Yoshii v. State, University of Hawaii. , 137 Haw. 437 ( 2016 )

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Electronically Filed
Supreme Court
SCWC-12-0000383
18-MAY-2016
07:46 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
BRIAN YOSHII,
Petitioner/Claimant-Appellee-Appellant
vs.
STATE OF HAWAI#I, UNIVERSITY OF HAWAI#I,
Respondent/Employer-Appellant/Appellee, Self-Insured,
and
FIRST INSURANCE COMPANY OF HAWAI#I, LTD.,
Respondent/Third-Party Administrator-Appellant-Appellee.
SCWC-12-0000383
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000383; CASE NO. AB 2010-169 (2-08-46774))
MAY 18, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
Brian Yoshii, a State of Hawai#i employee, was injured
while he was working for the University of Hawai#i (UH) Leeward
Community College (LCC). This appeal concerns Yoshii’s
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subsequent workers’ compensation claim made against the State and
its insurance carrier, First Insurance Company of Hawai#i, Ltd.
Yoshii was involved in an accident on the LCC premises
approximately one hour after he ended work for the day. An MRI
of Yoshii’s knee revealed that he had torn his meniscus.
Yoshii’s employer, UH, and its insurance carrier, First Insurance
(collectively “the State”) denied Yoshii’s claim for compensation
on the basis that his injury was not work-related.
Yoshii argues that pursuant to Hawai#i Revised Statutes
(HRS) § 386-85,1 the Labor and Industrial Relations Appeals Board
(LIRAB) was required to presume that Yoshii’s knee injury was
work-related in the absence of substantial evidence to the
contrary. The LIRAB concluded that the State had adduced
substantial evidence sufficient to overcome the presumption that
Yoshii’s knee injury was a covered work-related injury. The
Intermediate Court of Appeals affirmed the LIRAB’s decision and
order.
The issues in this case are very similar to our recent
decision in Panoke v. Reef Dev., in which we held that “[t]he
LIRAB erred in concluding that [Employer] adduced substantial
evidence sufficient to overcome the presumption that Panoke’s
1
HRS § 386-85 (1984) provides, in pertinent part, that “[i]n any
proceeding for the enforcement of a claim for compensation under this chapter
it shall be presumed, in the absence of substantial evidence to the contrary:
(1) That the claim is for a covered work injury.”
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shoulder injuries were related to his . . . work accident” and
remanded to the LIRAB for further proceedings. 136 Hawai#i 448,
468, 363 P.3d 296, 316 (2015). Similarly, we hold here that the
LIRAB erred in concluding that the State rebutted the presumption
that Yoshii suffered a compensable work injury. We therefore
vacate the ICA’s judgment and the LIRAB’s decision and order, and
remand to the LIRAB for further proceedings consistent with this
opinion.
I. Background
A. Yoshii’s work history and October 2008 leg injury
Yoshii began working for Respondent/Employer-Appellant-
Appellee UH’s LCC on August 1, 1995 as a “Cook II,” and was still
employed in that position on the date of his alleged work-related
injury on October 30, 2008. Yoshii’s job involved spending all
day walking and standing on his feet, and going up and down
stairs to get pots, pans, and kitchen utensils. Yoshii’s work
schedule in this position was Monday through Friday, 6:00 a.m. to
2:30 p.m.
On January 3, 2008, Yoshii’s primary treating
physician, Dr. Luis J. Ragunton, treated Yoshii for “mild leg
edema” which Dr. Ragunton noted “maybe [sic] accounting for some
of [Yoshii’s] leg pain.” On October 27, 2008, Dr. Ragunton’s
report stated that he treated Yoshii for “pain in the right leg,”
which Yoshii stated occurred “shortly after getting off the chair
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after watching a movie” the day before, on October 26. Yoshii
later testified that the pain on this occasion was in his calf.
Dr. Ragunton proposed treating the edema with furosemide tablets,
a diuretic, to reduce swelling.
Dr. Ragunton’s report regarding the October 27th visit
does not indicate that Yoshii was told to stay home from work,
but Yoshii testified that Dr. Ragunton told him to stay home for
two days, raise his leg, and stay off his feet. Yoshii also
testified that he stayed home for two days because “the pain was
intolerable.”
Yoshii testified that he returned to work on
October 30, 2008 and worked his full shift from 6:00 a.m. to 2:30
p.m. Yoshii also stated that his leg felt better than it had
during the prior few days. After Yoshii finished work, as he was
leaving the premises and walking down some stairs on the loading
dock, he “planted [his] right foot, [and] there was a really
sharp pain.” On the WC-5 form Yoshii submitted when making his
claim for compensation, Yoshii recorded that this incident
happened at 3:30 p.m. The State’s WC-1 “report of industrial
injury” form also recorded the time of the injury as 3:30 p.m.
At trial, Yoshii confirmed that the injury occurred after his
shift was over.
Yoshii stated that the pain he experienced while
walking down the stairs on October 30, 2008 was “[n]o comparison”
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to the pain he experienced the prior Sunday, when he hurt his leg
standing up after watching a movie, because the pain he
experienced on October 30, 2008 was “a really painful, sharp
pain.”
Yoshii testified that after he felt the pain on
October 30, he held on to the wall and could not move for two or
three minutes. He then proceeded to the truck in which his wife
was waiting to pick him up, and had a hard time lifting his leg
to get into the truck. Yoshii testified that he then called his
supervisor, Travis Kono, and security to tell them what had
happened, and security told him to inform the human resources
(HR) department. Yoshii called HR, but no one answered. He was
only able to get in touch with someone in HR about one week
later.
