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Kawakami v. City and County of Honolulu12/24/2002
or returning from his place of employment is deemed not to have arisen out of or been in the course of employment" (emphasis added) (citations omitted)).
Commentators have referred to a variation of the deviation rule called the doctrine of re-entry, seemingly at odds with the one adopted by the majority. See Modern Worker's Compensation § 111:20 at 32 (1993) ("resuming a course reasonably related to the employer's business has been judicially interpreted to mean . . . returning an employer-provided vehicle to the place where it customarily belongs" (footnotes omitted)); Folse v. American Well Control, 536 So.2d 686, 689 (La. Ct. App. 1989) ("The doctrine of re-entry or temporary deviation . . . accepted by . . . this State . . . mean . . . after [the employee] has completed his private mission and has begun to return to his next duty, or, after such completion, has begun to return the vehicle to the place where it belongs." (Emphasis added.) (Quotation marks omitted.)).
In Kodak Oilfield Haulers v. Adams, 77 P.2d 1145, 1149 (Alaska 1985), the Alaska Supreme Court applied a "substantial deviation" rule, but also held that the statutory presumption applied to "medical causation" as well. Id. at 1150 (citing Rogers Elec. Co. v. Kouba, 603 P.2d 909, 911 (Alaska 1979)). However, the court noted that the failure to apply the presumption was a harmless error, as the employer had already presented substantial evidence to rebut the presumption. See id.
III.
With all due respect, I believe a substantial deviation rule undercuts the statutory presumptions laid out in Hawaii's worker compensation laws. The unitary test, as it was adopted, does not incorporate any specific doctrine. See Chung generally. Under the plain language of HRS § 386-85, a presumption of work connectedness applies until the employer rebuts it with "substantial evidence." Indeed in Korsak v. Hawaii Permanente Med. Group, 94 Hawaii 297, 12 P.3d 1238 (2000), this court expressly confirmed that the presumption of coverage applies "at the outset" and controls unless rebutted; any reasonable doubt favoring the claimant.
Rather HRS § 386-85 clearly dictates that coverage will be presumed at the outset, subject to being rebutted by substantial evidence to the contrary. This is so in all claims proceedings, . . . as the legislature has determined that, where there is a reasonable doubt as to whether an injury is work-connected, it must be resolved in favor of the claimant. Id. at 306, 12 P.3d at 1247 (quoting Akamine, 53 Haw. at 409, 495 P.2d at 1166) (italicized emphasis in original) (brackets omitted) (underscored emphasis added).
This court has already recognized that Hawaii's statutory presumption "places a heavy burden on the employer" that is different from most other jurisdictions. See id. at 307, 12 P.3d at 1248 (explaining that " n most other jurisdictions, the burden is placed on the employee" (citing Larson's Worker's Comp. Law § 80.33(a) (2000)). Our legislature has deliberately chosen to "cast a heavy burden on the employer in work[ers'] compensation cases" because "work injuries are among the costs of production which industry is required to bear[.]" Id. (quoting Akamine, 53 Haw. at 409, 495 P.2d at 1166). As I believe the "substantial deviation" rule disregards the statutory presumption of work connectedness and the "reasonable doubt" rule, I must disagree with its adoption. Consistent with HRS § 386-85, Chung, and Corden, the presumption should be applied. If the employer is able to produce substantial evidence to rebut the presumption, then the claim would be denied, unless reasonable doubt as to coverage exists.
IV.
For the reasons stated,
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