Korsak v. Hawaii Permanente Medical Group, Inc., 21799.

CourtCourt of Appeals of Hawai'i
Citation12 P.3d 357,94 Haw. 257
Docket NumberNo. 21799.,21799.
PartiesRichard J. KORSAK, Claimant-Appellant, v. HAWAII PERMANENTE MEDICAL GROUP, INC., Employer-Appellee, Self-Insured, and Special Compensation Fund, Appellee.
Decision Date10 November 1999

David M. Robinson (Robinson & Chur), on the briefs, for claimant-appellant.

Clyde Umebayashi and Muriel M. Taira (Kessner Duca Umebayashi Bain & Matsunaga), on the briefs, for Employer-Appellee, Self-Insured.

Frances E.H. Lum and Nelson T. Higa (Deputy Attorneys General), on the briefs, for appellee.

BURNS, C.J., WATANABE, and LIM, JJ.

Opinion of the Court by LIM, J.

Claimant-Appellant Richard J. Korsak (Korsak) appeals the July 15, 1998 decision and order of the Labor and Industrial Relations Appeals Board (the Board) which denied workers' compensation for his disabling low back condition. We reverse because his employer failed to produce substantial evidence which expressly, directly, and specifically rebutted the presumption of compensability.

FACTS

Korsak worked as a physician for Employer-Appellee Hawaii Permanente Medical Group, Inc. (Kaiser). On November 16, 1992, he sustained a compensable injury to his right knee when he slipped and fell in Kaiser's hospital parking lot.

Following surgery on his right knee, Korsak began a course of physical therapy. He was seen three times in February 1993 by a physical therapist specializing in knee problems. Korsak claims he also attended a physical therapy session in early March, during which he felt sciatic (of, relating to, or situated near the hip) pain. Korsak contends he exacerbated a preexisting low back condition as a result of this March 1993 physical therapy session.

It is undisputed that Korsak has a significant history of low back problems. He underwent two back surgeries in the 1970's and was involved in an automobile accident in 1989 in which he fractured his back and herniated a disc.

After the alleged March 1993 physical therapy session, Korsak's low back condition made it impossible for him to continue work as a physician. He took an unscheduled retirement on January 14, 1994.

On March 4, 1993, Kaiser filed a WC-1 report for Korsak's knee injury. On July 30, 1994, Dr. Roy Sam, a former chief of physiatry1 at Kaiser and Korsak's associate at work, examined Korsak in connection with a Social Security Administration evaluation. Dr. Sam initially noted that Korsak injured his right knee and severely aggravated his low back problem in the 1992 fall.

In 1992 the patient was walking in the Kaiser Moanalua Hospital parking lot, when he slipped on oil and injured his right knee. The patient had a right medical meniscus tear and severely aggravated his back problem. He had a medial meniscectomy in February of 1993 by Dr. Frank Uhr.

Dr. Sam went on to opine, however, that Korsak exacerbated his low back condition during physical therapy.

Postoperatively the patient went to physical therapy and the sports therapist stretched his leg during pulling the right leg over the left. This resulted in a severe strain of the sciatic nerve causing him to have severe pain in the leg. The patient had epidural blocks and morphine blocks by Dr. Robinson, about four blocks in all. The patient was not helped by these injections.

On October 24, 1994, Korsak added a workers' compensation claim for his low back condition, stating that he exacerbated this condition while doing physical therapy for his work-related knee injury. Korsak did not claim that he suffered additional low back injury during the November 16, 1992 fall. The State Special Compensation Fund was made a party to the case pursuant to Hawai`i Revised Statutes (HRS) § 386-33 (1993).2

On October 17, 1995, Dr. Lee Silver performed a records review of Korsak's medical history at the behest of the Director of the Department of Labor and Industrial Relations (the Director).

By decision and order dated December 22, 1995, the Director awarded benefits only for the injury to Korsak's right knee, finding that he did not sustain a compensable back injury during physical therapy for the November 16, 1992 fall.

In a January 4, 1996 letter to the Director, written at Korsak's request, Dr. Sam further opined that "[t]here is no doubt that the most of the sciatica and back pain incurred in March 1993 during a physical therapy session was the final precipitating event that caused his medical retirement."

By letter dated January 9, 1996, Korsak requested reconsideration by the Director or, in the alternative, an appeal to the Board of the Director's December 22, 1995 decision and order. The Director denied reconsideration but deemed the letter an appeal to the Board.

On November 27, 1996, Dr. James Langworthy performed, at Kaiser's request, a records review of Korsak's medical history. The Board issued its decision and order on July 15, 1998, affirming the Director's denial of compensation for Korsak's low back condition. The Board made the following relevant findings of facts and conclusions of law:

FINDINGS OF FACT

8. There is a factual dispute on the issue of whether Claimant exacerbated his low back during PT [physical therapy] for his right knee. Even if Claimant developed right sciatica while performing PT for his right knee, however, we do not accept Claimant's contention that the PT incident caused his current low back condition.
9. . . . .
We accept Drs. Silver's and Langworthy's opinions over that of Dr. Sam, regarding the causation of Claimant's current low back condition.
. . . .
According to Dr. Silver, the cause of Claimant's continued low back pain is the natural progression of his spinal condition which pre-existed the November 16, 1992 work injury.
According to Dr. Langworthy, the cause of Claimant's current 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 from the 1989 [motor vehicle accident] MVA.
While Drs. Silver's and Langworthy's reports do not address the issue of whether Claimant exacerbated his low back during PT for his right knee, we note that their reports did review Dr. Sam's report dated July 30, 1994, which referenced the alleged PT incident.
10. We find that Claimant's current low back condition is the result of the natural progression of his pre-existing low back condition.