The same day as the incident, Yoshii went to the
emergency room at Pali Momi. The emergency room staff iced
Yoshii’s leg, wrapped bandages around his calf and knee, and told
him to stay off his feet. The emergency room report, prepared by
Dr. Donald Wilcox, stated that Yoshii’s chief complaint was a
“sore muscle” and described the history of Yoshii’s injury as
follows:
The patient has a sore right leg for about 4 to 5
days. He saw his doctor 4 days ago for this. He is
not sure if he strained it or exactly what but it is
sore. He was placed on a diuretic because of this.
He states he is a short order cook so he is on his
feet all the time. It just feels achy. It is achy on
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the lateral calf, not posteriorly and not behind the
knee, and it feels a little achy up to the thigh. The
foot feels a little sore and swollen too.
Dr. Wilcox noted that Yoshii’s complaints “may just be
due to progressive edema” and advised Yoshii to continue with the
diuretic and to follow up with his doctor.
After the October 30, 2008 incident, Yoshii did not
return to work for eight months.
B. Yoshii’s filing of his worker’s compensation claim and
treatment after the October 30, 2008 injury
On November 3, 2008, Yoshii saw Dr. Ragunton for a
follow up. Dr. Ragunton’s report for this visit stated:
“Patient comes in for an ER follow up. He re-injured his calf on
10/30/08. . . . [H]e complains of continued pain to the right
calf area. Evaluation in the emergency room revealed no
significant pathology. The patient is concerned of possible
muscle injury since he stands all day at work.” Dr. Ragunton
advised Yoshii to “keep his legs elevated as much as possible”
and to remain off work.
On November 14, Yoshii returned to Dr. Ragunton,
complaining that his “right leg is still sore.” Dr. Ragunton
advised Yoshii to continue taking furosemide tablets for
swelling, limit his fluid intake to prevent further edema, and
“remain off work until I reevaluate him in two weeks.”
On November 18, 2008, Yoshii filed a “report of work-
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related injury” with his employer. Yoshii described the incident
as occurring on October 30, 2008 in the following way: “Walking
down the loading dock stairway and I stepped on my right foot the
wrong way hurting my right calf. I had very sharp pain and
couldn’t move for about 2-3 minutes. Then I had a very hard time
getting into our vehicle.” Yoshii noted his injury as “right
calf muscle strain.” The supervisor’s section of the form was
filled out by Travis Kono and stated that the “injury occurred
after scheduled work hour [sic], outside of the kitchen walking
down the stairs” and that Yoshii was not performing his work
duties when the injury occurred because he was “off the clock.”
On November 24, 2008, December 8, 2008, and
December 22, 2008, Yoshii revisited Dr. Ragunton for follow up on
his right leg pain. At the December 22 visit, Dr. Ragunton
referred Yoshii to Dr. Calvin Oishi for “possible torn meniscus
of right knee.”
On December 29, 2008, Dr. Oishi saw Yoshii and ordered
an MRI, which showed “moderate knee effusion, moderate
chondromalacia of the tibiofemoral joint, lateral patellofemoral
joint as well as possible degenerative tear of the medial
meniscus.” Yoshii had surgery on his knee on January 17, 2009,
for repairs to both medial and lateral meniscus tears in his
right knee. Five months after surgery, Yoshii was referred to
Dr. Alan Oki, a rheumatologist, who noted that since the surgery
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Yoshii had shown “substantial improvement” but that he still had
some “residual pain.” On June 24, 2009, Dr. Oki diagnosed Yoshii
with “osteoarthritis of the right knee with chondromalacia
involving the medial femoral condyle and patella” and noted that
he “had both medial and lateral meniscus tears which were
successfully addressed by Dr. Oishi.”
On February 18, 2009, First Insurance sent a letter to
the Director of the LIRAB (Director) stating that it had
concluded that “Yoshii did not suffer an injury arising out of
and in the course of employment with University of Hawai#i.”
The letter further stated:
We base our denial of benefits on the [independent
medical examination] by Brian Mihara, MD dated
2/9/09.[2] Dr. Mihara indicates no evidence in the
medical records to suggest that this was a work
related trauma. This was a pre-existing condition
documented in the medical record dating back a number
of years.
After First Insurance denied Yoshii’s benefits, Yoshii
filed a WC-5 “employee’s claim for workers’ compensation
benefits” form with the Director. On the form, Yoshii explained
that the reason for the filing of the form was that “claimant had
insurance deny [sic] claim.” Yoshii described the accident as:
“walking down loading dock stair stepped on my right foot and
felt sharp pain in my leg” and his injury as: “torn ligament on
right knee both inside and outside.”
2
Dr. Mihara’s report is discussed further below.
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C. Physicians’ medical opinions regarding work-relatedness of
Yoshii’s injury
1. Dr. Ragunton
Four months after the incident, on March 30, 2009,
Dr. Ragunton provided a medical statement regarding Yoshii’s leg
injury. Dr. Ragunton stated:
Mr. Brian Yoshii was initially seen by me on
October 27, 2008. This was 3 days prior to his injury
at work. He had reported leg pain when getting off a
chair. At that time it appeared that his leg pain was
caused by leg swelling and fluid retention. The
patient was treated with diuretic therapy.
Mr. Yoshii was injured at work on October 30,
2008. He went to the emergency room and on November
3, 2008 I saw him for follow up. He reported that the
emergency room evaluation revealed no significant
pathology. I am not sure if the emergency room was
advised that the patient hurt his knee at work. At
that time was [sic] concerned that the patient still
had a medical condition contributing to his knee and
leg pain. At that time an evaluation was started by
myself. It appeared that he had no evidence of deep
venous thrombosis of his lower extremity. I obtained
a CT scan of the right leg which revealed no phlebitis
or clots. There was also no evidence of any muscular
tear. His medications were adjusted and his symptoms
of swelling and pain had improved. Upon further
follow-up however the patient reports that his upper
calf and knee still hurt. At that point I had
referred him to Dr. Calvin Oishi for further
evaluation. He was found to have a torn meniscus of
the right knee. Since surgery was performed in [sic]
the patient going through physical therapy, his
symptoms of need [sic] and calf pain have improved.
