FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-DEC-2022
07:56 AM
Dkt. 95 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---o0o---
JEROME C. PAVE, Claimant,
v.
PRODUCTION PROCESSING, INC., Employer-Appellee/Appellee,
and
GALLAGHER BASSETT SERVICES, INC., Insurance Carrier-Appellee/Appellee,
and
SPECIAL COMPENSATION FUND, Appellant/Appellant
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2015-011 (DCD No. 2-10-02936))
CLYDE A. DIAS, Claimant,
v.
ALTRES, INC., Employer-Appellant/Appellee,
and
HAWAII EMPLOYERS' MUTUAL INSURANCE COMPANY, Inc., Insurance
Carrier-Appellant/Appellee,
and
SPECIAL COMPENSATION FUND, Appellee/Appellant
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2014-387 (DCD No. 2-08-08354))
DECEMBER 22, 2022
LEONARD, PRESIDING JUDGE, HIRAOKA AND NAKASONE, JJ.
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
OPINION OF THE COURT BY HIRAOKA, J.
In each of these consolidated appeals, a person was
accidentally injured while working. Before being injured, the
person had an asymptomatic physical condition that contributed to
cause post-work-accident disability, but there was no evidence
that the preexisting condition had impaired the person's physical
functioning before the work accident. Each person was awarded
permanent partial disability (PPD) benefits under the Hawai#i
Workers' Compensation Law, Hawaii Revised Statutes (HRS)
Chapter 386. The Labor and Industrial Relations Appeals Board
(LIRAB or the Board) apportioned liability for PPD benefits to
the Special Compensation Fund (SCF). The issue in each appeal is
whether SCF is liable to pay a portion of the PPD award.1
We hold that SCF is not liable for PPD benefits if an
employee's preexisting "condition" did not cause a "disability" —
that is, "loss or impairment of a physical or mental function" —
before the employee's work accident. The record in each case
contains no evidence that the injured employee was physically
impaired before their work accident. In each case, at least one
doctor apportioned causation of post-work-accident disability to
a preexisting condition; but in neither case was there evidence
that the preexisting condition had caused a pre-work-accident
loss or impairment of physical or mental function. Accordingly,
in each appeal we reverse the decision and order issued by LIRAB.
BACKGROUND
The Hawai#i Workers' Compensation Law was enacted as a
humanitarian measure, to create legal liability for work injuries
without relation to fault. See Evanson v. Univ. of Haw., 52 Haw.
595, 598,
483 P.2d 187, 190 (1971). Such laws "represent a
socially enforced bargain: the employee giving up [their] right
1
The injured persons are not parties to these appeals and our
decision does not affect their rights to receive PPD benefits, or the amounts
of benefits to which they are entitled. Only the source of the benefits is at
issue.
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to recover common law damages from the employer in exchange for
the certainty of a statutory award for all work-connected
injuries."2 Id.
SCF is a trust fund administered by the State of
Hawai#i. HRS § 386-151(a) (2015). It is funded by annual levies
upon workers compensation insurers, HRS § 386-153 (2015), and
uninsured employers and self-insurance groups, HRS § 386-154
(2015). If an employer fails to pay workers compensation
benefits to an injured employee, SCF pays the benefits and
becomes subrogated to the injured employee's rights against the
employer. HRS § 386-56 (2015).
One benefit to which an injured worker may be entitled
is compensation for permanent partial disability, or PPD, under
HRS § 386-32(a) (Supp. 2007).3 "The purpose of a PPD award . . .
is to compensate a worker for the loss or impairment of a
physical or mental function." Ihara v. State Dep't of Land &
Nat. Res., 141 Hawai#i 36, 42, 404 P.3d 302, 308 (2017). "A PPD
award is payable to the worker even if the worker returns to
work, and the amount of the award derives from the extent of a
worker's impairment rather than [their] wage-earning capacity."
Id. (citing HRS § 386-32(a)).
SCF can become obligated to pay PPD benefits. HRS
§ 386-33 (Supp. 2007) provides, in relevant part:
Subsequent injuries that would increase disability.
(a) Where prior to any injury an employee suffers from a
previous permanent partial disability already existing prior
to the injury for which compensation is claimed, and the
2
Accordingly, apportionment-of-damages tort cases, see, e.g.,
Montalvo v. Lapez, 77 Hawai#i 282, 884 P.2d 345 (1994), do not apply to
workers compensation cases.
3
Permanent partial disabilities fall into two classes: scheduled
and unscheduled. Scheduled disabilities are those listed in HRS § 386-32(a);
unscheduled disabilities are those not listed. The statutory schedule lists
benefits to be paid for partial or complete loss of specific body parts or
functions. For loss or impairment of a body part or function that is not
scheduled, or not comparable to a scheduled loss or impairment, the PPD is
rated as a percentage of the total loss or impairment of a physical or mental
function of the whole person. Ihara v. State Dep't of Land & Nat. Res., 141
Hawai#i 36, 42-43, 43 n.5, 404 P.3d 302, 308-09, 309 n.5 (2017).
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disability resulting from the injury combines with the
previous disability, whether the previous permanent partial
disability was incurred during past or present periods of
employment, to result in a greater permanent partial
disability . . . then weekly benefits shall be paid as
follows:
(1) In cases where the disability resulting from the
injury combines with the previous disability to
result in greater permanent partial disability
the employer shall pay the employee compensation
for the employee's actual permanent partial
disability but for not more than one hundred
four weeks; the balance if any of compensation
payable to the employee for the employee's
actual permanent partial disability shall
thereafter be paid out of the special
compensation fund; provided that in successive
injury cases where the claimant's entire
permanent partial disability is due to more than
one compensable injury, the amount of the award
for the subsequent injury shall be offset by the
amount awarded for the prior compensable
injury[.]
. . . .
(b) Notwithstanding subsection (a), where the director or
the appellate board determines that the previous permanent partial
disability amounted to less than that necessary to support an
award of thirty-two weeks of compensation for permanent partial
disability, there shall be no liability on the special
compensation fund and the employer shall pay the employee . . .
full compensation for the employee's permanent partial . . .
disability[.]
(Emphasis added.) "Disability" is defined as "loss or impairment
of a physical or mental function." HRS § 386-1 (1993).
HRS § 386-33 potentially reduces an employer's
liability to pay PPD benefits for a work injury if the injured
employee had a loss or impairment of a physical or mental
function before the work injury at issue, and the preexisting
disability combined with the work injury to cause a greater
disability. In such cases, HRS § 386-33 envisions three
scenarios:
(1) if the preexisting loss or impairment of a
physical or mental function was the subject
of an award of PPD benefits, the amount of
those benefits is deducted from the PPD award
for the work injury at issue;
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(2) if the preexisting loss or impairment of a
physical or mental function was not the
subject of an award of PPD benefits, but
would have supported an award of at least
thirty-two weeks of compensation for PPD, the
employer's PPD liability is capped at one
hundred four weeks, and SCF is liable to pay
any remaining PPD benefits; or
(3) if the preexisting loss or impairment of a
physical or mental function was not the
subject of an award of PPD benefits, and
would not have supported an award of
thirty-two weeks of compensation for PPD, the
employer is liable for the full amount of PPD
benefits.
Under any of these scenarios, HRS § 386-33 is triggered
if, when the work accident happened, the injured employee already
had a loss or impairment of a physical or mental function that,
combined with additional loss or impairment of the same physical
or mental function caused by the work accident, resulted in a
greater post-work-accident loss or impairment of the physical or
mental function. See Bumanglag v. Oahu Sugar Co., 78 Hawai#i
275, 280, 892 P.2d 468, 473 (1995).
The Pave Case
On March 19, 2010, Claimant Jerome Pave injured his
neck while working for Employer-Appellee/Appellee Production
Processing, Inc. The employer reported the accident to the
Hawai#i Department of Labor and Industrial Relations (DLIR) and
claimed apportionment with SCF.
