NO'l` F()R PLIBLICATI()N IN \VIZS']"’S HAWAI! REPOR'I`S OR T[~l}£ PACIFIC RICP()R'I`EMI{
NOS. 28764 AND 28765
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWATI § :g
No. 287e4 y,‘;i i£
v1NH ALK:RE-cLEMEN, c1aimant~Appe11ee, v, ‘{
CASTLE MEDICAL CENTER, Employer-Appellant, Self~Insured, ga
and
CRAWFORD AND COMPANY, Insurance Adjuster-Appellanti _$
(CASE NO. AB 2002-309 (2~98-l4l76)) y@” 33
AND
NO. 28765
VINH ALKIRE-CLEMEN, Claimant-Appellee, v.
CASTLE MEDICAL CENTER, Employer-Appellant, Self-Insured,
and
CRAWFORD AND COMPANY, Insurance Adjuster-Appellant
(CASE NO. AB 2003-l2l (2~O2-O9980))
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Leonard, JJ.)
In these workers' compensation cases, we consolidated
Appeal Nos. 28764 and 28765 for purposes of disposition on appeal
because they involve the same parties and overlapping underlying
facts. Employer-Appellant Castle Medical Center (Castle) and
Insurance Adjustor-Appellant Crawford and Company (collectively,
the "Employer") appeal from two Decisions and Orders of the Labor
and Industrial Relations Appeals Board (LIRAB), which were both
entered on August 28, 2007.
Claimant-Appellee Vihn Alkire-Clemen (Claimant) was
employed by Castle as a registered nurse. In LIRAB Case No. AB
2002~309, the case underlying Appeal No. 28764, the LIRAB
determined that Claimant sustained injuries to her low back and
left knee and developed a psychological condition in the nature
of chronic pain disorder and depression as a result of a February
24, l998, work injury. In LIRAB Case No. AB 2003-l2l, the case
underlying Appeal NO. 28765, the LIRAB determined that Claimant
sustained a cervical strain/sprain which developed into a
NOTFORPUBUCNUONUWWUSFSHAWAHREHNHUOR1UEPACWKHUWORTM{
psychological condition in the form of a pain disorder and
depression as the result of a February 20, 1999, work injury.
For purposes of trial, the LIRAB heard both cases simultaneously
but issued two separate decisions because the cases had not been
consolidated.
I.
On February 24, 1998, Claimant injured her back after
trying to prevent a patient from crawling over his bed rails and
lifting the patient back onto the bed. Claimant began treatment
with Dr. Neil Katz, an orthopedic surgeon, on October 1, 1998,
and filed a workers' compensation claim on October 5, 1998.
Claimant reported back pain and left thigh numbness and was
diagnosed as having low back pain and possible radiculopathy.
On February 20, l999, Claimant was allegedly injured as
the result of an altercation with a male co-worker at work.F In
March l999, shortly after this incident, Claimant stopped working
for Castle.
with respect to the February 20, 1999, incident,
Claimant claimed that the co-worker tried to attack her and that
as she pulled open a heavy door in an attempt to escape from the
co-worker, he pulled her hair.i On August 22, 2002, Claimant
filed a claim for workers' compensation benefits arising out of
the February 20, 1999, work incident. Claimant stated that this
incident caused her to suffer from "neck pain, constant headache,
pain in back[,] extremities tingling[,] pain and numbness[.]"
In the meantime, Dr. Ronald Barozzi, Ph.D., Psy.D.,
diagnosed Claimant with major depressive disorder, recurrent,
severe; pain disorder with psychological factors; Post Traumatic
Stress Disorder (from childhood war trauma in Vietnam); and
diffuse pain syndrome with probable muscular origin.
Psychiatrist Mark Bernstein, M.D., diagnosed Claimant as
suffering from depression not otherwise specified. Psychiatrist
Mohan Nair, M.D., who examined Claimant at Employer's request on
January 18, 2002, diagnosed Claimant as having a non-disabling
F Claimant testified during trial that the correct date of this
incident was February 2l, l999. However, many of the documents in the record,
including the LIRAB‘s decisions, refer to February 20, l999, as the date of
the incident, and to avoid confusion, we will do the same.
