April 24, 2015
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 pain. Is that right?
THE WITNESS: Correct.
CHAIRMAN THOM: Can you show me now by using your hands where that pain was located?
So, it is below the big part of your knee, but above the -- at the top of the calf muscle. Is that right?
Okay. All right. You may be seated.
Now, on October 30, which is when you were walking down the loading dock staircase, where was the pain symptoms mostly that caused you to cry out and wait for two to three minutes?
THE WITNESS: The same area.
CHAIRMAN THOM: Did it go into the big part of your leg where your knee bends?
THE WITNESS: Well, to tell you the truth, you know, 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.
CHAIRMAN THOM: Yeah, you have to answer audibly. So, the question was whether or not it was in the big part of your knee or at the top of the calf muscle.
THE WITNESS: My answer was that because of my earlier injury, thinking that it was my calf, I thought it was my calf.
CHAIRMAN THOM: Okay.
MR. PENDLETON: So, Mr. Yoshii, would it be correct to say that the pain experienced was in the same location on your leg?
THE WITNESS: Around about, yes.
MR. PENDLETON: But the intensity between the theater accident and -- or the theater situation and the date of accident at work, the intensity of pain was different?
THE WITNESS: Yes. Correct.
MR. PENDLETON: And on the date of accident, was it more intense or less --
THE WITNESS: Yes.
MR. PENDLETON: It was more intense on the date --
THE WITNESS: Yes.
MR. PENDLETON: -- of accident at work?
THE WITNESS: I know something happened. For me to put it that way, you know. I know something was really wrong, you know?
On March 21, 2012, the Board issued its D& O, ultimately concluding that Yoshii " did not sustain a personal injury to his right knee on October 30, 2008, arising out of and in the course of employment" and concluding that the other issues were moot. This timely appeal followed.
Yoshii presents seven points of error and three main arguments in support of his challenge to the Board's determination. We reorder these points and arguments and address them as follows:
In his first Point of Error and argument C, Yoshii takes issue with the Board's observation, in its Finding of Fact 3, that Yoshii's supervisor noted that Yoshii was " off the clock" when the claimed injury occurred. While Yoshii himself reported that the injury occurred about an hour after he completed his shift for the day, he argues that this fact cannot serve as an independent basis for the Board's conclusion that his October 30, 2008 injury did not arise out of and in the course of his employment. Thus, Finding of Fact 3 is not clearly erroneous and as we find no indication in the Board's D& O that it based its decision in any way on the time of the injury and thus reject Yoshii's first point and argument C as without merit.
In Points of Error two through four, Yoshii faults the Board's Findings of Fact 8, 10, 11, 16, and 17. However, the parts quoted by Yoshii are merely the Board's statements of the observations and opinions actually made by Drs. Mihara, Davenport, Oki, and Ragunton. As Yoshii does not argue that these statements are clearly erroneous, we conclude that these designations of error have been abandoned and, in any event are without merit.
We also reject Yoshii's challenge, in Points of Error two, three, and six, to Finding of Fact 16. This challenge consists of argument, contained in these points as well as in arguments A and B, to the Board's assessment that it would credit certain doctor's opinions and reports over others.
The Board conducts a de novo review of the record and takes evidence and testimony presented by the parties. See HRS § 386-87 (1993); HRS § 91-10 (2012). Credibility is a matter left to the trier of fact. The Board is not required " to reconcile conflicting expert testimony in favor of the claimant; that proposition would eviscerate the well established rule that the Board's determinations of credibility and weight are entitled to deference." Nakamura v. State, 98 Hawai'i 263, 270, 47 P.3d 730, 737 (2002).
Yoshii's challenge to Finding of Fact 17 in point of error four is based on his argument that, based on Dr. Mitsunaga's opinion that Yoshii " had osteoarthritis that was aggravated by his work activities" --an opinion the Board acknowledged by accepting Yoshii's Proposed Finding of Fact 44--the Board should have concluded that
the nature of the injury included the aggravation to the degenerative condition and the tear in his right knee from [Yoshii's] work activities and that 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.
However, Yoshii's claim for the injury in this case-- reported soon after the event and after Yoshii's knee surgery had been performed--was not based on cumulative injury stemming from work activity, but upon the stair-stepping event occurring on October 30, 2008. See November 18, 2008 Report and March 11, 2009 Form WC-5. Consistent with Yoshii's Report and Form WC-5, the Director and the Board based their ruling on the merits of a workers compensation claim for an injury occurring on October 30, 2008 and did not decide a cumulative injury claim. Thus, whatever merit there might be to a cumulative injury claim by Yoshii--upon which we do not opine--this case does not involve that claim.
