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Panado v. Board of Trustees

Supreme Court of Hawai'i

July 11, 2014

EDEN L. PANADO, Petitioner/Appellant-Appellant,
v.
BOARD OF TRUSTEES, EMPLOYEES' RETIREMENT SYSTEM, STATE OF HAWAII, Respondent/Appellee-Appellee

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. CAAP-13-0000022; CIV. NO. 12-1-0151.

Philip W. Miyoshi, for petitioner.

Elmira K.L. Tsang and Kyle K. Chang, for respondent.

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., AND CIRCUIT JUDGE CASTAGNETTI, ASSIGNED BY REASON OF VACANCY.

OPINION

Page 145

[134 Hawai'i 2] RECKTENWALD, C.J.

The instant case arises from Eden Panado's application for service-connected disability retirement with the Board of Trustees of the Employees' Retirement System of the State of Hawai'i. In her application, Panado alleged that she was permanently incapacitated because of neck and back injuries she sustained while lifting boxes during an October 8-9, 2004 work shift for the City & County of Honolulu's Department of Information Technology. The statute at issue in this case, Hawai'i Revised Statutes (HRS) § 88-79, allows for service-connected disability retirement benefits if a member of the ERS can show that he or she was " permanently incapacitated for duty as the natural

Page 146

[134 Hawai'i 3] and proximate result of an accident occurring while in the actual performance of duty at some definite time and place . . . ."

The Board of Trustees denied Panado's application. Although the parties stipulated that Panado had suffered an injury sometime during her October 8-9, 2004 work shift, and that she was permanently incapacitated for work by the time of her application, the Board of Trustees determined that (1) Panado's October 8-9, 2004 injury was not an " accident" under HRS § 88-79 because she had failed to show that the injury occurred at " some definite time and place" ; and (2) Panado's permanent incapacity was not the " natural and proximate result" of the October 8-9, 2004 incident.

Panado appealed to the Circuit Court of the First Circuit (circuit court), which affirmed the Board of Trustees' decision because Panado had failed to show that the incident occurred at " some definite time and place." The circuit court did not address the other reason for the Board of Trustees' denial of Panado's application, i.e., that she failed to prove her incapacity was the natural and proximate result of the alleged accident. A majority of the Intermediate Court of Appeals (ICA) affirmed the decision.

In her Application for Writ of Certiorari, Panado asserts that: (1) the ICA erred in affirming the circuit court's conclusion that Panado's injuries during a single eight-hour work shift did not occur at a " definite time and place" under HRS § 88-79 [1] and Hawai'i Administrative Rule (HAR) § 6-22-8,[2] and (2) the evidence in this case demonstrates a causal connection between the October 8-9, 2004 incident and her permanent incapacity.

We agree with Panado that the " definite time and place" language in HRS § 88-79 does not preclude the recovery of benefits despite her inability to pinpoint the precise moment of injury when, as in the instant case, there is no dispute that Panado was injured during her work shift. However, we remand the case to the circuit court for it to determine the Board of Trustees' second ground for denying Panado's application, namely, that her permanent incapacity is not " the natural and proximate result of the alleged incident."

II. Background

A. Factual Background

The following factual background is taken from the record on appeal.

On October 8-9, 2004, Panado was working as a Computer Operator III with the City & County of Honolulu (City & County) Department of Information Technology. During her work shift, which ran from 11:30 p.m. on October 8 to 7:45 a.m. on October 9, 2004, she was assigned to print voter registration forms and had to lift 10-15 boxes of paper. The following day, on October 10, 2004, Panado was admitted to the emergency room at Tripler Hospital for treatment of neck and

Page 147

[134 Hawai'i 4] low back pain. From October 9, 2004 to October 5, 2005, Panado was unable to return to work.

