TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000383; CASE
NO. AB 2010-169 (2-08-4 6774))
Herbert R. Takahashi, and Rebecca L. Covert for petitioner
A. Brooke for respondents
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
Yoshii, a State of Hawai'i employee, was injured while he
was working for the University of Hawai'i (UH) Leeward
Community College (LCC). This appeal concerns Yoshii's
subsequent workers' compensation claim made against the
State and its insurance carrier, First Insurance Company of
was involved in an accident on the LCC premises approximately
one hour after he ended work for the day. An MRI of
Yoshii's knee revealed that he had torn his meniscus.
Yoshii's employer, UH, and its insurance carrier, First
Insurance (collectively "the State") denied
Yoshii's claim for compensation on the basis that his
injury was not work-related.
argues that pursuant to Hawai'i Revised Statutes (HRS)
§ 386-85,  the Labor and Industrial Relations Appeals
Board (LIRAB) was required to presume that Yoshii's knee
injury was work-related in the absence of substantial
evidence to the contrary. The LIRAB concluded that the State
had adduced substantial evidence sufficient to overcome the
presumption that Yoshii's knee injury was a covered
work-related injury. The Intermediate Court of Appeals
affirmed the LIRAB's decision and order.
issues in this case are very similar to our recent decision
in Panoke v. Reef Dev., in which we held that
"[t]he LIRAB erred in concluding that [Employer] adduced
substantial evidence sufficient to overcome the presumption
that Panoke's shoulder injuries were related to his . . .
work accident" and remanded to the LIRAB for further
proceedings. 136 Hawai'i 448, 468, 363 P.3d 296, 316
(2015). Similarly, we hold here that the LIRAB erred in
concluding that the State rebutted the presumption that
Yoshii suffered a compensable work injury. We therefore
vacate the ICA's judgment and the LIRAB's decision
and order, and remand to the LIRAB for further proceedings
consistent with this opinion.
Yoshii's work history and October 2008 leg
began working for Respondent/Employer-Appellant-Appellee
UH's LCC on August 1, 1995 as a "Cook II, " and
was still employed in that position on the date of his
alleged work-related injury on October 30, 2008. Yoshii's
job involved spending all day walking and standing on his
feet, and going up and down stairs to get pots, pans, and
kitchen utensils. Yoshii's work schedule in this position
was Monday through Friday, 6:00 a.m. to 2:30 p.m.
January 3, 2008, Yoshii's primary treating physician, Dr.
Luis J. Ragunton, treated Yoshii for "mild leg
edema" which Dr. Ragunton noted "maybe [sic]
accounting for some of [Yoshii's] leg pain." On
October 27, 2008, Dr. Ragunton's report stated that he
treated Yoshii for "pain in the right leg, " which
Yoshii stated occurred "shortly after getting off the
chair after watching a movie" the day before, on October
26. Yoshii later testified that the pain on this occasion was
in his calf. Dr. Ragunton proposed treating the edema with
furosemide tablets, a diuretic, to reduce swelling.
Ragunton's report regarding the October 27th visit does
not indicate that Yoshii was told to stay home from work, but
Yoshii testified that Dr. Ragunton told him to stay home for
two days, raise his leg, and stay off his feet. Yoshii also
testified that he stayed home for two days because "the
pain was intolerable."
testified that he returned to work on October 30, 2008 and
worked his full shift from 6:00 a.m. to 2:30 p.m. Yoshii also
stated that his leg felt better than it had during the prior
few days. After Yoshii finished work, as he was leaving the
premises and walking down some stairs on the loading dock, he
"planted [his] right foot, [and] there was a really
sharp pain." On the WC-5 form Yoshii submitted when
making his claim for compensation, Yoshii recorded that this
incident happened at 3:30 p.m. The State's WC-1
"report of industrial injury" form also recorded
the time of the injury as 3:30 p.m. At trial, Yoshii
confirmed that the injury occurred after his shift was over.
stated that the pain he experienced while walking down the
stairs on October 30, 2008 was "[n]o comparison" to
the pain he experienced the prior Sunday, when he hurt his
leg standing up after watching a movie, because the pain he
experienced on October 30, 2008 was "a really painful,
testified that after he felt the pain on October 30, he held
on to the wall and could not move for two or three minutes.
