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Korsak v. Hawaii Permanente Medical Group11/10/1999
In this case, the evidence the Board relied on in denying worker's compensation for Korsak's low back condition was, similarly, not "substantial."
Kaiser offered as evidence medical opinions by Drs. Silver and Langworthy in the form of medical reports dated October 17, 1995, and November 27, 1996, respectively. In these reports, Drs. Silver and Langworthy gave generalized medical opinions regarding the cause of Korsak's low back pain. The opinions are as follows:
Dr. Silver: It is my own opinion that the actual cause of his continued pain is the natural progression of his spinal condition which pre-existed the industrial accident of November 16, 1992.
Dr. Langworthy: The cause of the patient's back condition is a combination of his earlier herniated disc in the 1970s with two surgeries at that time combined with a compression fracture and herniated disc in the lower thoracic region in a motor vehicle accident in 1989.
Kaiser contends that these medical opinions constitute substantial evidence to rebut the presumption, because they opine that the cause of Korsak's back pain was his pre-existing back condition.
Pursuant to Akamine, however, such generalized medical opinions do not constitute "substantial evidence." Rather, the focus of the medical reports, if they were to be considered adequate in rebuttal, should have been whether the March 1993 physical therapy session in any way exacerbated Korsak's existing low back condition, as he alleged and as was statutorily presumed.
In Tate, a more recent Hawaii Supreme Court pronouncement, the court stated that " he employer may overcome the presumption only with substantial evidence that the injury is unrelated to the employment." Tate, 77 Hawaii at 107, 881 P.2d at 1253 (citing and following Akamine).
The doctors' reports did not expressly, directly and specifically address the presumption, as required by Akamine. The doctors' opinions did not even impliedly address the presumption.
The dispositive implication was drawn by Kaiser in argument, and accepted by the Board, solely by virtue of the mute and equivocal fact that both doctors had reviewed Dr. Sam's July 30, 1994 report referencing the physical therapy etiology. Thus, their opinions do not provide "sufficient evidence" to rebut the presumption of compensability. The record is otherwise devoid of material medical evidence regarding the physical therapy etiology.
The Board, in its finding of fact, acknowledges that Korsak may have developed pain during a physical therapy session, stating that, " ven if Claimant developed right sciatica while performing PT [physical therapy] for his right knee, however, we do not accept Claimant's contention that the physical therapy incident caused his current low back condition."
The Board, in effect, assumed that Korsak did not fabricate the physical therapy incident, as Kaiser has insinuated. In doing so, the Board focused the appeal squarely on the issue of exacerbation. Under these circumstances, our consideration is confined to the question whether the Board correctly applied the presumption of compensability to facts which are basically undisputed, the contents of the medical opinions of Silver, Langworthy, and Sam. Under Akamine, we decide that the Board did not.
We hold, therefore, that the Board's ultimate decision, that Korsak's low back condition was not a compensable consequence of the November 16, 1992 work injury, was "clearly erroneous" in light of the "reliable, probative, and substantial evidence in the whole record." Tate, 77 Hawaii at 103, 881 P.2d at 1249.
Our holding is in accordance
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