So.2d 145, 146 (La.App. 2nd Cir. 1943). Finally, we recognize that there is a split within the First Circuit with regard to the use of hearsay evidence in worker's compensation proceedings: In Montgomery v. DeltaConcrete Prods., 290 So.2d 769, 773 (La.App. 1st Cir. 1974), the court held that hearsay testimony, within discretionary limits, is admissible in worker's compensation proceedings and further held that a hearing officer may rely on such evidence where there is sufficient corroboration of the hearsay evidence. However, in Michel v. Department ofPublic Safety, 341 So.2d 1161, 1165 (La.App. 1st Cir. 1976), the court held that although hearsay evidence may be admitted in worker's compensation proceedings, such evidence is incompetent and must be disregarded by a reviewing court.
Justice Bakes, writing for the Court in Paulson v. Idaho Forest Industries, 99 Idaho 896, 591 P.2d 143 (1979), upheld the Commission's finding that the claimant, who suffered from pain in his back and left leg, was temporarily totally disabled for work. Id. at 905, 591 P.2d at 152 (citing Skokie Valley AsphaltCo. v. Industrial Comm'n, 45 Ill.2d 333, 259 N.E.2d 66 (1970) (claimant who experienced constant back pain eligible for permanent total disability); Montgomery v. Delta Concrete Prods. Co., 290 So.2d 769 (La.App. 1974) (claimant who suffered intense back and leg pain found totally disabled)). Similarly, in other jurisdictions pain is a criterion used in determining a claimant's disability compensation award.
The mere fact that proferred evidence is hearsay is not sufficient grounds to exclude it in a workers' compensation case. See Oestriecher v. Mutual Life Ins. Co. of New York, 167 So.2d 461 (La.App. 4th Cir.), cert. denied 246 La. 910, 168 So.2d 821 (1964); Johnson v. Cajun Enterprises, 293 So.2d 617 (La.App. 3rd Cir. 1974); Montgomery v. Delta Concrete Products, Inc., 290 So.2d 769 (La.App. 1st Cir.) cert. denied 294 So.2d 823 (La. 1974). The foregoing cases are cited for this proposition in an excellent discussion on the admissibility of hearsay in workers' compensation cases appearing in Malone Johnson, Workers' Compensation § 390, 13 La.Civ.L. Treatise 297.
Viewing all of the evidence before it, the commission could properly find that any services Paulson could perform would be so limited in quality, quantity, or dependability that a reasonably stable market for them did not exist. Cf. Skokie Valley Asphalt Co. v. Industrial Comm'n, 45 Ill.2d 333, 259 N.E.2d 66 (1970) (claimant's testimony that he was still experiencing constant pain following back surgery and could not find employment was sufficient to sustain finding of permanent total disability); Walker v. Porter Prod. Finishers, Div. Porter Paint Co., 505 S.W.2d 178 (Ky. 1974) (ability to perform menial work for three or four hours per day did not preclude finding of total disability); Montgomery v. Delta Concrete Prods. Co., 290 So.2d 769 (La.Ct.App. 1974) (testimony that claimant suffered from intense pain in back and left leg following surgery supported finding that claimant was unable to perform duties of employment without significant pain and was therefore totally disabled). The finding of total disability is supported by substantial competent evidence and therefore cannot be set aside.
A judgment for total permanent disability should be awarded when the claimant is shown to be totally disabled at the time of trial and the duration of such disability is indefinite or the evidence does not clearly indicate its duration. Montgomery v. Delta Concrete Products Co. Inc., 290 So.2d 769 (La.App. 1st Cir. 1974); Blazier v. Georgia-Pacific Corporation, 301 So.2d 701 (La.App. 3d Cir. 1974); Deville v. Travelers Insurance Company, 176 So.2d 824 (La.App. 3d Cir. 1965); Harris v. Argonaut Insurance Company, 142 So.2d 501 (La.App. 2d Cir. 1962); Louisiana compensation law has accepted this as established principle since at least Connell v. Gilliland Oil Company, 2 La.App. 435 (2d Cir. 1925). Malone, Louisiana Workmen's Compensation Law Section 280 (1951).
LSA-R.S. 23:1331. Montgomery v. Delta Concrete Products Co. Inc., 290 So.2d 769 (La.App. 1st Cir. 1974), Wheat v. Ford, Bacon and Davis Const. Corp., 479 So.2d 439 (La.App. 1st Cir. 1985). Because this injury occurred in 1981, we must apply the worker's compensation law as it was prior to the 1983 amendments.
Like C.C.P. Art. 966, the act anticipates no rigid rules of evidence of procedure. Montgomery v. Delta Concrete Products Co., Inc., 290 So.2d 769 (La.App. 1st Cir. 1974), writ denied 294 So.2d 823 (La. 1974); Johnson v. Cajun Enterprises, 293 So.2d 617 (La.App. 3rd Cir. 1974); Rivers v. Macco, 391 So.2d 873 (La.App. 4th Cir. 1980); Andrews v. Pine Hill Wood Co., 426 So.2d 196 (La.App. 2nd Cir. 1982), writ denied, 432 So.2d 267 (La. 1983). Therefore a proper test of whether a document should be considered in determining a motion for summary judgment is whether such document has been filed in the record.
The plaintiff in a worker's compensation case must prove his claim by a preponderance of the evidence. Montgomery v. Delta Concrete Products Co., Inc., 290 So.2d 769 (La.App. 1st Cir. 1974), writ refused, 294 So.2d 823 (La. 1974). Although procedural rules are construed liberally in favor of workmen's compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed.
The evidence establishes plaintiff is entitled to an award of compensation because his injury produced permanent total disability under the provisions of La.R.S. 23:1221(2). See Bourgeois v. Fireman's Insurance Co. of Newark, N.J., 316 So.2d 3 (La.App. 1st Cir. 1975); Montgomery v. Delta Concrete Products Co., Inc., 290 So.2d 769 (La.App. 1st Cir. 1974). In order to correct this ambiguity we amend paragraph two of the judgment to read as follows: