This decision is published in table format in the Hawai'i reporter
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD. CASE NO. AB 2008-221 (2-05-10803).
On the briefs:
Wayne H. Mukaida, for Claimant-Appellant.
Kenneth T. Goya, J. Thomas Weber, Monica K. Suematsu (Ayabe, Chong, Nishimoto, Sia & Nakamura LLLP), for Employer/Insurance Carrier-Appellee.
Nakamura, C.J., and Fujise and Ginoza, JJ.
Claimant-Appellant Shallene Alayon (Alayon) was employed by Employer-Appellee Urban Management Corporation (Urban Management) as a services coordinator. Alayon sought workers' compensation benefits after she slipped and fell at work in August 2005. Alayon had previously been injured in a non-work-related motor vehicle accident in 1999. Although acknowledging that Alayon sustained some injuries from her work-related fall, Urban Management and Insurance Carrier-Appellee Hawaii Employers' Mutual Insurance Company, Inc. (collectively, " Employer" ) contested the extent of the injuries Alayon claimed were work-related. The main dispute between the parties is whether Alayon's asserted injuries are attributable to her work accident and therefore compensable or whether they are attributable to pre-existing conditions, including injuries she sustained in the motor vehicle accident, and therefore non-compensable.
Alayon appeals from the Decision and Order entered by the Labor and Industrial Relations Appeals Board (Board). The Board concluded in relevant part that: (1) Employer may be liable for Alayon's left knee condition after November 5, 2007, however, the nature and extent of the injury must be determined by the Director of the Department of Labor and Industrial Relations (Director) (Conclusion of Law (COL) 1); (2) Alayon is not entitled to treatment under Dr. Scott McCaffrey's January 11, 2008, treatment plan for a neurological consult with Dr. Ray Romero (COL 2); (3) Alayon is not entitled to, and Employer is not liable for, temporary total disability (TTD) benefits from June 8, 2007, through November 20, 2009 (COL 3); and (4) the Board would not decide whether Employer was entitled to a credit against future permanent partial disability (PPD) benefits, if any, for indemnity benefits paid from January 11, 2006, to June 7, 2007, and would leave that determination to the Director (COL 4).
On appeal, Alayon contends that the Board erred in each of these conclusions and in certain findings of fact made in support of the conclusions. As explained in greater detail below, we hold that: (1) with respect to COL 1 and COL 4, the Board did not render a final decision for this court to review, and we decline to address the issues raised by Alayon regarding COL 1 and COL 4 in the absence of a final decision by the Board; (2) COL 2 is affirmed; (3). COL 3 is vacated on the ground that the Board must decide a claim for TTD benefits on the merits and cannot deny Alayon's claim for TTD benefits based solely on the asserted failure of her physicians to submit disability certifications in the proper form. We remand the case for further proceedings consistent with this Memorandum Opinion.
Alayon was employed by Urban Management as a services coordinator in a federal housing project, in which she investigated the needs of tenants in the housing project and set up classes and meetings. On August 23, 2005, Alayon slipped and fell at work. Employer did not deny liability for the work fall, and it filed a WC-1 Employer's Report of Industrial Injury, which described Alayon's injuries as " [p]ossible sprained left wrist, hand, buttocks (x-rays)."
I. Pre-existing Conditions
Prior to her August 23, 2005, work-related fall, Alayon had a history of migraine headaches and left knee, low back, and neck problems, including injuries caused by a May 31, 1999, motor vehicle accident. In a settlement agreement arising out of the motor vehicle accident, the injuries Alayon sustained in that accident were described as follows:
As a result of the Accident, [Alayon] sustained certain injuries including but not limited to headaches, neck, shoulder and low back pains, temporomandibular joint pain, vertebral disc bulging and herniation, right carpel tunnel syndrome, dizziness, nausea . . . .
Alayon's injuries and physical conditions that preexisted her August 2005 work-related fall are as follows.
