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Korsak v. Hawaii Permanente Medical Group11/10/1999
ry. Upon review of the record and relevant case law, we conclude that the Board's decision was not supported by substantial evidence and was therefore clearly erroneous.
We review challenges to ultimate decisions of compensability under the "clearly erroneous" standard. Tate v. GTE Hawaiian Telephone Co., 77 Hawaii 100, 102-03, 881 P.2d 1246, 1248-49 (1994). "Thus, [the appellate] court considers whether such a finding is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record." Id.
As a general rule, injury resulting from treatment for a compensable work injury is regarded as a compensable product of the original injury. 1 Mod. Work. Comp. (CBC) § 116:12 (1993).
The Board concluded, however, that Korsak's low back condition did not result from physical therapy treatment for his November 16, 1992 work injury. The Board concluded instead that his low back condition was due to his pre-existing low back problems.
Korsak essentially argues that the Board's misapplication of the statutory presumption of compensability in HRS § 386-85(1) was "clearly erroneous."
HRS § 386-85(1) (1985) creates a statutory presumption of compensability (the presumption). The presumption imposes upon the employer the burden of going forward with the evidence and the burden of persuasion. The employer may overcome the presumption only with substantial evidence that the injury is unrelated to the employment. Evidence, to be substantial, must be credible and relevant. Tate, 77 Hawai'i at 107, 881 P.2d at 1253 (internal quotation marks and citations omitted) (emphasis added).
Accordingly, Korsak contends that Kaiser failed to adduce "substantial evidence" to rebut this presumption of compensability. Kaiser, on the other hand, claims that it provided such evidence in the form of medical opinions from Dr. Silver and Dr. Langworthy.
The Hawaii Supreme Court, in a case analogous to this one, addressed the issue of what type of evidence constitutes "substantial evidence" to rebut the presumption of compensability. Akamine v. Hawn Packaging & Crating Co., 53 Haw. 406, 495 P.2d 1164, (1972).
Edward Akamine died after collapsing while pushing a loaded handtruck at work. His dependents filed a claim for worker's compensation. His employer presented evidence in the form of medical testimony that his pre-existing pathological condition was the sole cause of death. The Board denied compensation based on this evidence, reasoning that his death was due to pre-existing cardiovascular disease and not attributable to employment.
The supreme court reversed, however, holding that generalized medical opinion concerning the cause of an injury does not constitute "substantial evidence" to rebut the presumption of compensability.
For a medical man may give a generalized opinion that there was no connection between an incident at work and a heart attack, and in his own mind, may mean thereby that a pre-existing pathological condition was the overwhelming factor in bringing about the attack and that the part played by the work was insignificant. But, while it may be sound medically to say that the work did not 'cause' the attack, it may be bad law, because, in general, existing law treats the slightest factor of aggravation as an adequate 'cause.' Id. at 410, 495 P.2d at 1167 (internal quotation mark and citations omitted).
Accordingly, " he primary focus of the medical testimony should have been a discussion on whether the employment effort, whether great or little, in any way aggravated Mr. Akamine's heart condition which resulted in his death." Id. at 412, 495 P.2d at 1168.
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