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Pulawa v. Oahu Construction Co., Ltd.

Supreme Court of Hawaii

November 4, 2015

BENJAMIN N. PULAWA, III, Petitioner/Claimant-Appellant,
OAHU CONSTRUCTION CO., LTD., Respondent/Employer-Appellee, and SEABRIGHT INSURANCE COMPANY, Respondent/Insurance Carrier-Appellee


Dan. S. Ikehara, for petitioner.

Brian G.S. Choy and Keith M. Yonamine, for respondents.




This case arises out of a work-related injury Petitioner Benjamin Pulawa, III (Pulawa) incurred while employed as a construction supervisor for Oahu Construction Co., Ltd. (Oahu Construction) and the subsequent [136 Hawai'i 218] workers'

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compensation claims made against Oahu Construction, insured by Seabright Insurance Company. The issues presented on appeal are 1) whether there was substantial evidence to show that a neuromonics device was reasonably needed to treat Pulawa's tinnitus and 2) whether Pulawa was no longer entitled to total temporary disability (TTD) payments because he was able to resume work. We hold that there was substantial evidence that the neuromonics device was reasonably needed for treating Pulawa's tinnitus, and that based on this finding, Pulawa was not medically stable and unable to return to work. Thus, the Labor and Industrial Relations Appeals Board (LIRAB) clearly erred in its determination that Pulawa was not entitled to the neuromonics device and in its decision to terminate Pulawa's TTD payments. Accordingly, the Intermediate Court of Appeals' (ICA) December 16, 2014 Judgment on Appeal and LIRAB's November 2, 2011 Decision and Order are vacated. The case is remanded to LIRAB for proceedings consistent with this opinion.

I. Background

A. Pulawa's Work-Related Accident

Pulawa's tinnitus diagnosis is due to a work-related accident. On August 20, 1996, Pulawa was employed by Oahu Construction as a construction supervisor when he was injured. As he was observing the construction operations, Pulawa was struck in the head by a 12 inch by 6 inch rock that became airborne after being run over by a loader vehicle. The force from this projectile cracked Pulawa's hard hat and fractured his skull.[1] As a result of this accident, Pulawa now suffers severe headaches, tinnitus, and depression. Tinnitus sufferers hear ringing or other sounds in the ear when no external sound is present. See 11 Roscoe N. Gray & Louise J. Gordy, Attorneys' Textbook of Medicine ¶ 84.63 (3d ed. 2014). Pulawa suffers from chronic bilateral tinnitus, which is described as a " constant, high-pitched tone." Pulawa has not returned to work since he was injured in August 1996.

B. Pulawa's Medical Treatment and Doctor Evaluations

Immediately after the accident, Pulawa was treated at The Queen's Medical Center and required surgery to repair a left frontal skull depressed fracture. As he recovered from surgery, Pulawa suffered from impaired cognitive functions. After more than two weeks of hospitalization, Pulawa was transferred to the Rehabilitation Hospital of the Pacific for another two weeks, where he received physical, occupational, and speech therapy. After his release from the Rehabilitation Hospital, Pulawa continued outpatient therapy on a monthly basis for approximately two years. His primary complaints consisted of headaches, cognitive issues, and sleep problems. While early reports do not specifically list tinnitus as a complaint, he was briefly prescribed tinnitus medication (amitriptyline) in 1997 and also complained of ringing in his ears during an independent neuropsychological evaluation performed in 2000.

Pulawa has been continuously treated for his ailments--primarily headaches and tinnitus--from the time of the accident. Dr. Barry Odegaard, Pulawa's family physician, treated Pulawa from 1997 to approximately 2001. Dr. Robert Marvit, a psychiatrist, treated Pulawa from early 2001 to late 2009, when he retired. In 2001, Dr. Marvit prescribed a treatment plan that consisted of Pulawa attending the Casa Colina Center of Rehabilitation (Casa Colina), a residential brain injury treatment program in Pomona, California, for several months.[2] Dr. Marvit believed that the residential treatment program would allow Pulawa to maximize his

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[136 Hawai'i 219] capacities so that he would be " functionally capable of returning to useful, gainful activity." Dr. Marvit noted that the program " would also include less reliance on medication, increased interpersonal, positive interactions, avoidance of self-destructive behaviors, pain control, and an exercise of his vocational potential."

Dr. David Patterson, the Medical Director at Casa Colina, stated in his preadmission screening report that Pulawa was an acceptable candidate for the brain injury treatment program, even though Pulawa had some " psychological overlay" that was preventing further recovery. Despite this psychological hindrance, Dr. Patterson believed that Pulawa had persistent physical and neurocognitive symptoms, such as tinnitus, that needed to be addressed. Proposed treatment included admission to Casa Colina's comprehensive neuropsychological program that would provide Pulawa with " compensatory strategies to deal with the emotional, cognitive and psychological difficulties." In addition, Dr. Patterson recommended cervical trigger point injections to promote movement in the neck, an evaluation of his migraine-type medications, and evaluations by specialists in otology, neurology, audiology, oral/maxillofacial, and neuro-optometry to further his recovery. Pulawa agreed to attend the treatment program.

However, admission to Casa Colina was delayed for nearly six years due to Oahu Construction's challenge of Dr. Marvit's treatment plan recommending admission. After the Director of the Department of Labor and Industrial Relations, Disability Compensation Division (Director) approved the treatment plan and LIRAB affirmed the Director's decision, Pulawa attended Casa Colina, where he participated in the program from September 2007 to February 2008.

