Cadiz v. QSI, Inc.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
30-JUN-2020
08:12 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
JAY D. CADIZ,
Petitioner/Claimant-Appellant,
vs.
QSI, INC.,
Respondent/Employer-Appellee,
and
FIRST INSURANCE COMPANY OF HAWAI‘I, LTD.,
Respondent/Insurance Carrier-Appellee.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(SCWC-XX-XXXXXXX; CAAP-XX-XXXXXXX; AB 2012-099 (2-10-46361)
AND SCWC-XX-XXXXXXX; CAAP-XX-XXXXXXX; AB 2013-250 (2-11-46922))
JUNE 30, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY WILSON, J.
I. INTRODUCTION
This case concerns a workers’ compensation claim by an
employee for an injury-by-disease stemming from his exposure to
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pervasive mold in his work environment over a four-year period
and the subsequent breakdown of his health. The employee,
Jay D. Cadiz (“Cadiz”), worked different jobs at various Times
Supermarket stores in different locations on Oʻahu for several
years. Cadiz then transferred to Times Supermarket in Kāne‘ohe,
owned by QSI, Inc. (“employer”),1 where he worked for four years
in the meat department as a “meatcutter.” Prior to working at
the Kāne‘ohe store, Cadiz was healthy and exercising daily,
including engaging in martial arts. Shortly after moving to the
Kāne‘ohe store in 2004, he “began to feel sick all the time.”
Cadiz filed a workers’ compensation claim for injury-
by-disease, and the Labor and Industrial Relations Appeals Board
(“LIRAB”) rejected Cadiz’s claim,2 concluding that the employer’s
reports based on three Independent Medical Examinations (“IME”)
provided sufficient substantial evidence to overcome the
statutory presumption in favor of compensability. See Hawaiʻi
Revised Statutes (“HRS”) § 386–85(1)(1984) (“In any proceeding
for the enforcement of a claim for compensation . . . it shall
be presumed, in the absence of substantial evidence to the
contrary: (1) That the claim is for a covered work injury[.]”)
1
For ease of reference, QSI, Inc.’s insurance carrier, First
Insurance Company of Hawaii, Ltd., also a party, is included in our use of
the term “employer.”
2
This brief summary simplifies and condenses a more complicated
and extended process. See section II below for a more detailed and accurate
account.
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“When determining whether a worker’s compensation
claim is work-related, it is well established in Hawaiʻi that ‘it
shall be presumed, in the absence of substantial evidence to the
contrary . . . [t]hat the claim is for a covered work injury[.]’
HRS § 386-85 (1993).” Panoke v. Reef Dev. of Hawaii, Inc., 136
Hawaiʻi 448, 461, 363 P.3d 296, 309 (2015). The presumption that
a worker’s claimed injury is “work-connected” and therefore
compensable is one of “the ‘keystone principles’ of our workers’
compensation plan.” Flor v. Holguin, 94 Hawaiʻi 70, 79, 9 P.3d
382, 391 (2000). That presumption is paramount, in part,
because the workers’ compensation statute “provides an injured
employee’s exclusive remedy for an injury arising out of and in
the course of employment.” Ihara v. State Dep’t of Land & Nat.
Res., 141 Hawaiʻi 36, 42, 404 P.3d 302, 308 (2017) (internal
quotation marks and citation omitted). 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. Panoke, 136 Hawaiʻi at 461, 363 P.3d at 309. 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. Id.; see also,
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Korsak v. Hawaii Permanente Med. Grp., 94 Hawaiʻi 297, 307, 12
P.3d 1238, 1248 (2000) (“Hawaii’s workers’ compensation
presumption places a heavy burden on the employer to disprove
that an injury is work-related. . . . HRS § 386–85(1) creates a
presumption in favor of the claimant that the subject injury is
causally related to the employment activity.” (citation
omitted, first emphasis added)). Substantial evidence is
relevant and credible evidence of a quality and quantity
sufficient to justify a conclusion by a reasonable person that
an injury or death is not work-connected. Panoke 136 Hawai‘i at
469, 363 P.3d at 317.
If the employer meets the burden of production, the
burden of persuasion requires that the trier of fact weigh the
evidence elicited by the employer against the evidence elicited
by the claimant. Id. 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.” Van Ness v. State Dep’t of
Educ., 131 Hawaiʻi 545, 558, 319 P.3d 464, 477 (2014)(citations,
internal quotation marks, and brackets omitted).
For the reasons detailed more fully below, we hold the
employer’s IME reports failed to provide substantial evidence to
meet its burden to produce evidence that, if true, would
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overcome the statutory presumption that the injury is work-
related. As the employer failed to meet its burden of
production, we do not reach the issue of whether the employer
met its burden of persuasion. Panoke at 462, 363 P.3d at 310.
Cadiz presented laboratory evidence of elevated levels
of dangerous mycotoxins in his body. That evidence was never
rebutted by the employer’s IME reports. Indeed, the employer’s
IME reports never addressed the scientific evidence of elevated
levels of mycotoxins in Cadiz’s body in relation to the
presumption in favor of compensability. In addition, although
the LIRAB’s decision and order included the boilerplate language
that “all reasonable doubts have been resolved in favor of
Claimant,” in fact, the LIRAB failed to do so.
Based on the laboratory evidence confirming elevated
levels of harmful mycotoxins in Cadiz’s body, and based on the
employer’s failure to meet its burden of production, we conclude
that the employer failed to overcome the presumption in favor of
compensability. Accordingly, we vacate the ICA’s judgment on
appeal and its Summary Disposition Order (“SDO”), and we vacate
the LIRAB’s decision and order in case number AB 2012-099 (2-10-
46361) (Cadiz I).3 We remand to the LIRAB with the instruction
3
As our background section below narrates, this case was the
subject of two different full de novo hearings before the LIRAB, which we
designate Cadiz I and Cadiz II. In the first, for procedural reasons, Cadiz
was not allowed to present the live testimony of his expert, Dr. Janette
(. . . continued)
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that Cadiz’s injury-by-disease is compensable under Hawaiʻi’s
workers’ compensation law and for proceedings consistent with
this opinion.
II. BACKGROUND
After working different jobs at various Times
Supermarket stores in different locations for several years, Jay
Cadiz transferred to the Times Supermarket in Kāne‘ohe. He
worked for four years in the Kāne‘ohe meat department as a
meatcutter, working eight hours a day, five days a week, with
approximately five hours of overtime per week. According to
Cadiz, prior to working at the Kāne‘ohe store, he was healthy and
exercising daily. He engaged in martial arts. Shortly after
moving to the Kāne‘ohe store in approximately June 2004, he
“began to feel sick all the time.” The Kāne‘ohe store, he said,
“was the first dirty store I worked in: molds all over the
walls, ceilings, lots of drain[s] with molds, caved in ceilings,
crack[s] in ceilings.”
