SAM C. YADAO, Claimant-Appellant,
STATE OF HAWAI'I, DEPARTMENT OF LAND AND NATURAL RESOURCES, Employer-Appellee, Self-Insured
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2012-182(K) (4-11-10052))
Rebecca L. Covert, Davina W. Lam, (Takahashi and Covert) for Claimant-Appellant.
Shawn L.M. Benton, (Leong Kunihiro Lezy & Benton), for Employer-Appellee, Self-Insured.
FUJISE, PRESIDING JUDGE, LEONARD AND GINOZA, JJ.
Claimant-Appellant Sam C. Yadao (Yadao) appeals from the Labor and Industrial Relations Appeals Board's (LIRAB's): (1) Order Denying Claimant's Motion to File After Trial, filed on December 7, 2012 (December 7, 2012 Order); (2) Decision and Order, filed on March 1, 2013 (Decision and Order); and (3) Order Denying Motion to Reopen Record and for Reconsideration, filed on May 10, 2013 (May 10, 2013 Order).
The LIRAB concluded that Yadao (1) sustained an injury to his left knee in the form of chondromalacia patella arising out of and in the course of his employment on August 27, 2010 and (2) did not sustain an injury to his left knee arising out of and in the course of his employment on March 17, 2011. In doing so, the LIRAB reversed the decision of the Director of Labor and Industrial Relations (Director), which denied Yadao's claim for worker's compensation benefits for the August 27, 2010 injury and sustained worker's compensation benefits for the March 17, 2011 injury.
Yadao asks the Court to vacate, in part, the LIRAB's Decision and Order, specifically with respect to the compensability of the March 17, 2011 date of injury, and find that Yadao sustained a personal injury arising out of and in the course of employment on March 17, 2011. We vacate the LIRAB's determination of Yadao's March 17, 2011 claim and remand for proceedings consistent with this order. We otherwise affirm the LIRAB's Decision and Order and the December 7, 2012 Order. In addition, we vacate the LIRAB's May 10, 2013 Order and remand for further proceedings, with instructions that the LIRAB consider the October 16, 2012 MRI report.
Yadao was employed by the State of Hawai'i, Department of Land and Natural Resources (DLNR), as a Forestry Worker, on the island of Kaua'i. Yadao's responsibilities included trail maintenance, weed whacking, and responding to forest fires. While performing general trail maintenance, Yadao carried a thirty to fifty pound backpack which contained water, gas, and personal protective equipment.
On August 27, 2 010, Yadao was responding to a forest fire on Mauna Kea, on the island of Hawai'i (Big Island) . Yadao was carrying a fifty-pound backpack which included a first-aid kit, fire shelter, radio, lunch, hand tools, and other forest fire-fighting gear. While walking on steep, uneven, and unstable terrain, Yadao fell and hit his left knee on a rock. Yadao continued to work after the fall. Yadao reported the injury to his supervisor on August 31, 2010. Following the August 27, 2010 injury, Yadao did not seek treatment for his left knee.
On or around September 3, 2010, Yadao filed a WC-1: Employer's Report of Industrial Injury for an August 27, 2010 injury. Yadao claimed that he tripped and landed on his knees on lava rocks while "hiking to the fire line with backpack, pump and hand tools."
During the week of March 14, 2011, Yadao was performing maintenance on the Nualolo trail located in Koke'e State Park on the island of Kaua'i. During the week of March 14, 2011, Yadao worked from Monday to Thursday for four hours a day. Yadao did not work on Friday, March 18, 2011, because it was a furlough day. Yadao testified that the Nualolo trail is about four miles. Yadao testified that the first half mile of the Nualolo trail is straight down. After the first half mile, the trail flattens out and then gradually declines. Yadao's duties that week consisted of cutting grass, brushing sides, and picking up branches off the trail. During the week of March 14, 2011, Yadao felt a pinching and poking sensation in his left knee. On March 18, 2011, Yadao felt excruciating pain in his left knee.