Because of his initial presentation being
unclear, I did not pursue a work related claim upon
initial presentation. However the patient feels
certain that his knee pain and subsequent torn
meniscus was related to the injury at work on October
27, 2008. I am in agreement with this because the
patient had no significant problems with his knee
until after his injury. I also excluded and treated
medical causes for pain and swelling of his right
knee.
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Dr. Ragunton also completed a WC-2 “physician’s report”
on March 30, 2009 describing Yoshii’s October 30, 2008 accident,
stating that Yoshii’s injury occurred on October 30, 2008, and
that the accident was not the only cause of Yoshii’s injury
because “initially I thought [Yoshii’s] condition may be related
to arthritis or swelling caused by medication or even deep vein
thrombosis but after treating these conditions pain in R[ight]
knee and calf persisted.” Dr. Ragunton’s “final diagnosis” on
this form was that Yoshii had a “torn meniscus of right knee.”
2. Dr. Oishi
In a letter addressed to Yoshii’s attorney dated
March 5, 2010, Dr. Oishi stated that Yoshii first presented to
him on December 29, 2008 complaining of persistent knee pain.
Dr. Oishi obtained an MRI and then performed surgery to conduct a
“partial medial and lateral meniscectomy, as well as an
arthroscopic lateral release with chondromalacia patella.”
Regarding the work-relatedness of Yoshii’s injuries, and his
disability from work, Dr. Oishi stated:
The meniscus tear may have been caused by an injury at
work but the chondromalacia probably was not. I
really have no opinion regarding whether the patient
suffered an injury at work as it wasn’t reported to me
as such. But if I review the records it would seem
that the time line would be that he had pain after
injury. At least according to Dr. Ragunton’s note.
Usually after arthroscopic surgery the patient would
be totally disabled for a month and then partially
disabled therefore [sic]. So for treatment you would
have to assume patient was totally disabled from
1/17/09 to 2/17/09 and then from 2/17/09 to 8/27/09
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the patient was partially disabled. That would be the
treatment period for treatment of his knee.
3. Dr. Mihara
Dr. Mihara examined Yoshii on February 9, 2009 at the
request of First Insurance. After recounting Yoshii’s medical
history, Dr. Mihara stated:
2. The Claimant’s diagnoses are:
a. Right calf and lower extremity discomfort,
primarily radicular in nature and not
related to any work related incident on
10/30/08. This preexisted the alleged
10/30/08 incident and the medical record
does not suggest that there was a work
related injury or aggravation.
b. History of recent right knee arthroscopic
surgery performed by Dr. Calvin Oishi,
reportedly for meniscal tears of the right
knee. The medical record does not suggest
that a meniscal tear or knee joint injury
occurred on 10/30/08 at work.
c. History of preexisting mild lower back
pain and occasional right and left lower
extremity radicular-type complaints
historically attributed to tendonitis and
muscular pain. This may indicate a nerve
root problem, possibly from his back or
even a nerve problem related to diabetes.
d. History of preexisting right lower
extremity edema, etiology unclear.
Scanning of the right lower extremity has
not revealed a source for the right lower
extremity swelling. This swelling may be
contributing partially to his leg
complaints.
The prognosis for the right calf pain and radicular
complaints is guarded, given the likelihood that this
may well be degenerative in nature or related to his
diabetes. Either way, this is not typically
associated with “quick fix” treatment options.
3. It is my opinion that the claimant’s pain
experienced on 10/30/08 was likely radicular in
origin. This was a preexisting condition
documented in the medical record dating back a
number of years. It had been more frequent in
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recent years and in particular, it flared up
just several days prior to 10/30/08 after the
claimant stood up watching a movie. This
suggests the possibility of a nerve root
irritation. The medical record available to me
does not suggest any work related link, and the
medical record does not indicate any
gastrocnemius tear or meniscal tear due to work
injury. In other words, I can find no evidence
in the medical record to suggest that this was a
work related trauma or problem. I am forced to
rely on the medical record, given the
inconsistencies in the claimant’s verbal
history.
4. Dr. Davenport
At the request of First Insurance, Dr. Kent Davenport
examined Yoshii on June 4, 2009. Dr. Davenport noted his
impression as “[p]robable right calf strain unrelated to work
injury of 10/30/08.” Dr. Davenport then stated:
Brian Yoshii clearly injured his right calf on
10/27/08 while rising from a chair after watching a
movie. He was seen in the emergency room on 10/30/08
with increasing right calf pain. However, I do not
believe that there is an injury on 10/30/08 but merely
the continuation of Mr. Yoshii’s right lower extremity
discomfort.
It would be difficult to give Mr. Yoshii a diagnosis
at this time as all of his calf discomfort seems to
have cleared. He does have some radiating pain in his
thigh which could suggest a back injury. It was also
noted that he was referred to Calvin Oishi, M.D.,
orthopedic surgeon, for evaluation of a possible
meniscus tear. However, it is clear from the medical
records that this condition began on 10/27/08. I do
not believe that it was aggravated or accelerated on
10/30/08.
D. The Director’s May 13, 2010 Decision
The Director held a hearing on March 23, 2010 on the
issues of the compensability of Yoshii’s knee injury, the periods
through which Yoshii was eligible for temporary total disability
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(TTD) benefits, and whether to strike certain certifications and
reports because they were untimely.3
The Director found that Yoshii’s right knee injury was
compensable. In coming to this conclusion, the Director credited
Yoshii’s WC-5 form and Dr. Ragunton’s March 30, 2009 report and
WC-2 form. The Director then ordered the State to “pay for such
medical care, services and supplies as the nature of the injury
may require” and “pay to claimant weekly compensation of $527.26
for [TTD] from work . . . for 24.4286 weeks, for a total of
$12,880.21.”