DLIR's disability compensation division (DCD) found
that Pave "suffered 34% PPD of the whole person for the neck" and
held his employer liable for the first 104 weeks of the PPD
award, with the remainder to be paid by SCF.
SCF appealed to LIRAB. The sole issue on appeal was
whether any PPD liability should be apportioned to SCF. LIRAB
issued a decision and order on July 27, 2017, affirming the DCD
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decision. SCF appealed, resulting in CAAP-XX-XXXXXXX (the Pave
Appeal).
The Dias Case
On June 4, 2008, Claimant Clyde Dias accidentally
injured his right knee while working for Employer-Appellant/Appellee Altres, Inc. The employer reported the
accident to DLIR and claimed apportionment with SCF.
DCD found that Dias "sustained 45% PPD of the right
leg" and held his employer liable for the first 104 weeks of the
PPD award, with the remainder to be paid by SCF. SCF requested
reconsideration. Reconsideration was granted. DCD issued an
amended decision holding the employer solely liable for PPD
benefits and denying the employer's claim for contribution from
SCF.
The employer appealed to LIRAB. The sole issue on
appeal was whether any PPD liability should be apportioned to
SCF. LIRAB issued a decision and order on November 30, 2017,
reversing the amended DCD decision. LIRAB concluded that
liability for Dias's PPD benefits should be apportioned between
the employer and SCF. SCF filed a timely notice of appeal,
resulting in CAAP-XX-XXXXXXX (the Dias Appeal).
POINTS OF ERROR
In the Pave Appeal, SCF challenges LIRAB's findings of
fact (FOF) nos. 17, 27, 39, 40, 41, 42, 43, and 44; and four of
LIRAB's conclusions of law, which were not numbered by LIRAB.
In the Dias Appeal, SCF challenges LIRAB's FOF nos. 4,
5, 6, 7, 9, 10, 11, 12, and 14; and LIRAB's conclusion of law
(COL) no. 1.
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STANDARDS OF REVIEW
LIRAB Decisions
"Appellate review of a LIRAB decision is governed by
the provisions of the Hawai#i Administrative Procedure Act
relating to judicial review of agency action." Ihara, 141
Hawai#i at 41, 404 P.3d at 307 (citations omitted). The Act
provides, in relevant part:
Upon review of the record, the court may affirm the decision
of the agency or remand the case with instructions for
further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the
petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory
provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted
exercise of discretion.
HRS § 91-14(g) (Supp. 2021).
Findings of Fact and Conclusions of Law
LIRAB's label of a finding of fact or a conclusion of
law does not determine the standard of review. City & Cnty. of
Honolulu v. Honolulu Police Comm'n, 151 Hawai#i 56, 62, 508 P.3d
851, 857 (App. 2022) (citing Crosby v. State Dep't of Budget &
Fin., 76 Hawai#i 332, 340,
876 P.2d 1300, 1308 (1994)). "The
question whether an agency's determination is a finding of fact
or a conclusion of law is a question of law. Thus, the accuracy
of the label affixed by the agency is freely reviewable by
reviewing courts." Kilauea Neighborhood Ass'n v. Land Use
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Comm'n, 7 Haw. App. 227, 229,
751 P.2d 1031, 1034 (1988)
(citation omitted).
Findings of fact are reviewed under the clearly
erroneous standard. HRS § 91-14(g)(5); Del Monte Fresh Produce
(Haw.), Inc. v. International Longshore & Warehouse Union, Local
142, 128 Hawai#i 289, 302, 287 P.3d 190, 203 (2012). A finding
of fact is clearly erroneous when the record lacks substantial
evidence to support the finding or when, despite substantial
evidence to support the finding, we are left with a definite and
firm conviction that a mistake has been committed. Est. of Klink
ex rel. Klink v. State, 113 Hawai#i 332, 351,
152 P.3d 504, 523
(2007). "Substantial evidence" is "credible evidence which is of
sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion."
Id. (citations
omitted). When reviewing findings of fact, however, we "cannot
consider the weight of the evidence to ascertain whether it
weighs in favor of the administrative findings, or review the
agency's findings of fact by passing upon the credibility of
witnesses or conflicts in testimony, especially the finding of an
expert agency in dealing with a specialized field." Sierra Club
v. D.R. Horton-Schuler Homes, LLC, 136 Hawai#i 505, 522,
364 P.3d
213, 230 (2015) (cleaned up).
Conclusions of law are reviewed de novo under the
right/wrong standard. HRS § 91-14(g)(1), (2), (4); Ihara, 141
Hawai#i at 41, 404 P.3d at 307 (citation omitted). When a
conclusion of law presents mixed questions of fact and law, we
review it under the clearly erroneous standard because LIRAB's
conclusions are dependent on the facts and circumstances of each
individual case, Klink, 113 Hawai#i at 351, 152 P.3d at 523,
while giving deference to the agency's expertise and experience
in the particular field and not substituting our own judgment for
that of the agency, Ihara, 141 Hawai#i at 41, 404 P.3d at 307.
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Statutory Interpretation
Interpretation of a statute is a question of law
reviewed de novo under the right/wrong standard. Cabatbat v.
Cnty. of Haw., Dep't of Water Supply, 103 Hawai#i 1, 6, 78 P.3d
756, 761 (2003), as corrected (Dec. 8, 2003). "[T]he fundamental
starting point of statutory interpretation is the language of the
statute itself. Where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain and
obvious meaning." Priceline.com, Inc. v. Dir. of Tax'n, 144
Hawai#i 72, 87,
436 P.3d 1155, 1170 (2019) (cleaned up).
"The general principles of construction which apply to
statutes also apply to administrative rules. As in statutory
construction, courts look first at an administrative rule's
language. Thus, . . . the interpretation of a[n administrative]
rule presents a question of law . . . [reviewed] under the
right/wrong standard." Cabatbat, 103 Hawai#i at 6, 78 P.3d at
761 (cleaned up).
DISCUSSION
An employer seeking to obtain contribution from SCF for
PPD benefits under HRS § 386-33 must prove that: (1) the injured
employee suffered from a preexisting permanent partial
disability; (2) the preexisting permanent partial disability
would support an award of thirty-two weeks of PPD benefits; and
(3) the preexisting permanent partial disability and the
subsequent work-related injury combined to cause a greater
present permanent partial disability. Bumanglag, 78 Hawai#i at
280, 892 P.2d at 473. "Disability" is defined as "loss or
impairment of a physical or mental function." HRS § 386-1.
Hawaii Administrative Rules (HAR) § 12-10-28 requires
that "[t]he extent of medical impairment preexisting the work
injury[] shall be assessed by a physician pursuant to section
12-10-21(a)." HAR § 12-10-21(a) states: "Impairment rating
guides issued by the American Medical Association, American
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Academy of Orthopedic Surgeons, and any other such guides which
the director [of the Department of Labor and Industrial
Relations] deems appropriate and proper may be used as a
reference or guide in measuring a disability." Thus, "initial
PPD ratings for unscheduled injuries are typically provided by
medical experts using rating categories outlined in the various
editions of the American Medical Association's Guides to the
Evaluation of Permanent Impairment (AMA Guides), and then the
LIRAB may add additional percentage points depending on the
magnitude of the impairment rating." Ihara, 141 Hawai#i at 43,
404 P.3d at 309 (citing HAR § 12-10-21(a)). LIRAB decides the
final PPD rating. Id. (citing Cabatbat, 103 Hawai#i at 9, 78
P.3d at 764).
The Pave Appeal
Pave's neck injury was evaluated by doctors Peter Lum,4
Christopher Brigham,5 Lorne Direnfeld, and Clifford Lau,6 among
others. The following findings of fact by LIRAB are unchallenged
and binding on appeal. See Okada Trucking Co. v. Bd. of Water
Supply, 97 Hawai#i 450, 459, 40 P.3d 73, 82 (2002).
