De Victoria v. H and K Contractors, 5594

• Decision Date: 22 January 1976
• Docket Number: No. 5594,5594
• Court: Hawaii Supreme Court
• Parties: Antonio DE VICTORIA, Claimant-Appellant, v. H & K CONTRACTORS, Employer-Appellee, and Financial Security Life Insurance Company, Insurance Carrier-Appellee.

Page 692

545 P.2d 692

56 Haw. 552

Antonio DE VICTORIA, Claimant-Appellant, v. H & K CONTRACTORS, Employer-Appellee, and Financial Security Life Insurance Company, Insurance Carrier-Appellee.

No. 5594.

Supreme Court of Hawai'i.

Jan. 22, 1976.

Syllabus by the Court

1. Rather than requiring a showing of substantial evidence as a prerequisite to a review, HRS § 386-89(c) requires that the applicant for review must show by substantial evidence a change in or . . . a mistake in a determination of fact related to the physical condition of the claimant only to justify favorable consideration of the application.

2. Where all evidence pointed to the inevitable conclusion that a knee injury did not manifest itself until long after a work accident injuring a claimant's back and that it was not related to the accident, claimant failed in regard to the knee injury to make a showing of substantial evidence required for favorable consideration of application for review.

3. Since the Labor and Industrial Relations Appeals Board is an agency within the definition of the Hawaii Administrative Procedure Act, HRS § 91-1, et seq., the applicable standards of review are supplied by that Act.

4. The Hawaii Administrative Procedure Act incorporates the 'clearly erroneous rule' which places court review of administrative decisions on fact questions under the same principle as that applied under the Hawaii Rules of Civil Procedure.

5. When reviewing the findings of a trial court under the 'clearly erroneous' standard in Rule 52(a), H.R.C.P., the test is whether the appellate court is left with a firm and definite conviction that a mistake has been made.

6. This issue of credibility is one within the primary responsibility of the Labor and Industrial Relations Appeals Board as the fact finder whose determination will not be disturbed lightly, but where the record reveals no conflict in the evidence or impeachment of any witness, the court will not sustain a finding as to credibility which it is firmly convinced is mistaken

7. The evidence presented was an unreliable and isolated basis for finding that claimant's back condition had returned to that prevailing prior to the work accident where the only evidence which supported such finding was a skeletal and incomplete form report which was neither explained nor supported by any other evidence.

8. The presumptions contained in HRS § 386-85 apply in any proceeding to enforce a claim under the workmen's compensation law, including a proceeding brought by a claimant under HRS § 386-89(c).

Laurence D. Scott, Honolulu, for claimant-appellant.

Richard E. Stifel, Honolulu (John A. Roney, Honolulu, on the brief, Goodsill Anderson & Quinn, Honolulu, of counsel) for H & K Contractors, employer-appellee, and Financial Security Life Insurance Company, insurance carrier-appellee.

Frank K. L. Yap, Jr., Deputy Atty. Gen. (Roy Miyamoto, Deputy Atty. Gen., Honolulu, on the brief), for Special Compensation Fund, Department of Labor and Industrial Relations, for appellee.

Before RICHARDSON, C. J., KOBAYASHI, OGATA and MENOR, JJ., and LANHAM, Circuit Judge in place of KIDWELL, J., disqualified.

OGATA, Justice.

This is an appeal pursuant to HRS § 386-88 (Supp.1974) by a claimant-appellant (hereinafter referred to as claimant) from an adverse decision and order of the Labor and Industrial Relations Appeals Board, denying further medical benefits and compensation for an alleged permanent partial disability. We reverse the decision and order, insofar as it denied such benefits and compensation for claimant's back injury.

On July 7, 1966, claimant, a 48 year old mason tender, was injured while working for employer-appellee, H & K Contractors (hereinafter referred to as employer). His injury was diagnosed by his treating physician, Dr. Leong, as acute lumbo-sacral strain and claimant was treated conservatively. On September 10, 1966, continued conservative symptomatic therapy was recommended by an orthopedic consultant, Dr. Dodge, to whom claimant had been referred by his treating physician. It also became apparent that prior to the accident claimant had contracted osteoarthritis of the lumbar spine. On July 8, 1967, claimant was released by Dr. Leong from further treatment of the injury of July 7, 1966.

