Pulawa v. Oahu Construction, Co., Ltd. , 136 Haw. 217 ( 2015 )

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Electronically Filed
Supreme Court
SCWC-11-0001019
04-NOV-2015
09:43 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
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________________________________________________________________
BENJAMIN N. PULAWA, III,
Petitioner/Claimant-Appellant,
vs.
OAHU CONSTRUCTION CO., LTD.,
Respondent/Employer-Appellee,
and
SEABRIGHT INSURANCE COMPANY,
Respondent/Insurance Carrier-Appellee.
________________________________________________________________
SCWC-11-0001019
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0001019; CASE NO. AB 2009-496 (2-96-12947))
NOVEMBER 4, 2015
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY WILSON, J.
This case arises out of a work-related injury
Petitioner Benjamin Pulawa, III (Pulawa) incurred while employed
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as a construction supervisor for Oahu Construction Co., Ltd.
(Oahu Construction) and the subsequent workers’ compensation
claims made against Oahu Construction, insured by Seabright
Insurance Company. The issues presented on appeal are 1)
whether there was substantial evidence to show that a
neuromonics device was reasonably needed to treat Pulawa’s
tinnitus and 2) whether Pulawa was no longer entitled to total
temporary disability (TTD) payments because he was able to
resume work. We hold that there was substantial evidence that
the neuromonics device was reasonably needed for treating
Pulawa’s tinnitus, and that based on this finding, Pulawa was
not medically stable and unable to return to work. Thus, the
Labor and Industrial Relations Appeals Board (LIRAB) clearly
erred in its determination that Pulawa was not entitled to the
neuromonics device and in its decision to terminate Pulawa’s TTD
payments. Accordingly, the Intermediate Court of Appeals’ (ICA)
December 16, 2014 Judgment on Appeal and LIRAB’s November 2,
2011 Decision and Order are vacated. The case is remanded to
LIRAB for proceedings consistent with this opinion.
I. Background
A. Pulawa’s Work-Related Accident
Pulawa’s tinnitus diagnosis is due to a work-related
accident. On August 20, 1996, Pulawa was employed by Oahu
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Construction as a construction supervisor when he was injured.
As he was observing the construction operations, Pulawa was
struck in the head by a 12 inch by 6 inch rock that became
airborne after being run over by a loader vehicle. The force
from this projectile cracked Pulawa’s hard hat and fractured his
skull.1 As a result of this accident, Pulawa now suffers severe
headaches, tinnitus, and depression. Tinnitus sufferers hear
ringing or other sounds in the ear when no external sound is
present. See 11 Roscoe N. Gray & Louise J. Gordy, Attorneys’
Textbook of Medicine ¶ 84.63 (3d ed. 2014). Pulawa suffers from
chronic bilateral tinnitus, which is described as a “constant,
high-pitched tone.” Pulawa has not returned to work since he
was injured in August 1996.
B. Pulawa’s Medical Treatment and Doctor Evaluations
Immediately after the accident, Pulawa was treated at
The Queen’s Medical Center and required surgery to repair a left
frontal skull depressed fracture. As he recovered from surgery,
Pulawa suffered from impaired cognitive functions. After more
than two weeks of hospitalization, Pulawa was transferred to the
Rehabilitation Hospital of the Pacific for another two weeks,
where he received physical, occupational, and speech therapy.
1
Pulawa sued the landowner and other parties involved for
negligence, but he did not prevail. Pulawa v. GTE Hawaiian Tel, 112 Hawaii
3, 7-8, 143 P.3d 1205, 1209-10 (2006).
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After his release from the Rehabilitation Hospital, Pulawa
continued outpatient therapy on a monthly basis for
approximately two years. His primary complaints consisted of
headaches, cognitive issues, and sleep problems. While early
reports do not specifically list tinnitus as a complaint, he was
briefly prescribed tinnitus medication (amitriptyline) in 1997
and also complained of ringing in his ears during an independent
neuropsychological evaluation performed in 2000.
Pulawa has been continuously treated for his ailments—
primarily headaches and tinnitus—from the time of the accident.
Dr. Barry Odegaard, Pulawa’s family physician, treated Pulawa
from 1997 to approximately 2001. Dr. Robert Marvit, a
psychiatrist, treated Pulawa from early 2001 to late 2009, when
he retired. In 2001, Dr. Marvit prescribed a treatment plan
that consisted of Pulawa attending the Casa Colina Center of
Rehabilitation (Casa Colina), a residential brain injury
treatment program in Pomona, California, for several months.2
Dr. Marvit believed that the residential treatment program would
allow Pulawa to maximize his capacities so that he would be
2
Dr. Marvit’s status as an attending or concurrent physician under
Hawaii Administrative Rules (HAR) § 12-15-32 or § 12-15-40, which is required
to submit a treatment plan, was challenged by Oahu Construction.