During the treatment program, Pulawa received several treatments to manage and relieve his headaches, tinnitus, and depression. Relevant to this appeal, Dr. Lucy Shih, a specialist in otology and neurotology at the Casa Colina center, examined Pulawa and recommended that he be fitted with a neuromonics device, a device that at the time was only available at the House Ear Institute in Los Angeles, California. Dr. Shih was referred by Dr. Patterson specifically to assess treatment options for Pulawa's tinnitus symptoms. Dr. Shih stated in a letter to Dr. Patterson that she informed Pulawa of " a relatively new tinnitus treatment which may be beneficial." Dr. Shih described the device as " a listening device manufactured by Neuromonics which incorporates a neural stimulus into music to interrupt and desensitize the brain from continued perception of [tinnitus]." The device consists of earphones connected to a small compact music player. Dr. Patterson agreed with Dr. Shih's recommendation to fit Pulawa with a neuromonics device. However, Pulawa was released from Casa Colina after five months of treatment, returning to Hawai'i in February 2008, without being fitted for the neuromonic device.[3]

Rather than authorizing the neuromonics device after Pulawa completed the Casa Colina program, Oahu Construction requested two independent evaluations by Drs. Brian Goodyear, a neuropsychologist, and Anthony Mauro, a neurologist, as well as a vocational rehabilitation assessment, to update Pulawa's workers' compensation disability status.

1. Dr. Brian Goodyear's Supplemental Independent Psychological Evaluation

Dr. Goodyear, a neuropsychologist, evaluated Pulawa on May 23, 2008 and May 27, 2008 after Pulawa sought authorization from Oahu Construction for the neuromonics device that he had not received during his treatment in California. Although Dr. Goodyear concluded Pulawa was medically stable and therefore would not improve with future treatment, he did not discuss the utility of the neuromonics device in his report; nor did

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[136 Hawai'i 220] he address the opinions of Dr. Shih and Dr. Patterson recommending the neuromonics device for treatment of Pulawa's tinnitus.

In his report, Dr. Goodyear noted that he evaluated Pulawa on two previous occasions, December 1999 and July 2004. After briefly summarizing Pulawa's extensive medical history, Dr. Goodyear opined there was no significant change in Pulawa's condition since the 2004 evaluation. Although Pulawa had completed the Casa Colina program and met with Dr. Marvit on a regular basis, Dr. Goodyear concluded there was little improvement for a number of reasons--primarily because Pulawa lacked motivation and was magnifying his symptoms. Dr. Goodyear reasoned that Pulawa " had become very entrenched in the disabled role" and that he had powerful financial incentives to not give up that role. Specifically, Dr. Goodyear mentioned that Pulawa was receiving about $5,000 per month in benefits. Based on the foregoing, Dr. Goodyear concluded that from a neuropsychological perspective, Pulawa's condition remained stable and ratable, and he remained at a 25% permanent impairment rating.

In regard to returning to work, Dr. Goodyear concluded that while Pulawa would have some difficulty returning to his usual and customary work, he was capable of returning to productive employment. He did not believe any significant changes in Pulawa's subjective complaints and functional status would occur in the future. Thus, according to Dr. Goodyear, Pulawa required no further psychological or neuropsychological testing and no significant changes in Pulawa's subjective complaints and functional status would occur in the future. However, Dr. Goodyear's report did acknowledge the need to engage in further review of his current medical regimen for headaches. Throbbing headaches, tinnitus, interrupted sleep, memory problems, difficulty with loud noises, and depression were reported to Dr. Goodyear during each of his evaluations of Pulawa. Based on this history, Dr. Goodyear recommended that a neurologist evaluate Pulawa to review the effectiveness of his current treatment regimen for his headaches and determine whether Pulawa had achieved maximum medical improvement.

2. Dr. Anthony Mauro's Independent Medical Evaluation

On July 3, 2008, Dr. Mauro, a neurologist, completed Pulawa's second independent medical examination due to Pulawa's request for the neuromonics device. His examination was limited to a records review; he did not personally communicate with Pulawa. Regarding the neuromonics device, Dr. Mauro admitted that he was not aware of the device being " available for treatment of tinnitus" or whether the device met " an accepted standard of treatment for tinnitus." Nonetheless, based on his review of the medical records, Dr. Mauro concluded Pulawa's medical condition was medically stable and ratable, and that his symptoms would never completely subside. Dr. Mauro was concerned that Pulawa had an " inappropriate hope for '100%' recovery." In particular, Dr. Mauro pointed out that in late 1997, the Chief of Psychology Services at the Rehabilitation Hospital of the Pacific, Kathleen S. Brown, Ph.D., stated that Pulawa " [did] not appear to fully appreciate the need for self management and treatment of chronic pain and continues to seek [a] medical cure for his pain." Dr. Mauro was concerned that Pulawa's history of seeking a medical cure meant that he required his condition to return to " 100%" prior to returning to any type of employment.

Dr. Mauro concluded that although Pulawa suffers from significant cognitive and personality deficits from his head injury, he is capable of gainful employment, albeit not as a construction supervisor. Indeed, based on his review of Pulawa's records, Dr. Mauro reasoned that Pulawa would never report improvement in his symptoms, regardless of future treatment.

Dr. Mauro's opinion did not include a position as to whether the neuromonics device was reasonably needed for Pulawa's greatest possible medical rehabilitation. Nor did he address the opinions of Dr. Shih and Dr. Patterson recommending the neuromonics device for treatment of Pulawa's tinnitus. He reviewed two academic studies of the device--one of ...

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