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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0000383
                                                              18-MAY-2016
                                                              07:46 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


                            BRIAN YOSHII,
               Petitioner/Claimant-Appellee-Appellant

                                    vs.

             STATE OF HAWAI#I, UNIVERSITY OF HAWAI#I,
      Respondent/Employer-Appellant/Appellee, Self-Insured,

                                    and

           FIRST INSURANCE COMPANY OF HAWAI#I, LTD.,
    Respondent/Third-Party Administrator-Appellant-Appellee.


                            SCWC-12-0000383

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
      (CAAP-12-0000383; CASE NO. AB 2010-169 (2-08-46774))

                              MAY 18, 2016

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

             OPINION OF THE COURT BY RECKTENWALD, C.J.

          Brian Yoshii, a State of Hawai#i employee, was injured

while he was working for the University of Hawai#i (UH) Leeward

Community College (LCC).      This appeal concerns Yoshii’s
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subsequent workers’ compensation claim made against the State and

its insurance carrier, First Insurance Company of Hawai#i, Ltd.

            Yoshii was involved in an accident on the LCC premises

approximately one hour after he ended work for the day.             An MRI

of Yoshii’s knee revealed that he had torn his meniscus.

Yoshii’s employer, UH, and its insurance carrier, First Insurance

(collectively “the State”) denied Yoshii’s claim for compensation

on the basis that his injury was not work-related.

            Yoshii argues that pursuant to Hawai#i Revised Statutes

(HRS) § 386-85,1 the Labor and Industrial Relations Appeals Board

(LIRAB) was required to presume that Yoshii’s knee injury was

work-related in the absence of substantial evidence to the

contrary.    The LIRAB concluded that the State had adduced

substantial evidence sufficient to overcome the presumption that

Yoshii’s knee injury was a covered work-related injury.             The

Intermediate Court of Appeals affirmed the LIRAB’s decision and

order.

            The issues in this case are very similar to our recent

decision in Panoke v. Reef Dev., in which we held that “[t]he

LIRAB erred in concluding that [Employer] adduced substantial

evidence sufficient to overcome the presumption that Panoke’s



      1
            HRS § 386-85 (1984) provides, in pertinent part, that “[i]n any
proceeding for the enforcement of a claim for compensation under this chapter
it shall be presumed, in the absence of substantial evidence to the contrary:
(1) That the claim is for a covered work injury.”

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shoulder injuries were related to his . . . work accident” and

remanded to the LIRAB for further proceedings.            136 Hawai#i 448,

468, 363 P.3d 296, 316 (2015).         Similarly, we hold here that the

LIRAB erred in concluding that the State rebutted the presumption

that Yoshii suffered a compensable work injury.            We therefore

vacate the ICA’s judgment and the LIRAB’s decision and order, and

remand to the LIRAB for further proceedings consistent with this

opinion.

                               I.   Background

A.    Yoshii’s work history and October 2008 leg injury

            Yoshii began working for Respondent/Employer-Appellant-

Appellee UH’s LCC on August 1, 1995 as a “Cook II,” and was still

employed in that position on the date of his alleged work-related

injury on October 30, 2008.         Yoshii’s job involved spending all

day walking and standing on his feet, and going up and down

stairs to get pots, pans, and kitchen utensils.            Yoshii’s work

schedule in this position was Monday through Friday, 6:00 a.m. to

2:30 p.m.

            On January 3, 2008, Yoshii’s primary treating

physician, Dr. Luis J. Ragunton, treated Yoshii for “mild leg

edema” which Dr. Ragunton noted “maybe [sic] accounting for some

of [Yoshii’s] leg pain.”        On October 27, 2008, Dr. Ragunton’s

report stated that he treated Yoshii for “pain in the right leg,”

which Yoshii stated occurred “shortly after getting off the chair

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after watching a movie” the day before, on October 26.            Yoshii

later testified that the pain on this occasion was in his calf.

Dr. Ragunton proposed treating the edema with furosemide tablets,

a diuretic, to reduce swelling.

           Dr. Ragunton’s report regarding the October 27th visit

does not indicate that Yoshii was told to stay home from work,

but Yoshii testified that Dr. Ragunton told him to stay home for

two days, raise his leg, and stay off his feet. Yoshii also

testified that he stayed home for two days because “the pain was

intolerable.”

           Yoshii testified that he returned to work on

October 30, 2008 and worked his full shift from 6:00 a.m. to 2:30

p.m.   Yoshii also stated that his leg felt better than it had

during the prior few days.      After Yoshii finished work, as he was

leaving the premises and walking down some stairs on the loading

dock, he “planted [his] right foot, [and] there was a really

sharp pain.”    On the WC-5 form Yoshii submitted when making his

claim for compensation, Yoshii recorded that this incident

happened at 3:30 p.m.     The State’s WC-1 “report of industrial

injury” form also recorded the time of the injury as 3:30 p.m.

At trial, Yoshii confirmed that the injury occurred after his

shift was over.

           Yoshii stated that the pain he experienced while

walking down the stairs on October 30, 2008 was “[n]o comparison”

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to the pain he experienced the prior Sunday, when he hurt his leg

standing up after watching a movie, because the pain he

experienced on October 30, 2008 was “a really painful, sharp

pain.”

           Yoshii testified that after he felt the pain on

October 30, he held on to the wall and could not move for two or

three minutes.    He then proceeded to the truck in which his wife

was waiting to pick him up, and had a hard time lifting his leg

to get into the truck.     Yoshii testified that he then called his

supervisor, Travis Kono, and security to tell them what had

happened, and security told him to inform the human resources

(HR) department.    Yoshii called HR, but no one answered.          He was

only able to get in touch with someone in HR about one week

later.