Subsequently, Dr. Marvit was found to be a concurrent physician by the
Director of the Department of Labor and Industrial Relations. However,
further challenges to Dr. Marvit’s treatment plan, including attendance in
the Casa Colina treatment program, were brought by Oahu Construction.
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“functionally capable of returning to useful, gainful activity.”
Dr. Marvit noted that the program “would also include less
reliance on medication, increased interpersonal, positive
interactions, avoidance of self-destructive behaviors, pain
control, and an exercise of his vocational potential.”
Dr. David Patterson, the Medical Director at Casa
Colina, stated in his preadmission screening report that Pulawa
was an acceptable candidate for the brain injury treatment
program, even though Pulawa had some “psychological overlay”
that was preventing further recovery. Despite this
psychological hindrance, Dr. Patterson believed that Pulawa had
persistent physical and neurocognitive symptoms, such as
tinnitus, that needed to be addressed. Proposed treatment
included admission to Casa Colina’s comprehensive
neuropsychological program that would provide Pulawa with
“compensatory strategies to deal with the emotional, cognitive
and psychological difficulties.” In addition, Dr. Patterson
recommended cervical trigger point injections to promote
movement in the neck, an evaluation of his migraine-type
medications, and evaluations by specialists in otology,
neurology, audiology, oral/maxillofacial, and neuro-optometry to
further his recovery. Pulawa agreed to attend the treatment
program.
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However, admission to Casa Colina was delayed for
nearly six years due to Oahu Construction’s challenge of Dr.
Marvit’s treatment plan recommending admission. After the
Director of the Department of Labor and Industrial Relations,
Disability Compensation Division (Director) approved the
treatment plan and LIRAB affirmed the Director’s decision,
Pulawa attended Casa Colina, where he participated in the
program from September 2007 to February 2008.
During the treatment program, Pulawa received several
treatments to manage and relieve his headaches, tinnitus, and
depression. Relevant to this appeal, Dr. Lucy Shih, a
specialist in otology and neurotology at the Casa Colina center,
examined Pulawa and recommended that he be fitted with a
neuromonics device, a device that at the time was only available
at the House Ear Institute in Los Angeles, California. Dr. Shih
was referred by Dr. Patterson specifically to assess treatment
options for Pulawa’s tinnitus symptoms. Dr. Shih stated in a
letter to Dr. Patterson that she informed Pulawa of “a
relatively new tinnitus treatment which may be beneficial.” Dr.
Shih described the device as “a listening device manufactured by
Neuromonics which incorporates a neural stimulus into music to
interrupt and desensitize the brain from continued perception of
[tinnitus].” The device consists of earphones connected to a
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small compact music player. Dr. Patterson agreed with Dr.
Shih’s recommendation to fit Pulawa with a neuromonics device.
However, Pulawa was released from Casa Colina after five months
of treatment, returning to Hawaii in February 2008, without
being fitted for the neuromonic device.3
Rather than authorizing the neuromonics device after
Pulawa completed the Casa Colina program, Oahu Construction
requested two independent evaluations by Drs. Brian Goodyear, a
neuropsychologist, and Anthony Mauro, a neurologist, as well as
a vocational rehabilitation assessment, to update Pulawa’s
workers’ compensation disability status.
1. Dr. Brian Goodyear’s Supplemental Independent
Psychological Evaluation
Dr. Goodyear, a neuropsychologist, evaluated Pulawa on
May 23, 2008 and May 27, 2008 after Pulawa sought authorization
from Oahu Construction for the neuromonics device that he had
not received during his treatment in California. Although Dr.
Goodyear concluded Pulawa was medically stable and therefore
would not improve with future treatment, he did not discuss the
utility of the neuromonics device in his report; nor did he
3
From the record, it appears that Pulawa was unable to be fitted
with the device in California for several reasons, including: 1) Seabright
Insurance required extensive documentation in order to process the request
for the neuromonics device consultation; 2) the insurance adjustor assigned
to Pulawa’s case retired while the request was pending; and 3) the House Ear
Institute had a large backlog of patients, and appointments were scheduled
several weeks or months in advance.
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address the opinions of Dr. Shih and Dr. Patterson recommending
the neuromonics device for treatment of Pulawa’s tinnitus.
In his report, Dr. Goodyear noted that he evaluated
Pulawa on two previous occasions, December 1999 and July 2004.
After briefly summarizing Pulawa’s extensive medical history,
Dr. Goodyear opined there was no significant change in Pulawa’s
condition since the 2004 evaluation. Although Pulawa had
completed the Casa Colina program and met with Dr. Marvit on a
regular basis, Dr. Goodyear concluded there was little
improvement for a number of reasons—primarily because Pulawa
lacked motivation and was magnifying his symptoms. Dr. Goodyear
reasoned that Pulawa “had become very entrenched in the disabled
role” and that he had powerful financial incentives to not give
up that role. Specifically, Dr. Goodyear mentioned that Pulawa
was receiving about $5,000 per month in benefits. Based on the
foregoing, Dr. Goodyear concluded that from a neuropsychological
perspective, Pulawa’s condition remained stable and ratable, and
he remained at a 25% permanent impairment rating.
