JOSEPH K. CHANDLER, Appellant-Appellant,
EMPLOYEES RETIREMENT SYSTEM, STATE OF HAWAI'I, Appellee-Appellee
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 12-1-002300)
Ted H.S. Hong for Appellant-Appellant.
Patricia Ohara, Kyle K. Chang Deputy Attorneys General for Appellee-Appellee.
Foley, Presiding J., Fujise and Leonard, JJ.
Appellant-Appellant Joseph K. Chandler (Chandler) appeals from the March 6, 2013 "Order Dismissing with Prejudice Appellant Joseph K. Chandler's Appeal" (Order Dismissing) entered in the Circuit Court of the' First Circuit1 (circuit court). The Order Dismissing, which was reduced to a Final Judgment on April 8, 2 013, affirmed a decision by the Board of Trustees of the Employees' Retirement System of the State of Hawai'i (ERS Board) in favor of Appellee-Appellee Employees' Retirement System of the State of Hawai'i (ERS) .
Chandler contends the circuit court erred by affirming the following ERS Board actions:
(1) failing to determine that Chandler's medical condition qualified for disability retirement benefits under Hawaii Revised Statutes (HRS) § 88-284 (Repl. 2 012);
(2) rejecting Chandler's supplemental medical exhibits, which he prepared as a pro se party;
(3) finding that determinations by the U.S. Social Security Administration's Office of Disability Adjudication and Review (SSA) and other medical examiners did not establish that Chandler's incapacity is likely to be permanent; and
(4) other errors of law affecting Chandler's request for ordinary disability retirement benefits.
Chandler (born 19 64) was employed by the State of Hawai'i, Department of Education as a Custodian II at Keaau High School.
On July 2, 2009, Chandler submitted his application for ordinary disability retirement to ERS. On July 9, 2009, ERS acknowledged receipt of Chandler's application for ordinary disability retirement benefits, noting that he was required to submit a statement of an examining physician. ERS received the needed statement from Douglas C. Olsen, M.D. (Dr. Olsen) on July 23, 2009. Dr. Olsen's report, dated July 2, 2009, states: . (1) Chandler should be permanently relieved from his duties; (2) he will be prevented from performing duties for his present employment for the remainder of his life; and (3) retirement is recommended, noting that he is "[u]nable to perform the physical demands of employment - lifting/carrying/pushing/pulling bending/stooping." At that time, Dr. Olsen had served as Chandler's primary care physician for over four years, since 2006.
On October 28, 2009, Chandler wrote to State of Hawai'i, Hawai'i Employer-Union Health Benefits Trust Fund (EUTF), alerting the agency that he had not received a response to his ERS application for seven months, lacked medical insurance, and could not pay for prescribed medications, a list of which was attached to his letter to EUTF.
On February 16, 2010, Florian Flores (Flores), a physical therapist and Director of Hawai'i FCE and Rehabilitative Services, submitted an occupation specific functional capacity-evaluation (FCE) based on a 6.45 hour examination of Chandler on February 12, 2010 to the ERS Medical Board (Medical Board). Flores' FCE described work factors covered in the assessment as "Musculoskeletal, Repetitive Movement, Static Strength, Hand Function, Material/Non-Material Handling and Task simulations, " and did not indicate that any psychological assessments were conducted. Flores stated that Chandler "can work at LIGHT PDL [physical demand level] for an 8-hour day" and noted, "[t]he maximum physical requirement for School Custodian II, DOE is 50 lbs or greater. I believe it is unlikely that [Chandler] will be able to achieve this material handling ability and return to full time, full duty work as School Custodian II with any type of work hardening/conditioning program."
On March 10, 2010, ERS received a Lumbar Spinoscope Evaluation report from Robert L. Smith, M.D. (Dr. Smith), who examined Chandler on February 12, 2010 and concluded:
Since [Chandler] is only 45 and approximately 100 pounds overweight he would benefit from a restricted calorie but fully nutritious diet such as documented by Dr. Shintani locally and self directed reactivation and reconditioning at a community based fitness center. Psychosocial barriers may include fear avoidance behaviors, lack of motivation and non-compliance.