           The same day as the incident, Yoshii went to the

emergency room at Pali Momi.      The emergency room staff iced

Yoshii’s leg, wrapped bandages around his calf and knee, and told

him to stay off his feet.      The emergency room report, prepared by

Dr. Donald Wilcox, stated that Yoshii’s chief complaint was a

“sore muscle” and described the history of Yoshii’s injury as

follows:
           The patient has a sore right leg for about 4 to 5
           days. He saw his doctor 4 days ago for this. He is
           not sure if he strained it or exactly what but it is
           sore. He was placed on a diuretic because of this.
           He states he is a short order cook so he is on his
           feet all the time. It just feels achy. It is achy on


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            the lateral calf, not posteriorly and not behind the
            knee, and it feels a little achy up to the thigh. The
            foot feels a little sore and swollen too.

            Dr. Wilcox noted that Yoshii’s complaints “may just be

due to progressive edema” and advised Yoshii to continue with the

diuretic and to follow up with his doctor.

            After the October 30, 2008 incident, Yoshii did not

return to work for eight months.

B.    Yoshii’s filing of his worker’s compensation claim and
      treatment after the October 30, 2008 injury

            On November 3, 2008, Yoshii saw Dr. Ragunton for a

follow up.     Dr. Ragunton’s report for this visit stated:

“Patient comes in for an ER follow up.           He re-injured his calf on

10/30/08.     . . . [H]e complains of continued pain to the right

calf area.     Evaluation in the emergency room revealed no

significant pathology.       The patient is concerned of possible

muscle injury since he stands all day at work.”            Dr. Ragunton

advised Yoshii to “keep his legs elevated as much as possible”

and to remain off work.

            On November 14, Yoshii returned to Dr. Ragunton,

complaining that his “right leg is still sore.”            Dr. Ragunton

advised Yoshii to continue taking furosemide tablets for

swelling, limit his fluid intake to prevent further edema, and

“remain off work until I reevaluate him in two weeks.”

            On November 18, 2008, Yoshii filed a “report of work-



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related injury” with his employer.         Yoshii described the incident

as occurring on October 30, 2008 in the following way:            “Walking

down the loading dock stairway and I stepped on my right foot the

wrong way hurting my right calf.         I had very sharp pain and

couldn’t move for about 2-3 minutes.         Then I had a very hard time

getting into our vehicle.”      Yoshii noted his injury as “right

calf muscle strain.”     The supervisor’s section of the form was

filled out by Travis Kono and stated that the “injury occurred

after scheduled work hour [sic], outside of the kitchen walking

down the stairs” and that Yoshii was not performing his work

duties when the injury occurred because he was “off the clock.”

          On November 24, 2008, December 8, 2008, and

December 22, 2008, Yoshii revisited Dr. Ragunton for follow up on

his right leg pain.     At the December 22 visit, Dr. Ragunton

referred Yoshii to Dr. Calvin Oishi for “possible torn meniscus

of right knee.”

          On December 29, 2008, Dr. Oishi saw Yoshii and ordered

an MRI, which showed “moderate knee effusion, moderate

chondromalacia of the tibiofemoral joint, lateral patellofemoral

joint as well as possible degenerative tear of the medial

meniscus.”    Yoshii had surgery on his knee on January 17, 2009,

for repairs to both medial and lateral meniscus tears in his

right knee.   Five months after surgery, Yoshii was referred to

Dr. Alan Oki, a rheumatologist, who noted that since the surgery

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Yoshii had shown “substantial improvement” but that he still had

some “residual pain.”     On June 24, 2009, Dr. Oki diagnosed Yoshii

with “osteoarthritis of the right knee with chondromalacia

involving the medial femoral condyle and patella” and noted that

he “had both medial and lateral meniscus tears which were

successfully addressed by Dr. Oishi.”

          On February 18, 2009, First Insurance sent a letter to

the Director of the LIRAB (Director) stating that it had

concluded that “Yoshii did not suffer an injury arising out of

and in the course of employment with University of Hawai#i.”

The letter further stated:
          We base our denial of benefits on the [independent
          medical examination] by Brian Mihara, MD dated
          2/9/09.[2] Dr. Mihara indicates no evidence in the
          medical records to suggest that this was a work
          related trauma. This was a pre-existing condition
          documented in the medical record dating back a number
          of years.

          After First Insurance denied Yoshii’s benefits, Yoshii

filed a WC-5 “employee’s claim for workers’ compensation

benefits” form with the Director.        On the form, Yoshii explained

that the reason for the filing of the form was that “claimant had

insurance deny [sic] claim.”      Yoshii described the accident as:

“walking down loading dock stair stepped on my right foot and

felt sharp pain in my leg” and his injury as:          “torn ligament on

right knee both inside and outside.”


     2
          Dr. Mihara’s report is discussed further below.

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C.    Physicians’ medical opinions regarding work-relatedness of
      Yoshii’s injury

      1.    Dr. Ragunton

            Four months after the incident, on March 30, 2009,

Dr. Ragunton provided a medical statement regarding Yoshii’s leg

injury.    Dr. Ragunton stated:
                  Mr. Brian Yoshii was initially seen by me on
            October 27, 2008. This was 3 days prior to his injury
            at work. He had reported leg pain when getting off a
            chair. At that time it appeared that his leg pain was
            caused by leg swelling and fluid retention. The
            patient was treated with diuretic therapy.

                  Mr. Yoshii was injured at work on October 30,
            2008. He went to the emergency room and on November
            3, 2008 I saw him for follow up. He reported that the
            emergency room evaluation revealed no significant
            pathology. I am not sure if the emergency room was
            advised that the patient hurt his knee at work. At
            that time was [sic] concerned that the patient still
            had a medical condition contributing to his knee and
            leg pain. At that time an evaluation was started by
            myself. It appeared that he had no evidence of deep
            venous thrombosis of his lower extremity. I obtained
            a CT scan of the right leg which revealed no phlebitis
            or clots. There was also no evidence of any muscular
            tear. His medications were adjusted and his symptoms
            of swelling and pain had improved. Upon further
            follow-up however the patient reports that his upper
            calf and knee still hurt. At that point I had
            referred him to Dr. Calvin Oishi for further
            evaluation. He was found to have a torn meniscus of
            the right knee. Since surgery was performed in [sic]
            the patient going through physical therapy, his
            symptoms of need [sic] and calf pain have improved.