2
NOTFORPUBUCMUONIN“USFSHAWAHREHHUSORTHERMHHCREWHUER
pain disorder, chronic type, and conversion disorder. Dr. Nair
also opined that Claimant may have had an adjustment disorder
with depressed and anxious mood as a result of the February 24,
l998, injury that would have resolved by February 2000.
Psychiatrist Dr. Joel Peck, M.D., diagnosed Claimant with chronic
major depression with psychosis/severe.
On July lO, 2002, Claimant sought treatment with
Dr. Edward Okimoto and reported that she experienced weakness in
her legs which caused her to fall. Claimant also reported to
other treating physicians that she fell because of numbness in
her leg and that she twisted and fell on her left knee. An MRI
scan of Claimant‘s left knee on August 28, 2002, revealed
probable ligament tears and a suspected medial meniscus tear.
Dr. Katz reviewed the MRI on September l0, 2002, and diagnosed
left knee pain with MCL (medial collateral ligament) grade II
sprain; ACL (anterior cruciate ligament) grade ll sprain; and a
medial meniscus tear.
II.
In Appeal No. 28764, Employer argues that the LIRAB
erred in concluding that: 1) Claimant was entitled to medical
care after February 28, 2000, for a psychological condition in
the nature of a chronic pain disorder and depression secondary to
her February 24, l998, work injury; 2) Employer was liable for
services rendered by Dr. Bernstein on December 10, 200l, provided
that Claimant and her physicians complied with the Hawaii
Workers’ Compensation Medical Fee Schedule (fee schedule); 3)
Employer was liable for any continued psychiatric treatment by
Dr. Bernstein; 4) Claimant was entitled to further massage,
acupuncture, and acupressure treatments, provided she complied
with the fee schedule; 5) Claimant was entitled to a change of
physician to Dr. McCaffrey; 6) future vocational rehabilitation
services were to be kept open to Claimant; 7) Claimant sustained
a left knee sprain and medial meniscus tear on July lO, 2002, as
a compensable consequence of her February 24, 1998, work injury;
and 8) Claimant was entitled to Temporary Total Disability (TTD)
benefits after December 3l, 2003, subject to proper medical
NO'],` I*`OR PUBLI(,T,¢\'_!`ION IN VVI\IS'!"S HA\\’AII REPOR'I`S OR 'l.`l“I.E P.'-XC.IP»`I.C RE_PORTER
certification and excluding periods of disability attributable to
her December 2003 personal elective surgeries.
In Appeal No. 28765, Employer argues that the LIRAB
erred in concluding that: 1) Claimant‘s claim filed on August 22,
2002, with respect to the February 20, l999, work incident was
not time~barred pursuant to Hawaii Revised Statutes (HRS) § 386~
82 (l993); 2) Claimant sustained a compensable cervical
strain/sprain; and 3) Claimant's alleged February 20, l999,
injury had developed into a psychological condition in the form
of a pain disorder with psychological factors and a diffuse
muscular pain syndrome and depression.
For the reasons discussed below, in Appeal No. 28764,
we affirm in part and reverse in part the LIRAB's Decision and
Order in Case No. AB 2002-309. In appeal No. 28765, we vacate in
part the LIRAB's Decision and Order in Case No. AB 2003~l21, and
we remand the case for further proceedings consistent with this
Summary Disposition Order.
III.
We review the LIRAB's findings of fact under the
clearly erroneous standard and its conclusions of law de novo.
Nakamura v. State, 98 HaWaiH 263, 267, 47 P.3d 730, 734 (2002).
We give deference to the LIRAB's assessment of the credibility of
witnesses and the weight given to the evidence.
It is well established that courts decline to consider the
weight of the evidence to ascertain whether it weighs in
favor of the administrative findings, or to review the
agency's findings of fact by passing upon the credibility of
witnesses or conflicts in testimony, especially the findings
of an expert agency dealing with a specialized field.
ld; at 268, 47 P.3d at 735 (block quote format changed) (quoting
Iqawa v. Koa House Restaurant, 97 HawaiH_4G2, 409-10, 38 P.3d
570, 577~78 (200l)). HRS § 386-85(l) (l993) establishes a
presumption that an employee‘s claim for workers' compensation is
for a covered work injury. The employer bears the ultimate
burden of persuasion, and the claimant is given the benefit of
the doubt, on the work-relatedness issue. Id.