He then proceeded to the truck in which his wife was waiting
to pick him up, and had a hard time lifting his leg to get
into the truck. Yoshii testified that he then called his
supervisor, Travis Kono, and security to tell them what had
happened, and security told him to inform the human resources
(HR) department. Yoshii called HR, but no one answered. He
was only able to get in touch with someone in HR about one
same day as the incident, Yoshii went to the emergency room
at Pali Momi. The emergency room staff iced Yoshii's leg,
wrapped bandages around his calf and knee, and told him to
stay off his feet. The emergency room report, prepared by Dr.
Donald Wilcox, stated that Yoshii's chief complaint was a
"sore muscle" and described the history of
Yoshii's injury as follows:
The patient has a sore right leg for about 4 to 5 days. He
saw his doctor 4 days ago for this. He is not sure if he
strained it or exactly what but it is sore. He was placed on
a diuretic because of this. He states he is a short order
cook so he is on his feet all the time. It just feels achy.
It is achy on the lateral calf, not posteriorly and not
behind the knee, and it feels a little achy up to the thigh.
The foot feels a little sore and swollen too.
Wilcox noted that Yoshii's complaints "may just be
due to progressive edema" and advised Yoshii to continue
with the diuretic and to follow up with his doctor.
the October 30, 2008 incident, Yoshii did not return to work
for eight months.
Yoshii's filing of his worker's compensation claim
and treatment after the October 30, 2008 injury
November 3, 2008, Yoshii saw Dr. Ragunton for a follow up.
Dr. Ragunton's report for this visit stated:
"Patient comes in for an ER follow up. He re-injured his
calf on 10/30/08. . . . [H]e complains of continued pain to
the right calf area. Evaluation in the emergency room
revealed no significant pathology. The patient is concerned
of possible muscle injury since he stands all day at
work." Dr. Ragunton advised Yoshii to "keep his
legs elevated as much as possible" and to remain off
November 14, Yoshii returned to Dr. Ragunton, complaining
that his "right leg is still sore." Dr. Ragunton
advised Yoshii to continue taking furosemide tablets for
swelling, limit his fluid intake to prevent further edema,
and "remain off work until I reevaluate him in two
November 18, 2008, Yoshii filed a "report of work-
related injury" with his employer. Yoshii described the
incident as occurring on October 30, 2008 in the following
way: "Walking down the loading dock stairway and I
stepped 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 into our
vehicle." Yoshii noted his injury as "right calf
muscle strain." The supervisor's section of the form
was filled out by Travis Kono and stated that the
"injury occurred after scheduled work hour [sic],
outside of the kitchen walking down the stairs" and that
Yoshii was not performing his work duties when the injury
occurred because he was "off the clock."
November 24, 2008, December 8, 2008, and December 22, 2008,
Yoshii revisited Dr. Ragunton for follow up on his right leg
pain. At the December 22 visit, Dr. Ragunton referred Yoshii
to Dr. Calvin Oishi for "possible torn meniscus of right
December 29, 2008, Dr. Oishi saw Yoshii and ordered an MRI,
which showed "moderate knee effusion, moderate
chondromalacia of the tibiofemoral joint, lateral
patellofemoral joint as well as possible degenerative tear of
the medial meniscus." Yoshii had surgery on his knee on
January 17, 2009, for repairs to both medial and lateral
meniscus tears in his right knee. Five months after surgery,
Yoshii was referred to Dr. Alan Oki, a rheumatologist, who
noted that since the surgery Yoshii had shown
"substantial improvement" but that he still had
some "residual pain." On June 24, 2009, Dr. Oki
diagnosed Yoshii with "osteoarthritis of the right knee
with chondromalacia involving the medial femoral condyle and
patella" and noted that he "had both medial and
lateral meniscus tears which were successfully addressed by
February 18, 2009, First Insurance sent a letter to the
Director of the LIRAB (Director) stating that it had
concluded that "Yoshii did not suffer an injury arising
out of and in the course of employment with University of
Hawai'i." The letter further stated:
We base our denial of benefits on the [independent medical
examination] by Brian Mihara, MD dated 2/9/09.  Dr. Mihara
indicates no evidence in the medical records to suggest that
this was a work related trauma. This was a pre-existing
condition documented in the medical record dating back a
number of years.
First Insurance denied Yoshii's benefits, Yoshii filed a
WC-5 "employee's claim for workers' compensation
benefits" form with the Director. On the form, Yoshii
explained that the reason for the filing of the form was that
"claimant had insurance deny [sic] claim." Yoshii
described the accident as: "walking down loading dock
stair stepped on my right foot and felt sharp pain in my
leg" and his injury as: "torn ligament on right
knee both inside and outside."