                  Because of his initial presentation being
            unclear, I did not pursue a work related claim upon
            initial presentation. However the patient feels
            certain that his knee pain and subsequent torn
            meniscus was related to the injury at work on October
            27, 2008. I am in agreement with this because the
            patient had no significant problems with his knee
            until after his injury. I also excluded and treated
            medical causes for pain and swelling of his right
            knee.




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          Dr. Ragunton also completed a WC-2 “physician’s report”

on March 30, 2009 describing Yoshii’s October 30, 2008 accident,

stating that Yoshii’s injury occurred on October 30, 2008, and

that the accident was not the only cause of Yoshii’s injury

because “initially I thought [Yoshii’s] condition may be related

to arthritis or swelling caused by medication or even deep vein

thrombosis but after treating these conditions pain in R[ight]

knee and calf persisted.”      Dr. Ragunton’s “final diagnosis” on

this form was that Yoshii had a “torn meniscus of right knee.”

     2.   Dr. Oishi

          In a letter addressed to Yoshii’s attorney dated

March 5, 2010, Dr. Oishi stated that Yoshii first presented to

him on December 29, 2008 complaining of persistent knee pain.

Dr. Oishi obtained an MRI and then performed surgery to conduct a

“partial medial and lateral meniscectomy, as well as an

arthroscopic lateral release with chondromalacia patella.”

Regarding the work-relatedness of Yoshii’s injuries, and his

disability from work, Dr. Oishi stated:
          The meniscus tear may have been caused by an injury at
          work but the chondromalacia probably was not. I
          really have no opinion regarding whether the patient
          suffered an injury at work as it wasn’t reported to me
          as such. But if I review the records it would seem
          that the time line would be that he had pain after
          injury. At least according to Dr. Ragunton’s note.

          Usually after arthroscopic surgery the patient would
          be totally disabled for a month and then partially
          disabled therefore [sic]. So for treatment you would
          have to assume patient was totally disabled from
          1/17/09 to 2/17/09 and then from 2/17/09 to 8/27/09


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          the patient was partially disabled. That would be the
          treatment period for treatment of his knee.

     3.   Dr. Mihara

          Dr. Mihara examined Yoshii on February 9, 2009 at the

request of First Insurance.      After recounting Yoshii’s medical

history, Dr. Mihara stated:
          2.    The Claimant’s diagnoses are:

                a.     Right calf and lower extremity discomfort,
                       primarily radicular in nature and not
                       related to any work related incident on
                       10/30/08. This preexisted the alleged
                       10/30/08 incident and the medical record
                       does not suggest that there was a work
                       related injury or aggravation.

                b.     History of recent right knee arthroscopic
                       surgery performed by Dr. Calvin Oishi,
                       reportedly for meniscal tears of the right
                       knee. The medical record does not suggest
                       that a meniscal tear or knee joint injury
                       occurred on 10/30/08 at work.

                c.     History of preexisting mild lower back
                       pain and occasional right and left lower
                       extremity radicular-type complaints
                       historically attributed to tendonitis and
                       muscular pain. This may indicate a nerve
                       root problem, possibly from his back or
                       even a nerve problem related to diabetes.

                d.     History of preexisting right lower
                       extremity edema, etiology unclear.
                       Scanning of the right lower extremity has
                       not revealed a source for the right lower
                       extremity swelling. This swelling may be
                       contributing partially to his leg
                       complaints.

          The prognosis for the right calf pain and radicular
          complaints is guarded, given the likelihood that this
          may well be degenerative in nature or related to his
          diabetes. Either way, this is not typically
          associated with “quick fix” treatment options.

          3.    It is my opinion that the claimant’s pain
                experienced on 10/30/08 was likely radicular in
                origin. This was a preexisting condition
                documented in the medical record dating back a
                number of years. It had been more frequent in


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                  recent years and in particular, it flared up
                  just several days prior to 10/30/08 after the
                  claimant stood up watching a movie. This
                  suggests the possibility of a nerve root
                  irritation. The medical record available to me
                  does not suggest any work related link, and the
                  medical record does not indicate any
                  gastrocnemius tear or meniscal tear due to work
                  injury. In other words, I can find no evidence
                  in the medical record to suggest that this was a
                  work related trauma or problem. I am forced to
                  rely on the medical record, given the
                  inconsistencies in the claimant’s verbal
                  history.

      4.    Dr. Davenport

            At the request of First Insurance, Dr. Kent Davenport

examined Yoshii on June 4, 2009.           Dr. Davenport noted his

impression as “[p]robable right calf strain unrelated to work

injury of 10/30/08.”       Dr. Davenport then stated:
            Brian Yoshii clearly injured his right calf on
            10/27/08 while rising from a chair after watching a
            movie. He was seen in the emergency room on 10/30/08
            with increasing right calf pain. However, I do not
            believe that there is an injury on 10/30/08 but merely
            the continuation of Mr. Yoshii’s right lower extremity
            discomfort.

            It would be difficult to give Mr. Yoshii a diagnosis
            at this time as all of his calf discomfort seems to
            have cleared. He does have some radiating pain in his
            thigh which could suggest a back injury. It was also
            noted that he was referred to Calvin Oishi, M.D.,
            orthopedic surgeon, for evaluation of a possible
            meniscus tear. However, it is clear from the medical
            records that this condition began on 10/27/08. I do
            not believe that it was aggravated or accelerated on
            10/30/08.

D.    The Director’s May 13, 2010 Decision

            The Director held a hearing on March 23, 2010 on the

issues of the compensability of Yoshii’s knee injury, the periods

through which Yoshii was eligible for temporary total disability



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(TTD) benefits, and whether to strike certain certifications and

reports because they were untimely.3

            The Director found that Yoshii’s right knee injury was

compensable.     In coming to this conclusion, the Director credited

Yoshii’s WC-5 form and Dr. Ragunton’s March 30, 2009 report and

WC-2 form.     The Director then ordered the State to “pay for such

medical care, services and supplies as the nature of the injury

may require” and “pay to claimant weekly compensation of $527.26

for [TTD] from work . . . for 24.4286 weeks, for a total of

$12,880.21.”

