Porter v. The Queen's Medical Center. ( 2021 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
19-JAN-2021
09:31 AM
Dkt. 20 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
ADELINE N. PORTER,
Petitioner/Claimant-Appellant,
vs.
THE QUEEN’S MEDICAL CENTER,
Respondent/Employer-Appellee, Self-Insured.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. AB2012-438 (2-02-15470, 2-02-14444,
2-02-14445, 2-02-15471, 2-10-07337))
JANUARY 19, 2021
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ.,
AND CIRCUIT JUDGE OCHIAI, IN PLACE OF POLLACK, J., RECUSED
OPINION OF THE COURT BY WILSON, J.
I. BACKGROUND
Pro se1 Petitioner/Claimant-Appellant Adeline N. Porter
(“Porter”) is a registered nurse who worked for the Queen’s
1 As a pro se litigant, Porter’s pleadings must be interpreted
liberally. See Dupree v. Hiraga, 121 Hawai‘i 297, 314, 219 P.3d 1084, 1101
(continued . . .)
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Medical Center (“QMC”) from 1967—when she graduated from the
Queen’s School of Nursing—until 2005 when her employment was
terminated. In 2002, Porter and other QMC employees in her
building began suffering from respiratory symptoms precipitated
by “environmental health issues” that she believed were the
result of “contaminated carpet and wall coverings[.]” As a
result of the alleged chemical exposure, Porter was treated in
the emergency room on five separate occasions in 2002 and 2003.
Porter was subsequently diagnosed with a disease known as
Multiple Chemical Sensitivity (“MCS”)2 and filed multiple claims
for workers’ compensation (“WC”) benefits alleging that she
(continued . . .)
(2009). This court has explained that a pro se petitioner is not expected to
comply with the “technical exactness” of the rules because the court will
make “a determined effort to understand what the pleader is attempting to set
forth” and will “construe the pleading in [her] favor.” Id. Moreover, this
proceeding is a workers’ compensation proceeding, and “Hawaii’s workers’
compensation statute is to be accorded beneficent and liberal construction in
favor of the employee, to fulfill the humanitarian purposes for which it was
enacted.” Respicio v. Waialua Sugar Co., 67 Haw. 16, 18, 675 P.2d 770, 772
(1984); see also Flores v. United Air Lines, Inc., 70 Haw. 1, 12, 757 P.2d
641, 647 (1988). Indeed, all reasonable doubts must be resolved in favor of
the claimant. Lawhead v. United Air Lines, 59 Haw. 551, 560, 584 P.2d 119,
125 (1978).
2 According to Porter, MCS is a medical disorder where the patient
develops sensitivities to multiple chemical compounds, the exposure to which
can cause cardiac arrhythmias, vascular spasms, and cardiac ischemia among
other symptoms. MCS is attributed to long-term exposure to low
concentrations of chemicals, including volatile organic compounds.
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sustained MCS injuries that occurred on August 9, 2002, August
31, 2002, November 6, 2002, November 8, 2002, and May 13, 2003.3
II. DISCUSSION
The issue before this court arises from the Labor and
Industrial Relations Appeal Board’s (“LIRAB”) denial of Porter’s
request to reopen her claims pursuant to HRS § 386-89 (2013),4
and the Intermediate Court of Appeals’ (“ICA”) affirmance of the
denial. In particular, Porter claims that the ICA erred by:
(1) affirming the LIRAB’s conclusion that she failed to present
substantial evidence of a mistake in a determination of fact
that would warrant a reopening of her WC claims under
3 The procedural history of this case will not be fully discussed
as only the reopening of Porter’s claims is at issue before this court.
Porter also continues to raise arguments related to her allegations of
fraud, which were waived. Porter’s claims of fraud are precluded by the law
of the case doctrine and will not be addressed by this court. See Hussey v.
Say, 139 Hawai‘i 181, 185-86, 384 P.3d 1282, 1286-87 (2016) (“[A]
determination of a question of law made by an appellate court in the course
of an action becomes the law of the case and may not be disputed by a
reopening of the question at a later stage of the litigation.”).
4 HRS § 386-89(c) provides in relevant part:
(c) On the application of any party in interest,
supported by a showing of substantial evidence, on the
ground of a change in or of a mistake in a determination of
fact related to the physical condition of the injured
employee, the director may, at any time prior to eight
years after date of the last payment of compensation,
whether or not a decision awarding compensation has been
issued, or at any time prior to eight years after the
rejection of a claim, review a compensation case and issue
a decision which may award, terminate, continue, reinstate,
increase, or decrease compensation.
HRS § 386-89(c) (emphases added).
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HRS § 386-89(c); and (2) failing to apply the presumption of
compensability under HRS § 386-85(1) (2011)5 to her case.