Physicians' medical opinions regarding work-relatedness
of Yoshii's injury
months after the incident, on March 30, 2009, Dr. Ragunton
provided a medical statement regarding Yoshii's leg
injury. Dr. Ragunton stated:
Mr. Brian Yoshii was initially seen by me on October 27,
2008. This was 3 days prior to his injury at work. He had
reported leg pain when getting off a chair. At that time it
appeared that his leg pain was caused by leg swelling and
fluid retention. The patient was treated with diuretic
Mr. Yoshii was injured at work on October 30, 2008. He went
to the emergency room and on November 3, 2008 I saw him for
follow up. He reported that the emergency room evaluation
revealed no significant pathology. I am not sure if the
emergency room was advised that the patient hurt his knee at
work. At that time was [sic] concerned that the patient still
had a medical condition contributing to his knee and leg
pain. At that time an evaluation was started by myself. It
appeared that he had no evidence of deep venous thrombosis of
his lower extremity. I obtained a CT scan of the right leg
which revealed no phlebitis or clots. There was also no
evidence of any muscular tear. His medications were adjusted
and his symptoms of swelling and pain had improved. Upon
further follow-up however the patient reports that his upper
calf and knee still hurt. At that point I had referred him to
Dr. Calvin Oishi for further evaluation. He was found to have
a torn meniscus of the right knee. Since surgery was
performed in [sic] the patient going through physical
therapy, his symptoms of need [sic] and calf pain have
Because of his initial presentation being unclear, I did not
pursue a work related claim upon initial presentation.
However the patient feels certain that his knee pain and
subsequent torn meniscus was related to the injury at work on
October 27, 2008. I am in agreement with this because the
patient had no significant problems with his knee until after
his injury. I also excluded and treated medical causes for
pain and swelling of his right knee.
Ragunton also completed a WC-2 "physician's
report" on March 30, 2009 describing Yoshii's
October 30, 2008 accident, stating that Yoshii's injury
occurred on October 30, 2008, and that the accident was not
the only cause of Yoshii's injury because "initially
I thought [Yoshii's] condition may be related to
arthritis or swelling caused by medication or even deep vein
thrombosis but after treating these conditions pain in
R[ight] knee and calf persisted." Dr. Ragunton's
"final diagnosis" on this form was that Yoshii had
a "torn meniscus of right knee."
letter addressed to Yoshii's attorney dated March 5,
2010, Dr. Oishi stated that Yoshii first presented to him on
December 29, 2008 complaining of persistent knee pain. Dr.
Oishi obtained an MRI and then performed surgery to conduct a
"partial medial and lateral meniscectomy, as well as an
arthroscopic lateral release with chondromalacia
patella." Regarding the work-relatedness of Yoshii's
injuries, and his disability from work, Dr. Oishi stated:
The meniscus tear may have been caused by an injury at work
but the chondromalacia probably was not. I really have no
opinion regarding whether the patient suffered an injury at
work as it wasn't reported to me as such. But if I review
the records it would seem that the time line would be that he
had pain after injury. At least according to Dr.
Usually after arthroscopic surgery the patient would be
totally disabled for a month and then partially disabled
therefore [sic]. So for treatment you would have to assume
patient was totally disabled from 1/17/09 to 2/17/09 and then
from 2/17/09 to 8/27/09 the patient was partially disabled.
That would be the treatment period for treatment of his knee.
Mihara examined Yoshii on February 9, 2009 at the request of
First Insurance. After recounting Yoshii's medical
history, Dr. Mihara stated:
Claimant's diagnoses are:
a. Right calf and lower extremity discomfort, primarily
radicular in nature and not related to any work related
incident on 10/30/08. This preexisted the alleged 10/30/08
incident and the medical record does not suggest that there
was a work related injury or aggravation.
b. History of recent right knee arthroscopic surgery
performed by Dr. Calvin Oishi, reportedly for meniscal tears
of the right knee. The medical record does not suggest that a
meniscal tear or knee joint injury occurred on 10/30/08 at
c. History of preexisting mild lower back pain and occasional
right and left lower extremity radicular-type complaints
historically attributed to tendonitis and muscular pain. This
may indicate a nerve root problem, possibly from his back or
even a nerve problem related to diabetes.
d. History of preexisting right lower extremity edema,
etiology unclear. Scanning of the right lower extremity has
not revealed a source for the right lower extremity swelling.
This swelling may be contributing partially to his leg
The prognosis for the right calf pain and radicular
complaints is guarded, given the likelihood that this may
well be degenerative in nature or related to his diabetes.
Either way, this is not typically ...