E.    Dr. Morris Mitsunaga’s medical opinion

            After the Director issued the decision, Yoshii obtained

a medical report from Dr. Morris Mitsunaga on February 14, 2011.

Dr. Mitsunaga’s impression of Yoshii’s injury was “[b]ilateral

knee osteoarthritis with chondromalacia.”           Dr. Mitsunaga prefaced

his conclusions by stating:        “Please note that the conclusions

made were from the interview of the patient, and the records

received.     I did not have the operative report of Dr. Oishi on

the right knee nor the MRI report of his right knee.”



      3
             The Director struck Dr. Oishi’s March 3, 2013 report and
Dr. Davenport’s June 4, 2009 report from the record because they were untimely
submitted. However, on appeal to the LIRAB, these reports were part of the
record. The LIRAB credited Dr. Davenport’s opinion and then determined that
the issue of whether to strike his report was moot. Even considering
Dr. Davenport’s report, it does not provide the substantial evidence necessary
to enable the State to overcome the presumption that Yoshii’s work injury was
compensable.

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Dr. Mitsunaga then concluded:
            It is my opinion that the patient suffers from
            osteoarthritis of both knees and chondromalacia
            patella. The incident of 10/30/08 aggravated a
            preexisting condition. There was not a specific
            injury. He was walking down stairs and had the sudden
            onset of right knee pain.

            It is my opinion that the patient has osteoarthritis
            and it was aggravated by his work activities as
            described. He states at work he has to stand
            constantly, walks back and forth, and goes up and down
            stairs and lifts things. He has progressive pain with
            kneeling and squatting which would be consistent with
            his symptoms of chondromalacia.

            . . . .

            It is my opinion that the patient had preexisting
            osteoarthritis and chondromalacia of both knees that
            was aggravated by his excessive work activities. His
            so-called sudden onset when coming down stairs at work
            on 10/30/08 aggravated his preexisting problems.

F.    Appeal to the LIRAB

            On May 19, 2010, Yoshii filed an appeal with the LIRAB.

In his initial conference statement to the LIRAB, the only issue

Yoshii raised was whether he was entitled to TTD benefits for the

periods October 30, 2008 through January 5, 2009 and June 25,

2009 through July 22, 2009.        The State, in its initial conference

statement, raised the issue of “[w]hether [Yoshii] suffered a

compensable injury arising out of and in the course of his

employment on October 30, 2008.”           On July 26, 2010, Yoshii

withdrew his appeal, and on October 5, 2010, the LIRAB entered an

order dismissing Yoshii’s appeal and designating the State as the

appellant.

            On May 11, 2011, the LIRAB held a hearing at which


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Yoshii was the only witness to testify.

          In addition to the description of events of October 30,

2008 discussed above, Yoshii testified that nothing else happened

to his right knee between October 30, 2008 and December 29, 2008,

when he had the MRI that showed a torn meniscus in his right

knee.

          On cross-examination, Yoshii testified that when he

hurt his knee on October 30, 2008, he was already “off the clock”

for the day and that he was not in his assigned work area because

he was going to his personal vehicle.        Yoshii also acknowledged

that he did not initially tell his physician about filing a

workers’ compensation claim but that he changed his mind later

when he filed his WC-5 form.

          Yoshii also testified that when he visited the

emergency room on October 30, 2008, Dr. Wilcox did not examine

his knee, but told him to stay off his feet and do a follow-up

visit with Dr. Ragunton.      However, Yoshii also testified that he

could not recall the exam given by Dr. Wilcox, he did not know

what it meant that Dr. Wilcox identified edema in Yoshii’s knees,

and he was not aware of Dr. Wilcox’s diagnosis.

          Yoshii also testified that when he was referred to

Dr. Oishi, he told Dr. Oishi that he had suffered a knee injury

as part of a workers’ compensation injury, but that he did not

know that Dr. Oishi had stated in his report that he had no

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opinion regarding whether the injury was suffered at work because

“it wasn’t reported to me as such.”        Yoshii also testified that

when he went to see Dr. Oishi, he noticed that there was a sign

on the wall stating that Dr. Oishi “wasn’t accepting Workmen’s

Compensation at the time.”

           Yoshii acknowledged that in Dr. Oki’s report dated

June 24, 2009, Dr. Oki stated that Yoshii had a “three-year

history of right knee pain,” but could not remember whether he

had told Dr. Oki that.     Yoshii also acknowledged that Dr. Oki’s

report stated that Yoshii “denies specific trauma or strain,” and

that he had told Dr. Oki that he had not suffered a traumatic

injury.

           Yoshii further stated that when Dr. Oishi received the

MRI films, he explained to Yoshii what they showed and told him

that he “had a torn meniscus on the inside and outside of [his]

right knee.”   He could not recall Dr. Oishi telling him that it

was a possible degenerative tear.

           On re-direct examination, Yoshii testified that his

injury on October 30, 2008 was not the same as the one he

suffered on October 26, 2008, for which he saw Dr. Ragunton on

October 27, 2008, because “[a]t the movie theater [on October

26], it seemed like a muscle.       A pulled muscle or something in my

calf.   And on the day of the injury, it was really sharp and it

was really sore.    In fact, I screamed[.]”

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           When questioned by the LIRAB board members, Yoshii

indicated that when he felt the pain at the movie theater on

October 26, 2008, it was located below the big part of his knee,

at the top of his calf muscle, and the pain he felt on

October 30, 2008 was in “[t]he same area.”         When asked whether

the pain on October 30, 2008 extended in to the “big part of your

leg where your knee bends,” Yoshii stated,         “[w]ell, to tell you

the truth . . . I felt it was like my calf.          Because that’s what

was bothering me earlier and that’s what I went to see the doctor

for.”

