Feliciano v. Board of Trustees of Employees' Retirement System

• Decision Date: 22 February 1983
• Docket Number: No. 8606,8606
• Citation: 659 P.2d 77,4 Haw.App. 26
• Parties: Ernest T. FELICIANO, Appellant-Appellee, v. The BOARD OF TRUSTEES OF the EMPLOYEES' RETIREMENT SYSTEM, State of Hawaii, Appellee-Appellant.
• Court: Hawaii Court of Appeals

Page 77

659 P.2d 77

4 Haw.App. 26

Ernest T. FELICIANO, Appellant-Appellee, v.The BOARD OF TRUSTEES OF the EMPLOYEES' RETIREMENT SYSTEMState of Hawaii, Appellee-Appellant.

No. 8606.

Intermediate Court of Appeals of Hawai'i.

Feb. 22, 1983.

Reconsideration Denied March 7, 1983.

Syllabus by the Court

1.Judicial review of decisions of administrative agencies is governed by Hawaii Revised Statutes § 91-14(g)(1976).

2.A reviewing court cannot set aside the findings of fact of an administrative agency under the clearly erroneous rule except where the findings are not supported by substantial evidence in the record or where the court is left with the firm and definite conviction that a mistake has been made in view of the reliable, probative and substantial evidence in the record.

3.Appellate review of the circuit court's decision on the findings of fact of an administrative agency is also governed by the clearly erroneous standard under Hawaii Revised Statutes § 91-15(1976, as amended) or Rule 52(a),Hawaii Rules of Civil Procedure(1972, as amended).

4.In determining total disability for gainful employment, the Board of Trustees of the Employees' Retirement System must consider the claimant's education, training and work experience, mental capacity and age, in addition to his or her physical or mental disability.

5.On issues of causation, the Board is not bound by the decisions of the Labor and Industrial Relations Appeals Board in workers' compensation cases involving the same claimant.

Harriet Yoshida Lewis, Deputy Atty. Gen., Honolulu, for appellee-appellant.

Raymond Lee, Honolulu, for appellant-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

HEEN, Judge.

The Board of Trustees of the Employees' Retirement System, State of Hawaii(Board), appeals from an order of the circuit court reversing a decision of the Board and ordering the Board to enter a decision accepting and affirming the Board's hearings officer's recommended findings of fact, conclusions of law, decision and order.The Board contends on appeal that the circuit court(1) was clearly erroneous in reversing the Board's decision, (2) erred as a matter of law in its interpretation of the phrase "incapacitated for gainful employment,"Hawaii Revised Statutes (HRS) § 88-77(1976), and (3) erred in ordering the Board to enter and affirm the recommended findings of fact, conclusions of law, decision and order of the Board's hearings officer and award a service-connected total disability retirement to the claimant, Ernest T. Feliciano(Feliciano).

We agree with the Board with respect to (1) and (3).With respect to (2), we find the interpretation of the court was correct, but the interpretation is not determinative of this appeal.

Feliciano was employed by the state Department of Transportation as a tractor operator.On January 14, 1974, he was involved in a non-service-connected auto accident and was hospitalized with a concussion, and chest and knee injuries.X-rays were taken of Feliciano's cervical spine but no injury was indicated.On May 16, 1974, Feliciano was at work cleaning a drainage ditch in Nuuanu Valley when he slipped and fell on his back.On July 29, 1974, Feliciano consulted Dr. M. McCarthy regarding back pains.He was referred to Dr. Richard Simmons who treated him for pains in his arm, leg, back and neck.Feliciano was later referred to Dr. Maurice Nicholson and, on September 18, 1974, underwent an excision of the lumbar L4-5 disc, followed a week later by an anterior cervical fusion.Dr. Nicholson diagnosed Feliciano's condition as degenerated discs, cervical C5-6, and lumbar L4-5.Feliciano did not notify his supervisor of the May 1974 fall and injury until May 27, 1975.

On September 3, 1975, Feliciano filed a workers' compensation claim.The State disputed the claim, arguing that the injury was caused by the January 1974 car accident and not Feliciano's fall in May 1974.On September 15, 1976, the workers' compensation claim was denied by the Department of Labor and Industrial Relations.Feliciano appealed to the Labor and Industrial Relations Appeals Board(LIRAB) and on November 28, 1978, LIRAB reversed the Department's ruling holding that the back injury was work related and compensable under the workers' compensation statute(HRS, chapter 386).

On June 28, 1976, Feliciano filed for a service-connected total disability retirement from the State Employees' Retirement System (ERS) pursuant to HRS § 88-77(1976).¹The Board transmitted the application along with medical and other reports to the medical board ² of the ERS for review and evaluation.The medical board found that the injuries were not the result of the May 16, 1974 fall, and that Feliciano was not totally disabled.Therefore, the medical board recommended denial of disability retirement.

