Tamashiro v. Control Specialist, Inc.

• Decision Date: 07 November 2001
• Docket Number: No. 22569.,22569.
• Citation: 34 P.3d 16,97 Haw. 86
• Parties: Neal M. TAMASHIRO, Petitioner/Cross-Respondent-Appellant, v. CONTROL SPECIALIST, INC., Respondent/Cross-Petitioner Employer-Appellee, and TIG Insurance Company, Respondent/Cross-Petitioner Insurance Carrier-Appellee.
• Court: Hawaii Supreme Court

34 P.3d 16

97 Haw. 86

Neal M. TAMASHIRO, Petitioner/Cross-Respondent-Appellant, v. CONTROL SPECIALIST, INC., Respondent/Cross-Petitioner Employer-Appellee, and TIG Insurance Company, Respondent/Cross-Petitioner Insurance Carrier-Appellee.

No. 22569.

Supreme Court of Hawai`i.

November 7, 2001.

Herbert R. Takahashi, Stanford H. Masui, Danny J. Vasconcellos, and Rebecca L. Covert, Honolulu, on the briefs, for petitioner/cross-respondent-appellant Neal M. Tamashiro.

Robin R. Horner, Honolulu, on the briefs, for respondent/cross-petitioner-appellees Control Specialists, Inc. and TIG Insurance Company. MOON, C.J., LEVINSON, NAKAYAMA, and RAMIL, JJ.; with ACOBA, J., concurring separately.

Opinion of the Court by RAMIL, J.

Petitioner/cross-respondent-appellant Neal M. Tamashiro and respondent/cross-petitioner-appellees Control Specialist, Inc. and TIG Insurance Company, Inc. (together Employer) timely applied to this court to review the decision of the Intermediate Court of Appeals (ICA) in Tamashiro v. Control Specialists, Inc., 97 Haw. 94, 34 P.3d 24 (Haw.Ct. App. 2001). In its published opinion, the ICA held: (1) that the Employer adduced substantial evidence so as to rebut the presumption, under HRS § 386-85(1) (1993), that Tamashiro was temporarily and totally disabled (TTD) from August 5, 1994 up to July 15, 1995; (2) that the Labor and Industrial Relations Appeals Board's (the Board) findings of fact were not clearly erroneous; and (3) that there was no "reasonable doubt" that Tamashiro was not TTD. Consequently, the ICA affirmed the Board's May 4, 1999 decision and order denying Tamashiro's claim for TTD benefits. Tamashiro petitions this court to reverse the ICA's opinion because, although the ICA correctly construed the word "any" in HRS § 386-85 to mean that the presumption applies to all proceeding conducted under the workers' compensation chapter, the ICA: (1) erroneously relied upon non-medical evidence in concluding that Tamashiro was not TTD; (2) misinterpreted the testimony of one of Tamashiro's physicians; and (3) erroneously applied the "substantial evidence" test under HRS § 386-85. According to Tamashiro, in cases where the testimony of witnesses conflict, the legislature has decided that the conflict should be resolved in favor of the Claimant. The Employer also petitions this court to vacate in part and affirm in part the ICA's opinion because the ICA: (1) erroneously applied the HRS § 386-85(1) presumption to an award of TTD benefits; and (2) erroneously applied a "reasonable doubt" analysis to an award of TTD benefits. We granted the applications for certiorari to clarify several aspects of the ICA's opinion. Specifically, we hold that: (1) the ICA erroneously applied the HRS § 386-85(1) presumption to the issue whether Tamashiro was "able to resume work" after August 5, 1994 and up to July 15, 1995; (2) the ICA erroneously applied an additional "reasonable doubt" analysis to Tamashiro's ability to return to work; and (3) the Board's conclusion of law that Tamashiro was not TTD was supported by the findings of fact and was not erroneous.

I. BACKGROUND

A. Proceedings in the Department of Labor and Industrial Relations

The background of this case is set forth in detail in the ICA's opinion, see Tamashiro, at 96-102, 34 P.3d at 26-32, which we will not repeat here. However, the relevant background for purposes of our clarification of the ICA's analysis is briefly stated below.

On March 30, 1994, Tamashiro, a ninth-step apprentice electrician, injured his right shoulder while working for Control Specialist, Inc. (CSI). Approximately two weeks later, Tamashiro sought medical treatment from Jinichi Tokeshi, M.D. Dr. Tokeshi placed Tamashiro off work for the following two and one-half months. Tamashiro returned to work on August 1, 1994 and was laid off four days later, on August 5, 1994.

On October 25, 1994, Tamashiro filed a claim for workers' compensation benefits. The Employer refused to pay TTD benefits because, it asserted, Tamashiro was "capable of returning to work" and thus not totally disabled. In response, Tamashiro requested a hearing before the Labor and Industrial Relations Disability Compensation Division.

