Preview:

NO. 22464 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I DARRYL S. IGAWA, Claimant-Appellant, v. KOA HOUSE RESTAURANT, Employer-Appellee, and PACIFIC INSURANCE COMPANY, Insurance Carrier-Appellee APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (Case No. AB 96-434 (2-91-35946)) MEMORANDUM OPINION Burns, C.J., Watanabe and Lim, JJ.)

(By:

In this workers' compensation case, Claimant-Appellant Darryl S. Igawa (Igawa) appeals the March 30, 1999 Decision and Order (the Decision) of the Labor and Industrial Relations Appeals Board (the Board). The Decision reversed in part and

modified in part the July 12, 1996 Supplemental Decision and Order (the Supplemental Decision) of the Director of Labor and Industrial Relations (the DLIR). The Decision reversed the

DLIR's award of $44,990.40 in permanent partial disability (PPD) benefits to Igawa, and reduced his disfigurement award from $2,000.00 to $850.00. On appeal, Igawa argues (1) that the Board erroneously concluded he did not sustain any permanent disability attributable to his October 3, 1991 work injury, and (2) that the

-1-

Board erred as a matter of law in modifying his disfigurement award. We reverse the Decision insofar as it denied PPD benefits to Igawa, but we affirm the Decision's modification of Igawa's disfigurement award.

I.

Background.

On October 3, 1991, Igawa, who was employed as a cook by the Koa House Restaurant (the Employer), sustained a head injury when he reached for a pot on an overhead shelf and a "big soup pot" improperly stacked on top of the desired pot fell and struck him in the right forehead. Igawa sustained a small laceration on his right forehead. He complained of swelling, dizziness and nausea.

Several days later, he experienced severe headaches, loss of appetite, slight nausea, photophobia and sonophobia. forgetful and "fuzzy." He became

His concentration and accuracy suffered. He became more distracted and He also complained of By June 1993,

He would get lost easily.

irritable, and had trouble sleeping.

lightheadedness, blurred vision and dizziness.

Igawa was complaining of pain and problems in his right upper extremity with numbness and tingling into the right half of his body, attributable to cervical strain from jerking his head back during the accident. He was also experiencing sudden blackouts.

At the hearing before the Board, Igawa testified that these -2-

sequelae of his industrial accident have severely limited his capabilities and functioning, such that he was unable to return to work or obtain employment. Igawa was thirty years old at the time of the 1991 accident. In August 1975, while he was a teenager, Igawa

sustained a significant head injury when he fell into a drainage ditch onto his head. He was in a coma for six days. The fall

caused a brain contusion and a small hematoma in the left temporal area. He thereafter experienced a number of physical,

neurological, psychological and behavioral problems, which led to suicidal ideation and a number of psychiatric hospitalizations. A 1977 diagnosis listed temporal lobe seizures secondary to brain trauma. A secondary diagnosis listed depressive reaction, By 1981, these

insomnia, headaches and behavioral problems.

sequelae had resolved and Igawa no longer needed medication. The overarching issue in this case is whether Igawa's permanent partial disability is attributable solely to the nonindustrial accident in 1975, and is therefore not compensable. See, e.g., Akamine v. Hawaiian Packing & Crating Co., 53 Haw. 406, 495 P.2d 1164 (1972). During the claims process, the Employer's insurer denied Igawa's request that it authorize surgery to excise a lesion in his right frontal lobe area. Igawa's physician, Dr.