1. [Pave] was injured on March 19, 2010, while
working at Makaha on Oahu as a water safety person for
Employer, a media services company engaged in film
production.
2. At the time of the March 19, 2010 injury, [Pave]
was in the ocean, in six to eight feet of surf, moving a 60-
pound camera mounted on a surfboard for Employer, when he
dove beneath the surfboard to avoid an incoming wave. The
surfboard struck his head.
3. On March 19, 2010, [Pave] was hospitalized after
he was pulled to shore by a co-worker because he was unable
to move his extremities. He regained movement while being
transported to the emergency room. After emergency
4
Dr. Lum was Pave's treating physiatrist.
5
Dr. Brigham reviewed Pave's pre- and post-work-accident medical
records and examined Pave on behalf of SCF.
6
Drs. Direnfeld and Lau reviewed Pave's post-work-accident medical
records and examined Pave on behalf of Pave's employer.
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treatment at the Waianae Coast Comprehensive Health Center,
[Pave] was transferred to Kaiser Permanente at Moanalua
(Kaiser).
4. On March 19, 2010, Kaiser Emergency Department
physician Ben Kulia, M.D.'s impression of [Pave]'s injury
was of a cervical cord contusion. Neurologic examination
revealed some hypesthesia[7] to both upper arms on the
triceps and biceps.
5. A[n] MRI of [Pave]'s cervical spine done on
March 20, 2010, revealed a congenitally narrow spinal canal,
superimposed cervical disc protrusions at C3-4 and C4-5
causing mild spinal stenosis,[8] and a large central disc
protrusion at C5-6 causing severe spinal stenosis and
compressing the spinal cord. . . .
6. On March 20, 2010, Jaelene Yates, M.D. noted in
a Kaiser discharge summary that on March 19, 2010, [Pave]
had a "[c]ervical spine contusion[9] in the setting of a
preexisting spinal stenosis." . . . Dr. Yates also noted
that [Pave] had not seen a physician in several years and
had been in good health prior to the March 19, 2010 work
injury.
. . . .
9. On September 14, 2010 . . . , neurologist Lorne
Direnfeld, M.D. examined [Pave] at Employer's request,
reviewed [Pave]'s medical records, and gave the following
diagnoses in his September 17, 2010 report: cervical
myelopathy[10] (problems with spinal cord function at neck
level), cervical spondylosis[11] (age-related, genetically
influenced degenerative disc and joint changes in the
cervical spine) . . . .
10. Dr. Direnfeld reported that, on examination,
[Pave] complained of burning pain in his arms and numbness
in his upper body with neck movement. [Pave] experienced an
7
"Hypesthesia" means "impaired or decreased tactile sensibility[.]"
Hypesthesia, Merriam-Webster, https://www.merriam-webster.com/medical/hypesthesia (last visited Dec. 14, 2022).
8
"Stenosis" means "a narrowing or constriction of the diameter of a
bodily passage or orifice[.]" Stenosis, Merriam-Webster, https://www.merriam-webster.com/dictionary/stenosis (last updated Dec. 11, 2022).
9
"Contusion" means "injury to tissue usually without laceration[.]"
Contusion, Merriam-Webster, https://www.merriam-webster.com/dictionary/contusion (last updated Dec. 9, 2022).
10
"Myelopathy" means "a disease or disorder of the spinal cord or
bone marrow." Myelopathy, Merriam-Webster, https://www.merriam-webster.com/dictionary/myelopathy (last visited Dec. 14, 2022).
11
"Spondylosis" means "any of various degenerative diseases of the
spine." Spondylosis, Merrian-Webster, https://www.merriam-webster.com/medical/spondylosis (last visited Dec. 14, 2022).
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occasional needle sensation in both hands and stiffness in
the morning. [Pave] also reported bowel and bladder control
problems and difficulty with sexual function.
11. Dr. Direnfeld noted that prior to the March 19,
2010 work injury, [Pave] did not have symptoms of cervical
myelopathy. Dr. Direnfeld opined that [Pave]'s primary
diagnosis of cervical myelopathy was the result of a
combination of factors, including the March 19, 2010 work
injury and the pre-existing cervical spondylosis.
12. Dr. Direnfeld assessed [Pave] as having 22%
whole person ("WP") permanent impairment, pursuant to the
American Medical Association's Guides to the Evaluation of
Permanent Impairment, Fifth Edition ("AMA Guides"), using
Table 15-6, Rating Corticospinal Tract Impairment, to
measure neurological impairment of the neck (15% WP
impairment) and using Table 15-5, Criteria for Rating
Impairment Due to Cervical Disorders (DRE estimates), to
obtain a DRE rating of the neck (8% WP impairment).
13. Dr. Direnfeld then combined the two impairment
ratings, and apportioned one-half or 50% (11% WP permanent
impairment) to [Pave]'s preexisting condition of cervical
spondylosis and 50% (11% WP permanent impairment) to the
effects of the March 19, 2010 work injury.
. . . .
18. On January 28, 2011, [Pave's treating
physiatrist] Dr. Lum noted in his progress notes that [Pave]
"denies having similar complaints or injury to the same body
parts in the past."
. . . .
21. On March 13, 2013, at Employer's request, [Pave]
was examined by orthopedic surgeon Clifford Lau, M.D. . . .
22. After examining [Pave] and reviewing the medical
records, Dr. Lau's impression was:
1. Status post anterior cervical
discectomy and fusion using hardware for
cervical disk protrusion with cervical
cord myelopathy with underlying
preexisting cervical spondylosis.
. . . .
24. Dr. Lau rated [Pave] at 25% WP permanent
impairment of the cervical spine according to the AMA Guides
DRE cervical category IV (for a cervical fusion causing loss
of movement and joint space), and 7% impairment of the upper
extremity for the cervical cord. Combining these ratings,
using the combination table of the AMA Guides, Dr. Lau rated
[Pave]'s neck/cervical spine at 30% WP impairment.
. . . .
26. Dr. Lau opined that he agreed with
Dr. Direnfeld's apportionment of [Pave]'s WP impairment with
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the underlying degenerative condition of the cervical spine
due to the congenital narrowing of the cervical spine plus
[Pave]'s metabolic problems and diabetes. Dr. Lau would
assign 50% of [Pave]'s WP impairment (equal to 15% WP) to
preexisting causes (cervical spondylosis, cervical stenosis
and [Pave]'s untreated medical problems) and 50% (or 15% WP)
to the March 19, 2010 work injury.
. . . .
29. At his oral deposition on April 1, 2015, [Pave]
testified that other than a tennis elbow condition during
his early twenties, tendinitis of the left wrist while
working for a previous employer, and a knee and low back
injury twenty years earlier, for which he received
chiropractic treatment, he only went to the doctor for
things like flu shots prior to the March 19, 2010 work
injury. Before the work injury, [Pave] actively engaged in
mountain biking, surfing, diving, playing a guitar and
driving. He could perform all activities of daily living.
30. [Pave] also testified that before the March 19,
2010 work injury, he never had an injury to his head, neck,
and thoracic region or any restricted motion in his neck or
arms. He had never sought treatment for his neck, or had a
neck x-ray, range of motion study or imaging study prior to
the 2010 work injury.
31. Occupational medicine specialist Christopher
Brigham, M.D. performed a records review. In an August 21,
2015 report, Dr. Brigham opined that [Pave] sustained an
acute spinal cord contusion with probable central cord
syndrome, a traumatic injury to the cervical spine from a
forceful hyperextension neck injury with prior degenerative
spinal column disease, resulting in more extensive motor
weakness in the upper extremities than in the lower
extremities.
32. Dr. Brigham noted that [Pave] "had pre-existing
cervical degenerative disease with spinal stenosis at C5-C6;
however this diagnosis had not been made prior to the
March 19, 2010 injury, and [prior to the work injury] he had
not [sic] subjective complaints or objective findings of any
functional difficulties or impairment." Dr. Brigham stated
that degenerative findings alone (from imaging studies)
would not be a basis for rating impairment because
degenerative changes are commonly seen in asymptomatic
individuals.