In regard to returning to work, Dr. Goodyear concluded
that while Pulawa would have some difficulty returning to his
usual and customary work, he was capable of returning to
productive employment. He did not believe any significant
changes in Pulawa’s subjective complaints and functional status
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would occur in the future. Thus, according to Dr. Goodyear,
Pulawa required no further psychological or neuropsychological
testing and no significant changes in Pulawa’s subjective
complaints and functional status would occur in the future.
However, Dr. Goodyear’s report did acknowledge the need to
engage in further review of his current medical regimen for
headaches. Throbbing headaches, tinnitus, interrupted sleep,
memory problems, difficulty with loud noises, and depression
were reported to Dr. Goodyear during each of his evaluations of
Pulawa. Based on this history, Dr. Goodyear recommended that a
neurologist evaluate Pulawa to review the effectiveness of his
current treatment regimen for his headaches and determine
whether Pulawa had achieved maximum medical improvement.
2. Dr. Anthony Mauro’s Independent Medical Evaluation
On July 3, 2008, Dr. Mauro, a neurologist, completed
Pulawa’s second independent medical examination due to Pulawa’s
request for the neuromonics device. His examination was limited
to a records review; he did not personally communicate with
Pulawa. Regarding the neuromonics device, Dr. Mauro admitted
that he was not aware of the device being “available for
treatment of tinnitus” or whether the device met “an accepted
standard of treatment for tinnitus.” Nonetheless, based on his
review of the medical records, Dr. Mauro concluded Pulawa’s
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medical condition was medically stable and ratable, and that his
symptoms would never completely subside. Dr. Mauro was
concerned that Pulawa had an “inappropriate hope for ‘100%’
recovery.” In particular, Dr. Mauro pointed out that in late
1997, the Chief of Psychology Services at the Rehabilitation
Hospital of the Pacific, Kathleen S. Brown, Ph.D., stated that
Pulawa “[did] not appear to fully appreciate the need for self
management and treatment of chronic pain and continues to seek
[a] medical cure for his pain.” Dr. Mauro was concerned that
Pulawa’s history of seeking a medical cure meant that he
required his condition to return to “100%” prior to returning to
any type of employment.
Dr. Mauro concluded that although Pulawa suffers from
significant cognitive and personality deficits from his head
injury, he is capable of gainful employment, albeit not as a
construction supervisor. Indeed, based on his review of
Pulawa’s records, Dr. Mauro reasoned that Pulawa would never
report improvement in his symptoms, regardless of future
treatment.
Dr. Mauro’s opinion did not include a position as to
whether the neuromonics device was reasonably needed for
Pulawa’s greatest possible medical rehabilitation. Nor did he
address the opinions of Dr. Shih and Dr. Patterson recommending
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the neuromonics device for treatment of Pulawa’s tinnitus. He
reviewed two academic studies of the device—one of which found
the treatment “promising,” although it lacked “ideal placebo
control.” According to Dr. Mauro’s report, the second study
stated that “electrical suppression of the tinnitus does not
offer a promising outcome for patients.” After reading the two
articles, he concluded there was no “basis for enthusiasm for
ongoing efforts to treat the tinnitus.”
3. Vocational Counselor Priscilla Ballesteros Havre’s
Independent Vocational Rehabilitation Report
Ms. Priscilla Ballesteros Havre performed an
independent vocational rehabilitation review dated November 6,
2008, at the request of Oahu Construction to determine whether
Pulawa was capable of returning to work. She did not address
the opinions of Dr. Shih and Dr. Patterson, recommending the
neuromonics device for treatment of Pulawa’s tinnitus. After
reviewing the reports of Dr. Goodyear and Dr. Mauro and a prior
vocational rehabilitation report from 1997, Ms. Ballesteros
Havre endorsed the views of Dr. Mauro and Goodyear to conclude
that Pulawa’s symptoms, his current daily activities, his
tendency to magnify symptoms, his average cognitive abilities,
and the amount of compensation he received on disability
rendered him capable of returning to gainful employment if he
were motivated to do so.
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Based on her opinion that Pulawa lacked motivation,
Ms. Ballesteros Havre conducted no independent analysis as to
whether Pulawa was capable of returning to work.
4. Pulawa’s Treating Physician Rejects Opinions of
Independent Medical Examiners
Dr. Marvit submitted a treatment plan on December 2,
2008 rejecting the opinions of the three independent medical
examiners retained by the employer. As Pulawa’s treating
physician, Dr. Marvit was not of the view that Pulawa was
medically stable and would not benefit from further treatment.
