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Oral Argument Before the Hawaii Supreme Court

(Amended 09/23/15)

No. SCWC-11-0000812, Thursday, October 22, 2015, 10 a.m.

CHARLES P. POUONO, Petitioner/Claimant-Appellee/Appellant, vs. DAIICHIYA-LOVES BAKERY, INC., and TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Respondents/Employer/Insurance Carrier-Appellants/Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Herbert R. Takahashi, Rebecca L. Covert, and Davina W. Lam

Attorney for Respondents:

Kenneth T. Goya and Steven L. Goto

NOTE: Order accepting Application for Writ of Certiorari, filed 07/30/15.

NOTE: Order granting motion to continue oral argument from 10/01/15, 8:45 a.m., to 10/22/15, 10:00 a.m., filed 09/23/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Charles P. Pouono (Pouono) applies for writ of certiorari from the Intermediate Court of Appeals’ (ICA) April 16, 2015 Judgment on Appeal filed pursuant to its February 26, 2015 Summary Disposition Order, which affirmed the October 17, 2011 Decision and Order of the Labor Industrial Relations Appeals Board (LIRAB).

Pouono was injured in a motor vehicle accident in February of 2007, which was unrelated to his employment as a mechanic with Daiichiya-Loves Bakery, Inc. (Loves Bakery).  Pouono’s left hip was dislocated and fractured, and required surgery to correct the damage.  Pouono returned to full duty at Loves Bakery on July 1, 2007.  For the next two months following his return, Pouono experienced increased overtime hours.  His job required him to walk, crawl, climb, and carry tools as he fixed various machinery at the Loves Bakery factory.   

In August of 2007, during a scheduled appointment for his hip, Pouono told his doctor that he occasionally felt pain in his hip and groin after a long day’s work.  However, radiographs taken at the appointment did not reveal any major changes and instead showed that his hip fractures were healing.  Pouono next saw his doctor on December 4, 2007.  At that appointment, X-rays revealed changes consistent with avascular necrosis. Pouono was then advised to limit his activities.

Following a shift on December 10, 2007, Pouono experienced sharp pain down his left groin and leg that was apparently substantially different from the pain he experienced previously.  His doctor noted diagnoses of avascular necrosis and secondary arthritic changes of the hip.  By the following week, Pouono needed crutches to walk.  On December 18, 2007, more X-rays were taken, and Pouono was referred to doctors who diagnosed him with avascular necrosis and recommended a total hip replacement. On March 18, 2008, Pouono underwent a total hip replacement to allow him to eventually return to work in July 2008.

Pouono submitted a workers’ compensation claim, stating that his injury was caused by the December 10, 2007 incident.  By Decision dated January 20, 2009, the Director of the Department of Industrial Relations found the injury compensable, crediting the opinion of Pouono’s doctor. The doctor who performed the surgery to correct Pouono’s hip fracture opined that the injury would not have happened as soon as it did if Pouono had not returned to work.

Loves Bakery appealed the Director’s decision to the LIRAB.  By Decision and Order dated October 17, 2011, LIRAB reversed the Director’s decision after weighing conflicting medical opinions, concluding that Pouono “did not sustain a personal injury to the left hip, in the form of avascular necrosis or arthritis or an aggravation of those conditions, on December 10, 2007, arising out of and in the course of employment.” The LIRAB determined that Pouono’s injury was not work-related, and thus, his total hip replacement surgery was not a compensable consequence.

On appeal, the ICA concluded that Loves Bakery met its burden of substantial evidence to overcome the presumption that Pouono’s injury was a compensable work-related injury.  The ICA further concluded that the LIRAB did not err in reconciling the conflicting medical evidence of unequal weight and effect as to the cause of the injury in favor of Loves Bakery.

Pouono raises the following question on certiorari:
Whether the ICA gravely erred by not properly applying the presumption that [Pouono] had a work injury that aggravated or accelerated the collapse of his hip?


  1 Avascular necrosis, also referred to as aseptic necrosis, “is a condition that occurs when there is loss of blood to the bone. Because bone is a living tissue that requires blood, an interruption to the blood supply causes bone to die.  If not stopped, this process eventually causes the bone to collapse.”  Avascular Necrosis (Osteonecrosis), WebMD (July 7, 2015), http://www.webmd.com/arthritis/avascular-necrosis-osteonecrosis-symptoms-treatments.