33. Dr. Brigham opined that Dr. Direnfeld's and
Dr. Lau's 50/50 apportionment assessments of [Pave]'s
permanent impairment for the cervical condition were not
consistent with how permanent impairment was to be
attributed to a work injury and to pre-existing status,
pursuant to the AMA Guides. Dr. Brigham commented that
Dr. Direnfeld had opined that both pre-existing factors and
the work injury contributed to [Pave]'s impairment and then
simply allocated equal weight to each. However,
Dr. Direnfeld did not analyze what [Pave]'s permanent
impairment would have been on the day prior to the work
injury.
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(Emphasis added.)12
SCF challenges a number of LIRAB's findings of fact.
LIRAB found (the portions specifically challenged by SCF are
underscored):
17. On December 28, 2010, [Pave]'s treating
physician Dr. Lum reported that he agreed with
Dr. Direnfeld's assessment of 22% WP permanent impairment
for [Pave]'s work injury, but he disagreed with
Dr. Direnfeld's apportionment rating "because [Pave's]
impairment prior to the injury was 0% whole man." Dr. Lum
provided no explanation for his opinion that [Pave] had no
preexisting WP impairment.
LIRAB's own findings contradict FOF no. 17. FOF no. 18
states, in relevant part: "Dr. Lum noted in his progress notes
that [Pave] 'denies having similar complaints or injury to the
same body parts in the past.'" LIRAB's finding that "Dr. Lum
provided no explanation for his opinion that [Pave] had no
preexisting WP impairment" was clearly erroneous; Dr. Lum's
explanation was that Pave did not complain about his neck before
his work accident.
LIRAB found:
27. On May 15, 2013, Dr. Lum reported that he agreed
with the impairment rating by Dr. Lau but not with the
apportionment because [Pave] "had no previous history of
[sic] spinal cord injury" and "no known preexisting
impairment prior to the injury therefore the rating should
not be apportioned." Dr. Lum did not mention [Pave]'s
pre-existing asymptomatic neck/cervical spine condition.
Dr. Lum was Pave's treating physiatrist; his progress
notes mention that Pave was diagnosed with "stenosis of cervical
spine [with] myelopathy" after his work injury, and that Pave
denied "having similar complaint or injury to the same body parts
in the past." The finding that Dr. Lum did not mention Pave's
preexisting condition was not clearly erroneous, but is
irrelevant to the issue presented by this appeal. As we explain
below, for purposes of HRS § 386-33 there is a distinction
12
In FOF no. 32, the insertion of "[sic]" and the brackets around
"prior to the work injury" were by LIRAB.
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
between an asymptomatic preexisting condition and a preexisting
disability — that is, "loss or impairment of a physical or mental
function." Therefore, what is relevant is Dr. Lum's report that
Pave had no neck impairment before his work accident. Dr. Lum's
opinion on apportionment was not based upon Pave having no
preexisting condition; it was based upon Pave having no history
of neck impairment before his work accident.
LIRAB found:
39. The Board finds that a determination of the
extent of preexisting PPD is a legal question to be
determined by the Director [of Labor and Industrial
Relations] or the Board, upon consideration of all the
evidence, including the medical records and testimony in the
record.
FOF no. 39 is actually a conclusion of law; it is not
wrong. Under the DLIR workers compensation administrative rules,
"[t]he extent of medical impairment preexisting the work injury[]
shall be assessed by a physician[,]" HAR § 12-10-28, using the
American Medical Association's Guides to the Evaluation of
Permanent Impairment (AMA Guides) "and any other such guides
which the director [of labor and industrial relations] deems
appropriate and proper[,]" HAR § 12-10-21(a). But "[i]t is . . .
ultimately the director of the Department of Labor and Industrial
Relations [through the DCD] or the Board, and not the physician,
that decides the final PPD rating." Ihara, 141 Hawai#i at 43,
404 P.3d at 309 (citing Cabatbat, 103 Hawai#i at 9, 78 P.3d at
764). However, LIRAB's finding that a claimant had a preexisting
disability must be based upon some evidence in the record showing
that the claimant had an actual loss or impairment of a physical
or mental function before the work accident.
LIRAB found:
40. In this case, based upon the opinions of
Drs. Direnfeld, Lau and Brigham that [Pave] had significant
pre-existing cervical conditions that contributed to his
post[-]injury impairment, the Board finds that
apportionment, based on the application of the
clinical/pathological judgment of the rating physician, in
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
the absence of an impairment rating prior to the work
injury, is appropriate.
41. The Board finds that in this case, with evidence
of significant pre-existing conditions in the medical
records, the clinical judgment method of assessing
apportionment employed by Drs. Direnfeld and Lau is
reasonable for determining the extent of medical impairment
pre-existing the work injury.
42. The Board credits Dr. Direnfeld's and Dr. Lau's
apportionment methodology allocating equal weight to pre-existing factors and to the work injury where measurements
of [Pave]'s neck impairment were not available prior to the
March 19, 2010 industrial accident.
43. Applying Dr. Lau's apportionment of 50% of
permanent impairment of [Pave]'s neck/cervical spine results
in 119.5351 weeks of compensation (15% x 312 weeks at the
maximum compensation rate for 2010 = 119.5351 weeks) for 15%
pre-existing PPD.
44. Based upon Dr. Direnfeld's and Dr. Lau's
clinical judgment of apportionment, the Board finds that
Employer has produced sufficient evidence to establish the
statutory 32-week compensation threshold of previous PPD
necessary for SCF liability.
(Emphasis added) (footnotes omitted). These combined findings of
fact and conclusions of law are clearly erroneous.
There is no dispute that Pave had spinal stenosis and
cervical spondylosis before his work accident. But there is also
no dispute that Pave had not seen a physician in several years
and was in good health with no impairment of his neck function
before his work accident. Dr. Direnfeld noted that before the
March 19, 2010 work accident, Pave did not have symptoms of
cervical myelopathy. Pave testified that other than a tennis
elbow condition during his early twenties, left wrist tendinitis
while working for a previous employer, and a knee and low-back
injury twenty years earlier, for which he received chiropractic
treatment, he only went to the doctor for things like flu shots
before his work injury. He could perform all activities of daily
living and actively mountain biked, surfed, dived, played guitar,
and drove. He had never injured his head, neck, or thoracic
region or had any restricted motion in his neck or arms before
his work accident. He had never sought treatment for his neck,
or had a neck x-ray, range of motion study, or imaging study
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
before his work injury. LIRAB recognized that "measurements of
[Pave]'s neck impairment were not available prior to the
March 19, 2010 industrial accident" and that "no evaluation for
rating permanent impairment was conducted before [Pave]'s
March 19, 2010 work injury."
After his work accident, Pave "complained of burning
pain in his arms and numbness in his upper body with neck
movement[,] . . . occasional needle sensation in both hands and
stiffness in the morning[, and] . . . bowel and bladder control
problems and difficulty with sexual function." Pave's treating
physiatrist noted that Pave "denies having similar complaints or
injury to the same body parts in the past." The record contains
no evidence that Pave experienced any "disability" — defined as
"loss or impairment of a physical or mental function" by HRS
§ 386-1 — because both of his preexisting conditions were
asymptomatic before the work accident.