On October 12, 2004, Panado applied for workers' compensation and began to receive temporary total disability benefits from the City & County. As a result, the City & County required Panado to undergo several independent medical evaluations (IME). Deborah Agles, M.D., performed an IME of Panado on January 11, 2005, diagnosing her with lumbosacral and cervical strains. Dr. Agles noted that, " [a]t present time, I believe that the patient is unable to work, and should continue on temporary total disability benefits." Explaining that Panado's " prognosis is guarded because of the diffuse nature of pain symptoms, . . . hyperreflexia[,][3]" and " subjective symptoms which are not completely concordant with objective studies," Dr. Agles noted, however, that Panado " presented in an honest and reliable manner; there were no overt pain behaviors, and no evidence of malingering or secondary gain.[4]"

Dr. Agles submitted a supplemental report on June 14, 2005, after reviewing Panado's medical records. Dr. Agles opined that:

the patient's current symptoms are not completely attributable to the incident of 10/09/04. The 10/09/04 accident may have caused an exacerbation of her low back condition, but her low back was already symptomatic and receiving active medical care in close proximity to the subject injury (four days prior). The medical records do not support a pre-existing cervical spine condition, although x-rays were obtained of the neck in 1989, and there was a motor vehicle accident in 1994, with intermittent symptoms in the bilateral upper extremities.

Dr. Agles further opined that " the incident of 10/09/04 did cause an injury to the cervical spine" and that " [t]he low back can be considered at pre-injury state[.]" Dr. Agles noted that Panado's records indicated she had longstanding fibromyalgia, and that the " pain [Panado] experiences from fibromyalgia is complicating her presentation; this diagnosis is important, and was not discussed by the patient when a past medical history was obtained."

Panado returned to work on October 6, 2005. She was assigned to light duty and not permitted to carry anything heavy.

On October 24, 2005, another IME was performed by Donald K. Maruyama, M.D. Based on his examination of Panado and review of her records, including Dr. Agles' report, Dr. Maruyama stated that:

Dr. Agles felt that [Panado] had reached her pre-injury status with regard to her lower back and lower extremity symptoms and her opinion was that her ongoing symptomatology in her low back and lower extremities was due to a pre-existing condition. I generally tend to agree although there may be at least mild permanent aggravation of her ongoing low back and right lower extremity symptomatology, at least from the subjective standpoint. Her cervical and right upper extremity symptoms appear to be a direct result of the October 9, 2004 incident although her chronic fibromyalgia situation does contribute to her overall musculoskeletal symptoms.

Dr. Maruyama also stated that " Panado has returned to her usual and customary duties of Computer Operator III at the City & County. A review of the position description reveals that she can probably perform all of the duties as described."

Panado was again off of work from January 26, 2006 to March 5, 2006. On March 30, 2006, Panado was medically disqualified from work by her primary treating physician, Diokson Rena, M.D., because she was " unable to perform and tolerate [her work] duty despite restrictions."

Page 148

[134 Hawai'i 5] B. Proceedings relating to Panado's eligibility for benefits

On May 1, 2006, Panado filed an Application for Disability Retirement with the ERS. In her application, she stated that on October 9, 2004, as a " Computer Operator III, Department of Information Technology, Operations Division," she was " printing voters' registration forms on 2 impact printers and while lifting forms to load & unload between printers, felt pain in lower back, upper back, shoulder, neck, & right arm. Next day was more intense pain & barely able to move the following day."

On July 12, 2007, Dr. Lichter, a former chair of the ERS Medical Board, performed a medical records review for ERS. Among the records reviewed were the independent medical examinations by Dr. Agles and Dr. Maruyama, reports by her treating physician Dr. Rena, and Panado's military medical records. Dr. Lichter's report stated:

I strongly disagree with Dr. Maruyama's [October 24, 2005] opinion that " there may be at least a mild permanent aggravation of her ongoing low back and right lower extremity symptomatology. . ." His opinion is based only, as he stated, on a " subjective standpoint." This latter opinion indicates that [Pando's] self-serving reports are the primary basis of his opinion which is essentially contrary to the objective evidence.
The omission by [Panado] of any reference to her pre-existing, properly diagnosed and repeatedly treated illness leads the undersigned to believe that there is a strong chance that [Panado's] claim is not only worthless but may be fraudulent.

