Cadiz v. QSI, Inc.
| Decision Date | 31 March 2017 |
| Docket Number | NO. CAAP-16-0000029,NO. CAAP-14-0000594,CAAP-14-0000594,CAAP-16-0000029 |
| Citation | 391 P.3d 1250 (Table) |
| Parties | Jay D. CADIZ, Claimant-Appellant, v. QSI, INC., Employer-Appellee, and First Insurance Company of Hawai‘i, Ltd., Insurance Carrier-Appellee and Jay D. Cadiz, Claimant-Appellant, v. QSI, Inc., Employer-Appellee, and First Insurance Company of Hawai‘i, Ltd., Insurance Carrier-Appellee |
| Court | Hawaii Court of Appeals |
On the briefs:
Stanford H. Masui, Erin Masui, (Law Offices of Masui—Masui), Honolulu, for Claimant-Appellant.
Shawna L.M. Benton, (Leong Kunihiro Lezy & Benton) for Employer-Appellee and, Insurance Carrier-Appellee.
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This consolidated appeal arises out of an Amended Claim for Workers' Compensation Benefits WC-5 (Amended WC-5 )1 filed by Claimant-Appellant Jay D. Cadiz (Claimant ) with the Director of the Department of Labor and Industrial Relations (Director ), in which Claimant sought compensation for illnesses and symptoms related to exposure to mold while employed by QSI, Inc. (Employer ).2 Claimant appeals from two decisions and orders filed by the Labor and Industrial Relations Board (LIRAB ). Claimant appeals from the (1) March 10, 2014 Decision and Order (LIRAB Case No. AB 2012-099), and (2) December 22, 2015 Decision and Order (LIRAB Case No. AB 2013-250).
In LIRAB Case No. AB 2012-099, the case underlying CAAP-14-0000594, the LIRAB affirmed the decision of the Director finding, inter alia, that Claimant did not sustain a work related injury on August 31, 2007. In LIRAB Case No. AB 2013-250, the case underlying CAAP-16-0000029, the LIRAB vacated the decision of the Director denying the November 2011 claim as a new or subsequent injury for a November 14, 2011 work injury, but did not remand the case to the Director. LIRAB instead concluded that the November 2011 claim was not a new claim, rather it was an amended claim for the previously claimed injury.
In CAAP-14-0000594, Claimant argues that the LIRAB: (1) failed to properly apply the presumption of compensability under Hawai‘i Revised Statutes (HRS ) § 386-85 (2015) ; (2) erroneously credited Dr. Roger L. Likewise's report; and (3) erroneously excluded Exhibits A-1, B, and FF. In CAAP-16-0000029, Claimant argues the LIRAB erred by not remanding the proceedings for a ruling on the merits.
Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Cadiz's points of error as follows:
(1) Claimant contends that the LIRAB failed to properly apply the presumption of compensability under HRS § 386-85 and challenges FOFs 54, 55, and 56, in the March 10, 2014 Decision and Order, which read:
HRS § 386-85 provides in pertinent part, "[i]n any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary ... [t]hat the claim is for a covered work injury[.]" It is well established that the presumption "imposes upon the employer the burden of going forward with the evidence and the burden of persuasion." Van Ness v. Dep't of Educ. , 131 Hawai‘i 545, 558, 319 P. 3d 464, 477 (2014) (citing Akamine v. Hawaiian Packing & Crating Co. , 53 Haw. 406, 408, 495 P.2d 1164, 1166 (1972) ). The employer may overcome the presumption "only [with] substantial evidence that [the injury] is unrelated to employment." Akamine , 53 Haw. at 408, 4 95 P.3d at 1166. "The term ‘substantial evidence’ signifies a high quantum of evidence which, at the minimum, must be ‘relevant and credible evidence of a quality and quantity sufficient to justify a conclusion by a reasonable [person] that an injury or death is not work connected.’ " Van Ness , 131 Hawai‘i at 558, 319 P.3d at 4 77 (quoting Flor v. Holguin , 94 Hawai‘i 70, 79, 9 P.3d 382, 391 (2000) ). "If the employer fails to adduce substantial evidence to the contrary, the presumption mandates that the claimant must prevail." Id. (quoting Akamine , 53 Haw. at 409, 4 95 P.2d at 1166). Furthermore, "a reasonable degree of specificity is required in order for medical opinion to rebut the presumption of compensability." Panoke v. Reef Dev. of Haw., Inc. , 136 Hawai‘i 448, 462, 363 P.3d 296, 310 (2015) (quoting Nakamura v. State , 98 Hawai‘i 263, 269, 47 P.3d 730, 736 (2002) ).
