NOT
FOR PUBLICATION
NO. 25692
IN THE INTERMEDIATE COURT OF APPEALS
I. Figueroa claims that she injured both
her sacroiliac joint and her low back in her
1995 work accident. Figueroa contends
that in failing to find that she injured her low back in addition to
her sacroiliac joint, the Board ignored the statutory
presumption set forth HRS § 386-85(1), which creates a presumption
"[t]hat the claim is for a covered work injury." Employer-Appellee Oahu
Transit Services, Inc. and Insurance Adjuster-Appellee John Mullen
& Co. Inc. (collectively
referred to as Employer/Adjuster) counter that the HRS § 386-85(1)
presumption is not applicable because
Employer/Adjuster did not dispute the work-relatedness of Figueroa's
injury, but only the nature of the injury and the extent
of any PPD resulting from the injury. We need not resolve whether the HRS
§ 386-85(1) presumption applies in the circumstances of this case
because we
conclude that there was substantial evidence to overcome any
presumption that Figueroa suffered a separate injury to her
low back. Dr. John Henrickson's evaluation, which the Board credited,
concluded that Figueroa had suffered only a
sacroiliac joint injury and not a low back injury as a result of the
1995 accident. Dr. Henrickson found that Figueroa's low
back pain was merely a symptom of her sacroiliac joint injury, not a
separate injury, and that the 1995 accident had not
aggravated Figueroa's preexisting low back condition. Dr. Henrickson's
evaluation constituted substantial evidence to
rebut any applicable HRS § 386-85(1) presumption and to support
the Board's findings regarding the nature of Figueroa's
injury and the extent of her PPD. See
Nakamura v. State, 98
Hawai`i 263, 267-68, 47 P.3d 730, 734-35 (2002). The Director of the
Department of Labor and Industrial Relations (the Director) found that
the location of Figueroa's injury
was "low back." We disagree with Figueroa's argument that the issues
stated in the Board's Pretrial Order were not broad
enough to preserve the Employer/Adjuster's ability to challenge this
finding of the Director. The Board reviews the
Director's decision de
novo. HRS § 386-87(b) (1993). The issues
stated in the Board's Pretrial Order included "the extent
of permanent disability, if any, resulting from the work injury of June
25, 1995." The issues stated were broad enough to
encompass the Board's determination of whether Figueroa had sustained
an injury to her low back that was separate from
her sacroiliac joint injury. II. Among the Board's findings
of fact (FOF) were: 1) FOF 5 which stated that "[o]n June 25, 1995,
Claimant injured her low
back while securing a wheelchair on the bus[;]" and 2) FOF 7 which
described Dr. Morris Mitsunaga's evaluation and
disability rating of Figueroa, including Dr. Mitsunaga's opinion that
"the 1995 injury permanently aggravated Claimant's
preexisting low back condition." We reject Figueroa's argument that
these findings were inconsistent with the Board's
ultimate determination that Figueroa only injured her sacroiliac joint.
The Board's generic reference to Figueroa's having
injured her "low back" in FOF 5 was not inconsistent with its more
specific determination that her actual injury was a
sacroiliac joint injury whose symptoms included pain in the low back.
In FOF 7, the Board simply described Dr.
Mitsunaga's evaluation; the Board did not adopt Dr. Mitsunaga's
evaluation as being correct. It therefore was not
inconsistent for the Board to reject Dr. Mitsunaga's evaluation and
credit Dr. Henrickson's evaluation. Figueroa's claim that the
Board erred in ignoring the application of HRS § 386-33 is based
on her argument that the Board
should have credited the disability rating of Dr. Mitsunaga, who
concluded that the 1995 accident had aggravated
Figueroa's preexisting low back condition. The Board, however, credited
the evaluation of Dr. Henrickson, who concluded
that the 1995 accident did not
aggravate Figueroa's preexisting low back condition. As Dr.
Henrickson's evaluation
provided substantial evidence to support the Board's decision, we
reject Figueroa's claim that the Board erred in ignoring
the application of HRS § 386-33. III. Figueroa argues that the
record as a whole does not support the Board's determination that she
did not suffer a separate low
back injury as a result of the June 25, 1995, work accident. We
disagree. The written evaluations and trial testimony of
Dr. Henrickson provided substantial evidence to support the
Board's findings and decision. See
Nakamura, 98 Hawai`i at
267-68, 47 P.3d at 734-35; Tamashiro
v. Control Specialist, Inc., 97 Hawai`i 86, 92, 34 P.3d 16, 23
(2001). We also reject
Figueroa's contention that the Board based certain findings of fact on
Dr. Henrickson's August 20, 2001, report which was
stricken due to its untimely submission. Dr. Henrickson's trial
testimony expressed the same opinions contained in the
stricken report. The Board did not err in basing certain of its
findings on Dr. Henrickson's trial testimony. Therefore, IT IS HEREBY ORDERED that
the Labor and Industrial Relations Appeals Board's January 2, 2003,
"Order Adopting
Proposed Decision and Order" and its February 13, 2003, "Order Denying
Request for Reconsideration of Decision and
Order" are affirmed. DATED: Honolulu,
Hawai`i, June 13, 2006.
1.
The notice of appeal
filed by Claimant-Appellant Bonnie Figueroa (Figueroa or Claimant) also
lists the "Proposed Decision and Order" filed on
November 2, 2002, by Hearings Officer Jean Tanaka as one of the orders
being appealed.
2. Hawaii Revised Statutes (HRS) §
386-85(1) (1993) provides:
On the briefs:
Dennis W.S. Chang,
for Claimant-Appellant.
Leighton K. Oshima,
Darlene Y.F. Itomura,
Catherine L. Wiehe,
(Wong and Oshima)
for Employer-Appellee and
Insurance Adjuster-Appellee.
3. HRS § 386-33 (Supp. 2005) provides in
relevant part:
(1) In cases where the
disability resulting from the injury combines with the previous
disability to result in greater permanent
partial disability
the
employer shall pay the employee compensation for the employee's actual
permanent partial disability
but for not more than
one hundred four weeks;
the balance if any of compensation payable to the employee for the
employee's actual
permanent partial disability shall thereafter be paid out of the
special compensation fund; provided that in
successive injury
cases where the claimant's entire permanent partial disability is due
to more than one
compensable injury,
the amount of the
award for the subsequent injury shall be offset by the amount awarded
for the prior compensable injury[.]