Although Dr. Lichter already expressed an opinion, and notably a very negative one, the Board of Trustees selected him to perform another IME on Panado, which he did on October 24, 2007. In his accompanying report, Dr. Lichter concluded that Panado's incapacitation stemmed from " non-organic" causes and not from the injuries she suffered from lifting the boxes. During the physical examination of Panado, Dr. Lichter recognized the presence of several Waddell signs, which are a group of inappropriate responses to physical examination that indicate non-organic or psychological causes of pain.[5] Performing a test for " distraction," in which a straight leg raise is performed while the patient is lying flat, then, while distracting the patient, another straight leg raise is done while the patient is seated, Dr. Lichter reported that Panado showed a marked difference in pain response to the two leg raises even though the pain response should be consistent. Dr. Lichter also observed the presence of other Waddell signs such as " over-reaction," " regional disturbances," and simulation. Dr. Licther noted that " [t]wo or more of these findings strongly suggest a psychological basis for some or all of [Panado's] complaints."

Based on these tests and a review of Panado's medical records, Dr. Lichter diagnosed Panado as having (1) " Chronic neck and back pain due to herniated nucleus pulposes at C 4-5 and L5-S1, probably secondary to a motor vehicle accident in 1994" ; and (2) " Failure to cope with situational stress and mild permanent residuals of #1." Dr. Lichter also reiterated that Panado's failure to mention her preexisting fibromyalgia led him to believe that her claim may be fraudulent.

On November 12, 2007, the Medical Board issued its report, which summarized the facts and pertinent medical records regarding Panado, then stated its findings:

The findings of the undersigned [Medical] Board are that [Panado] is permanently incapacitated for the further performance of duty, but that such incapacity is not the natural and proximate result [6] of an accident that occurred while in the actual performance of duty at a specific place and time, and not the cumulative result of an occupational hazard as explained above.

Based on these findings, the Medical Board recommended that Panado be denied service-connected disability retirement.

Page 149

[134 Hawai'i 6] Panado appealed the decision of the Medical Board to the Board of Trustees. At the January 19, 2010 hearing on her appeal, the parties stipulated to Panado being " physically or mentally incapacitated with [regard to the] further performance of duty as a Computer Operator III" ; that " such incapacitation is likely to be permanent" ; and that " such incapacitation is not the result of willful negligence on the part of Ms. Panado." The parties also stipulated that " on the date of the injury on October 9, 2004, that [Panado was] working in [her] job as the Computer [Operator III]."

Patricia L. Chinn, M.D., Medical Board Chairperson, appeared for the Medical Board as an expert witness in medicine and general surgery and testified that, in the Medical Board's view, " accident" under HRS § 88-79 " needs to occur at a specific date and time. It's not over a stretch of hours. It is not something that occurs and then developed symptoms the following day." Dr. Chinn further explained:

A: [The] ERS definition of accident is pretty clear. It's got to occur at a specific date and time and in general, there's an immediate complaint of pain or disability. When somebody develops pain the following morning, that for most physicians is related to an overuse, muscle over use or a strain, muscle strain, which generally is self resolving.
Q: What about gradual onset of pain while you're performing an activity?
A: That doesn't follow the definition of an accident. Generally it's like immediate. I don't think you can record snapping my fingers, but it's an immediate occurrence and you are aware that something happened at that time. And you can, you know, as you -- I mean if I were to get up and I were to lift multiple boxes and I have neck problems and I have a disk, and I've had problems with my neck and my back, I could move multiple boxes and I might gradually develop discomfort as my muscles tensed.
And maybe I'm a little bit out of joint and maybe because I'm a little deconditioned, but the fact that I might develop pain over a period of time with an associated activity does not constitute an accident. That's clearly against ...

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