Korsak v. Hawaii Permanente Medical Group

• Citation: 94 Haw. 297,12 P.3d 1238
• Decision Date: 28 November 2000
• Docket Number: No. 21799.,21799.
• Parties: Richard J. KORSAK, Respondent-Appellant, v. HAWAII PERMANENTE MEDICAL GROUP, INC., Petitioner-Appellee/Respondent-Appellee, and Special Compensation Fund, Respondent-Appellee/Petitioner-Appellee.
• Court: Supreme Court of Hawai'i

12 P.3d 1238

94 Haw. 297

Richard J. KORSAK, Respondent-Appellant, v. HAWAII PERMANENTE MEDICAL GROUP, INC., Petitioner-Appellee/Respondent-Appellee, and Special Compensation Fund, Respondent-Appellee/Petitioner-Appellee.

No. 21799.

Supreme Court of Hawaii.

November 28, 2000.

Clyde Umebayashi and Muriel M. Taira, Honolulu, (of Kessner Duca Umebayashi Bain & Matsunaga) for Hawaii Permanente Medical Group, Inc., on the writ.

David M. Robinson, Honolulu, for Richard J. Korsak.

Frances E.H. Lum and Nelson T. Higa, Deputy Attorneys General, for Special Compensation Fund.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.

Opinion of the Court by MOON, C.J.

Petitioner-appellee Hawaii Permanente Group, Inc. (Kaiser) timely applied to this 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, allegedly exacerbated in a physical therapy session for a compensable work injury, was a compensable consequence of Korsak's primary work injury. Consequently, the ICA reversed the July 15, 1998 decision and order of the Labor and Industrial Relations Appeals Board (LIRAB). Kaiser petitions this court to vacate the ICA's opinion and affirm the LIRAB's decision because the ICA: (1) erroneously applied the statutory presumption of compensability under HRS § 386-85 (1993)¹ (the presumption) to an alleged compensable consequence of a work injury; (2) misapprehended the nature of the substantial evidence necessary to overcome a claim of compensability; and (3) misapplied the applicable standard of review. For the reasons stated herein, we disagree with Kaiser's contentions; however, we granted Kaiser's application for certiorari to clarify several aspects of the ICA opinion.

Respondent-appellee Special Compensation Fund (SCF) also petitioned this court for a writ of certiorari; however, because we hold that its application was untimely, we dismiss the SCF's certiorari proceeding for lack of appellate jurisdiction.

I. BACKGROUND

Korsak, a Kaiser physician, slipped and fell in Kaiser's parking lot on November 16, 1992 (the 1992 fall) and sustained an injury to his right knee (the primary injury). Korsak, at 257, 12 P.3d at 357. The compensability of the primary injury is not disputed. It is also undisputed that Korsak has a significant history of low back problems that pre-existed the 1992 fall. He underwent two back surgeries in the 1970s and was involved in an automobile accident in 1989, in which he sustained a compression fracture and herniated a disc in his back.

Korsak received medical treatment for the knee injury, including an outpatient surgery on January 29, 1993. Thereafter, Korsak underwent a course of physical therapy (PT). He was seen three times in February 1993 by a physical therapist specializing in knee problems. Korsak claims that, during a PT session in early March 1993, while doing a "stretching type exercise, in which you bring your right leg over the left leg," he strained the sciatic nerve, causing him to have severe pain in his leg and lower back (the subsequent injury). The pain did not subside and grew progressively worse over the next several months. Ultimately, the pain made it impossible for him to continue work as a physician and resulted in an unscheduled retirement on January 14, 1994. Korsak, at 258, 12 P.3d at 358.

On March 4, 1993, Kaiser filed a workers' compensation report for Korsak's knee injury from the 1992 fall. On October 24, 1994, Korsak sought to add his claim for the subsequent exacerbation of his low back condition. Korsak contended that the subsequent injury was a compensable consequence of the primary injury; he did not claim that he suffered the additional low back injury during the 1992 fall. In light of Korsak's subsequent injury claim and his position that he should be considered for permanent and total disability, the SCF was joined as a party to the claim.

At the hearing before the Department of Labor and Industrial Relations (DLIR), Korsak's claim was substantiated primarily by Roy Sam, M.D., a colleague of Korsak's and former Chief of Physiatry² at Kaiser, who stated in a Social Security Administration Evaluation that:

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.