E. Dr. Morris Mitsunaga’s medical opinion
After the Director issued the decision, Yoshii obtained
a medical report from Dr. Morris Mitsunaga on February 14, 2011.
Dr. Mitsunaga’s impression of Yoshii’s injury was “[b]ilateral
knee osteoarthritis with chondromalacia.” Dr. Mitsunaga prefaced
his conclusions by stating: “Please note that the conclusions
made were from the interview of the patient, and the records
received. I did not have the operative report of Dr. Oishi on
the right knee nor the MRI report of his right knee.”
3
The Director struck Dr. Oishi’s March 3, 2013 report and
Dr. Davenport’s June 4, 2009 report from the record because they were untimely
submitted. However, on appeal to the LIRAB, these reports were part of the
record. The LIRAB credited Dr. Davenport’s opinion and then determined that
the issue of whether to strike his report was moot. Even considering
Dr. Davenport’s report, it does not provide the substantial evidence necessary
to enable the State to overcome the presumption that Yoshii’s work injury was
compensable.
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Dr. Mitsunaga then concluded:
It is my opinion that the patient suffers from
osteoarthritis of both knees and chondromalacia
patella. The incident of 10/30/08 aggravated a
preexisting condition. There was not a specific
injury. He was walking down stairs and had the sudden
onset of right knee pain.
It is my opinion that the patient has osteoarthritis
and it was aggravated by his work activities as
described. He states at work he has to stand
constantly, walks back and forth, and goes up and down
stairs and lifts things. He has progressive pain with
kneeling and squatting which would be consistent with
his symptoms of chondromalacia.
. . . .
It is my opinion that the patient had preexisting
osteoarthritis and chondromalacia of both knees that
was aggravated by his excessive work activities. His
so-called sudden onset when coming down stairs at work
on 10/30/08 aggravated his preexisting problems.
F. Appeal to the LIRAB
On May 19, 2010, Yoshii filed an appeal with the LIRAB.
In his initial conference statement to the LIRAB, the only issue
Yoshii raised was whether he was entitled to TTD benefits for the
periods October 30, 2008 through January 5, 2009 and June 25,
2009 through July 22, 2009. The State, in its initial conference
statement, raised the issue of “[w]hether [Yoshii] suffered a
compensable injury arising out of and in the course of his
employment on October 30, 2008.” On July 26, 2010, Yoshii
withdrew his appeal, and on October 5, 2010, the LIRAB entered an
order dismissing Yoshii’s appeal and designating the State as the
appellant.
On May 11, 2011, the LIRAB held a hearing at which
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Yoshii was the only witness to testify.
In addition to the description of events of October 30,
2008 discussed above, Yoshii testified that nothing else happened
to his right knee between October 30, 2008 and December 29, 2008,
when he had the MRI that showed a torn meniscus in his right
knee.
On cross-examination, Yoshii testified that when he
hurt his knee on October 30, 2008, he was already “off the clock”
for the day and that he was not in his assigned work area because
he was going to his personal vehicle. Yoshii also acknowledged
that he did not initially tell his physician about filing a
workers’ compensation claim but that he changed his mind later
when he filed his WC-5 form.
Yoshii also testified that when he visited the
emergency room on October 30, 2008, Dr. Wilcox did not examine
his knee, but told him to stay off his feet and do a follow-up
visit with Dr. Ragunton. However, Yoshii also testified that he
could not recall the exam given by Dr. Wilcox, he did not know
what it meant that Dr. Wilcox identified edema in Yoshii’s knees,
and he was not aware of Dr. Wilcox’s diagnosis.
Yoshii also testified that when he was referred to
Dr. Oishi, he told Dr. Oishi that he had suffered a knee injury
as part of a workers’ compensation injury, but that he did not
know that Dr. Oishi had stated in his report that he had no
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opinion regarding whether the injury was suffered at work because
“it wasn’t reported to me as such.” Yoshii also testified that
when he went to see Dr. Oishi, he noticed that there was a sign
on the wall stating that Dr. Oishi “wasn’t accepting Workmen’s
Compensation at the time.”
Yoshii acknowledged that in Dr. Oki’s report dated
June 24, 2009, Dr. Oki stated that Yoshii had a “three-year
history of right knee pain,” but could not remember whether he
had told Dr. Oki that. Yoshii also acknowledged that Dr. Oki’s
report stated that Yoshii “denies specific trauma or strain,” and
that he had told Dr. Oki that he had not suffered a traumatic
injury.
Yoshii further stated that when Dr. Oishi received the
MRI films, he explained to Yoshii what they showed and told him
that he “had a torn meniscus on the inside and outside of [his]
right knee.” He could not recall Dr. Oishi telling him that it
was a possible degenerative tear.
On re-direct examination, Yoshii testified that his
injury on October 30, 2008 was not the same as the one he
suffered on October 26, 2008, for which he saw Dr. Ragunton on
October 27, 2008, because “[a]t the movie theater [on October
26], it seemed like a muscle. A pulled muscle or something in my
calf. And on the day of the injury, it was really sharp and it
was really sore. In fact, I screamed[.]”
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When questioned by the LIRAB board members, Yoshii
indicated that when he felt the pain at the movie theater on
October 26, 2008, it was located below the big part of his knee,
at the top of his calf muscle, and the pain he felt on
October 30, 2008 was in “[t]he same area.” When asked whether
the pain on October 30, 2008 extended in to the “big part of your
leg where your knee bends,” Yoshii stated, “[w]ell, to tell you
the truth . . . I felt it was like my calf. Because that’s what
was bothering me earlier and that’s what I went to see the doctor
for.”