Consistent with Dr. Shih and Patterson, he requested Pulawa
receive concurrent care at the House Ear Institute in order to
be fitted with the neuromonics device. In a letter dated
February 26, 2009, Dr. Marvit stated that “without approval of
the treatment plan outlined by myself and Casa Colina, he will
remain in a permanently impaired disabled state, and the
likelihood of any kind of recovery will be minimal to absent.”
He also noted that “[i]n addition, one would expect further
deterioration of his function, which would end up ultimately in
either his premature death, or institutionalization.”
5. Oahu Construction Denies the Neuromonics Device and
Seeks To Terminate TTD Payments
Based on the evaluations of Drs. Goodyear and Mauro,
and the review by vocational counselor Ms. Ballesteros Havre,
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Oahu Construction took two actions. First, on December 5, 2008,
it denied Dr. Marvit’s December 2, 2008 treatment plan
requesting that Pulawa be fitted for the neuromonics device at
the House Ear Institute in California. Second, on December 16,
2008, Oahu Construction gave notice to Pulawa, in accordance
with Hawaii Revised Statutes (HRS) § 386-31 and Hawaii
Administrative Rules (HAR) § 12-10-26, seeking to terminate TTD
payments no later than December 30, 2008 because the reports of
Drs. Goodyear and Mauro and vocational counselor Ms. Ballesteros
Havre showed that Pulawa had “retired from the labor market and
is not entitled to income and indemnity benefits.” After Oahu
Construction denied Pulawa’s request to be fitted with a
neuromonics device and gave notice of its intent to terminate
TTD payments, Pulawa sought relief from the Director.
C. Department of Labor and Industrial Relations Proceedings
Pulawa requested a hearing to determine whether Dr.
Marvit’s treatment plan dated December 2, 2008 was improperly
denied and to determine if TTD payments were properly
terminated.4 On March 30, 2009, the Director determined that
4
On January 5, 2009, Pulawa’s first request for the neuromonics
device was denied on the basis that the attending physician did not submit to
Oahu Construction a written request for the neuromonics device that comported
with the requirements of HAR § 12-15-51(a), which outlines the notice
requirements applicable when an attending physician requests approval from
the employer to treat the employee.
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Pulawa was not entitled to a neuromonics device.5 The Director
also concluded on March 30, 2009 that Pulawa was entitled to TTD
benefits only through December 16, 20086 based on Dr. Goodyear’s
and Mauro’s opinion that Pulawa was capable of returning to
work. The Director also awarded Oahu Construction a credit for
TTD payments from December 17, 2008 through December 30, 2008.
Finally, the Director found that the issue of permanent
disability was premature because there was no impairment rating
for Pulawa’s injuries and that the issue would be decided at a
later date. Pulawa appealed the March 2009 decision to LIRAB,
which triggered Oahu Construction’s request for an additional
independent medical evaluation performed by Dr. Ajit Arora, an
internist.
1. Dr. Ajit Arora’s Independent Medical Evaluation
Dr. Arora performed Pulawa’s third independent medical
evaluation on behalf of Oahu Construction on July 6, 2010. Dr.
Arora addressed Pulawa’s medical stability, ability to return to
work, and need for further treatment. He did not conclude that
5
The Director’s decision was based on Pulawa’s failure to appeal
the January 5, 2009 decision within the 20 days required by HRS § 386-87(a).
LIRAB and the ICA, however, reached the merits of Pulawa’s claim, as
discussed infra. The procedural issue cited by the Director was not raised
by the parties on certiorari and is thus not addressed herein.
6
Oahu Construction gave notice of its intent to terminate TTD
payments on December 16, 2008.
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the neuromonics device was not reasonably needed for Pulawa’s
greatest possible rehabilitation.
After examining Pulawa and reviewing the medical
records, Dr. Arora came to several conclusions. First, Dr.
Arora determined that Pulawa’s condition was medically stable
and eligible for a permanent disability rating because his
symptoms had remained unchanged for several years. Second, Dr.
Arora concluded that while Pulawa suffers from throbbing
headaches and tinnitus, he is able to be employed in a position
that will accommodate his limitations. Dr. Arora pointed out
that he had several patients who were able to work with severe
tinnitus symptoms. Like Drs. Goodyear and Mauro, Dr. Arora
agreed that motivation was an important factor in Pulawa’s
return to work because Pulawa “is probably making more money now
than he would if he returned to some type of modified
employment.”
Third, Dr. Arora determined that although Pulawa
received appropriate treatment for the throbbing headaches,
cognitive dysfunction, and depression, the treatment at Casa
Colina was of questionable relevance and significance. Dr.
Arora opined that the necessity and utility of such a program
was highly questionable because Pulawa’s injury was over 10
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years old at the time, and thus resulted in a waste of resources
and time.
