BRIAN M. YOSHII, Claimant/Appellee-Appellant,
STATE OF HAWAI'I, UNIVERSITY OF HAWAI'I, Employer/Appellant-Appellee, Self-Insured, and FIRST INSURANCE COMPANY OF HAWAII, LTD., Third-Party Administrator/Appellant-Appellee
This decision is published in table format in the Pacific and Hawai'i reporter.
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD. (CASE NO. AB 2010-169 (2-08-46774)).
Herbert R. Takahashi, Rebecca L. Covert, Davina w. Lam, (Takahashi & Covert), for Claimant/Appellee-Appellant Brian M. Yoshii.
Paul A. Brooke, (Leong Kunihiro Lezy & Benton), for Self-Insured, Employer/Appellant-Appellee, State of Hawai'i, University of Hawai'i, and Third-Party Administrator/Appellant-Appellee First Insurance Company of Hawai'i, Ltd.
Foley, Presiding Judge and Fujise, J., with Ginoza, J., dissenting.
Claimant/Appellee-Appellant Brian M. Yoshii (Yoshii) appeals from the March 21, 2012 Labor and Industrial Relations Appeals Board (Board) Decision and Order (D& O) in favor of Yoshii's employer, Employer/Appellant-Appellee State of. Hawai'i, University of Hawai'i (State), and Third-Party Administrator/ Appellant-Appellee First Insurance Company (First Insurance), finding Yoshii did not sustain a compensable injury to his right knee on October 30, 2008 at his place of employment, the University of Hawai'i's Leeward Community College (LCC). The D& O reversed, in part, the May 13, 2010 Decision (Decision) by the Director of the Department of Labor and Industrial Relations (Director) in favor of Yoshii. On appeal, Yoshii requests that this court reverse the D& O and allow the Director's Decision to stand.
On October 30, 2008, the date of the incident giving rise to this claim, Yoshii was employed by LCC as a Cook II. Yoshii's workday was between 6:00 a.m. and 2:30 p.m. The incident occurred at 3:30 p.m.
Yoshii orally reported this incident to his employer and followed up with a written " Report of Work-Related Injury/Illness," (Report) completed on November 18, 2008. In this written Report, he listed the " Date of Injury" as " 10-30-08," the " Time of injury" as " 3:30 p.m.," and described the event leading to the injury as follows:
Walking down the loading dock stairway  and I steped [sic] 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 in to our vehicle.
Yoshii identified the body part involved and extent of injury as " Right calf muscle strain." First Insurance denied the claim pending investigation.
On or about December 15, 2008, a notice of First Insurance's denial was sent to Yoshii, along with the instruction that if he wished to " protect [his] benefit rights," the enclosed Form WC-5, " Employee's Claim for Workers' Compensation Benefits," (Form WC-5) should be returned within thirty days.
On March 11, 2009, Yoshii filed his Form WC-5 for the October 30, 2008 injury. Yoshii again listed the " Date of Accident" as " 10-30-08" and " Time of Injury" as " 3:30 p.m." and described how the accident occurred as " Walking down loading dock stair stepped on my right foot and felt sharp pain in my leg" and the injury/illness as " Torn ligament on right knee both inside and outside." No amendment-of this claim appears of record.
A hearing on Yoshii's claim was had on March 23, 2010. On May 13, 2010, the Director issued his Decision, determining that Yoshii suffered a compensable injury to his right knee on October 30, 2008 and awarding " such medical care, services and supplies as the nature of the injury may require."  The Director based his determination on Yoshii's March 11, 2009 Claim and Yoshii's treating physician, Dr. Ragunton's, reports dated March 30, 2009, and disregarded the reports of Drs. Mihara and Davenport. Although the Director recognized in his " Principles of Law" that workers compensation benefits can be awarded for an " employee who suffers a personal injury either by accident arising out of and in the course of employment or by disease proximately caused by or resulting from the nature of the employment," (emphasis added), the Director made no findings of fact regarding any disease caused or resulting from the nature of Yoshii's employment and appears to have based his award to Yoshii solely on Yoshii's claim of injury on October 30, 2008.
Yoshii initially appealed from the Director's Decision to the Board on May 19, 2010, but in light of his notice of intent to withdraw his appeal, the Board eventually dismissed his appeal and designated the State as Appellant on October 5, 2010. In its October 5, 2010 First Amended Pretrial Order, the Board summarized the issues presented as follows:
a. Whether [Yoshii] sustained a personal injury to the right knee on October 30, 2008, arising out of and in the course of employment.
b. Whether the disability certifications from [Drs. Ragunton, Oishi, and Oki] should be stricken from the record pursuant to Section 12-10-75 [HAR].
c. Whether the report of [Dr. Davenport] dated June 4, 2009 should be stricken from the record pursuant to Section 12-10-75, [HAR].
No objections to, nor further amendments of this order appear of record.
A hearing de novo was had on May 11, 2011 upon the submissions of the parties and the testimony of Yoshii. Of note is Yoshii's testimony regarding the events of October 27 and 30, 2008 :
CHAIRMAN THOM: You know, on October 27, '08 [sic], you stood up in the theaters at Kapolei and you felt pain in your right leg. Is that right?
THE WITNESS: Correct.
CHAIRMAN THOM: And this has been described as right calf ...