Yoshio Hosobuchi, opined that a preexisting "small cavernous angioma" in his right frontal lobe may have hemorrhaged as a -3-

result of the 1991 industrial accident, causing Igawa's headaches and seizure problems. The insurer's medical examiners believed

instead that Igawa's problems were solely a result of the 1975 accident, and that the preexisting lesion had in any event not hemorrhaged as a result of the 1991 industrial accident. After a hearing on September 6, 1994, the DLIR issued a November 15, 1994 Amended Decision and Order,1 in which the DLIR found that "there is insufficient medical evidence to rebut Dr. Hosobuchi's opinion that claimant's headaches and seizures are not [sic] caused by the hemorrhaged angioma. Also, the medical

evidence on file supports the fact that since said accident, claimant started having headaches and seizures. We note that

claimant did have headaches prior to date of accident, but they had resolved before claimant had said work-related accident." The DLIR thereupon ordered that the Employer "pay for such medical care, services and supplies as the nature of the injury may require, to include surgery to remove lesion from the right frontal lobe." disability benefits. The DLIR also awarded Igawa temporary total The DLIR left the issues of permanent

disability and disfigurement for determination at a later date. The Amended Decision and Order read as follows:
On October 3, 1991, claimant was in the employ of [the Employer]; on said date, claimant

The original Decision and Order, filed on October 31, 1994, was amended to correct an error regarding Igawa's entitlement to temporary total disability benefits.

1

-4-

sustained a personal injury to the head by accident arising out of and in the course of employment; said injury was not caused by claimant's wilful intention to injure oneself or another nor by intoxication. As a result of said injury, claimant was temporarily and totally disabled from work beginning (waiting period: November 9, 1991 through November 10, 1991; November 13, 1991) November 14, 1991 through November 17, 1991; April 5, 1992 through April 13, 1992; April 24, 1992 and continuing until such time as is determined by the Director that such disability has ended. The matters of permanent disability and/or disfigurement, if any, shall be determined at a later date. The average weekly wages of the claimant were $290.00. A hearing was held on September 6, 1994 to determine further medical liability, and other related issues. Claimant contends that employer should authorize surgery which was recommended by Y. Hosobuchi, M.D., who was a referral from Kenneth Nakano, M.D., claimant's attending physician. Dr. Hosobuchi opines that the surgery should stop claimant's continued headaches and seizures. In his independent medical examination (IME) of June 28, 1992, scheduled by employer, James Pierce, M.D., opines that claimant's headaches are related to said work accident. Claimant states that he sees "stars" and Dr. Hosobuchi told him that the surgery should stop this. He also has had a bad memory since the work-related accident. He has right leg and arm numbness and is not that balanced and has light-headedness when he suffers the seizures. Employer denies liability for the surgery since it is not required by the nature of the injury. Maurice Nicholson, M.D., opines in his IME of December 4, 1993, that there is no basis to relate claimant's frontal lobe lesion to the date of said accident. Further, a CT scan of October 30, 1991 shows that the lesion is from the old injury in 1975 and that there is no mass from the lesion and that there is no indication for surgery.

-5-

Juris Bergmanis, M.D., opines in his report of April 22, 1994, that claimant's right frontal lobe cyst is related to the old injury of 1975. He also goes on to indicate that he agrees with Dr. Nicholson's conclusions. Dr. Bergmanis notes that no angiogram was done to confirm angioma and that surgery is not necessary and will not alleviate claimant's headaches. Upon review of the entire matter, it is determined that the surgical excision of the lesion from the right frontal lobe appears to be reasonable and necessary medical care which relates to said injury. We credit Dr. Hosobuchi's reports of December 16, 1993 and September 12, 1994 in which he opines that claimant "had a small cavernous angioma in the right frontal lobe and because of the head injury it may have hemorrhaged causing headache and seizure problems." Further, Dr. Hosobuchi opines that surgery would eliminate claimant's headaches and seizures. Dr. Pierce in his report of June 28, 1992 opines, "The headaches he describes took a rather dramatic change since his accident of October. I think the accident combined with the associated stressors are responsible for the majority of his headache problems now." Dr. Nicholson states in his report of December 4, 1993 that "An arteriogram should be performed to diagnose whether or not there is an angioma." Dr. Bergmanis, in his report of April 22, 1994, opines that "cerebral angiography is the only study that conceivably could throw some light on this problem, although some of the malformations are so small as not to be seen on any test." Further, Dr. Hosobuchi opines in his report of September 12, 1994, "By nature of his anatomy, cryptic arteriovenous malformation or cavernous angioma cannot be demonstrated by the arteriogram." Based on the aforementioned, any test conducted to diagnose angioma would not be