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IV.
we resolve the claims raised by Employer in Appeal No.
28764 as follows:
A.
we reject Employer's claim that the LlRAB erred in
concluding that Claimant was entitled to medical care after
February 28, 2000, for a psychological condition in the nature of
a chronic pain disorder and depression. Employer asserts that
the LIRAB's conclusion is invalid because it exceeded the scope
of the issues set forth in the LIRAB's pretrial order. Employer
contends that the relevant issue as stated in the pretrial order
was "Whether Claimant is entitled to medical care for the
adjustment disorder after February 29, 2OGO[.]" Employer argues
that it did not have a fair opportunity to be heard on whether
Claimant‘s adjustment disorder had evolved into a chronic pain
disorder and depression as found by the LIRAB. we disagree with
Employer's argument.
Claimant‘s appeal to the LIRAB clearly encompassed the
question of whether Claimant's psychological condition was a
covered injury attributable to her February 24, 1998, work
injury. Through Claimant‘s medical reports, Employer was aware
that Claimant‘s psychological condition had not only been
diagnosed as an adjustment disorder, but also as a chronic pain
disorder and depression. Moreover, one of the issues before the
LIRAB was "Whether Employer is liable for Dr. Mark Bernstein's
continued psychiatric treatment." Thus, we conclude that
Employer had fair notice that its liability for Claimant‘s
psychological condition was in issue and that Employer had a fair
opportunity to litigate that issue and to dispute that Claimant
suffered from the psychological condition found by the LIRAB.
There was substantial evidence to support the LIRAB's
determination that Claimant suffered from a psychological
condition in the nature of a chronic pain disorder and depression
that was attributable to the February 24, l998, work injury. We
conclude that the LIRAB did not err in concluding that Claimant
was entitled to medical care after February 28, 2000, for this
psychological condition.
NOT FOR PI_¥BLICATION lN VV}:`,S'!"S I'IAVVAI] RI*`,PORTS OR TI~I!Z PAC`!FIC REP()RTER
B.
Employer claims that the LIRAB erred in concluding that
Employer was liable for services rendered by Dr. Bernstein on
December l0, 2001. We agree with Employer on this claim. The
record shows that Claimant went to Dr. Bernstein for an
evaluation without obtaining the required prior approval for the
visit and despite her agreement to wait for an independent
psychiatric evaluation being arranged by Employer, which she
subsequently attended. we hold that Employer is not liable for
the services rendered by Dr. Bernstein on December lO, 200l.
C.
we reject Employer's claim that the LIRAB erred in
concluding that Employer was liable for continued psychiatric
treatment, if any, rendered by Dr. Bernstein. The record shows
that Claimant was referred by her attending physician, Dr. vern
Sasaki, to Dr. Bernstein at the recommendation of Dr. Barozzi.
Other doctors also opined that Claimant was suffering from
psychiatric or psychological problems. There was substantial
evidence in the record that Claimant suffered from a work-related
psychological condition and that she was entitled to seek
continued treatment for such condition by Dr. Bernstein.
D.
we reject Employer's claim that the LIRAB erred in
concluding that Claimant was entitled to further massage,
acupuncture, and acupressure treatments, provided she complied
with the fee schedule. The focus of Employer's argument was on
Claimant‘s request for further massage treatments, which Employer
claimed were not reasonably necessary. we note that HRS § 386-1
(Supp. 2009) defines "medical care" and "medical services" to
mean "every type of care, treatment, . . . [and] service . . . as
the nature of the work injury requires," including services'
provided by a licensed massage therapist.W There was
substantial evidence in the record to support the findings on
which the LIRAB's conclusion was based.
Y Earlier versions of the statute used the term."masseur" instead of
"massage therapist." HRS § 386-1 (Supp. 2000).