HRS § 386-89(c) provides that a request for reopening
a WC claim must be “supported by a showing of substantial
evidence, on the ground of a change in or of a mistake in a
determination of fact related to the physical condition of the
injured employee,” and if such a showing is made by the
claimant, “the director may . . . review a compensation case and
issue a decision which may award, terminate, continue,
reinstate, increase, or decrease compensation.” HRS § 386-
89(c). A request for reopening is governed by the procedure
provided in Hawai‘i Administrative Rules (“HAR”) § 12-10-63. HAR
§ 12-10-63 provides that an application for reopening “shall be
in writing[ and] shall state specifically the grounds upon which
the application is based[.]” HAR § 12-10-63. Following an
5 HRS § 386-85(1) provides:
§386-85 Presumptions. In any proceeding for the
enforcement of a claim for compensation under this chapter it
shall be presumed, in the absence of substantial evidence to the
contrary:
(1) That the claim is for a covered work injury;
(2) That sufficient notice of such injury has been given;
(3) That the injury was not caused by the intoxication of the
injured employee; and
(4) That the injury was not caused by the wilful intention of the
injured employee to injure oneself or another.
HRS § 386-85(1).
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application for reopening a case, “the director shall review the
case file and may, by discretion, hear the interested parties.”
Id. Moreover, HAR § 12-10-30(d) provides that any request for
reopening under HRS § 386-89(c) “shall be accompanied by medical
information or any other substantial evidence showing a change
in or of a mistake in a determination of fact related to the
physical condition of the injured employee.” HAR § 12-10-30(d).
“Substantial evidence” must be “relevant and credible evidence
of a quality and quantity sufficient to justify a conclusion by
a reasonable [person.]” Van Ness v. State, Dep’t of Educ., 131
Hawai‘i 545, 558, 319 P.3d 464, 477 (2014) (quoting Flor v.
Holguin, 94 Hawaiʻi 70, 79, 9 P.3d 382, 391 (2000)).
Here, Porter argues that it was a mistake for the
Director to deny her claims based on his conclusion that
“[s]ince there is no such injury as multiple chemical
sensitivity, there is no injury per se.” The LIRAB majority
determined that Porter failed to produce “substantial evidence”
of a mistake to support her HRS § 386-89(c) request for
reopening. Porter challenges the ICA’s affirmance of the LIRAB
majority’s determination that she failed to produce substantial
evidence to support her allegations of a mistake of fact related
to the Director’s determination that she had not suffered a
compensable illness because MCS is not an “injury per se.”
Porter also argues that it was a mistake for her claim to have
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been decided on the question of whether MCS is a legitimate
diagnosis, rather than on the question of whether her injury—
described as MCS or otherwise—was work related.
The LIRAB majority’s conclusion that Porter failed to
present substantial evidence of a mistake in the determination
of a fact was based on its finding that Porter “offered no new
credible or reliable evidence that that [sic] MCS is, was, or
has become an accepted medical diagnosis or a valid medical
disorder.” The LIRAB’s and subsequently the ICA’s
characterization of the basis for Porter’s allegations of
mistake was artificially narrow. The LIRAB’s decision appears
to assume that Porter was arguing that the alleged mistake was
only that MCS became a more recognized diagnosis subsequent to
the original disposition of her claims.
In fact, in addition to arguing the mistake recognized
by the LIRAB, Porter also clearly argued that it was a mistake
for the Director to dispose of her claims based on his
conclusion that MCS is not an “injury per se” given that
Disability Compensation Division (“DCD”) Administrator Gary
Hamada (“DCD Administrator Hamada”) stated that the
compensability of an MCS claim is dependent on whether or not it
is work related. Porter supported this argument with
substantial evidence, including two letters from DCD
Administrator Hamada representing that an MCS injury may be
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compensable if it is determined to be work related. Throughout
the litigation of her WC claims, Porter has repeatedly alleged
that it was a mistake to deny her claims based on the Director’s
March 19, 2004 finding that “there is no such injury as multiple
chemical sensitivity[.]”6 That decision, denying Porter’s claims
because MCS is not an injury, was signed by DCD Administrator
Hamada. Just over two years later, on September 6, 2006, DCD
Administrator Hamada represented to Senator Norman Sakamoto that
an MCS injury would be compensable if it was found to be work
related.