-6-

appropriate since it would not show up on the test. Further, there is insufficient medical evidence to rebut Dr. Hosobuchi's opinion that claimant's headaches and seizures are not [sic] caused by the hemorrhaged angioma. Also, the medical evidence on file supports the fact that since said accident, claimant started having headaches and seizures. We note that claimant did have headaches prior to date of accident, but they had resolved before claimant had said work-related accident. Thereupon the Director makes the following DECISION 1. Pursuant to Sections 386-21 and 386-26, [Hawai #i Revised Statutes] HRS, said employer shall pay for such medical care, services and supplies as the nature of the injury may require, to include surgery to remove lesion from the right frontal lobe. Pursuant to Section 386-31(b), HRS, said employer shall pay to claimant weekly compensation of $193.34 for temporary total disability from work beginning November 14, 1991 through November 17, 1991; April 5, 1992 through April 13, 1992; April 24, 1992 and terminating at such time as is determined by the Director that such disability has ended. The matters of permanent disability and/or disfigurement, if any, shall be determined at a later date.

2.

3.

The Employer did not appeal the DLIR's November 15, 1994 Amended Decision and Order, even though the DLIR, in ordering the surgery and awarding Igawa temporary total disability benefits, concluded that the 1991 industrial accident had caused morbidity and disabling sequelae. On December 2, 1994, the surgery was performed by Dr. Hosobuchi. Nakano: About a week later, Dr. Hosobuchi reported to Dr.

-7-

Finally Daryl [sic] Igawa won and the Workman's [sic] Compensation agreed to pay for the surgery so he underwent right frontal craniotomy and excision of a cryptic arteriovenous malformation and significant frontal gliosis. Thus whatever the caused [sic] avian bleed one will never know but certainly he had a very significant gliosis to explain for [sic] his seizure problem and this is cleanly excised. I hope this will certainly reduce his seizure frequencies. I saw him today on December 8th and we removed the staples and he has done quit [sic] well and I will keep you posted about his progress from this standpoint.

About a month-and-a-half after the surgery, Dr. Hosobuchi reported to Dr. Nakano that "[t]he wound has healed well and he has not had a bad headache anymore and no seizures." Within a

year, however, Igawa's headaches, seizures and associated problems returned. On July 12, 1996, the DLIR issued a Supplemental Decision, which took up the issues of permanent disability and disfigurement left for further determination by its Amended Decision and Order. part, as follows:
1. On October 3, 1991, claimant, while in the employ of [the Employer], sustained a personal injury by accident arising out of and in the course of employment, said injury was not caused by claimant's wilful intention to injure oneself or another nor by intoxication. The location of said injury was: head. At the time of said injury, the average weekly wages of claimant were $290.00.

The Supplemental Decision read, in pertinent

2.

3.

-8-

4.

As a result of said injury, claimant is awarded the following benefits which the employer shall pay pursuant to Chapter 386, HRS: a. TEMPORARY TOTAL DISABILITY: (Waiting period: November 9, 1991 through November 10, 1991; November 13, 1991) beginning November 14, 1991 through November 17, 1991; April 5, 1992 through April 13, 1992; April 24, 1992 through October 17, 1995 NUMBER OF WEEKS: 183 4/7 @ $193.34 = $35,491.69

. . . . d. PERMANENT PARTIAL DISABILITY: beginning October 18, 1995 NUMBER OF WEEKS: 232.7009 @ $193.34 = $44,990.40[.] 35.00% of the whole person DISFIGUREMENT: 8

Download Igawa v. Koa House Restaurant.pdf

Hawaii Law