           On March 21, 2012, the LIRAB issued its decision and

order.   The LIRAB made the following findings of fact (FOFs):
                 1. On October 30, 2008, Claimant BRIAN M.
           YOSHII (“Claimant”) was a [sic] employed as a Cook II
           at [LCC] for Employer.

                 2. In a WC-5 . . . filed on March 11, 2009,
           Claimant alleges that on October 30, 2008 at
           approximately 3:20 p.m., he injured his right knee
           while walking down the loading dock stairs. He
           described his injury as a torn ligament.
                 Employer denied liability for a work injury.

                 3. In a November 18, 2008 Report of Work-
           Related Injury/Illness[,] Claimant stated that work
           his [sic] day began at 6:00 a.m. and ended at 2:30
           p.m. He explained that he stepped on his right foot
           the wrong way and hurt his right calf. He identified
           his injury as a right calf muscle strain.
                 The Supervisor’s Statement by Travis T. Kono
           noted that Claimant was “off the clock” and that the
           “[i]njury occurred after scheduled work hours, outside
           of the kitchen walking down the stairs.” Mr. Kono
           noted that Claimant had been “out on sick leave on
           similar injury prior to incedent [sic].”

           . . . .

                 6. Claimant saw Dr. Ragunton on November 3,
           2008 and stated that he re-injured his calf on October


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       30, 2008. Claimant was concerned about a possible
       muscle injury since he stood all day at work. Dr.
       Ragunton suspected that Claimant may have had a muscle
       tear.

       . . . .

             8. On February 9, 2009, Brian Y. Mihara, M.D.,
       an occupational medicine physician, examined Claimant
       at Employer’s request. Claimant informed Dr. Mihara
       that he never had calf pain or right lower pain [sic]
       before October 30, 2008. Dr. Mihara noted, however,
       that Claimant’s medical records documented a history
       of prior lower extremity symptoms, both right and
       left, from the hips through the knees and into the
       feet and ankles.
             Dr. Mihara opined that Claimant’s right calf and
       lower extremity discomfort was primarily radicular in
       nature and pre-existed the October 30, 2008 incident.
       He noted that the medical record neither suggested a
       work related injury or aggravation nor a meniscal tear
       or knee joint injury that occurred at work on October
       30, 2008. Dr. Mihara noted an incident on October 27,
       2008, where Claimant experienced right leg symptoms
       when standing up after watching a movie.

       . . . .

             10. Kent Davenport, M.D., an orthopedic
       surgeon, conducted a medical records review. In his
       report dated June 4, 2009, Dr. Davenport opined that
       Claimant sustained “[p]robable right calf strain
       unrelated to work injury of 10/30/2008.” Dr.
       Davenport opined that Claimant’s leg condition was a
       continuation of his right extremity discomfort that he
       experienced on October 27, 2008, while arising from a
       chair after watching a movie. Dr. Davenport did not
       believe that the condition was aggravated or
       accelerated on October 30, 2008.

       . . . .

             12. Dr. Oishi, an orthopedic surgeon, prepared
       a report dated March 5, 2010, which noted his opinion
       that the “meniscus tear may have been caused by an
       injury at work but the chondromalacia probably was
       not.” He stated that he had no opinion whether
       Claimant sustained an injury at work because it was
       not reported to him as such.

       . . . .

             14. Morris M. Mitsunaga, M.D., an orthopedic
       surgeon, prepared a report dated February 14, 2011,
       wherein he noted that Claimant did not remember
       twisting his knee or mis-stepping on October 30, 2008.
       Claimant also related that his pain was in his calf,


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          not his knee. Claimant complained to Dr. Mitsunaga,
          however, of continued right knee pain.
                Claimant informed Dr. Mitsunaga that similar
          symptoms on his left side were considered not work-
          related by Dr. Scott McCaffrey, M.D.
                Dr. Mitsunaga opined that Claimant had bilateral
          knee osteoarthritis with chondromalacia patella and
          that the October 30, 2008 incident aggravated that
          condition, although there was not a specific injury.
          Dr. Mitsunaga also opined that Claimant’s
          osteoarthritis was aggravated by his work activities
          of constant standing, walking back and forth, going up
          and down stairs, and lifting things.

                15. The Board finds Claimant’s testimony to be
          inconsistent in describing his alleged injury and with
          medical and other records; therefore, Claimant’s
          testimony is not credited.

                16. The Board credits the opinions of Drs.
          Mihara and Davenport over those of Drs. Ragunton and
          Mitsunaga.
                The Board specifically declines to credit Dr.
          Ragunton’s opinion regarding causation and the
          description of the injury which are inconsistent with
          the medical records, including Dr. Ragunton’s own
          medical records.
                Further, Dr. Oishi provided an equivocal comment
          that he had no opinion regarding causation.

                17. The Board finds that the pain Claimant
          experienced on October 30, 2008 was related to the
          edema that he experienced on October 26, 2008, for
          which he took time off from work for several days and
          sought treatment with Dr. Ragunton on October 27,
          2008.
                Claimant specifically noted that his pain
          symptoms continued from the movie incident and were
          located in his calf, rather than his knee, even for
          many weeks after the movie incident and the alleged
          work injury. On November 24, 2008, Claimant informed
          Dr. Ragunton that his right lower extremity pain had
          improved. As of that date, there was no evidence of
          any complaints about Claimant’s knee.

                18. There is no evidence of torn ligaments as
          described or claimed by Claimant.

                19. The Board has applied the presumption of
          compensability and finds that Employer has presented
          substantial evidence to overcome and rebut said
          presumption with regard to Claimant’s knee condition.

          The LIRAB then made the following relevant conclusion

of law (COL):


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                  1. Having applied the presumption of
            compensability and determining that Employer presented
            substantial evidence to overcome and rebut the
            presumption, the Board concludes that Claimant did not
            sustain a personal injury to his right knee on October
            30, 2008, arising out of and in the course of
            employment.