On March 21, 2012, the LIRAB issued its decision and
order. The LIRAB made the following findings of fact (FOFs):
1. On October 30, 2008, Claimant BRIAN M.
YOSHII (“Claimant”) was a [sic] employed as a Cook II
at [LCC] for Employer.
2. In a WC-5 . . . filed on March 11, 2009,
Claimant alleges that on October 30, 2008 at
approximately 3:20 p.m., he injured his right knee
while walking down the loading dock stairs. He
described his injury as a torn ligament.
Employer denied liability for a work injury.
3. In a November 18, 2008 Report of Work-
Related Injury/Illness[,] Claimant stated that work
his [sic] day began at 6:00 a.m. and ended at 2:30
p.m. He explained that he stepped on his right foot
the wrong way and hurt his right calf. He identified
his injury as a right calf muscle strain.
The Supervisor’s Statement by Travis T. Kono
noted that Claimant was “off the clock” and that the
“[i]njury occurred after scheduled work hours, outside
of the kitchen walking down the stairs.” Mr. Kono
noted that Claimant had been “out on sick leave on
similar injury prior to incedent [sic].”
. . . .
6. Claimant saw Dr. Ragunton on November 3,
2008 and stated that he re-injured his calf on October
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30, 2008. Claimant was concerned about a possible
muscle injury since he stood all day at work. Dr.
Ragunton suspected that Claimant may have had a muscle
tear.
. . . .
8. On February 9, 2009, Brian Y. Mihara, M.D.,
an occupational medicine physician, examined Claimant
at Employer’s request. Claimant informed Dr. Mihara
that he never had calf pain or right lower pain [sic]
before October 30, 2008. Dr. Mihara noted, however,
that Claimant’s medical records documented a history
of prior lower extremity symptoms, both right and
left, from the hips through the knees and into the
feet and ankles.
Dr. Mihara opined that Claimant’s right calf and
lower extremity discomfort was primarily radicular in
nature and pre-existed the October 30, 2008 incident.
He noted that the medical record neither suggested a
work related injury or aggravation nor a meniscal tear
or knee joint injury that occurred at work on October
30, 2008. Dr. Mihara noted an incident on October 27,
2008, where Claimant experienced right leg symptoms
when standing up after watching a movie.
. . . .
10. Kent Davenport, M.D., an orthopedic
surgeon, conducted a medical records review. In his
report dated June 4, 2009, Dr. Davenport opined that
Claimant sustained “[p]robable right calf strain
unrelated to work injury of 10/30/2008.” Dr.
Davenport opined that Claimant’s leg condition was a
continuation of his right extremity discomfort that he
experienced on October 27, 2008, while arising from a
chair after watching a movie. Dr. Davenport did not
believe that the condition was aggravated or
accelerated on October 30, 2008.
. . . .
12. Dr. Oishi, an orthopedic surgeon, prepared
a report dated March 5, 2010, which noted his opinion
that the “meniscus tear may have been caused by an
injury at work but the chondromalacia probably was
not.” He stated that he had no opinion whether
Claimant sustained an injury at work because it was
not reported to him as such.
. . . .
14. Morris M. Mitsunaga, M.D., an orthopedic
surgeon, prepared a report dated February 14, 2011,
wherein he noted that Claimant did not remember
twisting his knee or mis-stepping on October 30, 2008.
Claimant also related that his pain was in his calf,
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not his knee. Claimant complained to Dr. Mitsunaga,
however, of continued right knee pain.
Claimant informed Dr. Mitsunaga that similar
symptoms on his left side were considered not work-
related by Dr. Scott McCaffrey, M.D.
Dr. Mitsunaga opined that Claimant had bilateral
knee osteoarthritis with chondromalacia patella and
that the October 30, 2008 incident aggravated that
condition, although there was not a specific injury.
Dr. Mitsunaga also opined that Claimant’s
osteoarthritis was aggravated by his work activities
of constant standing, walking back and forth, going up
and down stairs, and lifting things.
15. The Board finds Claimant’s testimony to be
inconsistent in describing his alleged injury and with
medical and other records; therefore, Claimant’s
testimony is not credited.
16. The Board credits the opinions of Drs.
Mihara and Davenport over those of Drs. Ragunton and
Mitsunaga.
The Board specifically declines to credit Dr.
Ragunton’s opinion regarding causation and the
description of the injury which are inconsistent with
the medical records, including Dr. Ragunton’s own
medical records.
Further, Dr. Oishi provided an equivocal comment
that he had no opinion regarding causation.
17. The Board finds that the pain Claimant
experienced on October 30, 2008 was related to the
edema that he experienced on October 26, 2008, for
which he took time off from work for several days and
sought treatment with Dr. Ragunton on October 27,
2008.
Claimant specifically noted that his pain
symptoms continued from the movie incident and were
located in his calf, rather than his knee, even for
many weeks after the movie incident and the alleged
work injury. On November 24, 2008, Claimant informed
Dr. Ragunton that his right lower extremity pain had
improved. As of that date, there was no evidence of
any complaints about Claimant’s knee.
18. There is no evidence of torn ligaments as
described or claimed by Claimant.
19. The Board has applied the presumption of
compensability and finds that Employer has presented
substantial evidence to overcome and rebut said
presumption with regard to Claimant’s knee condition.
The LIRAB then made the following relevant conclusion
of law (COL):
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1. Having applied the presumption of
compensability and determining that Employer presented
substantial evidence to overcome and rebut the
presumption, the Board concludes that Claimant did not
sustain a personal injury to his right knee on October
30, 2008, arising out of and in the course of
employment.
The LIRAB thus reversed the Director’s May 13, 2010
decision.
