SURVIVORS OF GARY S. KANESHIRO, DECEASED, Claimant-Appellant,
DIAMOND HEAD PETROLEUM, INC., and HAWAII EMPLOYERS' MUTUAL INSURANCE COMPANY, Employer/Insurance Carrier-Appellee
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2007-148 (2-05-04303)
Wayne H. Mukaida for Claimant-Appellant.
Brian G.S. Choy Keith M. Yonamine (Choy & Tashima) for Employer/Insurance CarrierAppellee.
Nakamura, Chief Judge, and Leonard and Ginoza, JJ.
Claimant-Appellant Survivors of Gary S. Kaneshiro (Claimant) appeals from the "Decision and Order" entered by the Labor and Industrial Relations Appeals Board (LIRAB) in favor of Employer-Appellee Diamond Head Petroleum, Inc. (Diamond Head Petroleum) and Insurance Carrier-Appellee Hawai'i Employers' Mutual Insurance Company (collectively, "Employer"). The LIRAB concluded that the death of Gary S. Kaneshiro (Kaneshiro) was not work-related and therefore that Claimant, who was Kaneshiro's surviving spouse, was not entitled to workers' compensation benefits. The LIRAB's Decision and Order affirmed the decision of the Director of the Department of Labor and Industrial Relations (Director) denying compensability.
On appeal, Claimant argues that the LIRAB failed to properly apply the presumption of compensability set forth in Hawaii Revised Statutes (HRS) § 386-85 (1993) and that the LIRAB erroneously concluded that Employer presented substantial evidence to rebut the presumption. We affirm.
Kaneshiro was the general manager of Diamond Head Petroleum. At approximately 5:00 in the morning on September 28, 2004, an employee found Kaneshiro lying dead on the floor of Diamond Head Petroleum's office.
Kaneshiro's medical records indicated that he had a history of hypertension and high cholesterol and that he smoked about three packs of cigarettes a day. Kaneshiro had been advised to stop smoking, improve his diet, exercise, and consider medication. In October 2002, he asked for time to decide whether he wanted to take the recommended medication.
For three days prior to his death, Kaneshiro complained of chest pains. He was encouraged to seek treatment for his condition, but refused. Kaneshiro also was not taking any medications.
According to the Non-Autopsy Report filed by the First Deputy Medical Examiner, Kaneshiro's cause of death was "[p]robable arteriosclerotic cardiovascular disease[, ]" with hypertension and hypercholesterolemia noted as "contributing cause/other significant conditions." Kaneshiro's death certificate identified "probable arteriosclerotic cardiovascular disease" as the cause of death.
Claimant filed a "Dependents' Claim for Compensation" with the Director. Claimant described the nature of the injury causing Kaneshiro's death as "[w]ork-related stress causing heart attack, which occurred at place of employment." Employer denied liability with respect to the claim. After a ...