Korsak, at 258, 12 P.3d at 358.

Also, at the hearing before the DLIR, Kaiser claimed that there was no record of the March 1993 PT session. Moreover, Kaiser contended that Korsak's low back condition was not related to the 1992 fall and was, therefore, not a compensable consequence. Kaiser submitted medical opinions from Lee B. Silver, M.D., and James R. Langworthy, M.D., both of whom concurred that Korsak's low back condition was not aggravated by the 1992 fall and that the cause of his low back symptoms was the natural progression of his pre-existing condition. Neither of the foregoing opinions addressed whether Korsak may have exacerbated his condition in the alleged PT incident. Kaiser submitted no direct evidence to contradict Korsak's claimed PT injury.

On December 22, 1995, the Director of the DLIR awarded benefits for Korsak's primary injury only, finding that Korsak did not suffer a compensable back injury because there were no records to substantiate Korsak's allegation of the PT incident. In the decision, the Director found that Dr. Sam's report was not credible on the issue of Korsak's compensability because "what is contained in the report is apparently the history as obtained from [Korsak]."

By letter dated January 9, 1996, Korsak requested reconsideration by the Director or, in the alternative, an appeal to the LIRAB. Enclosed with the request was a letter from Dr. Sam indicating that, although he was not the treating physician, he was the medical supervisor of the PT clinic and had contemporaneous knowledge of Korsak's physical therapy incident and injury.

On January 23, 1996, the DLIR denied Korsak's request for reconsideration and forwarded the case to the LIRAB. Prior to the hearing before the LIRAB, Kaiser submitted a letter and notes from Tom McConnell, the physical therapist who worked with Korsak, for the three sessions in February 1993. No notes were submitted for any PT sessions occurring after that time. Also submitted as evidence was a letter from Bernard Robinson, M.D., that essentially agreed with the conclusions of Dr. Silver.

Only Korsak testified at the hearing before the LIRAB on March 17, 1997. The LIRAB affirmed the Director's denial of compensation for Korsak's low back condition on July 15, 1998. The LIRAB entered the following relevant findings of fact (FOFs) and conclusions of law (COLs):

FINDINGS OF FACT

. . . .

8. There is a factual dispute on the issue of whether [Korsak] exacerbated his low back during PT for his right knee. Even if [Korsak] developed right sciatica while performing PT for his right knee, however, we do not accept [Korsak's] contention that the PT incident caused his current low back condition.

9. Drs. Lee Silver and James Langworthy performed record reviews and set forth their opinions by reports dated respectively, October 17, 1995 and November 27, 1996.

Dr. Roy Sam, who was not involved in the case either as a treating physician or as an independent medical examiner, set forth his opinion by report dated January 4, 1996.

We accept Drs. Silver's and Langworthy's opinions over that of Dr. Sam, regarding the causation of [Korsak's] current low back condition.

Both Drs. Silver and Langworthy noted [Korsak's] long history of back problems which predated his November 16, 1992 work injury. . . .

According to Dr. Silver, the cause of [Korsak'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 [Korsak'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 MVA.

While Drs. Silver's and Langworthy's reports do not address the issue of whether [Korsak] exacerbated his low back during PT for his right knee, we note that their reports did review Dr. Sam's report. . ., which referenced the alleged PT incident.

10. We find that [Korsak'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 [Korsak's] low back condition is not a compensable consequence of the November 16, 1992 work injury, because [Korsak's] current low back condition is not causally related to his November 16, 1992 work injury. While [Korsak] contends that he permanently aggravated his low back condition during PT for his compensable knee injury, we have found that Korsak'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 LIRAB's July 15, 1998 decision and order. The ICA reversed the LIRAB order on November 10, 1999 "because [Kaiser] failed to produce substantial evidence which expressly, directly, and specifically rebutted the presumption of compensability" under HRS § 386-85. Korsak, at 257, 12 P.3d at 358.

Kaiser timely filed a motion for reconsideration on November 22, 1999, in which the SCF joined. The ICA denied reconsideration on December 2, 1999. Subsequently, on December 6, 1999, the ICA sua sponte issued an amended order denying...