On March 10, 2010, the Medical Board received a letter dated March 10, 2010 from Flores, stating:
I reviewed Mr. Chandler's FCE and Spinoscope reports per your request. I conclude that if [Chandler] is able to successfully lose at least 50 lbs of body weight following the Shintani diet per Dr. Robert Smith's recommendation, he will be more likely than not to achieve the physical demand capacity of MEDIUM (50 lbs) and recover full time, full duty work as School Custodian through extensive work conditioning/work hardening.
Also on March 10, 2010, the Medical Board completed its report, certifying Chandler as "physically or mentally incapacitated for further performance of duty[, ]" but that his incapacitation is not likely to be permanent and he should not be retired.
On April 21, 2010, the ERS Board sent a letter to Chandler apprising him of their April 12, 2010 decision to deny his application for ordinary disability retirement.
In a letter with the subject heading "Ordinary Disability Retirement Appeal, " received on May 17, 2010, Chandler urged the ERS Board to consider reports from Rudolph Puana, M.D. (Dr. Puana) and Dr. Olsen. Chandler noted that ERS Benefits Manager, Karl Kaneshiro (Kaneshiro), informed him that the Medical Board made its decision prior to receiving Florian Flores' reports and that he could not review these medical reports unless he filed an appeal. Chandler does not specify if Kaneshiro was referring to Flores1 March 10, 2010 report alone or in combination with his February 16, 2010 FCE. Chandler attached a report by Dr. Puana dated May 3, 2010, which stated Chandler's "pain is very debilitating due to extreme spinal cord involvement" and he would be absent even from a part-time job three or more days a month if he attempted such employment. In response to the question, "Do you feel that [Chandler] is accurately describing his complaints of pain?[, ]" Dr. Puana answered affirmatively and further opined that Chandler's symptoms are documented and credible.
On June 29, 2010, ERS assigned hearings officer duties over Chandler's appeal to Mario R. Ramil. On September 1, 2010, Hearings Officer Ramil responded to Chandler's concern that he could neither afford an attorney nor airfare to and from Honolulu for a hearing. Hearings Officer Ramil proposed to address his appeal via submissions of additional medical reports and written arguments, thereby obviating the need to hold a "face-to-face" hearing.
On September 7, 2 010, Frank Ury, the attorney who represented Chandler in proceedings related to his SSA disability claim, submitted a copy of a SSA Decision dated May 18, 2010 to the ERS. The SSA Decision found Chandler "disabled under sections 216(i) and 223(d) of the Social Security Act since December 31, 2007." SSA found Chandler's statements concerning the intensity, persistence, and limiting effects of these symptoms [of medically determinable impairments] are generally credible." SSA also noted:
[t]he State agency medical consultants' physical assessments and psychological consultants mental assessments are given little weight because other medical opinions are more consistent with the record as a whole and evidence received at the hearing level show that [Chandler] is more limited than determined by the State agency consultants. Greater weight is afforded the opinions of Drs. Olsen and Puana as they have established a treatment relationship with [Chandler]. Their opinions are further supported by the comprehensive psychological assessment of Dr. Bratton, who determined that [Chandler] is not able to meet the normal demands of a low stress job on a daily basis, 'due to a combination of an existing bipolar disorder, now expressed as depression, along with cumulative effects of multiple closed head traumas.'
The SSA Decision does not identify the State agency medical consultants it refers to and did not append their physical or psychological assessments.
On September 13, 2010, Hearings Officer Ramil wrote to the Medical Board and Chandler, stating that Chandler had waived his right to a face-to-face hearing and proposing a schedule whereby Chandler would provide the Hearings Officer and Medical Board counsel with additional supporting documents by October 15, 2010 and the Medical Board would respond to the submissions by November 15, 2010.
On September 28, 2010, the Aloha Pain Clinic, LLC, which employed Dr. Puana, submitted to the ERS Board, chart notes from examinations of Chandler on April 16, 2010, May 3, 2010, and July 21, 2010 and a history and physical report dated March 30, 2010.
On October 6, 2010, Hearings Officer Ramil forwarded a letter from Chandler with attached documents to Medical Board counsel: (1) the- SSA Decision dated May 18, 2010; (2) medical documents from Dr. Puana; (3) medical records from Dr. Olsen; and (4) a notice of ...