LIRAB relied upon the opinions of Drs. Direnfeld and
Lau, both of whom apportioned 50% causation of Pave's work injury
to physical conditions that preexisted the work accident, and 50%
to his work accident. But Dr. Direnfeld also "noted that prior
to the March 19, 2010 work injury, [Pave] did not have symptoms
of cervical myelopathy." LIRAB noted (in unchallenged findings):
14. In his September 17, 2010 report, Dr. Direnfeld
explained that apportionment applied to [Pave]'s impairment
rating because in the absence of pre-existing cervical
spondylolysis[13] it was improbable that [Pave] would have
developed signs and symptoms of cervical myelopathy as a
result of the March 19, 2010 work injury. Dr. Direnfeld
referred to Section 1.6b on page 11 of the AMA Guides, which
discusses apportionment analysis as follows:
Apportionment analysis in workers'
compensation represents a distribution or
allocation of causation among multiple
factors that caused or significantly
contributed to the injury or disease and
resulting impairment. The factor could be
13
"Spondylolysis" means "disintegration or dissolution of a
vertebra[.]" Spondylolysis, Merriam-Webster, https://www.merriam-webster.com/medical/spondylolysis (last visited Dec. 15, 2022).
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
a pre-existing injury, illness, or
impairment[.]
15. Dr. Direnfeld noted that before determining
apportionment, pursuant to Section 1.6b, the physician must
verify that all of the following are true:
1. There is current documentation of a
prior factor.
2. The current permanent impairment is
greater as a result of the prior factor
(i.e. prior impairment, prior injury, or
illness).
3. There is evidence indicating the prior
factor caused or contributed to the
impairment based on reasonable probability
(greater than 50% likelihood).
(Reformatted) (emphasis added). Thus, Dr. Direnfeld apportioned
50% of the causation for Pave's post-work-accident disability to
a preexisting condition. But Dr. Direnfeld gave no opinion that
Pave's preexisting condition caused a disability — loss or
impairment of a physical or mental function — before Pave's work
accident. Nor did Dr. Lau, or any other physician involved in
Pave's care or case, give such opinions. The only opinion about
Pave's disability, or lack thereof, before his work accident was
given by Dr. Brigham, who stated:
Degenerative findings alone would not serve as the basis for
rating impairment. Degenerative changes [such as
spondylosis and spondylolysis] are commonly seen among
asymptomatic individuals. The [AMA] Guides explain on page
383:
The [Diagnosis-Related Estimates (DRE)] method
recommends that physicians document physiologic and
structural impairments relating to injuries or
diseases other than common developmental findings,
such as: 1) spondylolysis, found normally in 7% of
adults; 2) spondylolisthesis, found in 3% of adults;
3) herniated disk without rediculopathy, found in
approximately 30% of individuals by age 40 years; and
4) aging changes, present in 40% of adults after age
35 years and in almost all individuals after age 50.
As previously noted, the presence of these
abnormalities on imaging studies does not necessarily
mean the individual has an impairment due to an
injury. (5th ed., 383)
. . . .
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
In summary, the day prior to the injury Mr. Pave would meet the
definition of a DRE Cervical Category I in Table 15-5 (5th ed.,
392):
No significant clinical findings, no observed muscle
guarding or spasm, no documentable neurologic
impairment, no documented alteration in structural
integrity, and no other indication of impairment
related to injury or illness: no fractures.
This is associated with no impairment; i.e., his pre-existing impairment is 0%.
(Emphasis added.) The record contains no evidence — objective,
subjective, or anecdotal — that would support a contrary opinion.
Accordingly, it was clear error and wrong for LIRAB to apportion
liability to SCF.
SCF challenges the following conclusion of law by
LIRAB:
The opinions of both of the examining/rating
physicians in this case are consistent with the principle
enunciated in Flores v. City and County of Honolulu,
Department of Parks and Recreation, 67 Haw. 663 (1985), that
a preexisting, asymptomatic degenerative condition can
constitute a ratable impairment for apportionment purposes.
The conclusion correctly states the holding of Flores
v. City & Cnty. of Honolulu, 67 Haw. 663,
701 P.2d 1282 (1985),
superseded in part by statute, 1982 Haw. Sess. Laws Act 93, § 1
at 127-28, as recognized in Bumanglag, 78 Hawai#i at 280 n.3,
892
P.2d at 473 n.3.
The plaintiff in Flores had a heart attack in 1979,
while working for the City. He had no previous cardiac history,
but his physician reported that he had preexisting asymptomatic
arteriosclerosis.14 The DCD determined that Flores was totally
and permanently disabled, and the City was liable to pay him
workers compensation benefits. The City appealed to LIRAB, and
joined SCF as a party. LIRAB determined that Flores was totally
and permanently disabled, apportioned 20% of the disability to
14
"Arteriosclerosis" is "a chronic disease characterized by abnormal
thickening and hardening of the arterial walls with resulting loss of
elasticity[.]" Arteriosclerosis, Merriam-Webster, https://www.merriam-webster.com/dictionary/arteriosclerosis (last updated Dec. 12, 2022).
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
the City (based upon a physician's opinion), and held SCF
responsible for the remainder of the compensation benefits. 67
Haw. at 664-66,
701 P.2d at 1283-85. SCF appealed.
The supreme court, applying the version of HRS § 386-33
in effect when Flores had his heart attack, Flores, 67 Haw. at
666-67,
701 P.2d at 1285, affirmed. The court stated that
Flores's "heart condition was a permanent partial disability that
preexisted his employment although it was in an asymptomatic
form[,]"
id. at 669,
701 P.2d at 1286, and held that "[t]he
pre-employment manifestation of a previous injury is not required
before apportionment with the SCF can be made[,]"
id. at 670,
701
P.2d at 1287. In so holding, the supreme court stated:
some states have required by legislation that preexisting
injuries be registered with the commission administering the
second injury fund. The legislature, in time, may find it
feasible to adopt a similar approach for Hawaii. Or it may
prefer to explicitly require previous injuries to be
manifest.
Id. at 669-70,
701 P.2d at 1287 (footnote omitted).
HRS § 386-33 was amended in 1982 to add the thirty-two
week threshold requirement in subsection (b). Thus, the
legislature explicitly required that a preexisting condition
manifest itself in "loss or impairment of a physical or mental
function" that would "support an award of thirty-two weeks of
compensation for permanent partial disability" before SCF would
become liable to pay PPD benefits.
In Bumanglag, which was decided after the 1982
amendment, the supreme court noted:
Employer and Adjuster cite Flores v. City and County
of Honolulu, 67 Haw. 663,
701 P.2d 1282 (1985), to support
their argument that the mere fact that a previous disability
or condition is asymptomatic before the work injury does not
preclude apportionment with the SCF. However, Flores was
decided under HRS § 386–33 prior to the 1982 amendments
which introduced the thirty-two week threshold requirement.
The purpose of the threshold was "to significantly reduce
the total number of cases in which the [SCF] is required to
participate," Sen.Stand.Comm.Rep.No. 215, in 1982 Senate
Journal, at 1041, by precluding any apportionment with the
SCF in which the preexisting permanent partial disability
does not reach the required threshold amount.
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Bumanglag, 78 Hawai#i at 280 n.3, 892 P.2d at 473 n.3.15 Thus,
"[s]ubsection (b) of HRS § 386–33 authorizes the director or the
appellate board to apportion liability with SCF if the Director
or Board determines that the previous permanent partial
disability amounted to an award of thirty-two weeks of
compensation." Id. at 280,
892 P.2d at 473.
The claimant in Bumanglag had "no prior history of back
pain or injuries" until a 1985 work accident. 78 Hawai#i at 277-
78, 892 P.2d at 470-71. The physician who reported the negative
history initially apportioned 100% of Bumanglag's injury to his
work accident "based upon reasonable medical probability and the
AMA Guide." Id. at 278,
892 P.2d at 471. But the physician
changed his opinion "and took a new position that 20 to 25
percent of [Bumanglag]'s overall impairment after the accident
was attributable to [Bumanglag]'s preexisting congenital
defects." Id. at 280,
892 P.2d at 473. The changed opinion was
not based on the AMA Guide but on the physician's "own 'best
guess.'"
