407-Page IME Report Insufficient to Rebut Hawai'i's Presumption of Compensability
Two months ago, I posited that a decision in an old influenza case from Hawaii might give us some indication as to how a COVID-19 presumption of compensability might operate in those states that have infused such a presumption into their workers’ compensation laws [to see that post, click here]. A recent decision issued by the Supreme Court of Hawaii, Cadiz v. QSI, Inc., 2020 Haw. LEXIS 200 (June 30, 2020), further illustrates the difficulty that employers and carriers might have in defending COVID-19 presumption claims. Applying the Hawaiian presumption of compensability available to virtually all claimants, the high court reversed a decision by the state’s Intermediate Court of Appeals that had rejected a claim filed by a grocery store meat department for “injury-by-disease” in the form of occupational exposure to mold and other toxins. Taking a particular swipe at a 407-page, single spaced IME report, the Court stressed that the presumption could not be overcome merely by offering evidence that some other cause was also medically plausible [see Haw. Rev. Stat. § 386-85].
Background
Prior to filing his claim, Cadiz worked in the employer’s meat department for four years. Cadiz subsequently testified that before he began his tenure with the employer, he was healthy. Daily exercise included engaging in martial arts. Shortly after moving to the the employer’s store in 2004, however, he “began to feel sick all the time.” Cadiz testified that the employer’s store was the first dirty store in which he had worked. He added that molds covered the walls, ceilings, drains and other surfaces in the area where he worked.
His claim for workers’ compensation benefits was rejected by the Labor and Industrial Relations Appeals Board (LIRAB), which found that reports based upon three Independent Medical Examinations (“IME”) offered by the employer provided sufficient substantial evidence to overcome the statutory presumption in favor of compensability. The Intermediate Court of Appeals affirmed [139 Haw. 428, 391 P.3d 1250], holding the employer’s medical experts had explained why mold exposure could not have caused or aggravated Cadiz’s injuries. Cadiz appealed.
Supreme Court Reverses – Unimpressed with “Weighty” IME Report
The high court observed that in 2011, the employer designated and paid two physicians and one psychologist to examine Cadiz and produce IMEs. The Court took particular displeasure at the weighty IME report of one of the physicians, Dr. Arora. Observing that the doctor had met with Cadiz for one and one-half hours on October 29, 2012, the doctor was nevertheless able to produce a 407-page, single-spaced report. Unfortunately, indicated the Court, although the report included references to some 51 medical articles, the most recent was from 2002, 10 years prior to the IME. The Court was similarly unimpressed with the other IME reports.
Intermediate Appellate Court Misapplied the Presumption of Compensability
Stressing that Hawai’i’s workers’ compensation law begins with the explicit statutory presumption that a claimed injury is work-related and, therefore, compensable, the Court acknowledged that the employer bore the heavy burden of producing substantial evidence disproving that the injury was work connected. The Court said the IME reports not only arrived at mutually inconsistent results, they failed to mention, much less directly address, laboratory tests that objectively proved the elevated presence of harmful mycotoxins in Cadiz’s body. According to the Court, Cadiz’s illnesses and symptoms reasonably appeared to be work-connected.
Heart Attack Analogy
The Court offered an analogy: an employee suffering a heart attack. It said:
A heart-attack may be “medically plausibly explainable” by an excess of cholesterol from eating too many french fries, but that does not mean that a claimant’s heart attack was not to some extent either caused or aggravated by work-related stress [Opinion, p. 35-36].
Similarly, the Court said a recurring cough could be explained by a lingering version of the common cold, but it could also be explained by asbestosis. Asserting that the cough is “medically plausibly explainable” by the common cold does not disprove asbestosis.
Medical Plausibility Not the Standard
The Court continued:
“Medically plausibly explainable by other medical conditions” is neither the relevant medical nor legal standard in the context of workers’ compensation, and the ICA erred by considering testimony resting on that standard to constitute substantial evidence rebutting the statutory presumption that an injury-by-disease “is causally related to the employment activity” or conditions [Opinion, p. 37].
In order to overcome the presumption in favor of compensability, the employer was required to prove through substantial evidence that the injury or disease was not work-connected. It had failed to do so, even with its weighty medical reports. The Supreme Court, therefore, remanded the case to the LIRAB with the instruction that Cadiz’s injury-by-disease was compensable under Hawai’i’s workers’ compensation law.