Appendix E — Tsuji v. Hawaii

STATE OF HAWAII

DEPARTMENT OF LABOR AND INDUSTRIAL

RELATIONS

DISABILITY COMPENSATION DIVISION

830 PUNCHBOWL ST RM 209

HONOLULU HI 96813

Claimant STANLEY R. TSUJI

PO BOX 778 DECISION

HONOLULU HI 96808 93 JUN 18

A 7:52

Employer STATE OF HAWAII

DEPT OF PUBLIC SAFETY

Insurance STATE OF HAWAII

Carrier DEPT OF PERSONNEL SERVICES

WORKERS COMPENSATION

DIVISION

345 QUEEN ST 5TH FL

HONOLULU HI 96813

Case No: 19210190

D/A: MAY 25, 1992

SSN: 576-92-0977

Such investigation of the above-entitled matter having

been made as the Director deems necessary, the Director makes

the following.

FINDING OF FACTS

On May 25, 1992, claimant was in the employ of the

above-named employer, on said date, claimant sustained stress

injured by accident arising out of and in the course of

employment; said injury was not caused by claimant's willful

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: May 25, 1992 through May

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27, 1992) May 28, 1992 and continuing until such time as the

Director deems such disability has ended. The matters of

permanent partial disability and disfigurement, if any, shall be

determined at a later date. The average weekly wages of the

claimant were $474.69.

A hearing was held to discuss the issues of

compensability, temporary total disability, and other related

issues.

Claimant contends that the stress and mental anguish he

suffers is a result of three years of harassment and threats from

being on modified duty in the outdoors because of his work

related respiratory ailment. He states that his stress worsened on

May 25, 1992 when he was wrongfully ordered by his employer to

report to regular duty at the closed air facility which had caused

his respiratory ailments. He further contends that employer did not

have State of Hawaii, Dept. of Occupational Safety & Health

(DOSH) do a follow-up scientific investigation of the closed air

facility since it was renovated and the no smoking policy was

implemented.

Claimant notes that Edward Lau, M.D.’s certificate of

May 26, 1992 advises him to go on leave of absence based on

stress if he is returned to work inside the building.

Employer denies liability for this alleged claim because

no documented injury or accident occurred which would fall

under workers’ compensation laws. Employer contends that

claimant’s argument that his alleged stress is from being returned

to the closed air facility is not valid because this facility had

recently been renovated and there is now a total smoking ban

policy in accordance with Craig Kadooka, M.D’s recommendation

in his letter June 5, 1989 if claimant was to return to this facility.

Further, the June 1, 1989 DOSH report indicated that there was no

violations and prior to employer's order to return to the facility,

DOSH inspected the facility and indicated that the air appeared to

be clean.

Claimant’s previous workers’ compensation claim of

November 13, 1987 was for a respiratory condition. A Physician’s

report (WC-2) of July 18, 1989 indicated that no further treatment

was necessary after June 5, 1989. Subsequently, a March 9, 1990

decision was rendered and stress was not noted in this decision.

Upon review of the entire matter, we find this claim for

workers’ compensation is compensable. Although claimant

apparently felt stress from harassment and threats since he was

placed on modified duty on June 5, 1989, it appears that

claimant’s stress did not manifest until May 25, 1992 when

claimant was ordered by employer to return to regular duty at the

closed air facility which caused his respiratory ailments. Claimant

sought treatment with Dr. Lau on May 26, 1992 and Leigh

Sakamaki, M.D., on May 27, 1992. Both doctors opine that

claimant should not return to the closed air facility. Dr. Sakamaki

opines in her WC-2 of May 27, 1992 that claimant suffers from

“acute situational stress to work situation.” Dr. Sakamaki also

opines that further psychiatric treatment is not necessary if he is

not put back into the closed air environment.

Employer states that Dr. Kadooka opined in his WC-2

report of July 18, 1989 that no further treatment was necessary

after June 5, 1989. We note that Dr. Kadooka in his letter of June

5, 1989, recommends that claimant’s restriction from “working in

smoke-laden areas be indefinite until the smoking policy is

changed or much-improved air circulation is achieved.” Employer

assets that these changes have been made since there is currently a

smoking ban inside this facility and the air condition system was

renovated. We acknowledge that employer has made the

recommended changes but question whether a satisfactory follow-

up investigation was conducted by DOSH.

A letter dated April 19, 1992 from the employer’s

administrator to DPS indicates that a DOSH investigator inspected

all buildings at HCCC on March 29, 1992 and “verbally indicated

the air appeared clean. He indicated that he would follow-up with

the ventilation installers regarding scope of work. To this date, the

written report has not been received.” Based on the above letter,

we do not believe that a satisfactory investigation was conducted

a i ik is

whereby employer would be able to order claimant back to the

closed air facility.

Further, Dr. Lau’s WC-2 report dated August 14, 1992

indicated that when he consulted claimant on July 18, 1992,

“patient feels less stress and less breathing problems since leaving

site of work.” In his subsequent WC-2 dated December 23, 1992,

Dr. Lau indicates that when he consulted claimant on December

17, 1992, claimant suffered “no specific problems-stress and

anxiety resolving.” During these two consultations, Dr. Lau

indicates that claimant was not working. Based on this, claimant’s

problem appears to be resolving when he is away from the closed

air facility at work.

Therefore, based on the aforementioned, we find that

claimant is entitled to temporary total disability benefits from

May 25, 1992. Employer has not provided any medical evidence

that the environment which they have ordered claimant to return

to is “safe” for him, thereby resolving his situational stress.

Thereupon the Director makes the following

DECISION

1. Pursuant to Sections 386-21 and 386-26, HRS, said

employer shall pay for such medical care, services

and supplies as the nature of the injury may require.

2. Pursuant to Section 386-31(b), HRS, said employer

shall pay to claimant weekly compensation of $316.48

for temporary total disability beginning May 28, 1992

and terminating at such time as is determined by the

Director that such disability has ended.

3. The matters of temporary disability, permanent

disability and/or disfigurement, if any, shall be

determined at a later date.

BY ORDER OF THE DIRECTOR, JUNE 18, 1993.

APPEAL:

/s/ Gary Hamada,

Administrator

This decision may be appealed by filing a

written notice of appeal with the Director of

Labor and Industrial Relations or his county

representative within twenty days after a copy

of this decision has been sent.