_____________________
(continued. . . )
Hope, on the various adverse health-related effects of mycotoxin exposure and
inhalation. In the second, Dr. Hope gave extensive live testimony, but the
LIRAB disregarded that testimony for procedural reasons.
As noted, we base our holding on the laboratory evidence
confirming elevated levels of harmful mycotoxins in Cadiz’s body presented in
Cadiz I (albeit in abbreviated form), and we base it, as well, on the
requirement in Hawai‘i’s workers’ compensation law that all reasonable doubts
must be resolved in favor of the claimant. Because our holding rests on
those bases, it is unnecessary to address the merits of the LIRAB’s
procedural determinations in Cadiz II.
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According to Cadiz, the mold covered “all the fans,
the AC fans, the left side wall was just covered in black mold
and the right side of the wall, near the cutting table, it was
just black; like pitch black mold just eating up the walls and
ceiling,” as well as the storage room. The ceiling of the meat
department was always wet. Twice, the ceiling fell into the
meat department when it rained. The first time the ceiling fell
was in early August 2004, a few months after he began working at
the Kāne‘ohe store.
After a few months of working in this environment,
Cadiz began experiencing “breathing problems, asthma attacks,
sinus infections, and debilitating headaches,” as well as
dizziness and vertigo. Four of the other workers in the meat
department at the time also complained of breathing difficulties
and other ailments. Beginning in 2007, Cadiz took extensive
leaves for illness, and he finally resigned from his job as a
meatcutter towards the end of 2008.
For the five years prior to working at the Kāne‘ohe
Times store, Cadiz averaged eight visits to a doctor or
emergency room per year, including visits relating to a
concussion he received while performing martial arts. While
working in the meat department, he saw a physician or received
emergency treatment on average of twenty-six times per year.
From August 31, 2007, when he experienced heart palpitations,
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through the end of 2007, Cadiz sought treatment from medical
personnel or social workers forty-three times.
Cadiz brought an initial claim for workers’
compensation in September 2010. In the space on the claim form
reserved for a response to “describe how accident occurred,” he
indicated that the accident occurred when he was working at the
Kāne‘ohe Times Supermarket and was “exposed to black mold” over
four years in his work at the meat department. In the space on
the claim form reserved for a response to “describe
injury/illness,” he responded: “Headaches, dizziness,
respiratory problems, memory problems, vision, skin problems,
anxiety.” Cadiz brought an “amended claim” for workers’
compensation benefits in November 2011, based largely on the
same set of facts but this time claiming “exposure to mold”
generally, and alleging “additional injuries.” The description
of the illness in the amended claim expanded to “headaches,
respiratory illnesses, cognitive impairment, psychological
injury, chronic rhinitis/sinusitis, vertigo, tinnitus,
palpitations, sleep disturbance, myalgia, GERD, gastritis,
urinary frequency, dysuria, malaise, fatigue.”
In October 2011, Dr. Myles Suehiro ordered a urine
test from RealTime Laboratories on behalf of Cadiz in order to
detect the presence of any mycotoxins in Cadiz’s body. Cadiz
tested positive for elevated levels of two mycotoxins;
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ochratoxin and trichothecene. Mycotoxins are toxins generated
by molds or fungi. According to a RealTime Laboratories article
cited by both parties:
The negative health effects of mycotoxins are a function of
the concentration, the duration of exposure and the
individual’s sensitivities. The concentrations experienced
in a normal home, office, or school are often too low to
trigger a health response in occupants. However,
concentrations experienced in a home or building which has
experienced water leaks are often high enough to trigger
health responses in the occupants.
Trichothecenes are mycotoxins generated by different fungi,
including Stachybotrys chartarum (“Stachybotrys”). According to
the same source, “[t]heir mechanism of action is the inhibition
of protein synthesis, therefore they are known to kill cells and
are extremely dangerous.” In addition, “when Stachybotrys grows
in a mold infested building, the organism produces trichothecene
mycotoxins. It is also known that these toxins can get into the
air where they can be inhaled.” Different variations of
trichothecene mycotoxins “are strongly toxic compounds.”
Pursuant to HRS § 386-79 (1996), the employer
designated and paid two physicians and one psychologist to
examine Cadiz and produce independent medical examinations.4
4
In the workers’ compensation context, the word “independent,” in
the phrase “independent medical examination,” can be something of a misnomer.
A physician who performs an “independent medical examination” has been
selected by the employer and paid for by the employer. HRS § 386-79(a)
(“After an injury and during the period of disability, the employee, whenever
ordered by the director of labor and industrial relations, shall submit to
examination, at reasonable times and places, by a duly qualified physician or
surgeon designated and paid by the employer.”) The examining physician is
(. . . continued)
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Cadiz was examined by Dr. Leonard Cupo on January 11, 2011. Dr.
Cupo produced an IME on November 12, 2011. Cadiz was examined
by psychologist Dr. Roger Likewise on January 10, 2011. Dr.
Likewise produced an independent psychological examination
(referred to below for convenience as an IME) on November 18,
2011.
Finally, Cadiz was examined by Dr. Ajit Arora for one
and a half hours on October 29, 2012. Only three days later,
Dr. Arora produced a 407-page, single-spaced IME report,
including appendices and synopses of articles in the medical and
toxicological literature. Appendix B, for example, ran from
page 360 to 385 of Dr. Arora’s report. It included a list of
the titles of 51 articles dealing with mold and related health
issues in humans. The most recent of those articles was from
2002, 10 years prior to the IME. Appendix B also included
abstracts of various articles relating to mold, mycotoxins, and
toxicology, none more recent than 2002. Appendix B also
included various excerpts from the American College of
Occupational Environmental Medicine (“ACOEM”) relating to toxic
_____________________
(continued. . . )
“independent” in the sense that she cannot be the claimant’s personal
physician, and the examination is “independent” in the sense that no
physician-patient relationship is created between the physician-examiner and
the employee as a result of the examination. See 61 Am. Jur. 2d Physicians,
Surgeons, Etc. § 273 (“When an employer retains a physician to examine its
employees, generally, no physician-patient relationship exists between the
employee and the doctor[.]”)
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mold, including excerpts concerning a particularly dangerous
toxic mold whose scientific name is Stachybotrys. The excerpts
from the ACOEM are also from 2002.
Dr. Cupo’s IME report itemized 16 of Cadiz’s symptoms
under the heading “Diagnoses.” For each symptom, Dr. Cupo wrote
the same refrain, repeated 16 times: X symptom was “not caused,
aggravated, or accelerated by job activities as a meat cutter
for Times Supermarket.” According to Dr. Cupo, Cadiz had not
tested positive for an allergy to mold but had tested positive
for an allergy to dust mites. Thus, Cadiz’s rhinosinusitis,
chronic headaches, recurrent shortness of breath, etc., all were
“medically plausibly explainable by other medical conditions”
without needing to resort to toxic mold exposure.
