Panoke v. Reef Dev. & Seabright Ins., CAAP-11-0000556

• Decision Date: 30 June 2014
• Docket Number: NO. CAAP-11-0000556,CAAP-11-0000556
• Court: Hawaii Court of Appeals
• Parties: DAVID PANOKE, Claimant-Appellant, v. REEF DEVELOPMENT and SEABRIGHT INSURANCE, Employer/Insurance Carrier-Appellee,

DAVID PANOKE, Claimant-Appellant,
v.
REEF DEVELOPMENT and SEABRIGHT INSURANCE, Employer/Insurance Carrier-Appellee,

NO. CAAP-11-0000556

INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI'I

Dated: June 30, 2014

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2005-243 (NO. 2-04-07185))
SUMMARY DISPOSITION ORDER (By: Leonard, Presiding Judge, Reifurth and Ginoza, JJ.)

Claimant-Appellant David Panoke (Panoke) appeals from a Labor and Industrial Relations Appeals Board (LIRAB) June 14, 2011 Decision and Order that affirms in part, reverses in part, and modifies in part the Director of Labor and Industrial Relations' (the Director) decisions regarding Panoke's claim for workers' compensation benefits from Employer-Appellee Reef Development of Hawaii, Inc. (Reef Development) and Insurance Carrier-Appellee Seabright Insurance Company (Seabright Insurance).

Panoke raises several points of error on appeal, arguing that the LIRAB erred:

(1) in its Finding of Fact (FOF) that the work accident did not aggravate or accelerate Panoke's bilateral

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shoulder conditions, that Panoke would have experienced immediate symptoms, that Panoke's argument that the shoulder symptoms were masked by his low back injury is inconsistent with the report of knee symptoms, and that Panoke's shoulder conditions are inconsistent with a traction type mechanism of injury;

(2) as a matter of law in Conclusion of Law (COL) 1 that Panoke did not sustain injuries to his shoulders at work and that Reef Development rebutted the presumption of compensability;

(3) as a matter of law in COL 1 by refusing to consider any argument that Panoke's injury involved cumulative trauma;

(4) as a matter of law in COL 2 by limiting temporary total disability (TTD) to 6/20/2004 - 6/22/2004, 6/30/2004 - 12/17/2005, and 4/11/2006 - 5/11/2006;

(5) as a matter of law in COL 2 by requiring that certifications of disability be contemporaneous, in writing, include the date of the accident, and that they mention the condition for which the disability is certified; similarly, the LIRAB further erred in holding that descriptions such as "off work" or that a claimant is "significantly impaired" are insufficient as a certification of disability without a statement that such impairment or disability is due to the work injury;

(6) in COL 2 by holding that the record did not include statements of certification that Panoke was temporarily and totally disabled due to a work injury;

(7) as a matter of law in COL 3 that Reef Development was not liable for a late payment of TTD benefits and that there was no evidence that the payments were untimely;

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(8) as a matter of law in COL 3 that except for the period 4/11/2006 - 5/11/2006, Claimant was not entitled to TTD benefits after 12/17/2005; and

(9) as a matter of law in holding that Panoke was not entitled to treatment with Dr. Loos for chronic pain.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced, applicable authorities, and the issues raised by the parties, we resolve Panoke's points of error as follows:

(1 & 2) Hawai'i workers' compensation law contains a strong presumption in favor of employee claims. Hawaii Revised Statutes (HRS) § 386-85 (1993),¹ states that for all workers' compensation claims "it shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the claim is for a covered work injury." This places a "heavy burden" on the employer, imposing "the burden of going forward with the evidence and the burden of persuasion." Van Ness v. State of Haw., Dep't Of Educ., 131 Hawai'i 545, 558, 319 P.3d 464, 477 (2014) (citing Lawhead v. United Air Lines, 59 Haw. 551, 559, 584 P.2d 119, 124 (1978) and Akamine v. Hawaiian Packing & Crating Co., 53 Haw.

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406, 408, 495 P.2d 1164, 1166 (1972)).

"In order to overcome the HRS § 386-85(1) presumption of work-relatedness, the employer must introduce substantial evidence to the contrary"; in other words, substantial evidence that the injury does not relate to the employment. Igawa v. Koa House Rest., 97 Hawai'i 402, 407, 38 P.3d 570, 575 (2001). "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." Id. (citations and internal quotation marks omitted). If the employer is unable to produce this "substantial evidence," then the presumption requires that the claimant prevail. Van Ness, 131 Hawai'i at 558, 319 P.3d at 477; Akamine, 53 Haw. at 409, 495 P.2d at 1166. If, however, the "trier of fact determines that the employer has adduced substantial evidence to overcome the presumption, it must weigh the evidence elicited by the employer against the evidence elicited by the claimant." Igawa, 97 Hawai'i at 409, 38 P.3d at 577 (citation omitted). Additionally, given the "humanitarian" nature of the workers' compensation law, the supreme court has liberally construed HRS § 386-85 and "requires that all reasonable doubts be resolved in favor of the claimant." See Van Ness 131 Hawai'i at 558, 319 P.3d at 447 (citations omitted). Thus, "if there is reasonable doubt as to whether an injury is work-connected, the . . . statute demands that doubt be resolved in favor of the claimant." Akamine, 53 Haw. at 409, 495 P.2d at 1166.

As the Hawai'i Supreme Court noted in Van Ness, when

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"determining the compensability of injuries 'by accident'" (as is true in the instant case, where Panoke cites to the June 2004 accident as the source of his injuries), one must use the "unitary" or "nexus" test. Van Ness, 131 Hawai'i at 560, 319 P.3d at 479. This unitary test "considers whether there is a sufficient work connection to bring the accident within the scope of the statute, and requires the finding of a causal connection between the injury and any incidents or conditions of employment." Id. at 560, 319 P.3d at 479 (citation and internal quotation marks omitted). Appellate courts must also keep in mind that, when reviewing a LIRAB decision on the issue of compensability, deference should be given to the LIRAB's assessment of witness credibility and evidentiary weight. Moi v. State, Dep't of Pub. Safety, 118 Hawai'i 239, 242, 188 P.3d 753, 756 (App. 2008); see Nakamura v. State, 98 Hawai'i 263, 268, 47 P.3d 730, 735 (2002); Igawa, 97 Hawai'i at 409-10, 38 P.3d at 577-78.

Panoke asserts that the LIRAB erred in its COL 1 that he did not sustain injuries to his shoulders at work and that Reef Development rebutted the presumption of compensability. We start with the presumption that Panoke's claim for shoulder injuries is a covered work injury and then examine the...