DeFries v. Association of Owners, 999 Wilder

• Decision Date: 06 October 1976
• Docket Number: No. 5641,5641
• Citation: 555 P.2d 855,57 Haw. 296
• Parties: Hiram DeFRIES, Claimant-Appellant, v. ASSOCIATION OF OWNERS, 999 WILDER, Employer-Appellee, and Pacific Insurance Company, Ltd., Insurance Carrier-Appellee.
• Court: Hawaii Supreme Court

Page 855

555 P.2d 855

57 Haw. 296

Hiram DeFRIES, Claimant-Appellant, v.ASSOCIATION OF OWNERS, 999 WILDER, Employer-Appellee and Pacific Insurance Company, Ltd., InsuranceCarrier-Appellee.

No. 5641.

Supreme Court of Hawai'i.

Oct. 6, 1976.

Syllabus by the Court

1.Appeals to the supreme court from the Labor and Industrial Relations Appeals Board are governed by Hawaii's Administrative Procedure Act, which sets out the 'clearly erroneous' standard of review.

2.Pursuant to the clearly erroneous standard, this court will reverse findings by the appeals board if this court is left with the definite and firm conviction that a mistake has been made.

3.The 'substantial evidence' burden imposed on employers by Hawaii's workers' compensation statute entails both a burden of going forward with the evidence and a burden of ultimate persuasion.

4.'Substantial evidence' as used in HRS § 386-85 means a high quantum of evidence.

5.The broad humanitarian purpose of the workers' compensation statute read as a whole requires that reasonable doubts be resolved in favor of the claimant.

Laurence D. Scott, Honolulu, Hawaii, for claimant-appellant.

Vernon Y. T. Woo, Woo & Ikeda, Robert C. Kessner, Honolulu, Hawaii for employer-appellee and insurance carrier.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

RICHARDSON, Chief Justice.

Claimant-appellant appeals from an order of the Labor and Industrial Relations Appeals Board denying workers' compensation benefits for a partially disabled right knee.

It is undisputed that claimant stumbled and fractured the big toe of his right foot on August 30, 1970, in the course of his employment as a security guard.The factual issue presently in dispute is whether or not the same stumble also aggravated or accelerated an osteoarthritic condition in claimant's right knee.

At the appeals board hearing, claimant testified that, while running after a suspicious person, he failed to notice a step up to a higher floor level so that he struck his foot against the face of the step, fracturing his toe and also striking his knees on the floor, although his hands helped break the impact of the fall.The employer does not dispute that claimant stumbled and fractured his toe, but does question whether claimant's knees struck the ground.It is undisputed that claimant then weighed approximately 285 pounds and was 63 years old.

The Employer's Report of Industrial Injury and two Physician's Reports to the Division of Workmen's Compensation, all filed during the latter months of 1970, refer only to the fracture of the right big toe and make no mention of impact or injury to the right knee.However, one of the physician's reports does make reference to '(claimant's) fall.'

At the appeals board hearing, claimant stated that his right knee did not hurt until about a week after the accident; that the pain then felt 'very minor'; that he couldn't remember whether or not he mentioned such pain to the doctor then treating the fractured toe; that the knee thereafter bothered him off and on, perhaps once a month; and that he treated it at home with a heating pad and ointment.He further testified that on July 21, 1972, approximately two years later, while in the continued employ of appellee, his right knee seemed to lock as he was stepping down from his work stool and he was forced to limp because of the pain.It is undisputed that on the next day, July 22, 1972, claimant obtained treatment for the knee from Dr. Shimamura, the same doctor who had treated the broken toe.At the hearing claimant stated that, at this July 22, 1972 office visit, as far as he could remember, he did not mention the 1970 accident to the doctor.He explained that he assumed Dr. Shimamura already knew that he had struck his knees in the 1970 stumble and fall.In a letter in evidence at the hearing, Dr. Shimamura wrote that the first time claimant told him that the injury to the right knee was related to the 1970 stumble was on September 8, 1972.

Claimant does not deny that he may have suffered a latent osteoarthritic condition in the right knee prior to the 1970 stumble, but he does aver that he felt no pain prior to the stumble.He contends that the stumble aggravated or 'triggered' any degeneration that may have existed prior to the stumble.