Id. LIRAB decided:
Even if we were to accept Dr. Hendrickson's opinion as to
[Bumanglag]'s preexisting impairment for his low back
condition, and apply it to the highest permanent impairment
rating for the lumber region (11% of the whole person), 20
to 25% of 11% would provide, at most, 2.75% preexisting
permanent partial disability of the whole person. Permanent
partial disability of 2.75% of the whole person is equal to
10.71 weeks of compensation . . . . It has not been shown
that [Bumanglag] has a preexisting permanent partial
disability of 32 weeks of compensation necessary to warrant
apportionment with SCF.
Id. at 278, 892 P.2d at 471 (emphasis added). The supreme court
affirmed. But the court did not reaffirm Flores. Bumanglag
stands for the proposition that a preexisting disability must
support an award of at least thirty-two weeks of PPD compensation
before liability can be apportioned to SCF under HRS § 386-33(b).
15
"Even when the meaning of a law is apparent on its face,
legislative history may be used to confirm the court's interpretation of a
statute's plain language." Priceline.com, Inc., 144 Hawai#i at 88, 436 P.3d
at 1171 (cleaned up).
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See id. at 280, 892 P.2d at 473. As we noted above, the plain
statutory language requires that a "disability" supporting an
award of thirty-two weeks of PPD benefits must involve "loss or
impairment of a physical or mental function." HRS § 386-1; see
Ihara, 141 Hawai#i at 42, 404 P.3d at 308 ("The purpose of a PPD
award . . . is to compensate a worker for the loss or impairment
of a physical or mental function."). In any event, the
proposition for which LIRAB cited Flores was abrogated by the
1982 amendment to HRS § 386-33. Bumanglag, 78 Hawai#i at 280
n.3, 892 P.2d at 473 n.3.
SCF also challenges the following conclusions of law by
LIRAB:
The extent to which a claimant may be awarded an
amount for PPD is different from a medical impairment
rating, because the extent of PPD for a work injury, and
prior PPD are legal, not medical, determinations.
Thus, while the SCF in this case would rely on the AMA
Guides for rating purposes, supported by Dr. Brigham's
opinion, and while the AMA Guides can be a helpful tool in
determining disability, the Board is not bound by them.
Cababat [sic] v. County of Hawaii, Dept. of Water Supply,
103 Hawai#i 1, 6 (2003).[16] In the instant case, the Board
concludes that [Pave] had significant pre-existing
disability in terms of congenital and degenerative
conditions of the cervical spine, capable of supporting an
award of 32 weeks of permanent disability, which combined
with the work injury to the cervical spine resulted in
greater disability than for the work injury alone.
Given the foregoing, the Board concludes that
permanent disability should be apportioned between the
Employer/Insurance Carrier and the SCF.
Given the foregoing, the Board concludes that
104 weeks of PPD should be paid by Employer/Insurance
Carrier, with the balance of [Pave]'s PPD, stipulated to by
the parties, payable to [Pave] by the SCF.
(Emphasis added.)
16
In Cabatbat, the supreme court held that HAR § 12–10–21 did not
preclude the use of guides other than the AMA Guides, and that LIRAB's
construction of the administrative rule to the contrary was wrong. 103
Hawai#i at 6, 78 P.3d at 761. Cabatbat does not stand for the proposition
that DCD or LIRAB can make PPD determinations without reference to any medical
guides.
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An injured worker's final PPD rating is a legal
determination made by LIRAB (or the DCD). Ihara, 141 Hawai#i at
43, 404 P.3d at 309. LIRAB can "take other factors into account
to reach an accurate disability determination" "where the AMA
Guides and the physician's assessment do not give an accurate
portrayal of the total loss [or] impairment[.]" Id. at 44, 404
P.3d at 310 (citing Cabatbat, 103 Hawai#i at 9, 78 P.3d at 764).
Those other factors can include "information about the
individual's skills, education, job history, adaptability, age,
and environment requirements and modifications." Duque v. Hilton
Hawaiian Vill., 105 Hawai#i 433, 439,
98 P.3d 640, 646 (2004)
(citation omitted). There must, however, be substantial evidence
in the record supporting LIRAB's determination that SCF is
obligated to pay PPD benefits because of a preexisting disability
capable of supporting at least 32 weeks of compensation.
In Pave's case, LIRAB incorrectly equated a preexisting
"condition" with a preexisting "disability." Thus, LIRAB's
"conclusion" that Pave had a preexisting "disability . . .
capable of supporting an award of 32 weeks of permanent
disability" was actually a finding of fact and clearly erroneous
based on the record. Drs. Direnfeld and Lau opined that Pave's
preexisting condition contributed to cause his work injury, but
neither reported that the condition had caused a loss or
impairment of Pave's physical functioning before his work
accident. The record is to the contrary; it contains no evidence
that Pave's spinal stenosis or cervical spondylosis caused any
loss or impairment of his physical or mental functions before his
work accident, much less any loss or impairment that would
support an award of thirty-two weeks of compensation for PPD.
"[A] PPD award requires a finding of some physical or
mental impairment." Ihara, 141 Hawai#i at 45, 404 P.3d at 311.
Because there is no evidence in the record that Pave had any neck
impairment before his work accident, it was clear error and wrong
for LIRAB to apportion liability for Pave's PPD benefits to SCF.
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
The Dias Appeal
Dias's knee injury was evaluated by doctors John
Endicott, Brian Mihara, and James Scoggin; each of whom reviewed
medical records and examined Dias on behalf of Dias's employer.
LIRAB made the following findings of fact that are unchallenged
and binding on appeal:
1. [Dias] sustained a work injury to his right knee
on June 4, 2008.
2. [LIRAB] finds that [Dias] sustained 45% PPD of
the right leg, as determined by the Director.
3. [LIRAB] finds that [Dias] had osteoarthritis[17]
of his right knee before his June 4, 2008 work accident, and
that the work accident aggravated [Dias]'s osteoarthritis.
The issue in the Dias Appeal is not whether Dias's preexisting
osteoarthritis was aggravated by his work injury; it is whether
his preexisting osteoarthritis actually impaired his right knee
before his work accident.
SCF challenges LIRAB's FOF nos. 4, 5, 6, 7, 9, 10, 11,
12, and 14; and COL no. 1. LIRAB found:
4. [LIRAB] finds that despite the unanimous
opinions that [Dias] had a pre-existing right knee
condition, a specific rating of pre-existing impairment was
not provided by Drs. Endicott, Mihara, and [sic] Scoggin,
because of the lack of information [in] the medical records
and/or format of the diagnostic films.
(Emphasis added.)
The record on appeal supports LIRAB's finding that Dias
had a preexisting right knee condition (osteoarthritis), and that
17
"Osteoarthritis" is defined as:
[A] common form of arthritis typically with onset during
middle or old age that is characterized by progressive
degenerative changes in the cartilage of one or more joints
(as of the knees, hips, and hands) accompanied by thickening
and overgrowth of adjacent bone and that is marked
symptomatically chiefly by stiffness, swelling, pain,
deformation of joints, and loss of range of motion.
Osteoarthritis, Merriam-Webster, https://www.merriam-webster.com/dictionary/osteoarthritis (last updated Nov. 29, 2022).
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Drs. Endicott, Mihara, and Scoggin did not rate Dias as having
any functional impairment of the right knee before his work
accident.
Dias's right knee was x-rayed two weeks after his work
accident. The radiologist noted: "Fairly advanced degenerative
changes are seen. There is moderately severe narrowing of the
medial joint compartment and tricompartment degenerative spurring
demonstrated. Lateral view demonstrates a [sic] 11 mm
calcification in the suprapatellar region along with a probable
joint effusion."
Dr. Endicott examined Dias on May 5, 2009 (one year
after the work accident). Dr. Endicott reported that Dias was a
58-year-old pool construction foreman who had done construction
work for most of his adult life. Dias denied having any
significant problems with his knee until his work accident. He
owned two horses and enjoyed riding, but had not done so after
the work accident because of the problems with his knee.