G. Appeal to the ICA
In his appeal to the ICA, Yoshii argued that the LIRAB
erred in concluding that the State had overcome the presumption
of coverage pursuant to HRS § 386-85 because the medical opinions
given by the State’s doctors, Dr. Davenport and Dr. Mihara, were
generalized opinions that merely concluded that Yoshii’s knee
injury was not work-related, and did not explain why the incident
on October 30, 2008 could not have caused a meniscus tear or
aggravated an exiting tear, or explain what might have caused the
tear. Yoshii also argued that even if the State did adduce
substantial evidence to overcome the presumption of coverage, the
evidence did not outweigh the medical evidence adduced by Yoshii
showing that the injury was a compensable work injury. Yoshii
thus argued that the LIRAB erred in giving the State’s evidence
more weight.
The State argued that the seven pieces of evidence
listed below amounted to substantial evidence sufficient to rebut
the presumption:
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1. Dr. Ragunton’s October 27, 2008 report showing
that Yoshii complained of right leg pain before
the date of his claimed injury after getting up
from a chair at the movie theater.
2. Dr. Ragunton’s statement in his March 30, 2009
letter that “the patient feels certain that his
knee pain and subsequent torn meniscus was
related to the injury at work on October 27
[sic], 2008.”
3. Dr. Oishi’s statement in his March 5, 2010
report that “I really have no opinion regarding
whether the Claimant suffered an injury at work
as it wasn’t reported to me as such.”
4. Statements in Dr. Mihara’s February 9, 2009
report connecting Yoshii’s leg pain to
“radicular symptomatology” and Yoshii’s
statements to Dr. Mihara that when he was
walking down the stairs on October 30, 2008, he
felt pain in his “calf.”
5. Dr. Mihara’s opinion that “[t]he medical record
does not suggest that the meniscal tear of knee
joint injury occurred on 10/30/08 at work.”
6. Dr. Davenport’s opinion in his June 4, 2009
report that “it was clear from the medical
records that this condition began on 10/27/08.
I do not believe that it was aggravated or
accelerated on 10/30/08.”
7. The fact that Yoshii’s right knee MRI and
surgery were not obtained in a manner consistent
with the Worker’s Compensation Medical Fee
Schedule because there was no consultation
treatment request, concurrent treatment request,
or surgical treatment request submitted.
The State further argued that the opinions of doctors
Mihara and Davenport are not generalized opinions because both
address the underlying facts before concluding that Yoshii’s knee
injury was not work-related. Finally, the State argued that the
evidence it adduced outweighed Yoshii’s evidence.
On April 24, 2015, the ICA entered its memorandum
opinion affirming the LIRAB’s decision and order. The ICA
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majority first addressed Yoshii’s argument that the LIRAB should
have concluded that, based on Dr. Mitsunaga’s opinion, “the
nature of the injury included the aggravation to the degenerative
condition and the tear in [Yoshii’s] right knee from [Yoshii’s]
work activities” and “the progression of the arthritis and the
effect of the work activities on the knee caused the tear of the
posterior horn of the lateral meniscus that in turn required the
surgery.” The ICA majority declined to rule on the merits of
this argument because, according to the majority, Yoshii’s claim
for a covered injury “was not based on cumulative injury stemming
from work activity, but upon the stair-stepping event occurring
on October 30, 2008.”
In regard to whether the LIRAB erred in concluding that
the State had submitted substantial evidence sufficient to
overcome the presumption of coverage, the ICA majority agreed
that the presumption applied, but held that the LIRAB did not err
in finding that the State had adduced substantial evidence and
had overcome the presumption. The ICA majority reasoned that
Yoshii initially complained of pain in his right calf, and that
neither of the incidents that Yoshii alleged had caused his pain-
-getting out of his seat on October 27, 2008, and walking down
the stairs on October 30, 2008--occurred “while performing his
work duties or during office hours.” The ICA also noted that
until December 29, 2008, when Yoshii first saw Dr. Oishi, there
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was no indication that Yoshii was experiencing knee pain or that
there was any problem with his knee.
The ICA also relied upon the report of Dr. Mihara,
which stated that in his opinion, Yoshii’s knee injury was not
due to any work injury. Based on this evidence, the ICA then
concluded that the LIRAB had not erred in finding that the State
had overcome the presumption of coverage.
Judge Lisa Ginoza filed a dissenting opinion
disagreeing with the majority’s conclusion that the State had
adduced substantial evidence sufficient to overcome the
presumption. Judge Ginoza reasoned that it was undisputed that
Yoshii felt pain in his right leg on October 30, 2008 and
immediately sought care in the emergency room at Pali Momi, and
then within two months was diagnosed with a possible torn
meniscus in his right knee. Judge Ginoza concluded that the
reports of Drs. Mihara and Davenport, which were relied upon by
the LIRAB, did not constitute substantial evidence because they
lacked explanation “with a reasonable degree of specificity” of
why the October 30, 2008 injury could not have been at least an
aggravating factor of Yoshii’s meniscus tear.
On August 3, 2015, Yoshii timely filed his application
for writ of certiorari. Yoshii presents one question for this
court:
Whether the ICA gravely erred by not properly applying
the presumption that Clamant [sic] had a work injury
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to his right leg, including a complex tear of the
medial meniscus and a complex tear of the lateral
meniscus?
III. Standards of Review
A. The LIRAB’s Decision
The standard of review for LIRAB decisions is well-
established:
Appellate review of a LIRAB decision is governed by HRS § 91-14(g)
(1993), which states that:
Upon review of the record the court may affirm the
decision of the agency or remand the case with
instructions for further proceedings; or it may
reverse or modify the decision and order if the
substantial rights of the petitioners may have been
prejudiced because the administrative findings,
conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory
provisions; or
(2) In excess of the statutory authority or
jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(6) Arbitrary, or capricious, or characterized
by abuse of discretion or clearly unwarranted
exercise of discretion.
