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McGinnity-Farris v. Apex Explosives, LLC

Intermediate Court of Appeals of Hawai'i

December 11, 2014

CRAIG M. MCGINNITY-FARRIS, Claimant-Appellee,
v.
APEX EXPLOSIVES, LLC, Employer-Appellant, and HAWAII EMPLOYERS' MUTUAL INSURANCE COMPANY, Insurance Carrier-Appellant

Editorial Note:

This decision is published in table format in the Hawai'i reporter

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD. DOCKET NO. AB 2010-211 (K); 4-08-00769.

On the briefs: Robert E. McKee, Jr., for Employer-Appellant and Insurance Carrier-Appellant.

Nakamura, Chief Judge, Leonard and Ginoza, JJ.

MEMORANDUM OPINION

Employer-Appellant Apex Explosives, LLC and Insurance Carrier-Appellant Hawaii Employer's Mutual Insurance Company, Inc. (HEMIC) (collectively, Apex, unless otherwise stated) appeal from a Decision and Order filed January 4, 2012 (Decision and Order) by the Labor and Industrial Relations Appeals Board (LIRAB) affirming in part and modifying in part a May 17, 2010 decision by the Director of Labor and Industrial Relations (the Director) regarding Claimant-Appellee Craig M. McGinnity-Farris's (McGinnity-Farris's) claim for workers' compensation benefits, an Order Denying Request for Reconsideration filed by the LIRAB on March 5, 2012, and an Amended Decision and Order filed by the LIRAB on May 14, 2012 (Amended Decision and Order).

I. BACKGROUND

A. McGinnity-Farris's Work Injury and Subsequent Surgeries

On June 16, 2008, McGinnity-Farris was employed by Apex when he sustained a right shoulder injury at work. As a result of the injury, he was not able to work beginning on June 16, 2008.

As his injury did not sufficiently improve, McGinnity-Farris underwent surgery on his right shoulder on October 14, 2008 for a subacromial decompression and a repair of the Superior Labrum Anterior and Posterior (SLAP) lesion. The surgery was performed by Dr. Floyd Pohlman (Dr. Pohlman). According to Dr. Pohlman's description of the procedure, the surgery involved creating at least two (2) incisions as Dr. Pohlman described the closing of " ports" after the surgery.[1] One of these ports was described as a posterior portal.

Dr. Pohlman performed another surgery on April 9, 2009, described as a right shoulder arthroscopy, release of the biceps tendon, and open biceps tenodesis. Dr. Pohlman's report indicated that at least three (3) incisions were made: a posterior portal, an anterior portal, and an incision made in the axillary line. It was not indicated whether any of these incisions were made through any of the scars from the October 14, 2008 surgery.

On April 23, 2009, McGinnity-Farris sustained a non-work-related exacerbation of his injury when someone fell and grabbed his arm. He sought treatment at Wilcox Memorial Hospital emergency room on that date. On the following day, April 24, 2009, he was treated by physician's assistant Terrie Johnson (Johnson) at Kaua'i Medical Clinic, and consented to surgery to repair the damage done by the re-injury. This surgery took place on April 28, 2009 and was again performed by Dr. Pohlman. The procedure was described as a [right] shoulder arthroscopy with debridement and open biceps tenodesis. Dr. Pohlman's report describes the use of at least four (4) incisions: a posterior portal, an anterior portal, the re-opening and enlargement of the previous incision made during the tenodesis procedure (presumably the incision in the axillary line), and a mid-forearm incision.

On September 16, 2009, HEMIC notified McGinnity-Farris that it had scheduled an Independent Medical Examination (IME) with Dr. John Sterling Endicott (Dr. Endicott). On December 1, 2009, McGinnity-Farris was examined by Dr. Endicott pursuant to the IME request by HEMIC for an Independent Medical Examination and Impairment Assessment. In his report on the IME and his Impairment Assessment, which was not completed until March 3, 2010,[2] Dr. Endicott noted the following regarding McGinitty-Farris's scars:

The right shoulder shows arthroscopic scars that are multiple. Anteriorly there is a crossed scar that is 1.5 cm x 2.5 cm. The lateral scar is 1.5 cm normal and flat. The posterior scars are 1.5 cm and 1.0 cm. There are two larger scars with the superior anterior scar at 7.5 cm, and the inferior anterior scar 5 cm.