According to Dr. Likewise, Cadiz suffered from
“hypochondriacal preoccupations,” chronic somatization,
generalized anxiety disorder, or chronic panic attacks, and
dependent personality disorder. Dr. Likewise does not appear to
have offered any suggestion as to which of Cadiz’s multiple
symptoms were psychosomatic and which were not. Rather, his
report gives the impression that, apart from allergies, they all
might be psychosomatic.
According to Dr. Arora, Cadiz’s headaches, dizziness,
nausea, chronic rhinitis, sinusitis, and asthma could be
“explained by chronic anxiety and panic disorder” through the
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mechanism of “hyperventilation.” On the subject of mold, Dr.
Arora opined that the
black mold of concern has been Stachybotrys chartarum, which does
not grow on walls and ceilings. It is a fastidious mold that
only grows above the ceilings in dark and on wooden beams in
attics. The black mold that grows in the lighted areas on walls
or ceilings is Cladosporium, which is a relatively benign mold,
causing only allergies.
Dr. Arora opined that spore counts are the proper measure of
mold toxicity. According to him, if the meat department at
Times “was the worst building ever described in the United
States, then one would not anticipate more than 1700 spores of
Stachybotrys per cubic meter. That will not be sufficient to
cause toxicity from inhalation.”
Materials included in Dr. Arora’s IME report included
an abstract of an article stating that in one study, “evidence
was found of a relationship between high levels of inhalation
exposure or direct contact to mycotoxin-containing molds or
mycotoxins and demonstrable . . . health effects in humans[.]”
Nonetheless, according to the abstract, the then-current
literature (2002) did not provide “compelling evidence that
exposure at levels expected in most mold-contaminated indoor
environments is likely to result in measurable health effects.”
Still, the abstract from the article cautioned that “the point
at which mold contamination becomes a threat to health is
unknown.” (Emphasis added.)
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In Appendix B to his IME report, Dr. Arora himself
testified to the adverse health consequences of mycotoxins. He
wrote, for example, of the “[t]oxic effects from mycotoxins
produced by certain fungal species. This may include disruption
of cellular function, alteration of immune competence, and
cytotoxic effects with DNA damage and mutations resulting in
cancer such as with aflatoxins.” In addition, Dr. Arora wrote
that “exposure to mycotoxins at toxic levels can cause illness
. . . in humans and animals.” Finally, Dr. Arora characterized
trichothecenes, one of the mycotoxins verified by laboratory
results to be present at elevated levels in Cadiz’s body:
“Trichothecenes are the most widely studied mycotoxins. . . .
Trichothecenes are potent inhibitors of protein synthesis in
eukaryotic cells, particularly in rapidly proliferating tissues.
This property has led to their use as biological weapons.”
Other than these relatively generic mentions of trichothecenes
in Appendix B of his IME report, Dr. Arora never specifically
discusses trichothecenes in relation to Cadiz. That is, in his
IME report, Dr. Arora never discusses the laboratory results
proving that Cadiz had elevated levels of trichothecenes in his
body.5
5
Appendix B to Dr. Arora’s IME report appears to be from a
presentation Arora made to a different audience at some point prior to the
IME. One indication of this is that there is no mention of Cadiz in Appendix
B (other than in the “Re:” line at the top of each page).
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A. Proceedings before the Director and the LIRAB in Cadiz I
(LIRAB Case No. AB 2012-099)
Cadiz’s September 3, 2010 claim for injury-by-disease
was the subject of a hearing before the director on December 1,
2011. The director ruled that the claim was not time-barred but
nevertheless denied the claim for compensation on the basis that
the record revealed “an absence of empirical evidence confirming
that claimant’s worksite contained black mold.” The director
concluded that “claimant’s claimed injury was not the result of
exposure to purported black mold at work,” and therefore
concluded that Cadiz “did not suffer an injury on 8/31/2007
arising out of and in the course of his employment.” Cadiz
appealed the director’s decision to the LIRAB for a full de novo
hearing on his claim. See HRS § 386-87(b) (“The appellate board
shall hold a full hearing de novo on the appeal.”).
Prior to the de novo hearing, the Board refused to
allow Dr. Janette Hope to give live testimony because Cadiz’s
attorney had not named her as a live witness by the relevant
deadlines in the Board’s pre-trial order. The Board excluded
Dr. Hope’s detailed declaration apparently for the same reason.
The only evidence from Dr. Hope allowed by the Board appears to
have been her two-page opinion letter dated November 16, 2011.
In that letter, after having reviewed medical records and
symptom summaries concerning Cadiz, Dr. Hope observed that “Mr.
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Cadiz experienced a marked decline in his health starting in
2007 resulting in numerous physician, specialist and urgent care
visits for a multitude of symptoms which are most likely
attributable to his exposure to a severely water damaged/moldy
workplace.” She connected this assessment of the “likely” cause
of his varied symptoms with the laboratory results of his
mycotoxin exposure. “Mr. Cadiz shows elevations in ochratoxin
and trichothecene mycotoxins on urine mycotoxin testing which
likely resulted from his exposure to a severely water
damaged/moldy workplace and contributed to his numerous health
complaints including respiratory, gastro-intestinal, urologic
and immune system complaints.” She stated that, “In addition,
he shows evidence of immune system dysfunction as well as
abnormalities on pulmonary function testing consistent with his
exposure.”
The hearing was held on June 14, 2013 and June 17,
2013, and the Board issued its decision and order on March 10,
2014. In its decision and order, the Board made extensive
findings of fact. The Board found, inter alia, that Cadiz had
presented evidence “that mold was present in the area of
Claimant’s work environment during the period in question” and
that Cadiz was exposed to the mold. The Board found that Cadiz
does not have an allergy to Stachybotrys, the black mold that
according to Dr. Arora is “of concern,” but Cadiz was allergic
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to dust mites. In addition, the Board found that the Mycotoxin
Panel Report documented the presence of ochratoxin and
trichothecene in Cadiz’s body.
The Board made various findings of fact concerning
Cadiz’s multiple symptoms, including recitations of the
conclusions of Drs. Cupo, Arora, and Likewise. The Board’s
recitations of the employer’s IME reports centered on the fact
that they had provided possible alternative explanations for
Cadiz’s symptoms that were not mold-related and therefore were
evidence that his injury-by-disease was not work-connected. In
Dr. Cupo’s words, Cadiz’s “symptoms were easily and medically
plausibly explainable by other medical conditions” without the
need to resort to explanations based on exposure to mold.
On the issue of the compensability of Cadiz’s
illnesses, the Board stated that it would apply the unitary test
as then-recently articulated by Van Ness, 131 Hawaiʻi at 560, 319
P.3d at 476. The Board started with the presumption in favor of
compensability, but it determined that the employer had
presented substantial evidence to rebut that presumption. Once
over the hurdle of the presumption, the Board “weighed the
evidence by Employer against that presented by Claimant” on the
evidence relating to causation.
