Tamashiro v. Control Specialists, Inc.

34 P.3d 24, 97 Haw. 94, 2001 Haw. App. LEXIS 91
CourtHawaii Intermediate Court of Appeals
DecidedApril 24, 2001
DocketNo. 22569
StatusPublished
Cited by2 cases

This text of 34 P.3d 24 (Tamashiro v. Control Specialists, Inc.) is published on Counsel Stack Legal Research, covering Hawaii Intermediate Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tamashiro v. Control Specialists, Inc., 34 P.3d 24, 97 Haw. 94, 2001 Haw. App. LEXIS 91 (hawapp 2001).

Opinion

Opinion of the Court by

LIM, J.

Claimant-Appellant Neal M. Tamashiro (Tamashiro) appeals the May 4, 1999 Decision and Order of the Labor and Industrial Relations Appeals Board (the Board). The Decision and Order reversed the Department of Labor and Industrial Relations Director’s (the Director) June 19, 1995 decision and order granting Tamashiro temporary total disability benefits for the period from August 5,1994 to July 15,1995.

On appeal, Tamashiro contends that the Board erred because it (1) relied upon non-medical testimony in making its findings of [96]*96fact, and (2) thereupon concluded that he was not totally disabled from August 5, 1994 to July 15, 1995. For the following reasons, we affirm the Board’s Decision and Order.

I. BACKGROUND.

On March 30, 1994, Tamashiro, who was employed as a ninth-step apprentice electrician by Control Specialists, Inc. (CSI), injured his right shoulder while he was disconnecting the control wiring for an ah’ handler unit at the Hilton Hawaiian Village. At the time, Tamashiro was standing on a ladder, with his upper body inserted into the tight crawl space above the drop ceiling. According to Tamashiro, he sustained his shoulder injury while reaching and twisting in “[a]wk-ward kind of positions.”

Dr. Darryl Kan (Dr. Kan), Tamashiro’s orthopedic surgeon, testified at the Board hearing that Tamashiro most likely tore a shoulder ligament while working in the crawl space. This tear resulted in fluid leaking from the shoulder joint through the tear, causing a ganglion cyst to form on Tamashi-ro’s upper right shoulder blade (i.e., the cyst formed as a result of the leaking fluid, and this tissue-like sac continued to capture and contain fluid leaking through the tear). Tests indicated, and surgery confirmed, that the cyst was situated in the area traversed by the suprascapular nerve, or shoulder blade nerve, thus compressing the nerve and causing its paralysis. Hence, Dr. Kan diagnosed Tamashiro as suffering from a supras-capular nerve palsy.

According to Dr. Kan, the suprascapular nerve controls the shoulder’s motor function of external rotation. In relevant part, this nerve controls the range of motion that includes raising the arm to shoulder level and overhead. Dr. Kan testified that the ganglion cyst’s compression of the suprascapular nerve caused a weakening of Tamashiro’s external rotator muscles.

The pathology of Tamashiro’s injury is undisputed. Further, there is no dispute over the fact that he sustained the injury while on the job. Rather, the parties disputed the degree of impairment Tamashiro suffered due to the suprascapular nerve palsy.

For his part, Tamashiro complained of pain whenever he raised his right hand to an overhead position. He contended that the pain made him incapable of working as an electrician. Tamashiro, accordingly, filed a claim for workers’ compensation benefits on October 25,1994.

For them part, the Defendants-Appellees (Appellees), CSI and TIG Insurance Company (the Insurer), contested, inter alia, Tama-shiro’s claim for temporary total disability benefits commencing on August 5, 1994, on the ground that Tamashiro could have performed his usual and customary duties as an electrician for CSI, his injury notwithstanding, but for being laid off on that date.

Appellees based them position, in part, upon several suiveillance videos taken by a private investigator hired by the Insurer.

A July 21, 1994 videotape shows Tamashi-ro working on one of his two power boats for over two-and-one-half hours. During that time, Tamashiro can be seen working on the boat’s motor—raising his arms laterally and overhead while using hand tools—for prolonged periods of time. Tamashiro is also shown lunging forward to shut off the motor, bracing himself “primarily with his right hand with his arm extended, placing strain on his shoulder.” In addition, the video shows Tamashiro lifting the large motor housing overhead and replacing it onto the motor. Tamashiro took no breaks during these hours of work, exhibited no apparent discomfort or fatigue, and used his arms cooperatively without favoring one over the other.

Another seventy minutes of videotape was taken on June 4, 1995.1 Tamashiro is again shown working on his boat, exhibiting the full panoply of motion of his right aim while using a series of power tools. In addition, Tamashiro is shown using his right arm to lift two plastic grocery bags—each bag appeared to contain a twelve-pack of twelve-[97]*97ounce, canned beverages—over his head in order to place them into the front seat of his Ford Bronco. The video also captures Ta-mashiro repeatedly raising his right elbow above his shoulder as he drinks from a plastic bottle, lifting his right hand high enough to empty a dust pan into a dumpster, and showering by raising a hose above his head with his right hand. In essence, the video depicts Tamashiro exhibiting the full range of motion with his right arm in a normal, unrestricted fashion.

Appellees also relied on an independent medical evaluation of Tamashiro, conducted by Dr. John W. Henriekson, Jr. (Dr. Hen-rickson). On December 9, 1994, Dr. Hen-rickson, a neurosurgeon, met with Tamashiro at the Insurer’s request. Curiously, Dr. Henriekson noted in his report that “[t]he patient indicates he has been a carpenter for six years.”

Although Dr. Henriekson diagnosed Tama-shiro’s condition as a suprascapular nerve entrapment, he nevertheless determined that “[t]his patient is capable of performing work that would allow him to maintain his elbows close to his body and does not involve overhead tasks or moving his shoulder in external rotation.” However, on January 16, 1995, Dr. Henriekson reevaluated his impression of the degree of Tamashiro’s impairment, after viewing the July 21, 1994 surveillance videotape.

Dr. Henriekson reported that,

I have reviewed the surveillance film on [Tamashiro]. This shows him performing mechanical work on a large Out Board Marine engine. He is observed using mechanical tools (e.g. wrench) with force, working above shoulder levels for long periods of time. It also shows him working overhead in a crouched position, with the same tools, for shorter periods of times [sic]. He also is capable of carrying the cover of the engine overhead and replacing it on the engine. He is also observed using tools with the left hand. There is no indication he has any difficulty whatsoever in using his right upper extremity with force and in above shoulder positions.
The diagnosis remains the same. He has sound clinical evidence of a right supraspi-natus nerve entrapment with muscle wasting of the infraspinatus muscle. What is changed is my impression of his upper extremity impairment. He is not functionally impaired to the extent he cannot return to working [sic] as a carpenter. He is capable of returning to full duties as a carpenter at this time.

(Emphases added.) Further, on January 26, 1995, Dr. Henriekson informed the Insurer that

[Tamashiro] has a surgically correctable lesion of right supraspinatus nerve entrapment.
He has some function impairment because of infraspinatus muscle wasting. This may totally resolve with decompression of the supraspinatus nerve.
He is not functionally impaired sufficiently to pr-eclude him from working as a carpenter.

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Related

Tamashiro v. Control Specialist, Inc.
34 P.3d 16 (Hawaii Supreme Court, 2001)

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Bluebook (online)
34 P.3d 24, 97 Haw. 94, 2001 Haw. App. LEXIS 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tamashiro-v-control-specialists-inc-hawapp-2001.