            The LIRAB thus reversed the Director’s May 13, 2010

decision.

G.    Appeal to the ICA

            In his appeal to the ICA, Yoshii argued that the LIRAB

erred in concluding that the State had overcome the presumption

of coverage pursuant to HRS § 386-85 because the medical opinions

given by the State’s doctors, Dr. Davenport and Dr. Mihara, were

generalized opinions that merely concluded that Yoshii’s knee

injury was not work-related, and did not explain why the incident

on October 30, 2008 could not have caused a meniscus tear or

aggravated an exiting tear, or explain what might have caused the

tear.    Yoshii also argued that even if the State did adduce

substantial evidence to overcome the presumption of coverage, the

evidence did not outweigh the medical evidence adduced by Yoshii

showing that the injury was a compensable work injury.               Yoshii

thus argued that the LIRAB erred in giving the State’s evidence

more weight.

              The State argued that the seven pieces of evidence

listed below amounted to substantial evidence sufficient to rebut

the presumption:


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          1.    Dr. Ragunton’s October 27, 2008 report showing
                that Yoshii complained of right leg pain before
                the date of his claimed injury after getting up
                from a chair at the movie theater.

          2.    Dr. Ragunton’s statement   in his March 30, 2009
                letter that “the patient   feels certain that his
                knee pain and subsequent   torn meniscus was
                related to the injury at   work on October 27
                [sic], 2008.”

          3.    Dr. Oishi’s statement in his March 5, 2010
                report that “I really have no opinion regarding
                whether the Claimant suffered an injury at work
                as it wasn’t reported to me as such.”

          4.    Statements in Dr. Mihara’s February 9, 2009
                report connecting Yoshii’s leg pain to
                “radicular symptomatology” and Yoshii’s
                statements to Dr. Mihara that when he was
                walking down the stairs on October 30, 2008, he
                felt pain in his “calf.”

          5.    Dr. Mihara’s opinion that “[t]he medical record
                does not suggest that the meniscal tear of knee
                joint injury occurred on 10/30/08 at work.”

          6.    Dr. Davenport’s opinion in his June 4, 2009
                report that “it was clear from the medical
                records that this condition began on 10/27/08.
                I do not believe that it was aggravated or
                accelerated on 10/30/08.”

          7.    The fact that Yoshii’s right knee MRI and
                surgery were not obtained in a manner consistent
                with the Worker’s Compensation Medical Fee
                Schedule because there was no consultation
                treatment request, concurrent treatment request,
                or surgical treatment request submitted.

          The State further argued that the opinions of doctors

Mihara and Davenport are not generalized opinions because both

address the underlying facts before concluding that Yoshii’s knee

injury was not work-related.      Finally, the State argued that the

evidence it adduced outweighed Yoshii’s evidence.

          On April 24, 2015, the ICA entered its memorandum

opinion affirming the LIRAB’s decision and order.            The ICA


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majority first addressed Yoshii’s argument that the LIRAB should

have concluded that, based on Dr. Mitsunaga’s opinion, “the

nature of the injury included the aggravation to the degenerative

condition and the tear in [Yoshii’s] right knee from [Yoshii’s]

work activities” and “the progression of the arthritis and the

effect of the work activities on the knee caused the tear of the

posterior horn of the lateral meniscus that in turn required the

surgery.”   The ICA majority declined to rule on the merits of

this argument because, according to the majority, Yoshii’s claim

for a covered injury “was not based on cumulative injury stemming

from work activity, but upon the stair-stepping event occurring

on October 30, 2008.”

            In regard to whether the LIRAB erred in concluding that

the State had submitted substantial evidence sufficient to

overcome the presumption of coverage, the ICA majority agreed

that the presumption applied, but held that the LIRAB did not err

in finding that the State had adduced substantial evidence and

had overcome the presumption.       The ICA majority reasoned that

Yoshii initially complained of pain in his right calf, and that

neither of the incidents that Yoshii alleged had caused his pain-

-getting out of his seat on October 27, 2008, and walking down

the stairs on October 30, 2008--occurred “while performing his

work duties or during office hours.”        The ICA also noted that

until December 29, 2008, when Yoshii first saw Dr. Oishi, there

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was no indication that Yoshii was experiencing knee pain or that

there was any problem with his knee.

          The ICA also relied upon the report of Dr. Mihara,

which stated that in his opinion, Yoshii’s knee injury was not

due to any work injury.     Based on this evidence, the ICA then

concluded that the LIRAB had not erred in finding that the State

had overcome the presumption of coverage.

          Judge Lisa Ginoza filed a dissenting opinion

disagreeing with the majority’s conclusion that the State had

adduced substantial evidence sufficient to overcome the

presumption.   Judge Ginoza reasoned that it was undisputed that

Yoshii felt pain in his right leg on October 30, 2008 and

immediately sought care in the emergency room at Pali Momi, and

then within two months was diagnosed with a possible torn

meniscus in his right knee.      Judge Ginoza concluded that the

reports of Drs. Mihara and Davenport, which were relied upon by

the LIRAB, did not constitute substantial evidence because they

lacked explanation “with a reasonable degree of specificity” of

why the October 30, 2008 injury could not have been at least an

aggravating factor of Yoshii’s meniscus tear.

          On August 3, 2015, Yoshii timely filed his application

for writ of certiorari.     Yoshii presents one question for this

court:
          Whether the ICA gravely erred by not properly applying
          the presumption that Clamant [sic] had a work injury


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            to his right leg, including a complex tear of the
            medial meniscus and a complex tear of the lateral
            meniscus?
                        III.    Standards of Review

A.    The LIRAB’s Decision

            The standard of review for LIRAB decisions is well-

established:
            Appellate review of a LIRAB decision is governed by HRS § 91-14(g)
            (1993), which states that:

                  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.

            We have previously stated:

            [FOFs] are reviewable under the clearly erroneous standard
            to determine if the agency decision was clearly erroneous in
            view of reliable, probative, and substantial evidence on the
            whole record.