Next, Dr. Arora acknowledged in his report that the
work injury and noise exposure caused Pulawa’s tinnitus, but he
did not recommend the neuromonics device. He stated that he had
“serious[] doubt” that the use of “a neuromonics device for this
symptom” “would be of any benefit”—noting that “[t]here is no
proven treatment for tinnitus.” In apparent contradiction,
however, Dr. Arora endorsed a treatment for tinnitus; he agreed
that the medication prescribed by his treating physician,
amitriptyline, “is typically the . . . medication prescribed for
such patients and may help some cases.” Further, Dr. Arora
acknowledged that Pulawa’s tinnitus condition was capable of
improvement. He stated that better control of Pulawa’s
throbbing headaches, which “aggravate and exacerbate his
tinnitus to a great extent,” would lead to reduced tinnitus
symptoms. Dr. Arora left unanswered why amitriptyline
medication qualified for treatment of the tinnitus, but the
neuromonics device did not. Dr. Arora ventured agreement with
Dr. Mauro that the neuromonics device “would be of questionable
value and benefit to Mr. Pulawa for treatment of his tinnitus.”
He did not directly address the opinions of Dr. Shih and Dr.
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Patterson recommending the neuromonics device for treatment of
Pulawa’s tinnitus.
Having found that Pulawa suffered from tinnitus; that
it was capable of improvement with medication; and that
continuing treatment for tinnitus, depression, and headaches was
necessary, Dr. Arora recommended Pulawa seek a one-time
consultation with a “Dr. Raskin” at the University of California
at San Francisco, who was a specialist in headaches. Though
this analysis does not connote medical stability, Dr. Arora
nonetheless determined that Pulawa’s condition was medically
stable.
2. LIRAB Affirms the Director’s March 30, 2009 Decision
LIRAB heard testimony at the hearing from Pulawa and
Dr. Scott McCaffrey that was contrary to Dr. Arora’s report.
They testified in support of Pulawa’s request for the
neuromonics device and for the continuation of TTD benefits.
Pulawa testified that he was not able to work with his headaches
and tinnitus. He stated that the primary ailments that remain
from the accident include heavy throbbing and “head pains” along
with ringing in the ears. Pulawa confirmed that he had seen
several specialists since the accident for his headaches,
tinnitus, and depression. Regarding his tinnitus, Pulawa
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confirmed that he was prescribed oral medication and a noise-
masking device, but these treatments were unsuccessful.
Dr. Scott McCaffrey, Pulawa’s attending physician at
the time of the hearing, testified that he did not believe
Pulawa was medically stable. Dr. McCaffrey explained that his
office was addressing injuries to Pulawa’s neck and lower back
that were not treated by previous doctors, Pulawa’s tinnitus was
still untreated, and he was receiving treatment for emotional
problems. Dr. McCaffrey noted that tinnitus is a very difficult
problem and that “no one has found a cure,” although he stated
that there are medications that show promise in clinical
studies. No witnesses testified in support of the Director’s
decision denying the neuromonics device and terminating Pulawa’s
TTD payments.
LIRAB affirmed the Director’s decision denying Pulawa
the neuromonics device and terminating his TTD payments in its
November 2, 2011 Decision and Order. It made no finding as to
whether the neuromonics device was reasonably needed for
Pulawa’s greatest possible rehabilitation, although it did opine
that the neuromonics device was not “reasonable or necessary”
medical care.7
7
As discussed infra, in its Decision and Order, LIRAB incorrectly
applied “reasonable and necessary” as the standard to determine Pulawa’s
request for the neuromonics device:
(continued . . .)
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In affirming the Director’s termination of TTD
payments, LIRAB credited Dr. Mauro’s opinion that Pulawa’s
medical condition was stable and that although he would have some
difficulty returning to his job as a construction supervisor, he
was capable of returning to gainful employment.
LIRAB found that Pulawa’s testimony supported his
ability to return to work. It emphasized Pulawa’s testimony
regarding his ability to operate a vehicle, his visits to Ala
Moana Beach Park three days a week, and his ability to care for
himself without assistance at home.8 LIRAB found unconvincing
Pulawa’s testimony that he could not return “to work in his
present condition.”
Accordingly, LIRAB concluded that the neuromonics
device was not “reasonable or necessary” medical care, that
(. . . continued)
The Board finds that the requested Neuromonics device
is not reasonable and necessary medical care,
services, or supplies relative to Claimant’s work
injury.
. . . .
The Board concludes that the Director did not err in
denying Claimant’s request for a Neuromonics device.
Such device is not reasonable or necessary medical
treatment for Claimant’s work injuries.
(Emphases added).
8
Pulawa stated that his drives to Ala Moana are about nine miles
in length and that he experiences headaches while driving forcing him to pull
over. Pulawa also testified that he is unable to handle family finances
because of his injury.
