HELEN L. GABRIEL, Claimant-Appellant,
COUNTY OF HAWAI'I, DEPARTMENT OF PARKS & RECREATION, Employer-Appellee, Self-Insured, and CLAIMS MANAGEMENT, INC., Third-Party Administrator-Appellee
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE LABOR & INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2006-163(H) (1-03-00489))
On the briefs:
Earle A. Partington (Law Office of Earle A. Partington) for Claimant-Appellant.
Noralynne K. Pinao (Pinao & Ono) Self-Insured and Third-Party Administrator-Appellee
Nakamura, C.J., Leonard and Reifurth, JJ.
Defendant-Appellant Helen L. Gabriel ("Gabriel") appeals from the March 24, 2009 Decision and Order entered by the Hawai'i Labor and Industrial Relations Appeals Board ("LIRAB"). The order, in relevant part, affirmed the Director of the Department of Labor and Industrial Relations' ("Director") September 14, 2 006 Decision and Order that (1) denied Gabriel additional temporary total disability ("TTD") benefits relating to a May 22, 2 0 03 work injury ("2003 Injury") beyond January 9, 2, 006; and (2) determined that Gabriel's former employer, the County of Hawai'i, Department of Parks & Recreation ("Employer"), was entitled to credit the TTD payments it paid to Gabriel between January 10 and March 5, 2 006, against a prospective award of permanent partial disability benefits.
For the reasons discussed below, we vacate the LIRAB's March 24, 2009 Decision and Order and remand for further proceedings.
I. POINTS OF ERROR
On appeal, Gabriel contends that the LIRAB erred by (1) declining to admit into evidence, due to untimely filings, both the testimony of physician Scott McCaffrey ("Dr. McCaffrey") and his medical report dated September 26, 2007 ("Dr. McCaffrey's 2007 Report"); (2) finding that Dr. McCaffrey, in an earlier report ("Dr. McCaffrey's 2006 Report"), had not attributed her disability to the 2003 Injury; and (3) crediting Employer with three months of TTD payments made to Gabriel between January 10 and March 6, 2006, against Employer's liability for prospective benefits.
On May 22, 2003, Gabriel, while working for Employer as a park caretaker, sustained injuries to her lower back and left leg as a result of lifting and using a pressure washer. Employer accepted liability for those injuries.
Thereafter, Gabriel received treatment and diagnoses from several physicians regarding pain and other symptoms manifesting in her back and leg. In addition to the specific injury, Gabriel was diagnosed with various conditions unrelated to the injury. The physicians eventually deemed Gabriel fit for light duty work.
On October 24, 2005, at Employer's request, the Director ordered Gabriel to attend a psychological evaluation with psychologist Joseph Rogers ("Dr. Rogers"). Dr. Rogers met with Gabriel, compiled a comprehensive report of Gabriel's prior medical treatment and diagnoses, and clinically diagnosed her with Pain Disorder Associated with Psychological Factors. Dr. Rogers opined that while Gabriel suffered psychological factors that "represent[ed] issues of poor motivation and disincentives to her recovery and return to work, " she did not have any psychiatric/psychological work limitations or restrictions.
After a hearing on November 10, 2005 to address treatment issues, the Director issued the January 31, 2 006 Decision and Order providing for medical and TTD benefits covering, for the most part, the period from May 31, 2 0 03, through November 10, 2005. The January 31, 2006 Decision and Order also provided that further TTD benefits were to be made "contingent upon proper certification of disability."
On February 21, 2006, Employer notified Gabriel that it intended to terminate TTD benefits effective March 7, 2006, and would deem any TTD payments made after January 10, 2006, to be a credit against any future compensation. On March 13, 2006, Gabriel moved to remand her case to the Director for an emergency hearing regarding the termination of TTD benefits, arguing that Employer had not provided medical evidence of her ability to return to work. Employer stipulated, along with Gabriel, to the temporary remand, which was granted by the LIRAB on April 18, 2006.
On July 25, 2006, the Director held a hearing ("July 2006 Hearing") to address the termination of TTD benefits. While Gabriel cited various factors, including conflicts with coworkers and chronic pain stemming from the 2003 Injury, Employer cited reports from three different physicians and Dr. Rogers, each attesting to Gabriel's ability to return to work.
On August 10, 2006, before the Director rendered a decision related to the July 2006 Hearing, Gabriel visited Dr. McCaffrey. Based on his examination, Dr. McCaffrey reported:
Ms. Gabriella [sic] has suffered a significant and severe lumbosacral and thoracic injury on the above date. Her exam is consistent with compression fracture and/or disc derangement of the mid-thoracic region. Likewise, she appears to have suffered a significant structural injury to the lumbar region with chronic, persistent pain, muscle spasm, and severe and dramatic range of motion loss.
Dr. McCaffrey made specific recommendations for further evaluation and care. He declared Gabriel's work status as "Off duty effective 3/15/06." Gabriel sought to change her primary care physician to Dr. McCaffrey, but Employer denied this request on multiple grounds. Gabriel did not pursue relief from Employer's denial.
On September 14, 2006, the Director issued a Decision and Order regarding the July 2 006 Hearing. The Director found that Employer properly terminated benefits effective March 7, 2006, and that Employer was entitled to a credit for TTD benefits paid to Gabriel between January 10 and March 6, 2 006. The Director transmitted the case back to the LIRAB for determination of all issues on appeal. Gabriel appealed to LIRAB from the September 14, 2006 Decision and Order.
The LIRAB scheduled an initial conference regarding the appeal for November 16, 2006. In response, both Gabriel and Employer submitted their initial conference statements; Gabriel's ...