            [COLs] are freely reviewable to determine if the agency’s
            decision was in violation of constitutional or statutory
            provisions, in excess of statutory authority or jurisdiction
            of agency, or affected by other error of law.

            A COL that presents mixed questions of fact and law is
            reviewed under the clearly erroneous standard because the
            conclusion is dependent upon the facts and circumstances of
            the particular case. When mixed questions of law and fact
            are presented, an appellate court must give deference to the
            agency's expertise and experience in the particular field.
            The court should not substitute its own judgment for that of
            the agency.


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Igawa v. Koa House Rest., 97 Hawai#i 402, 405-06, 38 P.3d 570,

573-74 (2001) (internal quotation marks and citations omitted;

alterations in original) (quoting In re Water Use Permit

Applications, 94 Hawai#i 97, 119, 9 P.3d 409, 431 (2000)).
                  An FOF or a mixed determination of law and fact is
            clearly erroneous when (1) the record lacks substantial
            evidence to support the finding or determination, or (2)
            despite substantial evidence to support the finding or
            determination, the appellate court is left with the definite
            and firm conviction that a mistake has been made. We have
            defined “substantial evidence” as credible evidence which is
            of sufficient quality and probative value to enable a person
            of reasonable caution to support a conclusion.

In re Water Use Permit Applications, 94 Hawai#i at 119, 9 P.3d at

431 (internal quotation marks and citations omitted).

                              IV.   Discussion

            Yoshii argues that the ICA erred in concluding that the

State adduced substantial evidence sufficient to overcome the

presumption of coverage.4       For the reasons set forth below, we

agree with Yoshii.

A.    The LIRAB erred in finding that the State adduced
      substantial evidence sufficient to overcome the presumption
      of coverage

            Yoshii argues that neither of the two medical opinions

proffered by the State provided the substantial evidence

necessary to overcome the presumption of coverage because they


      4
            Yoshii also argues that the ICA erred in concluding that the time
and location of his alleged injury barred his claim. However, it appears that
neither the LIRAB nor the ICA relied on the time and location of the injury in
determining that the State adduced substantial evidence to overcome the
presumption of coverage. Thus, we do not address this argument here.

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are generalized, meaning “they do not identify factual events

that would corroborate their opinion.”         Specifically, Yoshii

asserts that neither Dr. Davenport nor Dr. Mihara gave “specific

explanations for the cause of the tear [in Yoshii’s knee] and the

chondromalacia” or “address[ed] whether the stepping down of

[sic] the stairs could have aggravated any pre-existing osteo-

arthritis to cause the tear or aggravate a lesser, pre-existing

tear.”

          HRS § 386-85 provides, in pertinent part, that “[i]n

any proceeding for the enforcement of a claim for compensation

under this chapter it shall be presumed, in the absence of

substantial evidence to the contrary:        (1) That the claim is for

a covered work injury.”     This court has stated:
          When determining whether a workers’ compensation claim
          is work-related, it is well established in Hawai#i
          that it shall be presumed, in the absence of
          substantial evidence to the contrary . . . that the
          claim is for a covered work injury. As indicated in
          Acoustic, Insulation & Drywall, Inc. v. Labor and
          Industrial Relations Appeal Board, 51 Haw. 312, 316,
          459 P.2d 541, 544 (1969), to rebut the presumption,
          the employer has the burden of going forward with the
          evidence, which is the burden of production, as well
          as the burden of persuasion. The burden of production
          means that the employer must initially introduce
          substantial evidence that, if true, could rebut the
          presumption that the injury is work-related. In
          evaluating whether the burden of producing substantial
          evidence has been met, the slightest aggravation or
          acceleration of an injury by the employment activity
          mandates compensation.

          In evaluating whether the burden of persuasion has
          been met in the workers’ compensation context, the
          broad humanitarian purpose of the workers’
          compensation statute read as a whole requires that all
          reasonable doubts be resolved in favor of the
          claimant. In this case, the employer failed to meet
          its initial burden of producing substantial evidence,

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          and we therefore do not reach the burden of persuasion.

          As this court explained in Van Ness, this is a high
          burden placed on the employer, which is necessary
          because of the purpose of Hawaii’s workers’
          compensation law:

          The legislature has decided that work injuries are
          among the costs of production which industry is
          required to bear. Workmen’s compensation laws were
          enacted as a humanitarian measure, to create legal
          liability without relation to fault. They represent a
          socially enforced bargain: the employee giving up his
          right to recover common law damages from the employer
          in exchange for the certainty of a statutory award for
          all work-connected injuries.

Panoke, 136 Hawai#i at 461-62, 363 P.3d at 309-10 (internal

citations, formatting, and punctuation omitted).

          There is no dispute that Yoshii’s claim for

compensation triggered the HRS § 386-85 presumption.            As in

Panoke, the threshold question in this case is whether the State

adduced substantial evidence to overcome the presumption.             See

id. at 461-62, 363 P.3d at 309-10.

          “[A] reasonable degree of specificity is required in

order for medical opinion evidence to rebut the presumption of

compensability.”    Id. at 462, 363 P.3d at 310 (citation omitted).

Moreover, “the slightest aggravation or acceleration of an injury

by the employment activity mandates compensation.”           Van Ness v.

State, 131 Hawai#i 545, 562, 319 P.3d 464, 481 (2014) (citing

DeFries v. Ass’n of Owners, 999 Wilder, 57 Haw. 296, 309, 555

P.2d 855, 862 (1976)).
          In the present case, the only medical evidence the

State presented to rebut the presumption was the reports of


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Dr. Mihara and Dr. Davenport.       Those reports are conclusory in

nature and do not provide substantial evidence sufficient to

overcome the presumption of coverage.