We have previously stated:
[FOFs] are reviewable under the clearly erroneous standard
to determine if the agency decision was clearly erroneous in
view of reliable, probative, and substantial evidence on the
whole record.
[COLs] are freely reviewable to determine if the agency’s
decision was in violation of constitutional or statutory
provisions, in excess of statutory authority or jurisdiction
of agency, or affected by other error of law.
A COL that presents mixed questions of fact and law is
reviewed under the clearly erroneous standard because the
conclusion is dependent upon the facts and circumstances of
the particular case. When mixed questions of law and fact
are presented, an appellate court must give deference to the
agency's expertise and experience in the particular field.
The court should not substitute its own judgment for that of
the agency.
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Igawa v. Koa House Rest., 97 Hawai#i 402, 405-06, 38 P.3d 570,
573-74 (2001) (internal quotation marks and citations omitted;
alterations in original) (quoting In re Water Use Permit
Applications, 94 Hawai#i 97, 119, 9 P.3d 409, 431 (2000)).
An FOF or a mixed determination of law and fact is
clearly erroneous when (1) the record lacks substantial
evidence to support the finding or determination, or (2)
despite substantial evidence to support the finding or
determination, the appellate court is left with the definite
and firm conviction that a mistake has been made. We have
defined “substantial evidence” as credible evidence which is
of sufficient quality and probative value to enable a person
of reasonable caution to support a conclusion.
In re Water Use Permit Applications, 94 Hawai#i at 119, 9 P.3d at
431 (internal quotation marks and citations omitted).
IV. Discussion
Yoshii argues that the ICA erred in concluding that the
State adduced substantial evidence sufficient to overcome the
presumption of coverage.4 For the reasons set forth below, we
agree with Yoshii.
A. The LIRAB erred in finding that the State adduced
substantial evidence sufficient to overcome the presumption
of coverage
Yoshii argues that neither of the two medical opinions
proffered by the State provided the substantial evidence
necessary to overcome the presumption of coverage because they
4
Yoshii also argues that the ICA erred in concluding that the time
and location of his alleged injury barred his claim. However, it appears that
neither the LIRAB nor the ICA relied on the time and location of the injury in
determining that the State adduced substantial evidence to overcome the
presumption of coverage. Thus, we do not address this argument here.
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are generalized, meaning “they do not identify factual events
that would corroborate their opinion.” Specifically, Yoshii
asserts that neither Dr. Davenport nor Dr. Mihara gave “specific
explanations for the cause of the tear [in Yoshii’s knee] and the
chondromalacia” or “address[ed] whether the stepping down of
[sic] the stairs could have aggravated any pre-existing osteo-
arthritis to cause the tear or aggravate a lesser, pre-existing
tear.”
HRS § 386-85 provides, in pertinent part, that “[i]n
any proceeding for the enforcement of a claim for compensation
under this chapter it shall be presumed, in the absence of
substantial evidence to the contrary: (1) That the claim is for
a covered work injury.” This court has stated:
When determining whether a workers’ compensation claim
is work-related, it is well established in Hawai#i
that it shall be presumed, in the absence of
substantial evidence to the contrary . . . that the
claim is for a covered work injury. As indicated in
Acoustic, Insulation & Drywall, Inc. v. Labor and
Industrial Relations Appeal Board, 51 Haw. 312, 316,
459 P.2d 541, 544 (1969), to rebut the presumption,
the employer has the burden of going forward with the
evidence, which is the burden of production, as well
as the burden of persuasion. The burden of production
means that the employer must initially introduce
substantial evidence that, if true, could rebut the
presumption that the injury is work-related. In
evaluating whether the burden of producing substantial
evidence has been met, the slightest aggravation or
acceleration of an injury by the employment activity
mandates compensation.
In evaluating whether the burden of persuasion has
been met in the workers’ compensation context, the
broad humanitarian purpose of the workers’
compensation statute read as a whole requires that all
reasonable doubts be resolved in favor of the
claimant. In this case, the employer failed to meet
its initial burden of producing substantial evidence,
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and we therefore do not reach the burden of persuasion.
As this court explained in Van Ness, this is a high
burden placed on the employer, which is necessary
because of the purpose of Hawaii’s workers’
compensation law:
The legislature has decided that work injuries are
among the costs of production which industry is
required to bear. Workmen’s compensation laws were
enacted as a humanitarian measure, to create legal
liability without relation to fault. They represent a
socially enforced bargain: the employee giving up his
right to recover common law damages from the employer
in exchange for the certainty of a statutory award for
all work-connected injuries.
Panoke, 136 Hawai#i at 461-62, 363 P.3d at 309-10 (internal
citations, formatting, and punctuation omitted).
There is no dispute that Yoshii’s claim for
compensation triggered the HRS § 386-85 presumption. As in
Panoke, the threshold question in this case is whether the State
adduced substantial evidence to overcome the presumption. See
id. at 461-62, 363 P.3d at 309-10.
“[A] reasonable degree of specificity is required in
order for medical opinion evidence to rebut the presumption of
compensability.” Id. at 462, 363 P.3d at 310 (citation omitted).
Moreover, “the slightest aggravation or acceleration of an injury
by the employment activity mandates compensation.” Van Ness v.
State, 131 Hawai#i 545, 562, 319 P.3d 464, 481 (2014) (citing
DeFries v. Ass’n of Owners, 999 Wilder, 57 Haw. 296, 309, 555
P.2d 855, 862 (1976)).
In the present case, the only medical evidence the
State presented to rebut the presumption was the reports of
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Dr. Mihara and Dr. Davenport. Those reports are conclusory in
nature and do not provide substantial evidence sufficient to
overcome the presumption of coverage.