In Flor , the Hawai‘i Supreme Court held that "an Employee's injury caused by a disease is compensable as an ‘injury by disease,’ pursuant to HRS § 386-3, when the disease (1) is caused by conditions that are characteristic of or peculiar to the particular trade, occupation, or employment, (2) results from the employee's actual exposure to such working conditions, and (3) is due to causes in excess of ordinary hazards of employment in general[.] 94 Hawai‘i at 81, 9 P. 3d at 393 (citations omitted).
However, the supreme court clarified that the three-part test articulated in Flor "is not applicable to situations in which the disease is alleged to be ‘proximately caused by’ the employment, rather than alleged to ‘result from the nature of the employment.’ " Van Ness , 131 Hawai‘i at 559-60, 319 P. 3d at 478-79 (footnote and brackets omitted). A reviewing court should apply the "unitary" or "nexus" test for injuries by disease "proximately caused by" the employment. Id. at 561 & n.13, 319 P.3d at 480 & n.13. The "unitary" test "requires the finding of a causal connection between the injury and any incidents or conditions of employment." Tate v. GTE Hawaiian Tel. Co. , 77 Hawai‘i 100, 103, 881 P.2d 1246, 1249 (1994) (citing Chung v. Animal Clinic, Inc. , 63 Haw. 642, 648, 636 P.2d 721, 725 (1981) ).
In its application of the "unitary" test, the supreme court has held that "the slightest aggravation or acceleration of an injury by the employment activity mandates compensation." Van Ness , 131 Hawai‘i at 562, 319 P.3d at 481 (citation omitted). In Van Ness , the claimant "alleged that the aggravation of his asthma resulting from his exposure to vog at [his place of employment] was a compensable injury by disease." Id. at 559, 319 P.3d at 478. The parties did not dispute that exposure to vog exacerbated and aggravated the claimant's asthma. Id. at 563, 319 P.3d at 482. The issue was whether the aggravation of claimant's asthma was "proximately caused by or resulting from the nature of the employment." Id. at 559, 319 P.3d at 478. The supreme court determined that the "evidence overwhelmingly demonstrated that [claimant's] exposure to vog at work, combined with the surrounding circumstances of his employment and his preexisting condition, resulted in the exacerbation of his asthma." Id. at 564, 319 P.3d at 483. The supreme court concluded that claimant's employer had "failed to present substantial evidence to overcome the presumption that the aggravation of [claimant's] asthma was an injury ‘by disease proximately caused by’ his employment." Id. at 565, 319 P.3d at 484.
Our analysis begins with the presumption that Claimant sustained a compensable injury by disease. HRS § 386-85. The LIRAB determined in FOF 5 that the "symptoms and conditions claimed by Claimant have their bases in basically three diagnoses ... allergic rhinitis, gastroesophageal reflux disease [ (GERD) ], and an anxiety disorder." Claimant contends that "[t]his finding is in error because it ignores the illnesses and symptoms diagnosed by treating physicians and experts which are consistent with toxic mold exposure." It is the Employer's burden to produce substantial evidence to rebut the presumption that Claimant's alleged conditions are compensable work-related injuries. Van Ness , 131 Hawai‘i at 558, 319 P. 3d at 477. Employer contends it "presented substantial, credible, and persuasive medical evidence to show that Claimant's injuries on August 31, 2007 did not arise out of and in the course of his employment." In support of its contention, Employer relies on the reports of Drs. Cupo, Arora, and Likewise.
Dr. Cupo diagnosed Claimant with, inter alia, chronic allergic conjunctivitis and rhinosinusitis with sensitivity to dust mites, chronic GERD, and chronic anxiety. Dr. Cupo opined that Claimant's diagnosis was "not caused, aggravated, or accelerated by job activities as a meat cutter for Times Supermarkets." Dr. Cupo opined that "the reality of Claimant's situation is that his multiple symptoms can in no way be explained by exposure to mold between August 2004 and December 2007 at the Kaneohe Store[.]" Dr. Cupo noted that:
The reality of the situation is that allergy skin testing performed on 2/2/08 by Dr. Suga revealed positivity only to dust mites and negativity to molds . The reality of the situation is that allergy skin testing repeated on 10/30/09 by Dr. Kuo similarly showed positivity to dust mites and negativity to molds . The reality of the situation is that Claimant's multiple symptoms have actually worsened rather than abated during the greater than three years...
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