6
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E.
we reject Employer's claim that the LIRAB erred in
concluding that Claimant was entitled to a change of physician to
Dr. McCaffrey. In 2002, Dr. Sasaki, who was Claimant‘s attending
physician, informed Claimant that there was very little curative
treatment he could offer her; that her care would best be handled
by a pain management specialist; and that he would be happy to
accommodate Claimant‘s desire to transfer to Dr. McCaffrey, an
occupational medicine specialist, as her primary care physician.
In subsequent letters, Dr. Sasaki indicated that it would be in
Claimant‘s best interest to transfer to another doctor; that he
could not serve as her primary physician because Straub Hospital
had closed its occupational medicine department; that he had
exhausted all treatment options; and that she should continue to
see Dr. McCaffrey, as she seemed to be improving. The LIRAB's
decision to permit Claimant to change to Dr. McCaffrey as her
attending physician is supported by the record.
F.
we reject Employer's claim that the LIRAB erred in its
decision to keep future vocational rehabilitation services open
to Claimant. HRS § 386-25(a) (Supp. 2009) provides that
[t]he purposes of vocational rehabilitation are to restore
an injured w0rker's earnings capacity as nearly as possible
to that level that the worker was earning at the time of
injury and to return the injured worker to suitable gainful
employment in the active labor force as quickly as possible
in a cost-effective manner.
There was substantial evidence to support the LIRAB's finding
that "further [vocational rehabilitation] services may be
productive in identifying suitable gainful employment for
Claimant." The LIRAB had reasonable grounds for its decision not
to close vocational rehabilitation services to Claimant.
G.
we reject Employer's claim that the LIRAB erred in
concluding that Claimant sustained a left knee sprain and medial
meniscus tear on July lO, 2002, as a compensable consequence of
her February 24, 1998, work injury. There was conflicting
medical evidence presented on whether Claimant‘s left knee
condition was a compensable consequence of the February 24, l998,
7
NO'I` I.+`()R PUBL[CATION lN \VES'I"S liAVVAlI .REPORTS O,R 'I`Hl`*l PAC[FIC R!BPOI{'I`ICI{
injury. The LIRAB chose to credit the evidence that supported
the conclusion that Claimant‘s left knee sprain and medial
meniscus tear were attributable to her February 24, l998, work
injury. As a general rule, we give deference to the LlRAB‘s
assessment of the credibility of witnesses and the weight given
to the evidence. §ee Nakamura, 98 Hawafi at 268, 270-71, 47
P.3d at 735, 737-38. The LIRAB also apparently relied upon the
presumption of compensability set forth in HRS § 386-85(l) in
rendering its decision on this issue. we find no basis to
overturn the LIRAB's decision.
H.
we reject Employer's claim that the LIRAB erred in
concluding that Claimant was entitled to TTD benefits after
December 31, 2003, subject to proper medical certification and
excluding periods of disability attributable to her December 2003
personal elective surgeries. we conclude that the LIRAB's
conclusion was supported by evidence in the record and by the
applicable law.
V.
A.
The threshold inquiry in Appeal No. 28765 is whether
the LIRAB erred in concluding that the workers' compensation
claim filed by Claimant on August 22, 2002, for injuries arising
out of the February 20, l999, work incident was not barred by the
statute of limitations set forth in HRS § 386-82. The LIRAB
concluded as follows:
The [LIRAB] concludes that Claimant‘s claim filed on
August 22, 2002 is not time-barred pursuant to HRS § 386-82
because there is substantial evidence in the record that she
was asserting a claim for an injury based on the February
20, 1999 incident at work starting from September l, l999,
when she was seen by Dr. Kelley and through November, 2000,
when Dr. Yamada raised the question of why there was one
workers' compensation case instead of two. Claimant may
have been dissuaded from filing a separate claim by
Employer's adjuster handling the case, but even if she was
not, the [LIRAB] concludes that there is sufficient evidence
based on the mechanism of injury and the medical treatment
sought prior to August 22, 2002 indicating that her claim is
not time-barred.