Both of DCD Administrator Hamada’s letters constitute
substantial evidence supporting Porter’s contention that it was
a mistake to dispose of her claims on the basis that MCS is not
a legitimate diagnosis. The first letter from DCD Administrator
Hamada was a September 6, 2006 letter to Senator Sakamoto in
response to an inquiry about the compensability of MCS. DCD
Administrator Hamada wrote that the DCD database “is not able to
6 Porter has been pointing to this mistake all along. In her July
30, 2010 letter to the Director requesting the reopening of her claims,
Porter argued that her WC claims should be reopened because the Director’s
March 19, 2004 decision denying her claims was based on a mistaken conclusion
that MCS is not a valid diagnosis and therefore not compensable. Porter
argued that “[t]here was obviously a mistake in the determination of fact
previously which precluded Claimant from pursuing her claim, i.e., that MCS
was not a physical condition which was recognized as an injury.” In that
same letter to the Director, Porter pointed to the September 6, 2006 letter
from DCD Administrator Hamada and argued that “[a]s per the letter of Gary S.
Hamada dated September 6, 2006, attached hereto, the Department of Labor now
recognizes Multiple Chemical Sensitivity (MCS), as an injury which may be
compensable.”
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identify cases involving MCS” but that “[a]ny employee may file
a WC claim for MCS. If the MCS is determined to be caused by
work, the injury would be covered under WC, however if MCS is
determined not to have been caused by work, the claim would be
denied.”7
The second letter from DCD Administrator Hamada was an
August 10, 2007 letter to Porter in which he again represented
that MCS may be a compensable claim if it is determined to be
work related. The letter stated that “[t]he department has NOT
changed its policy regarding MCS. MCS is NOT recognized as a
compensable injury for all workers’ compensation claims.
Workers’ compensation determinations are based upon whether a
claimant suffered a workplace injury/illness, for example, as a
result of chemical exposure in the workplace.”
Both letters from DCD Administrator Hamada plainly
represent that MCS is a diagnosis that would be compensable
under WC if it is found to be work related. These
representations stand in stark contrast to the March 19, 2004
conclusion upon which the DCD Director relied in denying
Porter’s 2002 claims: that “[s]ince there is no such injury as
multiple chemical sensitivity, there is no injury per se.” This
7 The letter continued: “Automatically covering all MCS claims
under WC may have the unintended effect of requiring WC to cover MCS cases
not necessarily caused by work.”
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contrast is underscored by the fact that DCD Administrator
Hamada was the signatory of both contradictory representations.
As such, DCD Administrator Hamada’s 2006 and 2007 letters
represent substantial evidence of a mistake of fact in the
determination of Porter’s claims.
Accordingly, the LIRAB majority’s finding that Porter
failed to provide substantial evidence of a mistake is clearly
erroneous. Likewise, the ICA’s affirmance of the LIRAB’s
conclusion on this issue was error.
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III. CONCLUSION
For the forgoing reasons, we vacate the ICA’s March
23, 2020 judgment on appeal and remand Porter’s request for
reopening to the LIRAB to determine if Porter’s MCS injury is
work related.8
Adeline N. Porter /s/ Mark E. Recktenwald
Pro Se
/s/ Paula A. Nakayama
Scott G. Leong
Shawn L.M. Benton /s/ Sabrina S. McKenna
for Respondent
/s/ Michael D. Wilson
/s/ Dean E. Ochiai
8 Though the LIRAB will need to determine the work-relatedness of
Porter’s illness on remand, her symptoms, described by her doctor as an MCS
injury, must be presumed to be work-connected. As recently articulated by
this court in Cadiz v. QSI, “Hawai‘i’s workers’ compensation law begins with
the explicit statutory presumption that a claimed injury is work-related and
therefore compensable.” 148 Hawai‘i 96, 108, 468 P.3d 110, 122 (2020)
(holding “[t]o rebut that presumption in favor of compensability, the
employer bears the heavy burden of producing substantial evidence disproving
that the injury is work connected” and “the ‘substantial evidence’ sufficient
to overcome the presumption in favor of compensability must disprove the
causal relation of the injury-by-disease to the conditions and incidents of
claimant’s employment, and not merely suggest plausible alternative
explanations.”). We explained that “even if the cause of the injury-by-
disease is unknown, that in itself is a salient indication that the employer
did not produce substantial evidence to meet its burden of production” to
overcome the presumption that the claim is compensable. Id. at 109, 468 P.3d
at 123.
Here, the reports upon which QMC relied, and upon which the LIRAB
based its decision, provided competing and contradictory alternative
explanations as to the true nature of Porter’s illness including “allergic
rhinitis from dust or pollen[,]” Porter’s “prior history of [breast]
cancer[,]” and even “psychological factors.” As in Cadiz, the reports relied
upon by the Director and the LIRAB to postulate that Porter’s illness is
“medically plausibly explainable by other medical conditions” other than
chemical exposure at work are insufficient to overcome the presumption of
work-relatedness. Id. at 110, 468 P.3d at 124. Moreover, “in the context of
workers’ compensation law, a lack of explanation for experienced symptoms or
illnesses strengthens the presumption in favor of compensability instead of
overcoming it.” Id. at 112, 468 P.3d at 126.
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