APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2006-224(M); (7-05-00274))
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)
In this workers' compensation case, Claimant-Appellant Edwin W. Delaney (Delaney) appeals from the August 26, 2008 Decision and Order filed by the Labor and Industrial Relations Appeals Board (LIRAB) affirming the decision of the Director of the Department of Labor and Industrial Relations (Director). On appeal, Delaney maintains that the LIRAB erred in finding that a work-related injury, occurring on December 24, 2004, resulted in only a temporary aggravation of a pre-existing lower back condition and in concluding that Delaney was not entitled to further medical care and temporary total disability (TTD) benefits and that no permanent disability resulted from the injury.
Delaney raises the following points of error on appeal:
(1) The LIRAB erred in entering Finding of Fact (FOF) 48, which, relying on Dr. Mihara's report, found that the December 24, 2004 accident resulted in a temporary aggravation of Delaney's pre-existing low back condition, the accident did not cause the L3-4 disc protrusion seen on the January 21, 2005 MRI scan, and Delaney did not require further medical treatment.
(2) The LIRAB erred in Conclusion of Law (COL) 1, when it concluded that after August 16, 2005, Delaney is not entitled to medical care, services, and supplies for the December 24, 2004 injury.
(3) The LIRAB erred in COL 2, when it concluded that after August 30, 2005, Delaney is not entitled to TTD benefits for the December 24, 2004 injury.
(4) The LIRAB erred in COL 3, when it concluded that the December 24, 2004 injury did not result in permanent disability.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we resolve Delaney's contentions as follows:
(1) Delaney's first argument on appeal challenges FOF 48, which provides:
48. Based on the Board's review of the record,
including the degenerative findings at the L3-4 level in the January 21, 2005 MRI, and for the reasons stated in Dr. Mihara's report, the Board credits the opinion of Dr. Mihara over that of Dr. Rogers to find that [Delaney] sustained a lumbar strain or sprain on December 24, 2004 that resulted in a temporary aggravation of his pre-existing low back condition and that the L3-4 disc protrusion seen on the January 21, 2005 MRI did not result from the December 24, 2004 lifting incident.
The Board further finds that by July 22, 2005, the date of Dr. Mihara's report, [Delaney] had returned to pre- injury status and did not require further medical treatment for the ...