The Board found the “medical opinions” presented by
Dr. Hope and another doctor on behalf of Cadiz “severely lacking
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in quality to justify their conclusions,” stating that Dr. Hope
and the other doctor “appeared to accept Claimant’s hypothesis
with only cursory medical data.” In contrast, the Board found
Drs. Cupo, Likewise, and Arora to have “provided a sufficient
degree of specificity to rebut the presumption of
compensability.” The Board credited their opinions, and
accordingly concluded that Cadiz did not sustain a personal
injury arising out of and in the course of employment.
The Board made no findings or conclusions on what
exactly it found persuasive in the evidence provided by Drs.
Cupo, Likewise, and Arora, other than to suggest that they had
examined and treated Cadiz, whereas there was no indication of
“what medical data” Dr. Hope had relied on “to form an opinion
regarding causation” of Cadiz’s condition. The Board made no
findings or conclusions concerning what, if any, doubts it
resolved in favor of the claimant. The Board made no findings
or conclusions on the elevated levels of mycotoxins verified to
have been absorbed by Cadiz’s body, other than to note the bare
results of the laboratory test. The Board made no findings or
conclusions on whether or how the employer’s IME reports
disproved the work-connection between Cadiz’s illnesses and the
pervasive mold in the meat department.6 The Board appears to
6
The Board found as fact that the employer failed to present “any
evidence that contradicts the presence of the alleged black mold at the
(. . . continued)
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have simply accepted the IME reports’ suggestion that other
medical causes could “medically plausibly” explain Cadiz’s
illnesses and then concluded that the work-connection issue
therefore tipped towards the employer.
B. Proceedings before the Director and the LIRAB in Cadiz II
(LIRAB Case No. AB 2013-250) in which Dr. Hope provided
live testimony previously excluded by the Board
Cadiz’s November 15, 2011 claim for injury-by-disease
was the subject of a hearing before the director on April 30,
2013 (Cadiz II). The director ruled on June 27, 2013, that the
claim was an attempt to circumvent the director’s prior decision
for the same injury. On July 11, 2013, Cadiz appealed the
director’s decision in Cadiz II to the LIRAB for a full de novo
hearing on his claim. The LIRAB issued a pre-trial order on
January 31, 2014, stating that the “sole issue to be determined
is whether Claimant sustained a personal injury on November 14,
2011, arising out of and in the course of employment.” The full
de novo evidentiary hearing before the Board was held on August
26, August 27, and September 26, 2014. In Cadiz II, Dr. Hope’s
detailed declaration concerning mycotoxin exposure through mold
inhalation and resulting ill-health, along with its multiple
_____________________
(continued. . . )
workplace” and that “mold was present in the area of Claimant’s work
environment during the period in question.” In addition, the Board further
found “that Claimant was exposed to such mold.”
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exhibits, was admitted. In addition, Dr. Hope provided
extensive live testimony.
Having heard and admitted this testimony by Dr. Hope
into the record, the Board’s resulting order and decision in
Cadiz II made no findings or conclusions with respect to Dr.
Hope’s extensive testimony. The decision and order in Cadiz II
simply vacated the underlying decision of the director in Cadiz
II, effectively terminating the proceedings, without remanding
to the director for any further findings or conclusions
concerning the newly admitted testimony of Dr. Hope. In other
words, in spite of its pretrial order governing the scope of the
Cadiz II hearing—the order stating that “the sole issue to be
determined on this appeal is whether Claimant sustained a
personal injury on November 14, 2011, arising out of and in the
course of employment”—the Board made no findings or conclusions
on the testimony admitted into evidence concerning the sole
issue on appeal to the Board in Cadiz II. Instead of rendering
a decision as to whether Cadiz sustained an injury-by-disease
that was work-connected, or interpreting the newly-admitted
testimony of Dr. Hope in light of that question, the Board
concluded that in Cadiz I, it had rejected Cadiz’s initial claim
for work-related injury of September 3, 2010 as time-barred and
had instead based its order and decision in Cadiz I on the
November 21, 2011 claim.
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Thus, the Board in Cadiz II decided that it had
already addressed the same claim in Cadiz I, concluding that
“the November 21, 2011 claim was not a new or subsequent claim
for compensation, but an amended claim for an industrial injury
by disease that was before the Director and decided by the Board
in Cadiz I[.]” However, rather than take into account the
significant newly-admitted testimony of Dr. Hope bearing
directly on the work-connectedness of Cadiz’s injury-by-disease
claim, the Board ignored Dr. Hope’s extensive testimony. That
is to say, the Board’s decision and order in Cadiz II never
mentions Dr. Hope’s extensive testimony, admitted into the
record in Cadiz II, concerning (a) the nature and harmfulness of
exposure to mycotoxins, (b) the sometimes complex array of
symptoms that can be generated by exposure to mycotoxins, or (c)
the fact that Cadiz’s multiple symptoms match what she has
repeatedly seen in her treatment of patients exposed to
mycotoxins.
C. Proceedings before the Intermediate Court of Appeals (ICA)
Cadiz filed a notice of appeal of the Board’s decision
in Cadiz I with the ICA on March 21, 2014. Cadiz filed a notice
of appeal of the Board’s decision in Cadiz II with the ICA on
January 20, 2016. The ICA consolidated the appeals of Cadiz I
and Cadiz II on December 15, 2016. On March 31, 2017, the ICA
issued its SDO in the combined appeals. Cadiz v. QSI, Inc.,
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Nos. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX, 2017 WL 1194168 (App.
March 31, 2017) (SDO).
The ICA’s SDO affirmed the LIRAB’s decision and order
dated March 10, 2014 in Cadiz I, which ruled that Cadiz had not
sustained an injury arising out of and in the course of
employment. The ICA also affirmed the LIRAB’s December 22, 2015
decision and order in Cadiz II vacating the director’s decision.
Cadiz, Id. at *8.
The ICA began by addressing Cadiz’s claim that the
Board had failed to properly apply the presumption in favor of
compensability. The ICA reviewed the relevant law providing
that the presumption can only be overcome by the employer
producing substantial evidence that the injury-by-disease “is
unrelated to employment.” Id. at *2 (quoting Akamine v.
Hawaiian Packing & Crating Co., 53 Haw. 406, 408, 495 P.2d 1164,
1165 (1972)). The ICA also drew attention to this court’s
conclusion in Van Ness that the employer had “failed to present
substantial evidence to overcome the presumption that the
aggravation of [claimant’s] asthma was an injury ‘by disease
proximately caused by’ his employment.” Id. at *3 (quoting Van
Ness, 133 Hawaiʻi at 565, 319 P.3d at 484).