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Pulawa was not certified as temporarily and totally disabled,
that Pulawa was medically stable, and that Oahu Construction was
entitled to a credit for TTD payments paid between December 17,
2008 and December 30, 2008 to be applied to the future award of
permanent disability benefits. Pulawa appealed to the ICA.
D. ICA Appeal
In its Summary Disposition Order, the ICA affirmed
LIRAB’s Decision and Order. Pulawa v. Oahu Constr. Co., Ltd.,
No. CAAP-11-0001019, 2014 WL 5503365 (App. Oct. 30, 2014) (SDO).
The ICA rejected Pulawa’s position that he was entitled to the
neuromonics device for treatment of his tinnitus condition under
HRS §§ 386-21(a) and 386-24. Id. at *3. Giving deference to
LIRAB’s determination of credibility between the contrasting
doctor’s opinions as to the need for the neuromonics device, the
ICA affirmed denial of the device. Id.
The ICA also held that LIRAB properly terminated
Pulawa’s TTD payments. Id. at *4-5. The ICA reasoned that
under HRS §§ 386-1 and 386-31(b), TTD payments are terminated
“upon order of the director or if the employee is able to resume
work.” Id. at *3 (citation omitted) (internal quotation mark
omitted). Accordingly, the “able to resume work” definition
required that Pulawa’s injury was stable and that Pulawa was
capable of working “in an occupation for which [he] has received
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previous training or for which [he] has demonstrated aptitude.”
Id. at *4-5 (alteration in original) (internal quotation marks
omitted). The ICA held that LIRAB’s determination regarding
Pulawa’s medical stability and his ability to return to work was
not clearly erroneous. Id. at *5. In this regard, the ICA
pointed to the physician reports opining that Pulawa’s condition
was stable and that he could return to work with his injury’s
limitations. Id. The ICA concluded that these reports amounted
to substantial evidence supporting Pulawa’s injury stability and
his ability to return to work. Id.
II. Standards of Review
A. Findings of Fact and Conclusions of Law
The standard of review for LIRAB decisions is well-
established:
Appellate review of a LIRAB decision is governed by
HRS § 91-14(g) (1993), which states that:
Upon review of the record the court may affirm the
decision of the agency or remand the case with
instructions for further proceedings; or it may
reverse or modify the decision and order if the
substantial rights of the petitioners may have been
prejudiced because the administrative findings,
conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory
provisions; or
(2) In excess of the statutory authority or
jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
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(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted exercise
of discretion.
We have previously stated:
[Findings of Fact] are reviewable under the clearly
erroneous standard to determine if the agency
decision was clearly erroneous in view of reliable,
probative, and substantial evidence on the whole
record.
[Conclusions of Law] are freely reviewable to
determine if the agency’s decision was in violation
of constitutional or statutory provisions, in excess
of statutory authority or jurisdiction of agency, or
affected by other error of law.
A [Conclusion of Law] that presents mixed questions
of fact and law is reviewed under the clearly
erroneous standard because the conclusion is
dependent upon the facts and circumstances of the
particular case. When mixed questions of law and
fact are presented, an appellate court must give
deference to the agency’s expertise and experience in
the particular field. The court should not
substitute its own judgment for that of the agency.
Igawa v. Koa House Rest., 97 Hawaii 402, 405-06, 38 P.3d 570,
573-74 (2001) (quoting In re Water Use Permit Applications, 94
Hawaii 97, 119, 9 P.3d 409, 431 (2000)) (internal quotation
marks omitted).
[A Finding of Fact] or a mixed determination of law
and fact is clearly erroneous when (1) the record
lacks substantial evidence to support the finding or
determination, or (2) despite substantial evidence to
support the finding or determination, the appellate
court is left with the definite and firm conviction
that a mistake has been made. We have defined
“substantial evidence” as credible evidence which is
of sufficient quality and probative value to enable a
person of reasonable caution to support a conclusion.
In re Water Use Permit Applications, 94 Hawaii at 119, 9 P.3d at
431 (citations omitted) (internal quotation marks omitted).
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B. LIRAB’s Statutory Interpretation
An appellate court
generally reviews questions of statutory interpretation de
novo, but, [i]n the case of . . . ambiguous statutory
language, the applicable standard of review regarding an
agency’s interpretation of its own governing statute
requires this court to defer to the agency’s expertise and
to follow the agency’s construction of the statute unless
that construction is palpably erroneous[.]
Gillan v. Gov’t Emps. Ins. Co., 119 Hawaii 109, 114, 194 P.3d
1071, 1076 (2008) (alteration in original) (citations omitted)
(internal quotation marks omitted).