Dr. Mihara’s report stated that Yoshii’s discomfort in
his right leg “preexisted the alleged 10/30/08 incident and the
medical record does not suggest that there was a work related
injury or aggravation.” Dr. Mihara stated that the pain Yoshii
suffered on October 30, 2008 was the result of a pre-existing
condition connected to the pain he felt a few days earlier when
he stood up after watching a movie. Regarding the possibility
that the October 30, 2008 incident may have caused or aggravated
Yoshii’s meniscal tear, Dr. Mihara stated only that “the medical
record does not indicate any gastrocnemius tear or meniscal tear
due to work injury.” Dr. Mihara did not explain this statement
any further. The report does not explain, for example, why
walking down the stairs on October 30, 2008 could not have caused
a meniscal tear, nor does it explain why the pain Yoshii
experienced a few days prior to October 30, 2008 could not have
been the result of a meniscal tear that was further aggravated as
Yoshii descended the stairs at LCC on October 30, 2008.
Dr. Davenport’s report is also conclusory.
Dr. Davenport’s report stated, “I do not believe that there is an
injury on 10/30/08 but merely the continuation of Mr. Yoshii’s
right lower extremity discomfort.” Dr. Davenport then stated
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that “[i]t was also noted that [Yoshii] was referred to Calvin
Oishi, M.D., orthopedic surgeon, for evaluation of a possible
meniscus tear. However, it is clear from the medical records
that this condition began on 10/27/08. I do not believe that it
was aggravated or accelerated on 10/30/08.” Thus, Dr. Davenport
seemed to recognize that the injury Yoshii saw Dr. Ragunton about
on October 27, 2008 was indeed connected to the meniscus tear for
which Yoshii later saw Dr. Oishi in December. Nevertheless,
Dr. Davenport stated that Yoshii’s injury was neither aggravated
nor accelerated three days later on October 30, 2008 when Yoshii
again hurt his leg on the stairs, and gave no explanation as to
why he arrived at that conclusion.
Moreover, Dr. Davenport examined Yoshii on June 4,
2009, and stated that “[i]t would be difficult to give Mr. Yoshii
a diagnosis at this time as all of his calf discomfort seems to
have cleared.” Yoshii underwent surgery on January 17, 2009 to
repair his torn meniscus and Dr. Davenport does not give any
medical opinion as to why, if Yoshii’s calf pain was not
connected to his meniscus tear, Yoshii’s pain would have subsided
after he underwent his knee surgery.
In sum, the medical reports relied upon by the State do
not provide any “reasonable degree of specificity” in explaining
why Yoshii’s knee injury was not caused or aggravated by the
incident on October 30, 2008. Like the employer’s medical
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testimony in Panoke, the reports of Dr. Mihara and Dr. Davenport
do not discuss how the symptoms that Yoshii experienced before
and after the claimed work injury demonstrate that the
October 30, 2008 incident did not cause his torn meniscus. As
such, they do not constitute substantial evidence and do not
rebut the presumption that Yoshii’s injury is a covered work
injury. See Panoke, 136 Hawai#i at 463-64, 363 P.3d at 311-12.
The other evidence relied upon by the State also does
not constitute substantial evidence. The State relies on both
Dr. Ragunton’s October 27, 2008 report showing that Yoshii
complained of right leg pain before the date of his claimed
injury after getting up from a chair at the movie theater and
Dr. Ragunton’s statement in his March 30, 2009 letter that “the
patient feels certain that his knee pain and subsequent torn
meniscus was related to the injury at work on October 27, 2008
[sic].” However, the fact that Yoshii first hurt his leg a few
days before the date of his claimed work injury does not mean his
work injury is not covered. There was still no substantial
evidence adduced to rebut the presumption of coverage.
Second, the State also relies upon Dr. Oishi’s
statement in his March 5, 2010 report that “I really have no
opinion regarding whether the Claimant suffered an injury at work
as it wasn’t reported to me as such.” However, Dr. Oishi’s lack
of an opinion regarding the work-relatedness of Yoshii’s injury
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does not constitute substantial evidence to show that it was not
caused by Yoshii’s work. Dr. Oishi only stated that he could not
make a conclusion one way or the other because Yoshii had not
reported it to him as a work injury.
As in Panoke, the State’s physicians did not do more
than “opine generally” that Yoshii’s injury predated the work
incident, and “the physicians did not consider how [Yoshii]’s
prior injury might have been affected or aggravated[.]” 136
Hawai#i at 464, 363 P.3d at 312. Thus, “the medical reports of
the employer’s physicians do not provide a sufficient degree of
specificity to constitute substantial evidence to rebut the
presumption that [Yoshii’s] injuries were work-related.” Id. at
461, 363 P.3d at 309.
As Judge Ginoza noted in her dissent, there is no
conclusive evidence showing whether Yoshii’s torn meniscus in his
right knee was the cause of the pain Yoshii experienced as he
descended the stairs on October 30, 2008, or whether, as the
State argues, the pain Yoshii experienced on October 27 and
October 30 of 2008 was the result of a pre-existing injury
completely separate from the torn meniscus. However, the State’s
failure to present substantial evidence to overcome the
presumption means that we do not need to weigh the competing
evidence. Id. at 462, 363 P.3d at 310. Thus, the LIRAB erred
when it concluded that Yoshii’s injury was non-compensable
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because it did not arise out of and in the course of his
employment.
V. Conclusion
For the foregoing reasons, we hold that the LIRAB erred
in concluding that the State had adduced substantial evidence
sufficient to rebut the presumption that Yoshii’s knee injury was
a compensable work injury. We thus vacate the ICA’s June 4, 2015
judgment and the LIRAB’s March 21, 2012 decision and order, and
remand to the LIRAB for further proceedings consistent with this
opinion.
Herbert R. Takahashi /s/ Mark E. Recktenwald
and Rebecca L. Covert
for petitioner /s/ Paula A. Nakayama
Paul A. Brooke /s/ Sabrina S. McKenna
for respondents
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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