That the 1966 injury was a covered work injury within the meaning of HRS § 386-3 was never disputed. Medical benefits through July 8, 1967, were paid by the employer's insurance carrier. Since liability was admitted, no decision awarding compensation was issued. If any order approving the original disposition of the claim was issued it does not appear in the record.

After claimant was discharged as cured by Dr. Leong, he continued to suffer pain in his back, although not as intensely as on the day of the injury. In December, 1971, he went to see Dr. Dodge who had previously examined him for his back condition. Since then claimant has been treated regularly by Dr. Dodge as his treating physician.

On March 14, 1972, claimant sought additional benefits under workmen's compensation by applying for a review of his case by the Director of the Department of Labor and Industrial Relations pursuant to HRS § 386-89(c) which authorizes such a re-examination 'whether or not a decision awarding compensation has been issued.' On June 19, 1972, the Director denied further medical services and compensation because he found that the claimant's present physical condition for which the application for review was filed did not result from his 1966 industrial accident.

Claimant appealed the Director's decision to the Labor and Industrial Relations Appeals Board for a hearing de novo, pursuant to HRS § 386-87. At this stage of the proceeding the Special Compensation Fund (established pursuant to HRS § 386-151) was made a party. ¹

At the de novo hearing on the merits before the Board, claimant testified that he had suffered no back pain or apparent back disability prior to the 1966 accident but that since the 1966 accident he has felt pain in his back continuously in varying degrees depending upon his bodily position. ² He also testified that he was not involved in any other accident after the 1966 accident. He further testified that while he was undergoing treatment for the 1966 accident he continued to work for employer until approximately one or two months after the accident when he was laid off for the reason that he was unable to perform his work duties satisfactorily. Subsequent to his release by Dr. Leong, he worked periodically for other employers as a laborer but was unable to retain employment as a result of inability to work because of the pain in his back.

The only other witness to testify before the Board was Dr. Dodge, who formerly acted as an orthopedic consultant but who is currently serving as claimant's physician. He testified that he had treated claimant since 1971 and that at present he evaluated claimant as permanently and partially disabled up to 28% of the whole man. He further testified that the 1966 accident aggravated the pre-existing osteo-arthritic condition and that 'there is no question' that at least some portion of the present back condition is causally related to the aggravation caused by the 1966 accident.

A medical report by Dr. Sakoda dated March 5, 1973, was stipulated into evidence along with other medical records. it was Dr. Sakoda's expert opinion that a causal connection evidently existed between the 1966 injury and claimant's present back injury. Dr. Sakoda's letter stated 'that the present findings are the result of the apparent apparent injury to his back. . . . It could very well be related to his apparent injury . . .'

The Board in its decision and order concluded that:

'1. Claimant suffered no permanent partial disability as a result of his accident of July 7, 1966, his back condition having returned by July of 1967 to the condition which prevailed prior to his work accident.

2. The present condition of Claimant's back is unrelated to his work injury of July 7, 1966.

3. Impairment of Claimant's knees which was first reported in April of 1970 is not related to his work injury.'

I

In support of the decision of the Board, the employer's threshold position on appeal is that the claimant did not initially present a showing of substantial evidence in support of his application, allegedly required prior to obtaining a review by HRS § 386-89(c). We do not believe that a showing of substantial evidence is necessary as a prerequisite to a review by the Director or the Board of an application under subparagraph (c) of HRS § 386-89. That subparagraph requires that the applicant for a review must show by substantial evidence 'a change in or . . . a mistake in a determination of fact related to the physical condition of the' claimant only to justify favorable consideration of the application. We agree that claimant made no such showing in regard to his claim for benefits and compensation for the condition of his knees. All evidence points to the inevitable conclusion that this injury did not manifest itself to the claimant until long after his work accident of July 7, 1966, and that it is not related to this accident.

II

The employer next asserts that there was no substantial evidence upon which the Board could favorably consider claimant's application with respect to his back injury because the Board found claimant's evidence not credible.

HRS § 386-88 (Supp.1974) confines our review of decisions by the Labor and Industrial Relations Appeals Board to matters of law. Since the Board is an agency within the definition of the Hawaii Administrative Procedure Act, ³ Cazimero v. Kohala Sugar Co., 54 Haw. 479, 510 P.2d 89 (1973), the applicable standards of review are supplied by HRS § 91-14(g) (Supp.1974) which states:

'(g) 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...