III. Discussion
A. The Neuromonics Device Was an Aid “Reasonably Needed for
the Employee’s Greatest Possible Medical Rehabilitation”
LIRAB and the ICA applied an incorrect “reasonable and
necessary” standard to determine whether to approve the
neuromonics device under HRS §§ 386-21(a) and 386-24.9 An
employee is entitled to reasonably needed medical care after a
work-related injury. HRS § 386-21(a),10 titled “[m]edical care,
9
From the language of LIRAB’s decision, “reasonable and necessary”
and “reasonable or necessary” appear to be used interchangeably. This court
will apply the “reasonably needed” standard set forth in HRS §§ 386-21(a) and
386-24 to determine whether Pulawa is entitled to the neuromonics device.
10
HRS § 386-21(a) (1993) states as follows:
Immediately after a work injury sustained by an
employee and so long as reasonably needed the
employer shall furnish to the employee all medical
care, services, and supplies as the nature of the
injury requires. The liability for the medical care,
services, and supplies shall be subject to the
deductible under section 386-100.
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services, and supplies,” requires that “[i]mmediately after a
work injury sustained by an employee and so long as reasonably
needed the employer shall furnish to the employee all medical
care, services, and supplies as the nature of the injury
requires.”11 (Emphasis added). In addition to medical treatment
for injury, an employee is entitled to medical services and
supplies reasonably needed for the employee’s greatest possible
medical rehabilitation. HRS § 386-24,12 titled “[m]edical
rehabilitation,” states that “[t]he medical services and
supplies to which an employee suffering a work injury is
entitled shall include such services, aids, appliances,
apparatus, and supplies as are reasonably needed for the
employee’s greatest possible medical rehabilitation.” (Emphases
added).
11
In 1963, the Hawaii workers’ compensation statute was amended for
the purpose of, inter alia, “mak[ing] changes necessary to eliminate
unnecessary hardships and inequities, . . . and mak[ing] certain major and
minor substantive improvements in the provisions governing workmen’s
compensation.” S. Stand. Comm. Rep. No. 334, in 1963 Senate Journal, at 788.
12
HRS § 386-24 (1993) states as follows:
The medical services and supplies to which an
employee suffering a work injury is entitled shall
include such services, aids, appliances, apparatus,
and supplies as are reasonably needed for the
employee’s greatest possible medical rehabilitation.
The director of labor and industrial relations, on
competent medical advice, shall determine the need
for or sufficiency of medical rehabilitation services
furnished or to be furnished to the employee and may
order any needed change of physician, hospital or
rehabilitation facility.
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LIRAB and the Director rejected the neuromonics device
based on a standard more strict than allowed by statute:
“reasonable and necessary.” As noted, HRS §§ 386-21(a) and 386-
24 require application of a “reasonably needed” standard. The
term “reasonably needed” is not defined by statute, but it is
less restrictive than the “reasonable and necessary” standard
used by LIRAB.13
Additionally, the “greatest possible medical
rehabilitation” language in HRS § 386-24 lends a definition to
“reasonably needed” that is significantly more broad than
“reasonable and necessary.” See HRS § 1-16 (2009) (“Laws in
pari materia, or upon the same subject matter, shall be
construed with reference to each other. What is clear in one
statute may be called in aid to explain what is doubtful in
another.”); State v. Casugay-Badiang, 130 Hawaiʻi 21, 27, 305
P.3d 437, 443 (2013) (same). The words “greatest” and
“possible” define the high degree of medical assistance due an
injured employee. The statute does not say merely “possible”
medical rehabilitation; nor does it state simply “employee’s
medical rehabilitation.” Thus, aid that can provide the
13
The Merriam-Webster Online Dictionary definition of “necessary”
is “absolutely needed” or “required”—a stricter definition than merely
“needed.” Merriam–Webster’s Online Dictionary, http://www.merriam-
webster.com/dictionary/necessary (last visited Oct. 30, 2015).
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“greatest possible” medical rehabilitation for a claimant is
“reasonably needed” absent substantial evidence to the contrary.
Viewed under the reasonably needed standard as
properly applied, LIRAB clearly erred because “the record lacks
substantial evidence to support the finding” that the
neuromonics device was not reasonably needed for Pulawa’s
greatest possible medical rehabilitation. See In re Water Use
Permit Applications, 94 Hawaii at 119, 9 P.3d at 431. Our court
has defined substantial evidence as “credible evidence which is
of sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion.” Id. (citations
omitted) (internal quotation mark omitted). The reports of Dr.
Goodyear, Mauro, and Arora, credited by LIRAB, do not constitute
substantial evidence supporting a finding that the neuromonics
device was not reasonably needed to treat Pulawa’s tinnitus for
his greatest possible medical rehabilitation. None of the three
opined that the device is not reasonably needed. Dr. Goodyear
never explicitly mentioned the neuromonics device to reach his
conclusion that any further treatment would not lead to Pulawa
reporting an improvement in symptoms. Dr. Mauro conceded he was
not aware of whether the device is an accepted standard of
treatment or whether it is available for Pulawa in Hawaii; and
his observation that he experienced little enthusiasm about the
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device’s utility in treating Pulawa’s tinnitus cannot qualify as
substantial evidence the device is not reasonably needed for
Pulawa’s greatest possible medical rehabilitation. Finally,
while Dr. Arora expressed “serious doubt” that the use of the
neuromonics device “would be of any benefit,” without further
analysis, he merely agreed with Dr. Mauro that the device has
“questionable value and benefit.” Significantly, the three
doctors had no experience with the device.