According to Dr. Pohlman, McGinnity-Farris was released to a home exercise program as of October 6, 2009, he achieved maximum medical improvement as of October 12, 2009, and was cleared to return to work as early as October 13, 2009. This report was sent to HEMIC's claim adjuster, Rose PeBenito (PeBenito), on October 12, 2009.

B. Procedural History

As a result of his work injury, McGinnity-Farris was paid temporary total disability (TTD) benefits by HEMIC at a rate of $392.02 per week from June 20, 2008 through October 29, 2009 for a total of $27,833.42. He was also compensated for medical costs associated with his injury in the total of $25,758.74.

Promptly after receiving Dr. Pohlman's report, but while the IME and a report from Dr. Endicott was still pending, HEMIC sent a letter dated October 15, 2009 to McGinnity-Farris and the State Department of Labor and Industrial Relations (DLIR), indicating that TTD benefits would be terminated as of October 29, 2009 and notifying them that HEMIC would be requesting a credit for overpayment of TTD benefits paid after October 13, 2009.

Shortly after receiving Dr. Endicott's report of his IME and Impairment Assessment, which was dated March 3, 2010, HEMIC sent a letter dated March 12, 2010 notifying McGinnity-Farris and the DLIR hearings officer that it would be seeking credit and/or reimbursement for overpayment of TTD benefits paid out from April 23, 2009 to October 29, 2009 in the amount of $10,640.54 and for medical care benefits paid as of April 23, 2009.

A hearing was held before a hearing officer of the DLIR, Disability Compensation Division on March 18, 2010. Thereafter, the Director issued an initial decision on May 17, 2010 (Director's Decision) and later, an amended decision on June 3, 2010 (Director's Amended Decision), which was based on certain errors alleged by HEMIC in a May 20, 2010 Request for Reconsideration. The Director's Amended Decision, with notations added to point out the differences between it and the original Director's Decision, includes the following:

1. Sections 386-21 and 386-26, HRS, said employer shall pay for such medical care, services, and supplies as the nature of the injury may require up to 4/22/2009. [original decision did not: list a date]
2. Section 386-31 (b), HRS, said employer shall pay to claimant weekly compensation of $392.02 for temporary total disability from work beginning (waiting period: 6/17/2008 through 6/19/2008) 6/20/2008 through 4/22/2009 for 43.8571 weeks, for a total of $17,192.88.
3. Section 386-32 (a), HRS, said employer shall pay to claimant weekly compensation of $392.02 for 11% permanent partial disability of the arm, beginning 4/23/2009 for 137.2800 weeks, for a total of $23,886.72.
4. Section 386-32 (a), HRS, said employer shall pay to claimant one lump sum of $550.00 for disfigurement as follows: three (3) scars: One (1) 2-inch hyperpigmented, linear, scar on right upper arm, one (1) 1/2-inch hyperpigmented, linear, scar on posterior shoulder, and one (1) 2-inch hyperpigmented, linear, scar on anterior shoulder.
5. Section 386-52, HRS, employer is authorized to credit of $10,640.54 for temporary total disability benefits paid from 4/23/2009 through 10/29/2009 against the award for permanent partial disability benefits.

On May 27, 2010, McGinnity-Farris sent a letter to the DLIR appealing the Director's Decision.

After an initial conference, the LIRAB issued a pretrial order setting a trial for August 17, 2011, before the LIRAB in Honolulu. The order narrowed the issues to be determined at trial to the following:

a. Whether Employer is liable for, and Claimant entitled to, medical care, services, and supplies after April 22, 2009.
b. Whether Claimant is entitled to temporary total disability after April 22, 2009.
c. What is the extent of permanent partial disability resulting from the work ...

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