Alayon had a history of left knee problems since she was a teenager, including the clicking and buckling of the knee. In a February 3, 2005, medical note, Jeffrey Lee, M.D., an orthopedic surgeon, documented his suspicion that Alayon had a left knee medial meniscal tear. On May 17, 2005, Dr. Lee scheduled Alayon for knee surgery, to perform an arthroscopy and meniscal tear resection, but Alayon cancelled the surgery.
In July 1999, Gregory H. Chow, M.D., an orthopedic surgeon, noted that Alayon complained of headaches, and he diagnosed her condition as " cervical strain whiplash" and " post whiplash headaches." In a February 2001 medical report, Todd T. Tasaki, D.D.S., stated that Alayon complained of headaches " four plus times per week on average[.]" Thomas McNorton, M.D., a neurologist, conducted electrodiagnostic testing on May 3, 2001, May 10, 2001, and September 24, 2003, which revealed C7 radiculopathy, right L5 radiculopathy, and right S1 radiculopathy, respectively. Dr. McNorton's notes also reveal that Alayon complained of headaches during visits in 1997, 1998, 1999, and 2001.
A March 10, 2004, letter from Dr. Lee stated that Alayon may be a candidate for back surgery after her pregnancy if her neck and low back conditions persisted. His diagnoses were cervical disc protrusion at C5-6 and disc herniation and degeneration at L5-S1. Alayon's medical records also included a March 4, 2004, patient registration which indicated that Alayon was " pending back surgery" and had been in this status for four years.
II. The August 23, 2005, Work Injury
On August 23, 2005, Alayon slipped and fell at work. Alayon reported that her feet went out and she landed on her left buttock, left wrist, and left hand. She also claimed that she hit her head against a stone wall outside the elevator door.
After her fall, Alayon sought treatment from her primary care physician, Fortunata Gozun, M.D., who referred her to WorkStar Occupational Health Services (WorkStar), where she was treated by Scott McCaffrey, M.D., and others. Dr. McCaffrey noted that on August 23, 2005, Alayon complained about pain to her neck, right lower back, right buttock, left thigh, left wrist and hand, all at a 5/10 level of severity. His diagnostic assessment of Alayon included: " 1. Cervical strain/sprain. 2. Closed head injury-possible concussion. 3. Lumbosacral strain/sprain (rule out internal derangement) with a previous history of an MVA [(motor vehicle accident)] in 1999 with disc derangement. 4. Left wrist strain/sprain. 5. Upper extremity neuroesthesias, left greater than right. 6. Left knee dysfunction with history of ligamental tear." (Formatting altered.) Dr. McCaffrey prescribed Relafen and physical therapy. With respect to work, Alayon was placed on " off duty" status, but was given " the option to work full duty." Thereafter, Alayon continued to seek treatment through WorkStar.
After her work accident, Alayon returned to work for Urban Management, but stopped working there in October 2005. According to Alayon, she started working for a different employer on June 8, 2009, stopped working on February 26, 2010, and was terminated in April 2010.
III. Director's Decisions and Proceedings
The Director issued four decisions regarding disputes between Alayon and Employer. Alayon appealed only Decisions #3 and #4 to the Board. Between the hearing on and issuance of Decision #1, Employer sent a letter to Alayon stating that it would commence paying weekly indemnity benefits under protest. Also between Decision #1 and Decision #2, Employer obtained an independent medical examination (IME) of Alayon by Dr. John S. Endicott, M. D.
1. The Director's February 16, 2006, Decision (Decision #1)
Following a hearing on January 11, 2006, the Director issued Decision #1 on February 16, 2006, which determined that Alayon sustained injuries to her head, neck, back, left wrist, left knee, left hip, and left buttock as the result of her work accident. In Decision #1, the Director ruled that: (1) Employer must provide benefits to Alayon for " such medical care, services and supplies as the nature of the injury may require" ; (2) Alayon was entitled to TTD benefits from November 14, 2005, through January 10, 2006, at a weekly compensation rate of $415.35;  (3) Employer was liable for a 20% penalty under Hawaii Revised ...