The ICA next highlighted the conclusions of the IME
reports of Dr. Cupo and Dr. Arora. Specifically, the ICA quoted
with approval Dr. Cupo’s assertion that Cadiz’s multiple
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symptoms were “easily and medically plausibly explainable” by
medical conditions other than exposure to toxic mold. Id. It
also quoted Dr. Arora’s assertion that Stachybotrys does not
grow on walls and ceilings, implying that it could not have been
the kind of mold conspicuous on the ceiling in the Kāne‘ohe meat
department. In addition, the ICA found helpful Dr. Arora’s
assertions regarding the low probability of any toxic effect
from inhalation of mycotoxins, given the high spore count that
would be required. Id. at *3-4. According to the ICA, “Drs.
Cupo and Arora also provided alternative explanations for
Claimant’s allergic rhinitis, GERD, and anxiety.” Id. at *4.
The ICA explained that Drs. Cupo and Arora in their reports
“explained why mold exposure could not have caused or aggravated
Claimant’s injuries, and did not provide mere generalized
medical opinions.” Id. The ICA also dwelled at length on Dr.
Likewise’s psychological report. Id. at *4-5.
The ICA concluded that the IME reports provided the
requisite “substantial evidence” to rebut the presumption of
compensability through providing alternative explanations of
Cadiz’s symptoms and illnesses. In particular, the ICA seemed
impressed by the “substantial evidence of a high degree of
specificity, quantity, and quality that Claimant did not have a
mold allergy and that Claimant’s conditions were not otherwise
caused by exposure to mold in the workplace.” Id. at *5. The
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ICA specifically rejected Cadiz’s suggestion that the LIRAB
erred in crediting Dr. Likewise’s opinion. Id. at *6.
Cadiz argued to the ICA that the LIRAB in Cadiz I
erred in excluding Dr. Hope’s declaration, her credentials, and
various other materials relating to past professional complaints
and administrative actions against Dr. Arora. Dr. Hope’s
declaration and other materials excluded from Cadiz I seem to
have been excluded by the LIRAB based on Cadiz’s failure to meet
discovery deadlines. Cadiz, Id. at *6-7; (noting that the ICA
was “not able to properly review what was presented before the
LIRAB [in Cadiz I] as there are no transcripts of the June 14,
2013 and June 17, 2013 hearing in the record. Nevertheless,
upon review of the LIRAB’s March 10, 2014 Decision and Order, it
appears that the LIRAB excluded Exhibits A-l, B, and FF, because
7
the exhibits were not timely submitted.”). The ICA found that
admission or exclusion of evidence is generally in the
discretion of the officials conducting an administrative
hearing, and the LIRAB properly excluded exhibits and other
evidence as untimely. Id. at *7. In addition, the ICA noted
that it was “not able to properly review what was presented
before the LIRAB” in Cadiz II because the transcripts from that
7
Exhibit A-1 consisted of Dr. Hope’s 5-page declaration; exhibit B
was her 6-page curriculum vitae; and exhibit FF consisted of a series of
articles critical of Dr. Arora as well as references to various complaints
and/or administrative actions against him.
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hearing were not in the record. Id. at *8. Finally, the ICA
affirmed the LIRAB’s decision and order in both Cadiz I and
Cadiz II. Id. at *9. Cadiz applied for a writ of certiorari,
and we accepted his application.
III. STANDARDS OF REVIEW
A. Appeals from Agency Determinations Relating to Workers’
Compensation
Appellate review of a LIRAB decision is governed by
the provisions of Hawai‘i Administrative Procedures Act (“HAPA”)
relating to judicial review of agency action. HRS § 91-
14(g)(1993); Bocalbos v. Kapiolani Med. Ctr. for Women &
Children, 93 Hawaiʻi 116, 123, 997 P.2d 42, 49 (App. 2000).
Under HAPA’s judicial review provisions,
the reviewing court “may affirm the decision of the agency
or remand the case with instructions for further
proceedings.” Id. The reviewing court also “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”
(1) violate provisions of the constitution or a statute,
(2) are beyond the agency’s statutory authority or
jurisdiction, (3) used “unlawful procedure,” (4) were
“[a]ffected by other error of law,” (5) were clearly
erroneous, or (6) were arbitrary or capricious “or
characterized by abuse of discretion or clearly unwarranted
exercise of discretion.” HRS § 91-14(g)(1)-(6).
Ihara, 141 Hawaiʻi at 41, 404 P.3d at 307.
“The LIRAB’s conclusions of law are reviewed de
novo, under the right/wrong standard. Its findings of fact
‘are reviewable under the clearly erroneous standard to
determine if the agency decision was clearly erroneous in
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view of reliable, probative, and substantial evidence on
the whole record.’” Van Ness, 131 Hawaiʻi at 558, 319 P.3d
at 477 (citation omitted). Like any agency findings, the
LIRAB’s “findings should be ‘sufficient to allow the
reviewing court to track the steps by which the agency
reached its decision.’” Kauai Springs, Inc. v. Planning
Comm’n of Cty. of Kauai, 133 Hawaiʻi 141, 164, 324 P.3d 951,
974 (2014) (citation omitted).
B. Statutory Interpretation
“Statutory interpretation is a question of law
reviewable de novo.” Ryan v. Herzog, 142 Hawaiʻi 278, 284, 418
P.3d 619, 625 (2018) (citation omitted). The Hawaiʻi workers’
compensation statute must be “construed . . . liberally” in
order to effect its “beneficent purposes.” Puchert v. Agsalud,
67 Haw. 25, 36, 677 P.2d 449, 457 (1984).
IV. DISCUSSION
We begin with a brief overview of the law governing
workers’ compensation in Hawaiʻi and then apply those principles
to the decisions below.
A. Principles Governing Hawaiʻi Workers’ Compensation Law
The Hawaiʻi workers’ compensation statute “is social
legislation that is to be interpreted broadly.” Davenport v.
City & Cty. of Honolulu, Honolulu Fire Dep’t, 100 Hawaiʻi 481,
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491, 60 P.3d 882, 892 (2002). The provisions of the Hawaiʻi
workers’ compensation law “are highly remedial in character.
Their paramount purpose is to provide compensation for an
employee for all work-connected injuries, regardless of
questions of negligence and proximate cause.” Flor, 94 Hawaiʻi
at 79, 9 P.3d at 391 (emphasis added). The overarching policy
of workers’ compensation in this state is that “an employee
should be indemnified for all infirmities resulting from [their]
employment.” Van Ness, 131 Hawaiʻi at 559, 319 P.3d at 478
(citation omitted); Iddings v. Mee-Lee, 82 Hawaiʻi 1, 5, 919
P.2d 263, 267 (1996) (stating that the workers’ compensation
statute provides “an injured employee’s exclusive remedy for an
injury arising out of and in the course of employment.”).