Yoshii also challenges Finding of Fact 17 in point of error six, on the basis that, the Board erred in rejecting his experts' opinions by finding that the pain Yoshii experienced on October 30, 2008 was related to the edema he experienced on October 26, 2008. We cannot say that the Board's finding was clearly erroneous. Yoshii testified that the pain he felt when getting up in the movie theater was in the right upper part of the calf muscle and the pain when he took the misstep on October 30, 2008 was in the " same area." Yoshii's own expert, Dr. Ragunton, noted that it appeared, upon examination on October 27, 2008, that Yoshii's " leg pain was caused by leg swelling and fluid retention" and we cannot say that the Board's finding was clearly erroneous.
Yoshii's fifth point of error and part of his argument B is that the Board erred in its Findings of Fact 15 and 18 that Yoshii's testimony describing his injury was not credible because it was inconsistent, inconsistent with the medical records, and, as to Yoshii's self-described claim of torn ligaments, was not supported by any evidence. Again, matters of credibility are for the trier of fact. Nakamura. 98 Hawai'i at 270, 47 P.3d at 737.
In point of error seven, Yoshii challenges the Board's determination that the State overcame the presumption of compensability in Finding of Fact 19 and Conclusion of Law 1. Yoshii is correct that the State is obligated to provide substantial evidence that his claim is not compensable to overcome the statutory presumption afforded to employees pursuant to HRS § 386-85 (1) (1993). To overcome the presumption, the employer must carry the burden of production and the burden of persuasion. The evidence must be substantial, and at a minimum, be " credible and relevant." Akamine v. Hawaiian Packing & Crating Co., Ltd., 53 Haw. 406, 409, 495 P.2d 1164, 1167 (1972).
In this case, there was substantial evidence overcoming the presumption of compensability. Yoshii's claim was based on an event occurring on October 30, 2008. See Form WC-5. On that date, through the reports of his treating physician, Dr. Ragunton, Yoshii complained of right leg pain that Yoshii confirmed in his testimony was to the upper part of his calf muscle. It was undisputed that the incidents leading up to the pain for which this claim was made were (1) getting out of a chair on October 26, 2008 and (2) taking a step down stairs on October 30, 2008, neither in fact occurring while performing his work duties or during work hours. Dr. Ragunton's notes document that Yoshii was initially treated by him with diuretics. A CT scan and ultrasound was performed on November 3, 2008, revealing no phlebitis (inflamed veins) or clots; nor was any torn muscle found; as of November 24, 2008, Yoshii reported that the pain in his right leg had improved; and that reduced edema and no calf tenderness in Yoshii's right calf was observed. None of these records indicate pain involving Yoshii's right knee.
On December 29, 2008, Yoshii saw Dr. Oishi, an orthopedic surgeon, to whom he reported " persistent knee pain going on for several weeks." Based on medial tenderness and an effusion on examination and the persistence of the pain, Dr. Oishi obtained an MRI. The MRI revealed " a moderate knee joint effusion, moderate chondromalacia of the tibiofemoral joint [and] lateral patellofemoral joint as well as possible degenerative tear of the medial meniscus." Based on the persistent pain, Dr. Oishi operated on Yoshii on January 17, 2009, performing " a partial medial and lateral meniscectomy, as well as an arthroscopic lateral release with chrondomalacia patella." Yoshii received physical therapy until May 27, 2009.
The State also presented the report of Dr. Mihara, who performed an independent medical examination on February 9, 2009. Again, Yoshii reported to Dr. Mihara of pain to his right calf. After a physical examination of Yoshii and a review of his medical records, including the MRI, Dr. Mihara provided a summary of his findings and concluded,
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 recent years and in particular, it flared up just several days prior to 10/30/08 after the claimant stood up after 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 gastrocnermius 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.
Based on the foregoing, we conclude that the Board did not err in concluding the State overcame the presumption of compensability and therefore did not err in reaching Finding of Fact 19 or Conclusion of Law 1.
The March 21, 2012 Labor and Industrial Relations Appeals Board Decision and Order is affirmed.
Among the points of error raised on appeal, Claimant-Appellee-Appellant Brian M. Yoshii (Yoshii) contends that Employer-Appellant-Appellee State of Hawai'i, University of Hawai'i (State) failed to overcome the statutory presumption that Yoshii's claim is for a covered work injury, pursuant to Hawai'i Revised Statutes (HRS) § 386-85(1) (1993). Yoshii thus challenges finding of fact (FOF) 19 and conclusion of law (COL) 1 in the Decision and Order by the Labor and Industrial Relations Appeals Board (LIRAB). Given the record in this case and in my view the lack of substantial evidence to overcome the statutory presumption, I agree with Yoshii and therefore respectfully dissent.
In analyzing the statutory presumption for a claimed work injury,-the following standards are applicable.