On Monday, March 21, 2011, Yadao visited his primary care physician, Dr. David Zimmerman (Dr. Zimmerman). In his report. Dr. Zimmerman noted "left knee internal .derangement." Dr. Zimmerman noted "very mild degenerative changes are present. No fracture or loose body is noted." Dr. Zimmerman referred Yadao to orthopedic surgeon, Dr. Richard Goding (Dr. Goding).
Dr. Goding performed a physical examination on March 30, 2011. In his report dated April 4, 2011, Dr. Goding wrote that Yadao reported that he "fell onto both knees while he was fighting fire in August, and he now has pain on the medial side of the left knee." Dr. Goding noted severe medial joint line tenderness on Yadao's left knee and diagnosed Yadao with a medial meniscus tear. Dr. Goding noted "[w]e will organize an MRI and see him back."
Upon DLNR's request, Dr. Kent Davenport (Dr. Davenport) performed an independent record review on July 8, 2011. Dr. Davenport noted his impressions as:
1.Medial meniscus tear, left knee, unrelated to the subject accident of 08/27/10.
3. Previous history of bilateral knee pain.
Dr. Davenport concluded that Dr. Zimmerman's finding of acute pain suggested that it was not related to the August 27, 2010 injury. Dr. Davenport wrote that a morbidly obese male with such an injury would be expected to experience severe discomfort within a week following the injury. Dr. Davenport concluded that it was not probable that Yadao sustained a meniscal tear on August 27, 2010.
Upon the request of Yadao's counsel, Dr. Wayne K. Nadamoto (Dr. Nadamoto) performed a physical examination and reviewed the reports of Dr. Zimmerman, Dr. Goding, Dr. Sydney G. Smith (Dr. Smith), and Dr. James F. Scoggin, III (Dr. Scoggin), on July 9, 2012. In a report dated July 23, 2012, Dr. Nadamoto diagnosed Yadao with chondromalacia patella of the left knee and a probable meniscus tear of the left knee. Dr. Nadamoto noted that the chondromalacia patella was caused by the August 27, 2010 fall on the patella, that Yadao continued to work because the symptoms were tolerable, and that the March 17, 2011 accident was "more severe in nature" and "caused a possible tear of the meniscus." Dr. Nadamoto also noted that after March 17, 2011, Yadao had "increased symptoms in the left knee and pain with squatting, walking, kneeling, stair climbing and stair ascending or descending or prolonged standing."
In a report dated July 20, 2011, Dr. Goding wrote that Yadao's knee condition is consistent with the mechanics of the injury he described. Dr. Goding noted that Yadao's left knee condition on March 18, 2011, was related to the August 27, 2010 injury. In a report dated January 4, 2012, Dr. Goding clarified that Yadao's knee condition on March 18, 2011, was clearly an aggravation of the August 27, 2010 injury.
On July 20, 2011, Yadao filed a WC-5: Employee's Claim for Worker's Compensation Benefits for the August 27, 2010 date of injury. On the same day, Yadao filed a second WC-5: Employee's Claim for Worker's Compensation Benefits for the March 17, 2011 date of injury. Yadao noted that " [i] t is possible the March 1, 2011 injury is a new injury or just part of the August 27, 2010 injury. Preserving Claimant's rights by filing for the March 1, 2011 injury." Yadao filed both WC-5 forms because the insurance carrier had not paid any benefits.
Upon receipt of Yadao's WC-5, the Department of Labor and Industrial Relations requested that Yadao file a WC-1 pursuant to HRS § 386-95 (2015). On or around July 29, 2011, Yadao filed a WC-1: Employer's Report of Industrial Injury for the March 17, 2011 injury. Yadao stated that the accident occurred while "performing trail maintenance the entire week on unleveled, hilly trails. On March 1 , 2011, [he] felt pinching and poking sensation in the left knee similar to injury on August 27, 2010."
The Director held a hearing on August 2, 2011, to determine whether Yadao sustained an injury to his left knee arising out of and in the course of his employment on August 27, 2010. On September 16, 2011, the Director issued a decision denying the workers' compensation claim. The Director concluded that Yadao did not sustain injury to his left knee arising out of and in the course of employment on August 27, 2010. The Director credited Dr. Richard Lewan (Dr. Lewan), Dr. Zimmerman, and Dr. Davenport's reports. Yadao appealed the decision to the LIRAB.