“Under our workers’ compensation statute, the slightest
aggravation or acceleration of an injury by the employment
activity mandates compensation.” Korsak, 94 Hawaiʻi at 305, 12
P.3d at 1246.
The workers’ compensation statute rests on the
presumption that a claimed injury is work-connected and
therefore compensable. HRS § 386–85 (1993) (“In any proceeding
for the enforcement of a claim for compensation . . . it shall
be presumed, in the absence of substantial evidence to the
contrary: (1) That the claim is for a covered work injury[.]”);
Panoke, 136 Hawai‘i at 461, 363 P.3d at 309 (“When determining
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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 . . . [t]hat the
claim is for a covered work injury[.]”). “The presumption has
been described as one of the ‘keystone principles’ of our
workers’ compensation plan.” Flor, 94 Hawaiʻi at 79, 9 P.3d at
391 (citation omitted). It is the burden of the employer to
produce substantial evidence that, if true, could rebut the
presumption that the injury is work-related. Panoke, 136 Hawaiʻi
at 461, 363 P.3d 296 at 309. Once the burden of production is
met, the burden of persuasion requires that “the trier of fact .
. . weigh the evidence elicited by the employer against the
evidence elicited by the claimant.” Id. In evaluating whether
the burden of persuasion has been met, 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.” Ihara, 141 Hawaiʻi at 41, 404 P.3d at 307 (citation
omitted).
Disputes concerning the validity of claims for
compensation under Hawaiʻi’s workers’ compensation law are
initially decided by the director of Labor and Industrial
Relations. HRS § 386-86(a)-(b). The director conducts a
hearing on the claim and issues findings of fact and conclusions
of law. Id. The decision of the director may be
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administratively appealed to the LIRAB, which conducts a trial-
like hearing on the appeal de novo. HRS § 386-87(a)-(c). A
LIRAB decision may be appealed directly to the ICA. HRS § 386-
73.5; HRS § 386-88. Because any appeal from a determination of
the director receives a full hearing de novo from the LIRAB,
this court reviews only the decisions of the LIRAB and not the
decisions of the director.
B. The Board and the ICA Erred by Misapplying the Presumption
in Favor of Compensability.
As noted, Hawaiʻi’s workers’ compensation law begins
with the explicit statutory presumption that a claimed injury is
work-related and therefore compensable. HRS § 386–85(1). To
rebut that presumption in favor of compensability, the employer
bears the heavy burden of producing substantial evidence
disproving that the injury is work connected. Korsak, 94 Hawaiʻi
at 307, 12 P.3d at 1248 (“Hawaii’s workers’ compensation
presumption places a heavy burden on the employer to disprove
that an injury is work-related. . . . HRS § 386–85(1) creates a
presumption in favor of the claimant that the subject injury is
causally related to the employment activity.” (citation omitted,
first emphasis added)).
Thus, the “substantial evidence” sufficient to
overcome the presumption in favor of compensability must
disprove the causal relation of the injury-by-disease to the
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conditions and incidents of claimant’s employment, and not
merely suggest plausible alternative explanations. “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.’”
Panoke, 136 Hawaiʻi at 461, 363 P.3d at 309; see also Van Ness,
131 Hawaiʻi at 561, 319 P.3d at 480 (“The relevant issue under
the unitary or ‘work-connection approach’ is simply whether
there is a causal connection between the injury and any
incidents or conditions of employment[.]”).
1. The LIRAB and the ICA failed to produce substantial
evidence that, if true, could disprove the presumption
of compensability in Cadiz I.
The presumption in favor of compensability “signals
and reflects a strong legislative policy favoring awards in
arguable cases.” Lawhead v. United Air Lines, 59 Haw. 551, 560,
584 P.2d 119, 125 (1978) (citation omitted).
Here, the three IME reports offered by the employer in Cadiz I
regarding the claimant’s exposure to mycotoxins did not meet the
burden of production of showing that Cadiz’s injury-by-disease
was not work-related. The IME reports (a) arrived at mutually
inconsistent results,8 and (b) failed to mention, much less
8
To mention only a few examples, Dr. Likewise in his IME report
asserts “there is no clear medical explanation for [Cadiz’s] symptoms,” and
therefore concludes that many or perhaps all of Cadiz’s symptoms were
(. . . continued)
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directly address, the laboratory tests that objectively proved
the elevated presence of harmful mycotoxins in Cadiz’s body.
Cadiz’s illnesses and symptoms reasonably appear to be
work-connected. See id., (stating that “an injury is
compensable if it reasonably appears to have resulted from the
working conditions.”). The verified presence of harmful
mycotoxins in Cadiz’s body, correlated with the dramatically
increased frequency of his visits to the doctor and the
emergency room during the relevant period, together with the
pervasive moldy conditions of the meat department, make Cadiz’s
claimed injury-by-disease reasonably appear to be work-connected
and therefore compensable. Id. The employer did not meet its
burden of producing substantial evidence that, if true, could
rebut the presumption that Cadiz’s injury was work-related.
Moreover, the LIRAB in Cadiz I, and the ICA in reviewing the
_____________________
(continued. . . )
psychosomatic, hypochondriacal, or due to a personality disorder. Dr. Cupo,
on the other hand, concludes that “chronic allergic rhinosinusitis with
sensitivity to dust mites and chronic gastroesophageal reflux disease have
been definitively established.” However, Dr. Cupo concludes that Cadiz’s
“symptoms can in no way be explained by exposure to mold” at Times
Supermarket because allergy skin testing of Cadiz “revealed positivity only
to dust mites and negativity to molds.” Dr. Cupo’s assumption that allergy
to mold is the only possible mechanism by which ill-health is related to
environmental mold is contradicted by parts of Dr. Arora’s IME report. Dr.
Arora’s report describes a scientific article which focuses not on allergies
to mold as the mechanism for adverse health effects but on “epidemiological
studies from the primary literature concerning inhalation of mycotoxins or
potentially toxin-producing molds.” The article’s review of those studies
indicated that “evidence was found of a relationship between high levels of
inhalation exposure or direct contact to mycotoxin-containing molds or
mycotoxins and demonstrable . . . health effects in humans,” although the
article does not find the evidence “compelling.”
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Board’s decision and order, exclusively relied on three IME
reports that themselves fail to consider or in any way account
for the evidence of harmful mycotoxins present in Cadiz’s body
(admitted into evidence in Cadiz I).9 Finally, even if the cause
9
The Board did find as fact, “A Mycotoxin Panel Report Form dated
October 27, 2011 documented the presence of ochratoxin of 4.2 [parts per
billion (“ppb”)] and trichothecene at 0.39 ppb” in Cadiz’s urine. But the
Board did not note that according to the Panel Report, each of those results
is twice the level of detection. In addition, the Board provided no further
context in its decision and order for those quantitative levels of
mycotoxins.