Dr. Endicott reported:
The diagnosis is a right knee sprain with probable medial
meniscus tear, and a 10 degree flexion contracture as a
result of aggravation of the underlying pre-existing
osteoarthritis in the right knee. . . .
. . . .
There is evidence of pre-existing osteoarthritis that was
reportedly not symptomatic until after the subject injury.
This is contributing to the current scenario because of
aggravation of the underlying degenerative osteoarthritis.
. . . .
It appears that the right knee condition is due to the
employment factors with the twisting injury of June 4, 2008.
There is no evidence that his condition would have developed
but for the distinctive conditions of employment. It does
not appear that his condition is a natural progression of
the pre-existing osteoarthritis. It appears that the injury
caused a permanent aggravation of the pre-existing
condition.
. . . .
It appears that he can return to work avoiding kneeling on
the right knee, or activities that require flexion of the
right knee more than 90 degrees. He can work avoiding
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
kneeling and flexion activities in the right knee. The
restrictions are the results [sic] of work injury. . . .
. . . .
There is no evidence of pre-existing impairment or need for
apportionment at this time.
(Emphasis added.)
Dr. Mihara examined Dias on May 2, 2012 (four years
after the work accident). Dr. Mihara noted that Dias had
sprains to multiple joints including the knees prior to 2008
related to training horses. He says that none of the
injuries were very bad and none of them required any medical
care. He denies any permanent problems from any of these
horse injuries.
. . . .
. . . [H]e used to enjoy hiking and riding his horse. He
says that the last time he went riding on his horse was
about a year ago. He says that this is simply too painful.
The last time he played volleyball was about a year ago
[(three years after the work accident)]. He notes that he
did not sustain any lingering injury to his knee, riding his
horse or playing volleyball.
Dr. Mihara noted that Dr. Endicott had evaluated Dias
in 2009, and that Dias's records did not mention any significant
anterior or posterior right knee instability before his work
injury.
Dr. Mihara diagnosed probable right knee medial
meniscal tear from his work accident, which aggravated
preexisting osteoarthritis. He reported:
[Dias] denies any history of significant injury in the past
noting that he has injured multiple joints but never had to
see a doctor for any of these injuries while training
horses. The medical record indicates that he did attend
physical therapy for a right knee sprain approximately 25
years prior to the listed date of injury, but he healed up
without any residuals. The medical record indicates that
there were no previous x-rays to the right knee for
comparison, suggesting that his right knee was doing okay
prior to 2008 [the date of his work injury].
. . . .
3. I see evidence of preexisting osteoarthritis which has
contributed slightly to his current condition. At the
same time, the vast majority of these problems would
appear to be related to the indexed injury of
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
06/04/08. While he had preexisting osteoarthritis,
the available record suggests that this was mild and
perhaps not even impairing. . . .
4. [Dias]'s current condition is primarily due to the
[work] injury of 06/04/08. The condition diagnosed
would not have developed if not for this injury. This
was a permanent aggravation of his preexisting
osteoarthritis.
(Emphasis added.)
After giving an estimated impairment rating but noting
that Dias had not medically stabilized, Dr. Mihara noted: "Based
on what I could gather from the available [x-rays], it did not
appear that his arthritis prior to 2008 was an impairment-level
problem."
Dr. Scoggin examined Dias on July 15, 2013 (five years
after the work accident). Dr. Scoggin reported:
Mr. Dias recalls that he had an injury to his right knee
when he twisted it 30 years ago. He states that a rope hit
him and he fell over while working with horses. He recalls
that his right knee swelled after that injury, and he saw a
doctor. He was told that he had strained ligaments in his
right knee. He did not require crutches at that time, but
he recalls that he was sent to physical therapy.
He had no other trouble with his right knee after that. He
had no instability of his right knee after that. He had no
other swelling of his right knee after that. He never saw a
doctor again for his right knee again until the 6/4/08
[work] incident.
. . . .
2. Mr. Dias denies any symptoms in his right knee prior
to 6/4/08. X-rays taken on 6/19/08, however, showed
advanced degenerative changes in the right knee,
including moderately severe narrowing of the medial
joint compartment and tricompartmental degenerative
spurring. A large calcification or loose body was
present in the suprapatellar region.
Clearly, these degenerative changes could not have
occurred in the interval between 6/4/08 and 6/19/08,
but rather represent advanced degenerative changes
that developed over a prolonged period of time. These
changes were confirmed and further elucidated on the
MRI of 10/9/08, which again showed severe thinning of
the cartilage of the medial compartment, loose bodies,
and tricompartmental osteoarthritic changes, mainly at
the medial and patellofemoral compartments.
Mr. Dias'[s] injury, it should be recalled, was a
twisting injury on 6/4/08, which he was able to "work
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
through." It was noted that he did not try any
medications. Apparently, no Emergency Room visit was
required, and no visit to a doctor of any kind was
required for approximately 2 weeks. There was no
fracture or dislocation.
Most likely, then, this represented a symptomatic
aggravation of his pre-existing osteoarthritis.
(Emphasis added.)
Dr. Scoggin diagnosed "[r]ight knee strain resulting in
symptomatic aggravation of pre-existing osteoarthritis." He
explained:
At most, this would appear to be a symptomatic
aggravation of very significant pre-existing
osteoarthritis, which would have been expected to
progress with time, even in the absence of any trauma.
The prognosis for the injury is good.
The prognosis for the pre-existing osteoarthritis is
poor, since osteoarthritis is a progressive condition,
in general.
. . . .
It should be absolutely clear that Mr. Dias had
pre-existing osteoarthritis, which was well documented
on his initial x-rays, subsequent MRI, and eventually
his arthroscopy. None of these imaging findings are
explainable based upon the injury that occurred on
6/4/08.
Mr. Dias states that his knee was asymptomatic prior
to 6/4/08. No prior medical records from before that
date were available for my evaluation.
While Mr. Dias may have become symptomatic on 6/4/08,
according to his history, there is certainly no
objective finding on any of his imaging studies or
objective finding at the time of his arthroscopy that
is explainable based upon the 6/4/08 injury as it has
been described.
. . . .
It is impossible to explain all of Mr. Dias'[s]
osteoarthritis as being related to the incident that
occurred on 6/4/08, since his imaging studies clearly
showed that the osteoarthritis was already present.
If Mr. Dias first noticed symptoms of his
osteoarthritis as a result of the 6/4/08 incident, it
is not the same as saying that the 6/4/08 incident
caused his osteoarthritis.
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(Emphasis added.) In other words, Dr. Scoggin reported that Dias
had preexisting osteoarthritis that became symptomatic when he
twisted his right knee while working, but the work accident did
not cause the osteoarthritis.
Dr. Scoggin was asked:
9. If it is necessary to rate a pre-existing condition
based on worsening or aggravation, please provide an
apportionment. Please also apportion the impairment
that may be attributed to any intervening trauma.
(Emphasis added) (underscoring omitted). He answered:18
Osteoarthritis, in general, is a degenerative
condition, with progression, as expected[, ]with time.
I would note that at the time of John S. Endicott,
M.D.'s Independent Medical Evaluation (IME) on 5/5/09,
Mr. Dias only had a 10° flexion contracture, which was
rated as a 20% lower extremity impairment.
Mr. Dias has subsequently had an arthroscopy of the
knee. At the time of that arthroscopy, no
meniscectomy was performed, no meniscus tear was
found, and no chondroplasty was required.
Nevertheless, Mr. Dias'[s] range of motion has
decreased in the 4 years since the 5/5/09 Independent
Medical Evaluation. This is due to the progressive
osteoarthritis, to a reasonable degree of medical
probability, and is no longer explainable based upon
the injury that occurred on 6/4/08, to a reasonable
degree of medical probability.
I would therefore apportion the current impairment as
25% to the 6/4/08 injury and 75% to his pre-existing
osteoarthritis and its expected progression with time,
to a reasonable degree of medical probability.
