78 Hawai'i 275, Bumanglag v. Oahu Sugar Co., Ltd., 16591

• Decision Date: 06 April 1995
• Docket Number: No. 16591,16591
• Citation: 892 P.2d 468
• Parties: 78 Hawai'i 275 Andres BUMANGLAG, Claimant-Appellee, v. OAHU SUGAR COMPANY, LTD., Employer-Appellant, Self-Insured, and Acclamation Insurance Management Services, Insurance Adjuster-Appellant, and Special Compensation Fund, Appellee.
• Court: Hawaii Supreme Court

Page 468

892 P.2d 468

78 Hawai'i 275

Andres BUMANGLAG, Claimant-Appellee, v. OAHU SUGAR COMPANY, LTD., Employer-Appellant, Self-Insured and Acclamation Insurance Management Services Insurance Adjuster-Appellant, and Special Compensation Fund, Appellee.

No. 16591.

Supreme Court of Hawai'i.

April 6, 1995.

Roland Q.F. Thom (Laurie E. Keeno, with him on the briefs; of Char, Hamilton, Campbell & Thom), Honolulu, for employer-appellant, self-insured, and ins. adjuster-appellant.

Robin M. Kuwabe and Wayne A. Matsuura, Deputy Attys. Gen., on the briefs, Honolulu, for claimant-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

RAMIL, Justice.

Employer-Appellant Oahu Sugar Company (Employer) and Insurance Adjuster-Appellant Acclamation Insurance Management Services (Adjuster) appeal the Decision and Order of the Labor and Industrial Relations Appeals Board (Board) holding that the permanent partial disability benefits of Claimant-Appellee Andres Bumanglag (Claimant) cannot be apportioned with the Appellee Special Compensation Fund (SCF). Employer and Adjuster argue that the Board erred in concluding that Claimant did not have a preexisting partial disability of thirty-two weeks of compensation necessary to warrant apportionment between Employer and the SCF as required by Hawai'i Revised Statutes (HRS) § 386-33 (1985). Because the Board's findings of fact (FOF) are not clearly erroneous and its conclusions of law (COL) are correct, we affirm the Board's Decision and Order.

I. FACTS

Claimant was born on February 4, 1930, in the Philippines. He completed formal education through the tenth grade and began working on a farm. Claimant moved to Hawai'i in 1967 and accepted a job with Employer in 1968. He continued to work for Employer in labor-intensive positions until his industrial accident in 1985.

On June 17, 1985, Claimant suffered a lower back injury while working for Employer. Employer accepted liability and Claimant thereafter sought medical treatment for his injury. On September 28, 1985, Claimant suffered a recurrence of the June 17, 1985 lower back injury. Once more, Employer accepted liability and paid for Claimant's medical treatment.

On August 27, 1985, Marsha Mark, M.D., initially diagnosed Claimant's injury as a lumbosacral strain; she attributed this injury solely to Claimant's June 17, 1985 work-related accident. In addition, Dr. Mark noted that the Claimant had "full [range of motion]" upon examination.

On November 20, 1985, Claimant received a computated tomography (CT) scan on his lumbosacral spine. The report indicated a very mild posterior bulge of the L4-5 disc that was of doubtful significance. Subsequent electromyogram studies showed mild left L4-5 nerve root irritation. Claimant's then treating physician, C.P. Lau, M.D., reexamined Claimant with a diagnosis of back strain and radiculitis and advised him to continue light duty.

On April 17, 1986, Rowlin Lichter, M.D., examined Claimant and noted that Claimant had no prior history of back pain or back injury and had always been in good health. After conducting a physical examination and reviewing the November 20, 1985 CT scan, Dr. Lichter rated Claimant's permanent impairment at 5 percent for his disc disruption, 2.5 percent for loss of motion, and an additional 2 percent for the lower extremity weakness. Dr. Lichter also observed that Claimant was able to extend 30 degrees, thus giving him a zero percent impairment for extension.

On May 29, 1986, Thomas Sakoda, M.D., became involved with the case. After reviewing Claimant's November 20, 1985 CT scan, Dr. Sakoda was of the opinion that Claimant may have had a very large herniated disk at L4-5 but recommended a myelogram to further evaluate Claimant's condition.

After reviewing the myelogram results, Dr. Sakoda reported:

[Claimant] had a very narrow canal. The entire spine was stenotic. He had also [a] definite disk rupture at L4-5 or what appeared to be a significantly bulging disk in the midline at L4-5. It was felt that most likely a stenosis of the canal with a small disk herniation which accounted for his complaints.

Upon discharge after the myelogram, Claimant was diagnosed with a herniated lumbar disk and spinal stenosis.

In light of the results of Claimant's myelogram, Dr. Sakoda recommended that Claimant enter a vocational training program or seek surgical treatment. Not wanting to undergo surgical treatment, Claimant was sent to Comprehensive Health and Rehabilitation Training for vocational rehabilitation. Because the labor market did not offer Claimant any options, given his age, transferable skills, experience, and physical limitations, Claimant was deemed an infeasible candidate for vocational training, and eventually his case was closed.