It is true that the Board in Cadiz I had excluded Dr. Hope’s
declaration, which provided the relevant medical and toxicological context
for the particular levels of those specific mycotoxins in Cadiz’s body. The
levels revealed by laboratory testing are “elevated levels.” Any level above
the “detection level” represents “the mycotoxin presence in the persons
exposed to indoor mold compared to those unexposed”; and “the elevated levels
of these mycotoxins” detected in Cadiz “can cause the type of symptoms
experienced by Mr. Cadiz such as a burning sensation of the mouth, esophagus
and stomach and may also impair brain function . . . . Both of these toxins
can also cause depression of the immune system which could lead to flu-like
symptoms such as rhinitis, headache, and dizziness.” However, similar
information was provided in Dr. Hope’s opinion letter dated November 16,
2011, which was admitted in Cadiz I. In that letter, after a review of
portions of Cadiz’s medical history, Dr. Hope opined that Cadiz’s
multiple symptoms. . . are most likely attributable to his
exposure to a severely water damaged/moldy workplace. Mr.
Cadiz shows elevations in ochratoxin and trichothecene
mycotoxins . . . which likely resulted from this exposure
to a severely water damaged/moldy workplace and contributed
to his numerous health complaints including respiratory,
gastrointestinal, urologic and immune system complaints.
In addition, he shows evidence of immune system dysfunction
as well as abnormalities on pulmonary function testing
consistent with his exposure.
Yet, the Board chose to credit the IME reports of the employer over Dr.
Hope’s opinion letter on this crucial issue, even though the employer’s IME
reports never addressed the presence of those mycotoxins at those levels in
Cadiz’s body. The Board stated it resolved reasonable doubts in favor of the
claimant, but it failed to address that the employer had failed to meet its
burden of producing substantial evidence to overcome the presumption that
Cadiz's injury was work-related.
(. . . continued)
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of the injury-by-disease is unknown, that in itself is a salient
indication that the employer did not produce substantial
evidence to meet its burden of production. As we noted in Van
Ness,
[A doctor’s opinion] that it was impossible to determine
the cause of the aggravation does not constitute
substantial evidence rebutting the presumption. On the
contrary, pursuant to Akamine, doubt as to the cause of the
injury represents a salient index of the absence of
substantial evidence required to overcome the presumption
that the claim is compensable.”
Van Ness, 131 Hawaiʻi at 564, 319 P.3d at 483. (citation and
quotation marks omitted). An excerpt contained in Dr. Arora’s
own IME report in the present case, credited by the Board,
acknowledges that “the point at which mold contamination becomes
a threat to health is unknown. (Emphasis added.)
2. The LIRAB and the ICA in Cadiz I mistakenly
characterized the employer’s IME reports as substantial
evidence rebutting the presumption in favor of
compensability.
In the workers’ compensation context, “substantial
evidence” means “a high quantum of evidence which, at the
minimum, must be relevant and credible evidence of a quality and
_____________________
(continued. . . )
In any event, it is not Cadiz’s burden to establish that the
mycotoxins caused his adverse health conditions or that he was exposed to
them at work and not somewhere else. Rather, it is the employer’s burden to
prove through substantial evidence that the mycotoxins did not cause his
illnesses, even at the level of “slight aggravation” of existing conditions
such as asthma. Korsak, 94 Hawaiʻi at 305, 12 P.3d at 1246 (“Under our
workers’ compensation statute, the slightest aggravation or acceleration of
an injury by the employment activity mandates compensation.”). Yet the
employer’s IME reports never addressed the scientifically verified levels of
harmful mycotoxins in Cadiz’s body following his four years of employment in
what the Board itself found to be a moldy work environment.
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quantity sufficient to justify a conclusion by a reasonable
[person] that an injury or death is not work connected.”
Panoke, 136 Hawaiʻi at 462, 363 P.3d at 310; Van Ness, 131
Hawaiʻi at 558, 319 P.3d at 477.
In Cadiz I, the Board credited the IME reports by Drs.
Cupo and Arora as providing substantial evidence to rebut the
presumption in favor of compensability. However, Dr. Cupo’s
litany of conclusory assertions that none of Cadiz’s illnesses
or symptoms were “caused, aggravated, or accelerated by job
activities as a meat cutter for Times Supermarket,” tracks the
language of the test proposed for occupational disease by this
court in Flor, 94 Hawaiʻi at 82, 9 P.3d at 394 (requiring, inter
alia, that the injury-by-disease be “caused by conditions that
are characteristic of or peculiar to the particular trade,
occupation, or employment” (emphasis added)). The conclusion
repeated in each of Dr. Cupo’s “diagnoses” is inconsistent with
this court’s decision in Van Ness, published little more than a
month prior to the LIRAB’s decision in Cadiz I. Van Ness held
that Flor’s test is relevant for injury-by-disease claims going
to the nature of the occupation or employment. Van Ness, 131
Hawaiʻi at 559, 319 P.3d at 478. However, Flor’s test is not
relevant for those injury-by-disease claims that go to the
conditions or incidents of employment rather than to the very
nature of the job. For such situations, the traditional unitary
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or nexus test is used. That test requires only “a causal
connection between the injury and any incidents or conditions of
employment.” Van Ness, 131 Hawaiʻi at 560, 319 P.3d at 479. It
does not require any assessment of the relation of an injury to
the nature of the claimant’s “job activities.” Stated
otherwise, Dr. Cupo’s conclusions in his IME report are based on
an inapplicable legal conclusion.
In addition, Dr. Cupo’s conclusions cannot constitute
“substantial evidence” sufficient to rebut the statutory
presumption in favor of compensability. His sixteen formulaic
conclusions, which he labels “diagnoses,” cannot “justify a
conclusion by a reasonable person that an injury . . . is not
work-connected.” Id. at 558, 319 P.3d at 477. Strictly
speaking, Dr. Cupo’s conclusions about the relation of Cadiz’s
symptoms to the nature of his job as a meatcutter are, under Van
Ness, beside the point. Such conclusions are, in other words,
not legally relevant in the present case and therefore cannot
constitute substantial evidence rebutting the presumption in
favor of compensability. Id. Unless Dr. Cupo’s diagnoses
constituted substantial evidence able to reasonably rule out the
mycotoxins discovered in Cadiz’s body as causes of some or all
of his symptoms or injuries, his diagnoses do not add up to
substantial evidence. Nor does postulating an allergy to dust
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as an alternative explanation for Cadiz’s many symptoms pass
muster under the relevant legal standards.
In addition, the IME reports of both Dr. Cupo and Dr.
Arora share a similar fatal flaw. They represent attempts to
assert that Cadiz’s symptoms of illness are, in Dr. Cupo’s
words, “medically plausibly explainable by other medical
conditions” without needing to resort to toxic mold exposure.