When determining whether a claim is work-related, HRS § 386-85(1) (1993) states that " it shall be presumed, in the absence of substantial evidence to the contrary... [t]hat the claim is for a covered work injury...." (Emphasis added.) In order to overcome the presumption of work-relatedness, the employer bears the initial burden of " going forward" with the evidence and the burden of persuasion. In other words, the employer must initially introduce substantial evidence that, if true, could rebut the presumption that the injury is work-related. In the workers' compensation context, the term " substantial evidence" " signifies a high quantum of evidence which, at the minimum, must be '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.'" Once the trier of fact determines that the employer has adduced substantial evidence that could overcome the presumption, it must then weigh that evidence against the evidence presented by the claimant. In so doing, the employer bears the burden of persuasion in which the claimant is given the benefit of the doubt.
Nakamura v. State, 98 Hawai'i 263, 267-68, 47 P.3d 730, 734-35 (2002) (citations omitted). Additionally, as Yoshii points out, generalized medical evidence is not enough to rebut the presumption of a covered work injury, and instead a " reasonable degree of specificity is required in order for medical opinion evidence to rebut the presumption of compensability." Id. at 268-69, 47 P.3d at 735-36; See also Akamine v. Hawaiian Packing & Crating Co., 53 Haw. 406, 410-12, 495 P.2d 1164, 1167-68 (1972).
In reviewing FOF 19 and COL 1, it appears that they involve mixed questions of fact and law, and therefore should be reviewed under the clearly erroneous standard because they are " dependent upon the facts and circumstances of the particular case." Nakamura, 98 Hawai'i at 267, 47 P.3d at 734 (citation and quotation mark omitted).
Yoshii claims that he sustained a work injury to his right knee on October 30, 2008, when he was walking down a loading dock stairs, stepped with his right leg and then felt a sharp pain in his leg. In his WC-5 claim form for workers' compensation benefits, Yoshii describes his injury as a 11 [t]orn ligament on right knee both inside and outside."
There is no definitive evidence as to what caused Yoshii's right knee pain and the claim has been questioned because three days before, on October 27, 2008, Yoshii visited his doctor, Luis Ragunton, M.D. (Dr. Ragunton), and complained about right leg pain that had begun when Yoshii got up from a chair after watching a movie. At that time, Dr. Ragunton assessed Yoshii with edema, i.e. swelling. Compounding matters further, Yoshii has described his work injury in various ways that has caused concern about his ability to provide a credible history.
However, the record establishes that on October 30, 2008, the day of the claimed work injury, Yoshii immediately sought care at the Pali Momi emergency department. In the following months, Dr. Ragunton continued to assess Yoshii as suffering from edema, but then in late December 2008, Dr. Ragunton referred Yoshii to Calvin Oishi, M.D. (Dr. Oishi), for a possible torn meniscus of the right knee. An MRI on December 29, 2008 indicated a possible degenerative tear of the medial meniscus, and on January 17, 2009, Yoshii underwent surgery by Dr. Oishii for a partial medial and lateral meniscectomy.
In this case, therefore, there appears no question that within two months of the claimed work injury, and after Yoshii had continued to complain of right leg pain, the MRI indicated a possible torn meniscus and the following month Yoshii underwent surgery for a partial medial and lateral meniscectomy. Yoshii thus claims that the torn meniscus in his right knee resulted from, or at least was aggravated by, his employment. In determining that Yoshii did not sustain an injury to his right knee on October 30, 2008, the LIRAB credited the opinions of Brian Mihara, M.D. (Dr. Mihira) and Kent Davenport, M.D. (Dr. Davenport), which were contained in reports dated February 9, 2009 and June 4, 2009, respectively, and submitted to the LIRAB. However, in my view, these reports do not provide substantial evidence to rebut the statutory presumption that the torn meniscus in Yoshii's right knee was a covered work injury. Dr. Mihara's February 9, 2009 report only minimally addresses the meniscus tear and the surgery performed by Dr. Oishi, and when it does, the report simply concludes without explanation that the medical records do not suggest that a meniscal tear was due to a work injury. There is no reasoning or explanation for the existence of the meniscus tear, or why the October 30, 2008 incident could not have been an aggravating factor for the meniscus tear. Dr. Davenport's June 4, 2009 report is even more sparse and does not reflect that he was provided with the MRI report to review. He notes that Yoshii was referred to Dr. Oishii for evaluation of a possible meniscus tear, but Dr. Davenport's report does not reflect that he was aware of the MRI findings or the surgery. Thus, similar to Dr. Mihara's report, Dr. Davenport's report provides no explanation for the existence of the torn meniscus or why it could' not have been related to the October 30, 2008 incident. In sum, these reports do not provide substantial evidence with a reasonable degree of specificity to rebut the statutory presumption. Nakamura, 98 Hawai'i at 267-69, 47 P.3d at 734-36. On this record, therefore, I would conclude that FOF 19 and COL 1 are clearly erroneous.
For these reasons, I respectfully dissent and would remand to the LIRAB for a determination of the appropriate compensation arising from the October 30, 2008 incident.