On October 5, 1977, Feliciano appealed the medical board's decision pursuant to the Board's rules, and the Board designated Kenneth Saruwatari, Esq., as hearings officer for the appeal.³A hearing was held on December 20, 1979 and, on October 10, 1980, the hearings officer submitted his recommended findings of fact, conclusions of law, decision and order.He found that the injury was service-connected, that Feliciano was totally disabled, and recommended that Feliciano be granted service-connected total disability retirement.

The Board thereafter considered all of the evidence in the record, in addition to the findings of both the medical board and the hearings officer and on November 12, 1980, issued its own proposed decision denying the application.Feliciano filed exceptions to the proposed findings and the Board heard arguments on April 13, 1981.On May 4, 1981, the Board entered its final decision, denying Feliciano's application.

In its Findings of Fact, the Board found:

3.Applicant in his present condition, is incapacitated for the further performance of duty.

4.However, the total credible evidence submitted does not indicate that Applicant, in his present condition, is permanently incapacitated for gainful employment.He is physically capable of performing lighter forms of work than he performed as a tractor operator.

5.Further, the total credible evidence submitted does not establish that Applicant's present incapacity for the further performance of duty was the natural and proximate result of the May 16, 1974 accident.

The Board concluded that Feliciano had not met the burden of establishing "the requisite degree of incapacity and causation."

Feliciano timely appealed to the circuit court for review.HRS § 91-14 (1981 Supp.).After argument, the court entered its order on January 11, 1982, reversing the Board's decision and ordering the Board to accept the hearings officer's recommended decision to grant Feliciano service-connected total disability retirement.The order was signed by Honorable James H. Wakatsuki, Judge, on behalf of Honorable Toshimi Sodetani, Judge, who had heard the argument and rendered an oral decision.

Judicial review of decisions of administrative agencies is governed by HRS § 91-14(g)(1976).⁴Foodland Super Market, Ltd. v. Agsalud, 3 Haw.App. 569, 656 P.2d 100(1982);Danuser v. J.A. Thompson and Son, Inc., 3 Haw.App. 564, 655 P.2d 887(1982);Homes Consultant Co., Inc. v. Agsalud, 2 Haw.App. 421, 633 P.2d 564(1981).

Under § 91-14(g)(5), a reviewing court may not set aside the findings of an administrative agency except where they are clearly erroneous in that they are not supported by substantial evidence in the record, or where the court is left with the definite and firm conviction that a mistake has been made in view of the reliable, probative, and substantial evidence in the whole record.DeFries v. Association of Owners, 999 Wilder, 57 Haw. 296, 555 P.2d 855(1976);De Victoria v. H & K Contractors, 56 Haw. 552, 545 P.2d 692(1976);Foodland Super Market, Ltd. v. Agsalud, supra;Danuser v. J.A. Thompson and Son, Inc., supra;Homes Consultant Co., Inc. v. Agsalud, supra.

Review of the circuit court's decision by this court is governed by HRS § 91-15 (1981 Supp.)andRule 52(a),Hawaii Rules of Civil Procedure(HRCP)(1972, as amended).Foodland Super Market, Ltd. v. Agsalud, supra;Homes Consultant Co., Inc. v. Agsalud, supra.

Our examination of the record indicates that the Board's findings of fact that Feliciano's injury was not service-connected and that he was not incapacitated for gainful employment were supported by reliable, probative and substantial evidence and, therefore, that the circuit court erred in finding that the Board "erred in its conclusion."

The evidence shows that the May 1974 incident followed closely upon the January 1974 automobile accident.The evidence further shows that x-rays were not taken of Feliciano's lumbar spine after the January 1974 accident.The inference, of course, is that the lumbar disc could have been injured at that time.At the hearing before the hearings officer, Dr. Raymond Yap, a member of the medical board, testified that it was almost impossible for Feliciano's May 1974 fall to have produced a herniated disc or, if it did, the injury would have manifested itself immediately or within a few days of the accident.However, it did not show up until several months later.Furthermore, Dr. Yap testified that the medical board had "medical clues" indicating that Feliciano had degenerated lumbar discs prior to the May 16, 1974 accident and that such conditions worsen with time.

With regard to Feliciano's incapacity for gainful employment, Dr. Nicholson, Feliciano's treating surgeon, stated in his statement accompanying Feliciano's application that Feliciano was permanently incapacitated from doing heavy work, but that he should be able to perform light work.Dr. Nicholson noted Feliciano's lack of education as an employment problem.The hearings officer admitted in evidence a subsequent letter from Dr. Nicholson, in which he indicated that...