Upon DLNR's request. Dr. Smith performed an Independent Medical Examination (IME). The IME was conducted on September 20, 2011 and consisted of an examination and a medical records review. Dr. Smith diagnosed Yadao with "LEFT KNEE SYNOVITIS/EFFUSION. HISTORY OF MILD OSTEOARTHRITIS." Dr. Smith wrote that Yadao did not sustain a new work injury, but reported worsening symptoms around March 17, 2011. Dr. Smith noted that " [c]ertainly, the relatively heavy walking activities that Mr. Yadao experiences during work could result in worsening symptoms of a preexisting condition." Dr. Smith noted that the preexisting condition appeared to be non-work related. Dr. Smith wrote that the findings of an MRI would indicate either "osteoarthritis and/or a medial meniscus tear."
Upon DLNR's request, Dr. Scoggin performed an Independent Review of Medical Records on February 13, 2012. Dr. Scoggin reviewed the reports of Kauai Medical Clinic, West Kauai Clinic, Dr. Zimmerman, Dr. Goding, Dr. Davenport, and Dr. Smith. Dr. Scoggin wrote that based on a review of the records, there is no clear evidence of an injury on March 17, 2011. Dr. Scoggin noted that the most likely clinical diagnoses is osteoarthritis of the left knee and degenerative medial meniscus tear of the left knee. Dr. Scoggin noted that the injuries on August 27, 2010, and March 17, 2011, did not appear to be similar "since one involved falling on both knees and the other involved feeling a pinching and poking sensation in the left knee, without described trauma." Dr. Scoggin noted that an MRI of the left knee would seem "reasonable and appropriate, on a non-industrial basis" or through Yadao's private insurance.
The Director held a hearing on March 13, 2012, to determine whether Yadao sustained an injury to his left knee arising out of and in the course of his employment on March 17, 2011. In a decision filed on May 10, 2012, the Director concluded that Yadao sustained a compensable injury arising out of and in the course of his employment on March 17, 2011. The Director credited Dr. Goding's supplemental report dated January 4, 2012, and claimant's testimony. The Director noted that "matters of average weekly wage, temporary disability, permanent disability and/or disfigurement, if any, shall be determined at a later date." The Director entered an amended decision on June 5, 2012, correcting the date of the injury. The DLNR appealed the decision to the LIRAB.
On June 8, 2012, the DLNR filed a Motion for Stay of Director's Decision filed May 10, 2012, and the amended decision filed on June 5, 2012. The Director denied DLNR's motion for stay on July 30, 2012.
Upon DLNR's request, Dr. Clifford K.H. Lau (Dr. Lau) performed an IME on August 27, 2012. The IME consisted of a physical examination and a records review. Dr. Lau wrote that Yadao's knee condition is "related to the underlying osteoarthritis aggravated by his morbid obesity." Dr. Lau noted that Yadao weighed 280 pounds and had a body mass index of forty-four. Dr. Lau wrote that a body mass index in the mid-forties "would be in the extreme obese to morbidly obese range." Dr. Lau noted a direct correlation with obesity and degenerative arthritis of the knee. Dr. Lau wrote that there was no specific injury on or around March 17, 2011, but that Yadao may become symptomatic doing any type of walking up and down hills because of the underlying left knee osteoarthritis. Dr. Lau wrote that the underlying left knee osteoarthritis was not caused, aggravated, accelerated, or contributed to by activities on or around March 17, 2 011.
On August 6, 2012, the LIRAB issued its pretrial order setting various deadlines including a medical records submission deadline of September 4, 2012 and a hearing date of October 3, 2012. The parties stipulated and agreed to consolidate the appeals for the August 27, 2010 and March 17, 2011 date of injury claims.