On June 19, 1995, following a hearing, the Director of the Department of Labor and Industrial Relations (Director) rendered a written decision and order. The Director found that (1) Tamashiro "[was] not capable of returning to his usual and customary work as an electrician" and (2) Tamashiro's job as an electrician "[was] one likely to require use of the arms detrimental to [Tamashiro's] condition." Consequently, the Director ordered the Employer to, inter alia, pay Tamashiro TTD benefits from August 4, 1994 and "terminating at such time as is determined by the Director that such disability has ended." The Employer appealed the Director's decision to the Board.¹

On July 15, 1995, surgery was performed on, and a ganglion cyst removed from, Tamashiro's right shoulder. Evidence adduced at the hearing and contained in the record indicates that the cyst likely formed as a result of the March 30, 1994 work injury. Due to its location in the shoulder, pressure from the cyst on Tamashiro's suprascapular nerve caused weakness and atrophy of the external rotator muscles.

On August 9, 1995, the Board issued a pretrial order stating that the sole issue to be determined was:

the period of [Tamashiro's] temporary total disability due to the March 30, 1994 work injury after August 5, 1994 and prior to [July 15, 1995,] the date of surgery.

Trial commenced before the Board on March 5, 1997 and was completed on June 17, 1997.

On May 4, 1999, the Board filed its decision and order. In its findings of fact, the Board expressly found that Tamashiro's testimony regarding, inter alia "his ability to return to work as an electrician" was "lacking in credibility." In its conclusions of law, the Board stated:

[Tamashiro] was not temporarily and totally disabled for work from August 5, 1994 and prior to the date of surgery, July 15, 1995, as a result of his work injury of March 30, 1994, because he was able to resume work in his usual and customary employment as an electrician.

Tamashiro appealed.²

B. The Intermediate Court of Appeals

On appeal, Tamashiro argued that the Board erred by relying on non-medical opinions and, more generally, by declining to "accept the opinions" of Tamashiro's witnesses.³

In the ICA's view, the "overarching issue" in the appeal was "whether [the Employer] adduced substantial evidence . . . to overcome the presumption, under [HRS] § 386-85 (1993), that Tamashiro was totally disabled from August 5, 1994 up to July 15, 1995." Tamashiro, at 102, 34 P.3d at 32 (citing Chung v. Animal Clinic, Inc., 63 Haw. 642, 650-51, 636 P.2d 721, 727 (1981)) (footnote omitted). Accordingly, the ICA stated that "we may affirm the Board's conclusion that Tamashiro was not temporarily totally disabled if it was supported by substantial evidence demonstrating that he was able, despite his March 30, 1994 work injury, to perform the usual and customary duties of an electrician for CSI during the time period in question." Tamashiro, at 103, 34 P.3d at 33.

After reviewing the record, the ICA concluded that "the net weight of the evidence before the Board amounted to substantial evidence." Tamashiro, at 104, 34 P.3d at 34. Furthermore, "given that substantial evidence is contained in the record[,]" the ICA held that the Board's findings of fact were not clearly erroneous. Id.

As a final step in its analysis, the ICA asserted that "before we can affirm the Board's decision, Akamine[ v. Hawaiian Packing and Crating Co., 53 Haw. 406, 495 P.2d 1164 (1972),] requires that we take our analysis one step further, in order to determine whether any reasonable doubt exists regarding the question of compensability." Tamashiro, at 104, 34 P.3d at 34 (citation and footnote omitted) (emphasis in original). The ICA ultimately concluded that there was no reasonable doubt and affirmed the Board's May 4, 1999 decision and order. Id. at 29.

II. STANDARD OF REVIEW

Appellate review of the Board's decision is governed by HRS § 91-14(g) (1993), which provides:

Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory provisions; or

(2) In excess of the statutory authority or jurisdiction of the agency; or

(3) Made upon unlawful procedure; or

(4) Affected by other error of law; or

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

HRS § 91-14(g). "Under HRS § 91-14(g), COLs are reviewable under subsections (1), (2), and (4); questions regarding procedural defects are reviewable under subsection (3); FOFs are reviewable under subsection (5); and an agency's exercise of discretion is reviewable under subsection (6)." Potter v. Hawaii Newspaper Agency, 89 Hawai`i 411, 422, 974 P.2d 51, 62 (1999) (quoting Korean Buddhist Dae Won Sa Temple v. Sullivan, 87 Hawai`i 217, 229, 953 P.2d 1315, 1327 (1998) (quoting Konno v. County of Hawai`i, 85 Hawai`i 61, 77, 937 P.2d 397, 413 (1997) (quoting Bragg v. State Farm Mutual Auto. Ins., 81 Hawai`i 302, 305, 916 P.2d 1203, 1206 (1996)))) (brackets omitted).

III. DISCUSSION

A. The HRS § 386-85 Presumption

In Hawai`i, if an "employee suffers personal injury . . . by accident arising out of and in the course of employment," the injury is "covered" by the Workers' Compensation Law. HRS § 386-3 (Supp.2000). In applying the foregoing language, this court has adopted the work-connection...