In contrast, Dr. Shih’s opinion was based upon
experience with the neuromonics device and medical expertise
specifically related to studying and treating diseases and
disorders of the ear: otology and neurotology. Pulawa was
referred by Dr. Patterson, the Director of the Casa Colina brain
injury treatment program, to Dr. Shih because she specialized in
otology and neurotology. In her opinion, the neuromonics device
could be beneficial to treat Pulawa’s tinnitus, although it was
a relatively new treatment.14
Thus, the ICA’s deference to LIRAB was based on a
false factual assumption that “there were varying opinions among
the physicians as to whether a Neuromonics device was
‘reasonably needed.’” Pulawa, SDO, 2014 WL 5503365, at *2. In
actuality, as discussed supra, no physician mentioned whether
14
Her recommendation was of such significance to Dr. Patterson that
he arranged to have Pulawa fitted for the device.
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the device was “reasonably needed;” nor did LIRAB address
whether the device was “reasonably needed.”
The nature of Pulawa’s injury and his treatment
history also establish a need to augment, albeit with a new
method, 14 years of unsuccessful strategies to treat his
tinnitus. After his traumatic brain injury, he underwent
rehabilitative therapy, medications with varying side effects,
injections in his neck, and a five month treatment regimen in
California without relief from his tinnitus. He was also
treated for tinnitus with a noise-masking device to no avail.
Conventional, approved treatment regimens have thus failed. A
new device designed to treat his ailment is now available as a
treatment option.
Thus, properly applied—and based on the evidence
before LIRAB—the “reasonably needed” standard enumerated in HRS
§§ 386-21(a) and 386-24 compels a finding that Pulawa’s claim
for the neuromonics device be granted in order for him to attain
the “greatest possible medical rehabilitation.”
B. The Record Lacks Substantial Evidence that Pulawa Is Stable
and Able To Resume Work
The Director and LIRAB determined that Pulawa was no
longer entitled to TTD payments because he is “capable of
resuming some form of full-time work.” The statutory definition
of “able to resume work” requires that Pulawa’s injury
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“stabilized after a period of recovery” and that he “is capable
of performing work in an occupation for which [he] has received
previous training or for which [he] has demonstrated aptitude”
prior to the termination of TTD payments. HRS § 386-1 (Supp.
2005).15 As discussed supra, LIRAB’s finding—affirmed by the
ICA—that Pulawa was not entitled to the neuromonics device was
clearly erroneous. Based on the present posture of the record,
until Pulawa receives the opportunity for the greatest possible
medical rehabilitation with the neuromonics device, his benefits
should not be terminated.16 Accordingly, Pulawa is entitled to
reinstatement of TTD payments until he has had a reasonable
15
HRS § 386-31(b) (Supp. 2005) states that employers can terminate
TTD payments “upon order of the director or if the employee is able to resume
work.”
16
Dr. Scott McCaffrey, Pulawa’s treating physician at the time of
the hearing before LIRAB, testified that Pulawa was not medically stable due
to, inter alia, his tinnitus:
Well I do not believe he is [medically stable] for the
following reasons, we’re still working up his complaints
and pains that he has in his neck and his low back and have
found some structural damage to those two areas; areas
which by the way I don’t think were addressed much in the
many years prior to his coming to see us, because his
primary injury was a very severe head injury as you know
. . . above and beyond that he has ongoing significant
complaints of ringing in his ears, or tinnitus, headaches,
post injury headaches which may be implicated by the neck
as well which is one reason we’re pursuing the neck cause
[sic] it can drive headaches in addition to primary
injuries to the skull. Also he’s been struggling with
emotional problems related to the injury; I believe he’s
got a traumatic brain injury picture where he’s not—he
doesn’t think as well as he did and that plus the pain plus
all the impairment has resulted in a depression[.]
(Emphasis added).
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opportunity to receive treatment for his tinnitus with the
neuromonics device and for any possible permanent partial
disability rating to be assessed.
IV. Conclusion
For the foregoing reasons, the ICA’s December 16, 2014
Judgment on Appeal and the November 2, 2011 Decision and Order
of the Labor and Industrial Relations Appeals Board are vacated.
The case is remanded to LIRAB for proceedings consistent with
this opinion.
Dan. S. Ikehara /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brian G.S. Choy and
Keith M. Yonamine /s/ Sabrina S. McKenna
for respondents
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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