The LIRAB hearing was held on October 3, 2012. The issues before the LIRAB were (1) whether Yadao sustained an injury to his left knee arising out of and in the course of his employment on August 27, 2010, and (2) whether Yadao sustained an injury to his left knee arising out of and in the course of his employment on March 17, 2011. At the hearing, the DLNR presented medical records from Dr. Zimmerman, Dr. Goding, Dr. Davenport, Dr. Smith, Dr. Scoggin, and Dr. Lau. Dr. Nadamoto and Yadao testified at the hearing.
Dr. Nadamoto testified that Yadao sustained chondromalacia patella injury on August 27, 2010, and a meniscal tear on March 17, 2011. Dr. Nadamoto testified that chondromalacia patella is a "condition in which the normal tracking surface of the patella against the femur trochlea is disrupted to the point where it is not tracking as smoothly as it should." In his report, Dr. Nadamoto noted a positive McMurray test. Dr. Nadamoto testified that a McMurray test is a test used to indicate the possibility or probability of a meniscal injury. Dr. Nadamoto testified that sixty to seventy percent of people with positive McMurray tests have meniscal injuries. Dr. Nadamoto further explained that:
[T] he anatomy of the knee is that as you go up or you step up, the femoral condyles come around and they then roll onto the meniscal rims at the --in the posterior area. And then if you have a heavy load like you're crushing down on it, it could tear it, tear the meniscus. It's similar, although not quite the same, you see many of those old Japanese men just squatting in their yard. And then they get up and they go doc, after I got up, you know, I felt pain. The same idea is they roll the condyles down onto the meniscus. And then as they come up, they're pushing up on it and it can tear the meniscus.
But this is even more extreme 'cause he's not just squatting down. He's carrying a heavy load and then lifting that load up elevations.
Dr. Nadamoto testified that Yadao's thirty to fifty-pound pack increased the possibility of a meniscal injury. Dr. Nadamoto also testified that a patient's weight is a factor in the development of a meniscal tear. Additionally, Dr. Nadamoto testified that if an MRI had been taken shortly after the March 2011 injury, then he may have been able to determine whether Yadao's meniscal tear was caused by degeneration. Dr. Nadamoto testified that if an MRI had been taken near the October 2012 trial date, then the MRI would likely reveal a chronic tear.
Yadao testified that he felt a poking sensation in his left knee from August 2010 to March 2011. Yadao continued to work after the August 27, 2010 injury because he was able to cope with the pain by taking Aleve. Yadao also testified that the pain he experienced around March 17, 2011, was in the same location as his August 27, 2010 injury. Yadao stated that the pain was located on the outside of his left knee. Yadao testified that after March 17, 2011, the pain in his left knee was excruciating. As of October 3, 2012, Yadao had not returned to work due to the March 2011 injury. Following Yadao's testimony, the LIRAB ordered the record closed except for filing of post-hearing briefs due December 14, 2012.
On November 14, 2012, Yadao filed a Motion to File After Trial the MRI Report of Claimant's Left Knee (Motion to File After Trial). Yadao asserts that the MRI study could not be performed or submitted to the LIRAB prior to the September 4, 2012 medical records submissions deadline and the October 3, 2012 trial. On August 6, 2012, Dr. Goding had submitted a treatment plan for an MRI study of Yadao's left knee under the August 27, 2010 injury. On August 28, 2012, DLNR denied Yadao"s request for an MRI study of his left knee. On August 29, 2012, Dr. Goding submitted a new treatment plan for an MRI study of Yadao's left knee under the March 17, 2011 injury. The plan was approved by the DLNR on October 10, 2012. Yadao underwent an MRI on his left knee on October 16, 2012. The October 16, 2012 MRI report was not included in the Motion to File After Trial. The LIRAB denied Yadao's Motion to File After Trial on December 7, 2012.
On March 1, 2013, LIRAB issued its Decision and Order. The LIRAB's Findings of Fact (FOFs) and Conclusions of Law (COLs) included, inter alia:
[FOF 25]: The Board finds that Employer has not presented substantial evidence to overcome the presumption of compensability with regard to the August 27, 2010 left knee chondromalacia patella work injury.
[FOF 26]: The Board finds that Claimant sustained a chondromalacia patella injury to his left knee as a result of the August 27, 2010 work ...