(Emphasis added.) There is no evidence in the record that Dias
had any limitation in the range of motion or other impairment of
18
Dr. Scoggin prefaced all of his answers by stating:
The following are answers to your specific questions only.
The answers to these specific questions are advisory in
nature only. They are not to be taken out of context of the
more full discussion in the body of this report. In and of
themselves, these answers may not accurately reflect the
complete opinions offered in this report, and taken out of
context, may result in inaccurate interpretation or opinion.
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
his right knee function before his work accident. Dr. Scoggin's
report read as a whole apportioned the causation of Dias's
present impairment five years after his work accident.
Dr. Scoggin never opined that Dias's osteoarthritis had caused
any impairment before Dias's work accident — much less any
impairment that would support an award of thirty-two weeks of
compensation for PPD.
Under these circumstances, LIRAB's FOF no. 4 that
"despite the unanimous opinions that [Dias] had a pre-existing
right knee condition, a specific rating of pre-existing
impairment was not provided by Drs. Endicott, Mihara, and
Scoggin, because of the lack of information [in] the medical
records and/or format of the diagnostic films" was not clearly
erroneous. (Emphasis added.) But the issue before LIRAB was not
whether Dias had a preexisting condition; it was whether Dias's
preexisting right knee condition had actually impaired his
physical functioning before his work accident. No doctor
expressed an opinion, and the record contains no evidence, that
Dias had a preexisting "disability" that combined with his work
injury to cause a greater post-work-accident disability.
LIRAB found:
5. Although Drs. Endicott and Mihara acknowledged a
pre-existing condition, neither apportioned permanent
impairment to such condition, based on [Dias]'s
representations that he had no problems for many years
before the industrial accident and/or because of a lack of
specificity in the medical records.
(Emphasis added.) FOF no. 5 is supported by substantial evidence
and is not clearly erroneous.
LIRAB found:
6. Given the extent of [Dias]'s pre-existing right
knee condition as reported by the radiologist reading the
July 19, 2008 films, [LIRAB] does not credit the opinions of
Drs. Endicott and Mihara that no apportionment of permanent
impairment was warranted.
(Emphasis added.)
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LIRAB conducts "a de novo, trial-like hearing on the
appeal from the [DCD]'s determination." Ihara, 141 Hawai#i at
43, 404 P.3d at 309 (citing HRS § 386-87(a)-(c)). If FOF no. 6
was a finding of witness credibility, it would not be disturbed
on appeal. Tamashiro v. Control Specialist, Inc., 97 Hawai#i 86,
92, 34 P.3d 16, 22 (2001). However, if "the record reveals no
conflict in the evidence or impeachment of any witness, the court
will not sustain a finding as to credibility which it is firmly
convinced is mistaken." De Victoria v. H&K Contractors,
56 Haw.
552, 559,
545 P.2d 692, 698 (1976) (citations omitted). The
record in the Dias Appeal contains no evidence that Dias's
osteoarthritis caused an actual loss or impairment of a physical
or mental function before his work accident. Accordingly,
LIRAB's failure to "credit" the opinions of Drs. Endicott and
Mihara was clear error. And to the extent FOF no. 6 was a
conclusion of law that an asymptomatic preexisting condition
which did not cause actual loss or impairment of a physical or
mental function before a work accident warranted apportionment
under HRS § 386-33, it is wrong.
LIRAB found:
7. [LIRAB] finds that Dr. Scoggin presented a
clinical judgment apportionment, which took [Dias]'s
significant pre-existing osteoarthritis into account.
. . . .
9. [LIRAB] credits Dr. Scoggin's opinion regarding
apportionment.
LIRAB's finding that Dr. Scoggin took Dias's
significant preexisting osteoarthritis into account in making an
apportionment was supported by substantial evidence and not
clearly erroneous. Dr. Scoggin, however, apportioned the cause
of Dias's present PPD five years after his work accident.
Dr. Scoggin did not apportion PPD before and after Dias's work
accident; he never opined that Dias's osteoarthritis caused a
loss or impairment of his physical functioning before his work
accident. There is no evidence in the record that Dias had a
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preexisting loss or impairment of right knee function that,
combined with his work-related loss or impairment, resulted in a
greater level of total PPD. See Bumanglag, 78 Hawai#i at 280,
892 P.2d at 473. Thus, FOF nos. 7 and 9 are not relevant to
whether SCF should be liable for part of LIRAB's PPD award.
LIRAB found:
10. [LIRAB] finds that under the AMA Guides' stated
method of apportionment, no pre-existing impairment could be
determined, because the medical records before the accident
lacked specificity as to [Dias]'s pre-injury ranges of
motion or measurements of decreased space in [Dias]'s right
knee.
11. Applying Dr. Scoggin's apportionment (75% x 45%
permanent impairment) results in 33.75% pre-existing
permanent impairment of the right knee.
12. [LIRAB] finds that Employer met its burden of
proving, by a preponderance of the evidence, that [Dias] had
a pre-existing PPD of more than 32 weeks.
FOF no. 10 is supported by substantial evidence and not
clearly erroneous.
FOF no. 11 is actually a conclusion of law; it is
wrong. Dr. Scoggin did not apportion Dias's present disability
between a pre-work-accident impairment capable of supporting at
least 32-weeks of compensation, and a post-work accident
impairment. See Bumanglag, 78 Hawai#i at 280, 892 P.2d at 473.
Instead, Dr. Scoggin apportioned causation of Dias's present PPD
between an asymptomatic pre-work-accident condition that was not
the cause of any preexisting impairment, and a work injury that
caused all of the impairment.
FOF no. 12 is clearly erroneous because there is no
evidence in the record that Dias's right knee was actually
impaired before his work accident.
We need not consider LIRAB's FOF no. 14, which
disapproved SCF's proposed findings of fact.
Finally, LIRAB concluded:
1. [LIRAB] concludes that permanent disability
should be apportioned between Employer/Insurance Carrier and
the SPECIAL COMPENSATION FUND.
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This is a combined finding of fact and conclusion of
law. It is clearly erroneous because no doctor opined that
Dias's right knee osteoarthritis had caused him loss or
impairment of physical function before his work accident, and the
record contains no other evidence that Dias's right knee
osteoarthritis caused any loss or impairment of his right knee
function before his work accident. Accordingly, it was wrong for
LIRAB to apportion liability for Dias's PPD benefits to SCF.
CONCLUSION
In each of these cases, there was no expert opinion or
other evidence that the injured person's asymptomatic preexisting
condition had caused any actual "disability" — that is, "loss or
impairment of a physical or mental function" — before the
person's work accident. Under those circumstances, it was error
for LIRAB to apportion liability for the person's PPD award to
SCF. LIRAB's decision and order in each case is reversed.
On the briefs:
/s/ Katherine G. Leonard
Herbert B.K. Lau, Presiding Judge
Frances E. H. Lum,
Deputy Attorneys General, /s/ Keith K. Hiraoka
Department of the Attorney Associate Judge
General, State of Hawai#i,
for Appellant-Appellant /s/ Karen T. Nakasone
Special Compensation Fund Associate Judge
in CAAP-XX-XXXXXXX.
Robyn M. Kuwabe,
Frances E. H. Lum,
Deputy Attorneys General,
Department of the Attorney
General, State of Hawai#i,
for Appellee-Appellant
Special Compensation Fund
in CAAP-XX-XXXXXXX.
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Brian G.S. Choy,
Keith M. Yonamine,
for Employer-Appellee/Appellee
Production Processing, Inc. and
Insurance Carrier-Appellee/Appellee
Gallagher Bassett Services, Inc.
in CAAP-XX-XXXXXXX.
Brian G.S. Choy,
Keith M. Yonamine,
for Employer-Appellant/Appellee
Altres, Inc. and Insurance
Carrier-Appellant/Appellee
Hawaii Employers' Mutual Insurance
Company, Inc.
in CAAP-XX-XXXXXXX.
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