On March 22, 1988, Dr. Lichter again examined Claimant. Dr. Lichter strongly advised against surgical intervention because, in his opinion, Claimant's pain was attributable to a significant psychiatric component. In light of Dr. Lichter's observations, Francy Mateus, M.D., conducted a psychiatric evaluation of Claimant and concluded the Claimant did not suffer from a mental disorder.

Another CT scan was conducted on July 21, 1988. The radiologist who read Claimant's second CT scan noted: "No evidence of frank disk herniation. Mild circumferential bulging of the L4-5 disc. Mild spinal stenosis at the L4-5 level."

On July 26, 1988, a hearing was held at the Disability Compensation Division (DCD) of the Department of Labor and Industrial Relations (DLIR). By Decision dated September 16, 1988, the Director of the DLIR determined that Claimant sustained a recurrence of his June 17, 1985 injury on September 28, 1985. The Director awarded temporary total disability for various periods in 1985 through April 2, 1988, aggregating 73 weeks and 5 days, for a total of $17,179.09. The Director also indicated that additional temporary total disability from April 13, 1988 might be authorized upon submission of sustaining medical evidence. The extent of temporary partial disability and permanent disability, if any, was to be determined at a later date.

On November 10, 1988, Claimant was examined by Kurt A. Mariano, D.C., at the request of Claimant's attorney. Dr. Mariano opined that Claimant's work-related injuries had aggravated Claimant's spinal stenosis and rated Claimant at 15 percent for the whole person and 5 percent for the left lower extremity.

On September 5, 1990, another hearing was held at the DCD. By Supplemental Decision dated October 26, 1990, the Director of the DLIR consolidated the September 28, 1985 claim (Case No. 2-85-24709) with the June 17, 1985 claim (Case No. 2-85-16255). In addition, the Director awarded the following: (1) additional temporary total disability from April 13, 1988 through September 5, 1990 for 125 weeks and one day, for a total of $29,164.55; (2) 15 percent permanent partial disability of the whole person and 5 percent permanent partial disability of the left lower extremity, beginning September 5, 1990, for 72.8372 weeks, for a total of $16,974.72. Claimant timely appealed the Supplemental Decision on November 5, 1990 to the Board.

At the request of SCF, Stephen Hirasuna, M.D., performed a records review on Claimant. Dr. Hirasuna opined:

After reviewing [Claimant's] record, it appears that [Claimant] has a congenital spinal stenosis which has been made symptomatic by the bulging of the L4-5 disc. Since the canal is already small, the bulging disc, the mild bulge of the L4-5 disc is more significant than it would normally be.

Based on reasonable medical probability, it appears that [Claimant] did have a ratable disability for the industrial incidents of 6/17/85 and 9/28/85.

However, Dr. Hirasuna indicated no rating for Claimant's congenital spinal stenosis.

On April 13, 1991, John Hendrickson, Jr., M.D., examined Claimant of behalf of Employer. In his report, Dr. Hendrickson noted that "[Claimant] had no prior history of back pain or injuries." In addition, Dr. Hendrickson reported that "[Claimant] undoubtedly has ligamentum flavum and medial facet indentation in combination with an anterior disk bulge and a congenitally narrowed canal resulting in nerve and root compression." ¹ Basing his responses on reasonable medical probability and the American Medical Association (AMA) Guide, Dr. Hendrickson opined:

Although the patient had a preexisting congenital condition of spinal stenosis apparently involving the entire spinal canal, he was asymptomatic for this condition until the internal disk derangement incurred on 6/17/85. His current impairment is thus attributed 100% to this injury.

(Emphasis added.) Because Dr. Hendrickson reported that Claimant's injuries were not apportionable, Employer's attorney met with Dr. Hendrickson to discuss alleged flaws in Dr. Hendrickson's original opinion. After the meeting with Employer's attorney, Dr. Hendrickson departed from his original opinion and took a new position that 20 to 25 percent of Claimant's overall impairment after the accident was attributable to Claimant's preexisting congenital defects. Because the AMA Guide did not rate asymptomatic unoperated spinal stenosis, Dr. Hendrickson based this new opinion on his "best guess."

On July 1, 1991, the Board held a hearing to determine the period of Claimant's temporary total disability, the extent of permanent disability, and apportionment of permanent disability between Employer and the SCF. In their argument before the Board, Employer and Adjuster asserted that Claimant's permanent disability must be apportioned between Employer and SCF, because Claimant's congenital defects of spinal stenosis and hypertrophy of the facets and ligamentum flavum were significant preexisting medical conditions sufficient to meet the threshold requirements for apportionment under HRS § 386-33.

The SCF contended that unoperated canal stenosis is not a rateable impairment under the AMA Guide, and...