          Dr. Mihara’s report stated that Yoshii’s discomfort in

his right leg “preexisted the alleged 10/30/08 incident and the

medical record does not suggest that there was a work related

injury or aggravation.”     Dr. Mihara stated that the pain Yoshii

suffered on October 30, 2008 was the result of a pre-existing

condition connected to the pain he felt a few days earlier when

he stood up after watching a movie.        Regarding the possibility

that the October 30, 2008 incident may have caused or aggravated

Yoshii’s meniscal tear, Dr. Mihara stated only that “the medical

record does not indicate any gastrocnemius tear or meniscal tear

due to work injury.”     Dr. Mihara did not explain this statement

any further.   The report does not explain, for example, why

walking down the stairs on October 30, 2008 could not have caused

a meniscal tear, nor does it explain why the pain Yoshii

experienced a few days prior to October 30, 2008 could not have

been the result of a meniscal tear that was further aggravated as

Yoshii descended the stairs at LCC on October 30, 2008.

          Dr. Davenport’s report is also conclusory.

Dr. Davenport’s report stated, “I do not believe that there is an

injury on 10/30/08 but merely the continuation of Mr. Yoshii’s

right lower extremity discomfort.”        Dr. Davenport then stated

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that “[i]t was also noted that [Yoshii] was referred to Calvin

Oishi, M.D., orthopedic surgeon, for evaluation of a possible

meniscus tear.    However, it is clear from the medical records

that this condition began on 10/27/08.         I do not believe that it

was aggravated or accelerated on 10/30/08.”          Thus, Dr. Davenport

seemed to recognize that the injury Yoshii saw Dr. Ragunton about

on October 27, 2008 was indeed connected to the meniscus tear for

which Yoshii later saw Dr. Oishi in December.          Nevertheless,

Dr. Davenport stated that Yoshii’s injury was neither aggravated

nor accelerated three days later on October 30, 2008 when Yoshii

again hurt his leg on the stairs, and gave no explanation as to

why he arrived at that conclusion.

          Moreover, Dr. Davenport examined Yoshii on June 4,

2009, and stated that “[i]t would be difficult to give Mr. Yoshii

a diagnosis at this time as all of his calf discomfort seems to

have cleared.”    Yoshii underwent surgery on January 17, 2009 to

repair his torn meniscus and Dr. Davenport does not give any

medical opinion as to why, if Yoshii’s calf pain was not

connected to his meniscus tear, Yoshii’s pain would have subsided

after he underwent his knee surgery.

          In sum, the medical reports relied upon by the State do

not provide any “reasonable degree of specificity” in explaining

why Yoshii’s knee injury was not caused or aggravated by the

incident on October 30, 2008.       Like the employer’s medical

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testimony in Panoke, the reports of Dr. Mihara and Dr. Davenport

do not discuss how the symptoms that Yoshii experienced before

and after the claimed work injury demonstrate that the

October 30, 2008 incident did not cause his torn meniscus.             As

such, they do not constitute substantial evidence and do not

rebut the presumption that Yoshii’s injury is a covered work

injury.   See Panoke, 136 Hawai#i at 463-64, 363 P.3d at 311-12.

           The other evidence relied upon by the State also does

not constitute substantial evidence.        The State relies on both

Dr. Ragunton’s October 27, 2008 report showing that Yoshii

complained of right leg pain before the date of his claimed

injury after getting up from a chair at the movie theater and

Dr. Ragunton’s statement in his March 30, 2009 letter that “the

patient feels certain that his knee pain and subsequent torn

meniscus was related to the injury at work on October 27, 2008

[sic].”   However, the fact that Yoshii first hurt his leg a few

days before the date of his claimed work injury does not mean his

work injury is not covered.      There was still no substantial

evidence adduced to rebut the presumption of coverage.

           Second, the State also relies upon Dr. Oishi’s

statement in his March 5, 2010 report that “I really have no

opinion regarding whether the Claimant suffered an injury at work

as it wasn’t reported to me as such.”        However, Dr. Oishi’s lack

of an opinion regarding the work-relatedness of Yoshii’s injury

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does not constitute substantial evidence to show that it was not

caused by Yoshii’s work.      Dr. Oishi only stated that he could not

make a conclusion one way or the other because Yoshii had not

reported it to him as a work injury.

            As in Panoke, the State’s physicians did not do more

than “opine generally” that Yoshii’s injury predated the work

incident, and “the physicians did not consider how [Yoshii]’s

prior injury might have been affected or aggravated[.]”            136

Hawai#i at 464, 363 P.3d at 312.       Thus, “the medical reports of

the employer’s physicians do not provide a sufficient degree of

specificity to constitute substantial evidence to rebut the

presumption that [Yoshii’s] injuries were work-related.”            Id. at

461, 363 P.3d at 309.

            As Judge Ginoza noted in her dissent, there is no

conclusive evidence showing whether Yoshii’s torn meniscus in his

right knee was the cause of the pain Yoshii experienced as he

descended the stairs on October 30, 2008, or whether, as the

State argues, the pain Yoshii experienced on October 27 and

October 30 of 2008 was the result of a pre-existing injury

completely separate from the torn meniscus.          However, the State’s

failure to present substantial evidence to overcome the

presumption means that we do not need to weigh the competing

evidence.    Id. at 462, 363 P.3d at 310.       Thus, the LIRAB erred

when it concluded that Yoshii’s injury was non-compensable

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because it did not arise out of and in the course of his

employment.

                             V.    Conclusion

           For the foregoing reasons, we hold that the LIRAB erred

in concluding that the State had adduced substantial evidence

sufficient to rebut the presumption that Yoshii’s knee injury was

a compensable work injury.        We thus vacate the ICA’s June 4, 2015

judgment and the LIRAB’s March 21, 2012 decision and order, and

remand to the LIRAB for further proceedings consistent with this

opinion.

Herbert R. Takahashi                      /s/ Mark E. Recktenwald
and Rebecca L. Covert
for petitioner                            /s/ Paula A. Nakayama

Paul A. Brooke                            /s/ Sabrina S. McKenna
for respondents
                                          /s/ Richard W. Pollack

                                          /s/ Michael D. Wilson




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