The LIRAB ruled that Claimant‘s claim was not time-
barred because information contained in Claimant‘s medical
records, which provided notice to Employer of injuries Claimant
8
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sustained in the February 20, 1999, work incident, was sufficient
to constitute a claim for workers' compensation benefits. For
the reasons stated below, we hold that the LIRAB's conclusion
that notice to Employer of Claimant‘s injuries through her
medical records was sufficient to constitute a claim for workers‘
compensation benefits was wrong. Because this was the only
ground the LIRAB cited in support of its ruling that Claimant‘s
claim for injuries arising out of the February 20, l999, incident
was not time-barred, we vacate the LIRAB's ruling on that issue.
we do not reach the merits of the other claims raised by Employer
in Appeal No. 28765.
B.
Under the Hawafi workers' Compensation Law, an injured
employee who wants to receive compensation is required to: 1)
notify the employer of any injury as soon as practicable, HRS
§ 386-81 (l993);Y and 2) make a written claim to the Director of
the Department of Labor and Industrial Relations (Director)
within two years after the effects of the injury have become
manifest and within five years of the accident or occurrence
causing the injury. HRS 386-82 (l993). In its decision, the
LIRAB referred to Claimant's discussions with Dr. Charles Kelley
and Dr. Seiji Yamada, which are reflected in medical records
prepared by the doctors, regarding the injuries she sustained as
a result of the February 20, 1999, work incident. Although
Employer does not dispute receiving the medical records
reflecting these discussions with Drs. Kelley and Yamada, such
records, at most, served to provide evidence that Claimant
satisfied the first requirement of notifying her employer of the
alleged injuries arising out of the February 20, l999, work
incident.
However, the medical records prepared by Drs. Kelley
and Yamada did not satisfy the second requirement, set forth in
HRS § 386-82, that Claimant make a written claim to the Director
within two years after the effects of the injuries arising out of
the February 20, l999, incident became manifest. while the
5HRS § 386-81 also contains certain exceptions to this notice
requirement .
NCT FOR PUBL`[CA'YI()N’ IN W'ES'I"S I~`{.»‘§.\NAlI REP()RTS OR ’l`l~{,li PAC I.FlC REPOR'I`ER
medical records may have put Employer on notice of a possible
claim, Claimant did not satisfy the HRS § 386~82 requirement that
she make a written claim to the Director. Accordingly, the LIRAB
erred in concluding that Claimant‘s claim was not time-barred on
the ground that Employer had received notice of Claimant‘s
injury.
The LIRAB did not make specific findings on when the
effects of the injuries Claimant alleged from the February 20,
l999, incident had became manifest. The LIRAB stated that
"Claimant may have been dissuaded from filing a separate claim
[regarding the February 20, 1999, work incident] by Employer's
adjuster." However, the LIRAB did not resolve whether Claimant
had in fact been dissuaded from filing a claim by Employer's
adjuster or address whether such conduct, if proven, would affect
the LIRAB's statute-of-limitations analysis.
we hold that the LIRAB erred in concluding that
Claimant‘s claim regarding the injuries arising out of the
February 20, 1999, work incident were not time-barred because
Employer had notice of her injuries. Accordingly, we vacate that
portion of the LIRAB's decision. On remand, the LIRAB may
consider whether there are other reasons why Claimant‘s claim is
not barred by the statute of limitations. Because we vacate the
LIRAB's statute-of-limitations ruling, we do not reach the merits
of the other claims raised by Employer in Appeal No. 28765.
VI.
For the foregoing reasons, in Appeal No. 28764, we
reverse the portion of the LIRAB's August 28, 2007, Decision and
Order in Case No. AB 2002-309 that concluded that Employer was
liable for services rendered by Dr. Bernstein on December 10,
200l, and we affirm that Decision and Order in all other
respects. In Appeal No. 28765, we vacate the portion of the
LIRAB's August 28, 2007, Decision and Order in Case No. AB 2003-
121 that concluded that Claimant‘s claim filed on August 22,
2002, was not time-barred pursuant to HRS § 386-82 because
Employer had notice of Claimant‘s injuries, and we remand that
10
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case for further proceedings consistent with this Summary
Disposition Order.
DATED; Honolulu, HawaiUW January 28, 20lO.
on the brief$: 7/.
wayne W.H. wong Chief Judge
for Employer-Appellant, Self-
Insured, and insurance ~ &§7
Adjuster-Appellant
Associate Judge
Vinh Alkire-Clemen
Pro Se Claimant-Appellee
ll