This line of analysis by the employer’s IMEs, tacitly approved
by the ICA, misconstrues the relevant legal standard. “Hawaii’s
workers’ compensation presumption places a heavy burden on the
employer to disprove that an injury is work-related.” Korsak,
94 Hawaiʻi at 307, 12 P.3d at 1248 (emphasis added). A plausible
alternative medical explanation, without more, does not disprove
that an injury is work-related.
A heart-attack may be “medically plausibly
explainable” by an excess of cholesterol from eating too many
french fries, but that does not mean that a claimant’s heart
attack was not to some extent either caused or aggravated by
work-related stress. See Akamine, 53 Haw. at 412, 495 P.2d at
1168 (noting that the employer offered plausible alternative
non-work-related explanations for a heart attack but rejecting
that standard and holding instead that the employee’s death at
work from a heart attack was compensable under Hawai‘i workers’
compensation law: “The primary focus of the medical testimony
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should have been a discussion on whether the employment effort,
whether great or little, in any way aggravated Mr. Akamine’s
heart condition which resulted in his death.”) See also Chung
v. Animal Clinic, Inc., 63 Haw. 642, 651-52, 636 P.2d 721, 727
(1981) (finding that despite employer having offered a plausible
alternative medical explanation for claimant’s heart attack,
including arteriosclerosis and jogging, the “heart attack was
work-connected” and therefore compensable).
A recurring cough could be explained by a lingering
version of the common cold, but it could also be explained by
asbestosis. Asserting that the cough is “medically plausibly
explainable” by the common cold does not disprove asbestosis.
Similarly, a round hole through a person’s skull might be
“medically plausibly explainable” by the passage of a bullet,
but that is not substantial evidence that Phineas Gage’s on-the-
job injury was not caused by a tamping iron accidentally
transiting through his skull.10
10
Gage’s famous workplace injury predated the widespread enactment
of workers’ compensation statutes, but it illustrates the difficulties with
the “medically plausibly explainable by other conditions” standard deployed
by Dr. Cupo.
In 1848, Gage, 25, was the foreman of a crew cutting
a railroad bed in Cavendish, Vermont. On September 13, as
he was using a tamping iron to pack explosive powder into a
hole, the powder detonated. The tamping iron — 43 inches
long, 1.25 inches in diameter and weighing 13.25 pounds —
shot skyward, penetrated Gage’s left cheek, ripped into his
brain and exited through his skull, landing several dozen
feet away. . . . In time, Gage became the most famous
(. . . continued)
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“Medically plausibly explainable by other medical
conditions” is neither the relevant medical nor legal standard
in the context of workers’ compensation, and the ICA erred by
considering testimony resting on that standard to constitute
substantial evidence rebutting the statutory presumption that an
injury-by-disease “is causally related to the employment
activity” or conditions. Chung, 63 Haw. at 650, 636 P.2d at
726. The fact that there may exist alternative medical
explanations for the symptoms experienced by a claimant claiming
injury-by-disease does not on its own amount to evidence
substantial enough to rebut the presumption under the unitary or
nexus approach of “a causal connection between the injury and
any incidents or conditions of employment.” Id. at 648, 636
P.2d at 725.
In order to overcome the presumption in favor of
compensability, the employer must prove through substantial
evidence that the injury or disease was not work-connected.
Panoke, 136 Hawaiʻi at 461, 363 P.3d at 309; Korsak, 94 Hawaiʻi
at 307, 12 P.3d at 1248. In evaluating whether the burden of
_____________________
(continued. . . )
patient in the annals of neuroscience, because his case was
the first to suggest a link between brain trauma and
personality change.
Steve Twomey, Finding Phineas: An Accident with a Tamping Iron Made Phineas
Gage One of the Most Famous Names in Neuroscience, Smithsonian, Jan. 2010, at
9-10.
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producing substantial evidence has been met, “the slightest
aggravation or acceleration of an injury by the employment
activity mandates compensation.” Panoke, 136 Hawaiʻi at 461, 363
P.3d at 309; Van Ness, 131 Hawai‘i at 562, 319 P.3d at 481
(citation omitted). Suggesting plausible alternative
explanations that do not rule out work-connection or even slight
aggravation of pre-existing conditions fails to rise to the
level of showing required to overcome the presumption in favor
of compensability. Van Ness, 131 Hawaiʻi at 558, 319 P.3d at
477.
Dr. Likewise’s evocation of Cadiz’s “preoccupation
with multiple, medically unexplained somatic complaints,” might—
in some other legal context—shift the argument in favor of the
employer, which hired Dr. Likewise. HRS § 386-79 (requiring the
injured employee “to submit to examination . . . by a duly
qualified physician . . . designated and paid by the
employer.”).
But in the context of workers’ compensation law, a
lack of explanation for experienced symptoms or illnesses
strengthens the presumption in favor of compensability instead
of overcoming it. Van Ness, 131 Hawaiʻi at 564, 319 P.3d at 483
(stating that “doubt as to the cause of the injury represents a
salient index of the absence of substantial evidence required to
overcome the presumption that the claim is compensable.”
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(quotation marks omitted)); Lawhead, 59 Haw. at 560, 584 P.2d at
125 (noting, in the workers’ compensation context, “a strong
legislative policy favoring awards in arguable cases.” (citation
omitted)). Dr. Likewise’s diagnosis simply does not address the
laboratory evidence of elevated levels of harmful mycotoxins in
Cadiz’s body. It was clearly erroneous for the LIRAB to
conclude that Dr. Likewise’s IME report represented a level of
substantial evidence sufficient to rebut the presumption that
Cadiz’s claimed injury-by-disease was work connected. Van Ness,
131 Hawaiʻi at 558, 319 P.3d at 477; Korsak, 94 Hawaiʻi at 307,
12 P.3d at 1248 (“Hawaii’s workers’ compensation presumption
places a heavy burden on the employer to disprove that an injury
is work-related.” (emphasis added)).
IV. CONCLUSION
For the reasons stated above, we vacate the ICA’s
judgment on appeal which affirmed the LIRAB’s decision and order
in Cadiz I. Given our conclusion that the employer failed to
provide sufficient substantial evidence in Cadiz I to meet its
burden to produce evidence that, if believed, could overcome the
presumption in favor of compensability, it is unnecessary for us
to address the issues raised by the Board’s decision and order
in Cadiz II. We remand to the LIRAB with the instruction that
Cadiz’s injury-by-disease is compensable under Hawaiʻi’s workers’
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compensation law and for further proceedings consistent with
this opinion.
Stanford H. Masui /s/ Mark E. Recktenwald
Erin B.J.H. Masui
for Petitioner /s/ Paula A. Nakayama
Shawn L.M. Benton /s/ Sabrina S. McKenna
Scott G. Leong
Christine J. Kim /s/ Richard W. Pollack
for Respondents
/s/ Michael D. Wilson
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