Dr. Richard Dodge, who had been treating claimant since October 1972, was called as an expert witness for the employer.With respect to claimant's testimony that he had not noticed pain in the right knee until about a week after the stumble, Dr. Dodge testified that it was 'not the usual case' for pain to be so slow in manifesting itself; that the week's delay before pain was noticed 'raises questions in my mind'; that it 'would be possible, but it would be very strange for him to go a week after a fall' without any pain or mention of pain to his doctor.However, other testimony by Dr. Dodge is more favorable:

'Q (Chairman of Appeals Board) I know anything's possible but based on medical probability, what is your opinion?Probability, now.

'A (Dr. Dodge) I know, I know.My opinion is that it (injury to the knee in the 1970 stumble) couldn't have been very severe, but it could have happened.If he did have a fall it could have happened and he could have gone on and treated it at home until it became severe enough to seek medical help in 1972 . . ..'

On recross examination, when Dr. Dodge was asked whether he saw anything suspicious or unusual about claimant's failure to seek medical treatment for his knee until almost two years after the 1970 stumble, Dr. Dodge replied:

'No. . . .I have seen many, many people with arthritis who treat themselves at home.I know by experience that they do as well at home as they do by going to the doctor periodically.'

Even though claimant did see Dr. Shimamura a number of times during 1970-1972 for other ailments, Dr. Dodge still saw nothing unusual about failure to mention minor knee pain to Dr. Shimamura during that period:

'Q. . . .If a person, let's say in your own practice, has experienced monor pains on an intermittent basis, once a month like that, do they ordinarily mention this to you as the doctor if they're coming to you for something else?

'A I don't think so. . . .(T)he dominant factor for which they come to me is the important thing unless you go into detailed history.If it is severe, they'll usually mention it too.'

Letters from two other doctors were also made part of the record.Dr. Shimamura, who had treated claimant both after the 1970 stumble and after the 1972 knee-locking incident wrote, with respect to treatment of the 1970 stumble:

'I don't remember him mentioning about his right knee which was supposedly injured at the same time (as his right big toe).However, there is a possibility that he did injure his knee and made no mention of it.'

A letter from the employer's medical expert, Dr. Luke, concludes on the basis of a single examination:

'Based on the facts known about this case as rendered by the patient and based on this examination, it is my opinion that the patient's right knee problem has nothing to do either by way of injury or by way of aggravation in so far as the accident of 1970 is concerned.It is only by retrospect and hindsight that the patient is trying to establish a causal relationship for purposes of putting in an industrial claim.'

Dr. Luke's letter also mentions alleged statements by the claimant that appear inconsistent with portions of claimant's testimony before the appeals board:

'The patient says that he was chasing a culprit. . . .He claims that he thinks he struck the right knee.He is uncertain about this. . . .He says that he did not strike the right knee but tensed the right knee.He seems to be changing his mind as to what occurred concerning the right knee at all. . . .

'In July 1972 the right knee started to hurt for the first time. . . .He says that he put in an industrial claim alleging that the right knee was injured in the accident of 8-70 solely because he had no trouble with the right knee before.'

A portion of claimant's own testimony could also be read as impeaching his claim that the right knee gave him mild, intermittent pain beginning about a week after the 1970 stumble.With respect to the 1972 incident in which claimant's right knee seemed to lock as he got off his stool at work, claimant's attorney asked him:

'Q Was that the first time (the right knee) started hurting?

'A Yes.

'Q You had no pain in that knee before that time?

'A Oh, I had, but at home I was using the heating pad with this rubbing ointment . . ..'

Undeniably, there was at least some evidence before the appeals board which might be interpreted as weakening or impeaching claimant's testimony that he struck his knee against the floor in the 1970 stumble and that his knee began hurting about a week later.A key question on appeal is whether or not such impeachment was sufficient under all the facts of the case to support the appeals board's verdict against claimant.

The Appeals Board Decision

Although the Director of the Department of Labor and Industrial Relations had determined after an administrative hearing that claimant's right knee injury was compensable, the appeals board reversed.It is clear from the board's written decision that its primary reason for reversing the director was its conclusion that claimant's testimony was not credible.

It its decision, the board noted that claimant had limped decidedly at the hearing and had testified that his limp had been even worse on the day he first consulted Dr. Dodge in 1972; and yet, the board noted, Dr. Dodge had not recorded claimant's limping in his 1972 medical records, even though Dr. Dodge testified that he thought he'surely would have' made a note in 1972 of limping so obvious as the limping at the hearing.No one disputes that claimant was suffering from objectively manifested osteoarthritis by the time...