CONCLUSIONS OF LAW

1. We conclude that Claimant's low back condition is not a compensable consequence of the November 16, 1992 work injury, because Claimant's current low back condition is not causally related to his November 16, 1992 work injury. While Claimant contends that he permanently aggravated his low back condition during PT for his compensable knee injury, we have found that Claimant's current low back condition is due to his pre-existing low back problems.

On August 7, 1998, Korsak filed a timely notice of appeal from the Board's July 15, 1998 decision and order.

DISCUSSION

Korsak argues three points of error, as follows:

(1) The Board erred in concluding that his low back condition is not a compensable consequence of the November 16, 1992 work injury.
(2) The Board erred in accepting Dr. Silver's and Dr. Langworthy's opinions over that of Dr. Sam, regarding the causation of his current low back condition.
(3) The Board erred in not accepting his contention that the physical therapy incident caused his current low back condition.

We address Korsak's first point of error, as it subsumes the two others.

The dispositive issue in this appeal is whether the Board erred in its ultimate decision that Korsak's low back condition was not a compensable consequence of the November 16, 1992 work injury. Upon review of the record and relevant case law, we conclude that the Board's decision was not supported by substantial evidence and was therefore clearly erroneous.

We review challenges to ultimate decisions of compensability under the "clearly erroneous" standard. Tate v. GTE Hawaiian Telephone Co., 77 Hawai`i 100, 102-03, 881 P.2d 1246, 1248-49 (1994). "Thus, [the appellate] court considers whether such a finding is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record." Id.

As a general rule, injury resulting from treatment for a compensable work injury is regarded as a compensable product of the original injury. 1 Mod. Work. Comp. (CBC) § 116:12 (1993).

The Board concluded, however, that Korsak's low back condition did not result from physical therapy treatment for his November 16, 1992 work injury. The Board concluded instead that his low back condition was due to his preexisting low back problems.

Korsak essentially argues that the Board's misapplication of the statutory presumption of compensability in HRS § 386-85(1)3 was "clearly erroneous."

HRS § 386-85(1) (1985) creates a statutory presumption of compensability (the presumption). The presumption imposes upon the employer the burden of going forward with the evidence and the burden of persuasion. The employer may overcome the presumption only with substantial evidence that the injury is unrelated to the employment. Evidence, to be substantial, must be credible and relevant.

Tate, 77 Hawai`i at 107, 881 P.2d at 1253 (internal quotation marks and citations omitted) (emphasis added). Accordingly, Korsak contends that Kaiser failed to adduce "substantial evidence" to rebut this presumption of compensability. Kaiser, on the other hand, claims that it provided such evidence in the form of medical opinions from Dr. Silver and Dr. Langworthy.

The Hawaii Supreme Court, in a case analogous to this one, addressed the issue of what type of evidence constitutes "substantial evidence" to rebut the presumption of compensability. Akamine v. Hawaiian Packing & Crating Co., 53 Haw. 406, 495 P.2d 1164, (1972).

Edward Akamine died after...

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4 cases
  • Korsak v. Hawaii Permanente Medical Group, 21799.
    • United States
    • Supreme Court of Hawai'i
    • November 28, 2000
    ...court for a writ of certiorari to review the decision of the Intermediate Court of Appeals (ICA) in Korsak v. Hawai`i Permanente Medical Group, Inc., 94 Hawai`i 257, 12 P.3d 357, (App.1999). In its published opinion, the ICA held that respondent-appellant Richard Korsak's low back condition......
  • Van Ness v. State, SCWC–11–0000775.
    • United States
    • Supreme Court of Hawai'i
    • January 23, 2014
    ...testimony is "whether employment situation in any way contributed to the employee's injury"); Korsak v. Haw. Permanente Med. Group, Inc., 94 Hawai‘i 257, 260, 12 P.3d 357, 360 (App.1999) (applying slightest aggravation test and comparing facts to Akamine, which held that "[t]he primary focu......
  • Van Ness v. State, SCWC-11-0000775
    • United States
    • Supreme Court of Hawai'i
    • January 23, 2014
    ...testimony is "whether employment situation in any way contributed to the employee's injury"); Korsak v. Haw. Permanente Med. Group, Inc., 94 Hawai'i 257, 260, 12 P.3d 357, 360 (App. 1999) (applying slightest aggravation test and comparing facts to Akamine, which held that "[t]he primary foc......
  • Van Ness v. State, SCWC-11-0000775
    • United States
    • Supreme Court of Hawai'i
    • January 23, 2014
    ...employment situation in any way contributed to the employee's injury"); Korsak v. Haw. Permanente Med. Group, Inc., 94 Hawai'i 257, 260, 12 P.3d 357, 360 (App. 1999) (applying slightest aggravation test and comparing facts to Akamine, which held that "[t]he primary focus of the medical test......

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