SHEILA J. BELARMINO, Claimant-Appellee-Appellant,
STATE OF HAWAI'I, DEPARTMENT OF EDUCATION, Employer-Appellant-Appellee, Self-Insured
FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE
NO. AB 2010-04KK); (4-03-10035))
briefs: Lowell K.Y. Chun-Hoon (King, Nakamura & Chun
Hoon) for Claimant-Appellee
E. Halvorson and Steve K. Miyasaka, Deputy Attorneys General,
State of Hawai'i, for Employer-Appellant- Appellee.
Fujise, Presiding Judge, and Leonard and Reifurth, JJ.
workers' compensation case, Claimant-Appellee-Appellant
Sheila J. Belarmino appeals from the Decision and Order filed
by the Labor and Industrial Relations Appeals Board
("Board") on August 14, 2012 (the "August 14,
2012 Decision and Order"). The Director of the
Department of Labor and Industrial Relations Disability
Compensation Division ("Director") originally
adjudicated Belarmino's claims against Employer-Appellant
-Appellee State of Hawai'i, Department of Education on
February 4, 2010 ("February 4, 2010 Decision") for
a lower back injury sustained during a work-related incident
on April 9, 2003 ("April 9, 2003
August 14, 2012 Decision and Order, the Board modified the
Director's February 4, 2010 Decision by concluding that
Belarmino's average weekly wage at the time of her April
4, 2003 Injury was $332.23; Belarmino was entitled to
temporary total disability benefits from April 12, 2003
through March 15, 2009; and Belarmino sustained 10% permanent
partial disability of the whole person as a result of her
April 9, 2003 Injury. The Board affirmed the Director's
conclusion that Belarmino did not present a prima facie case
for oddlot permanent total disability.
appeal, Belarmino alleges that the Board erred in: (1)
modifying the end date of her temporary total disability
benefits period from December 17, 2009 to March 15, 2009
because Employer failed to issue a notice of intent to
terminate as required by Hawaii Revised Statutes
("HRS") section 386-31(b); (2) determining that she
failed to present a prima facie case for odd-lot permanent
total disability; and (3) failing to find that she sustained
a psychological injury and permanent psychological disability
as a result of her April 9, 2003 Injury.- We vacate in part
and affirm in part the Board's August 14, 2012 Decision
STANDARD OF REVIEW
standard of review for Board decisions is well established:
Appellate review of a [Board] decision is governed by HRS
§ 91-14(g) (1993), which states that:
Upon review of the record the court may affirm the decision
of the agency or remand the case with instructions for
further proceedings; or it may reverse or modify the decision
and order if the substantial rights of the petitioners may
have been prejudiced because the administrative findings,
conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of
the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
We have previously stated:
[Findings of Fact] are reviewable under the clearly erroneous
standard to determine if the agency decision was clearly
erroneous in view of reliable, probative, and substantial
evidence on the whole record.
[Conclusions of Law] are freely reviewable to determine if
the agency's decision was in violation of constitutional
or statutory provisions, in excess of statutory authority or
jurisdiction of agency, or affected by other error of law.
A [Conclusion of Law] that presents mixed questions of fact
and law is reviewed under the clearly erroneous standard
because the conclusion is dependent upon the facts and
circumstances of the particular case. When mixed questions of
law and fact are presented, an appellate court must give
deference to the agency's expertise and experience in the
particular field. The court should not substitute its own
judgment for that of the agency.
Igawa v. Koa House Restaurant, 97 Hawai'i 402,
405-06, 38 P.3d 570, 573-74 (2001) (quoting In re Water
Use Permit Applications, 94 Hawai'i 97,
119, 9 P.3d 409, 431 (2000)) (internal quotation marks
[A Finding of Fact] or a mixed determination of law and
fact is clearly erroneous when (1) the record lacks
substantial evidence to support the finding or determination,
or (2) despite substantial evidence to support the finding or
determination, the appellate court is left with the definite
and firm conviction that a mistake has been made. We have
defined "substantial evidence" as credible evidence
which is of sufficient quality and probative value to enable
a person of reasonable caution to support a conclusion.
In re Water Use Permit Applications, 94
Hawai'i at 119, 9 P.3d at 431 (citations omitted)
(internal quotation marks omitted).
Pulawa v. Oahu Constr. Co., 136 Hawai'i 217,
224-25, 361 P.3d 444, 451-52 (2015).
Belarmino's claim-related medical history.
was employed by Employer as a permanent part-time school
custodian for Wilcox Elementary School since July 22, 1996.
On April 9, 2003, Belarmino sustained a work-related injury
to her lower back "[w]hile lifting [the] cover of [a]
grease trap and leaning down to suck up [the] waste with [a]
wet vacuum. ..." Belarmino testified that the grease
trap was too heavy for her to lift alone. While cleaning the
trap with her co-worker, her co-worker inadvertently lost his
grip on the trap, and she was forced to bear the full weight.
Belarmino stated that she "felt a snap. . . . [i]n my
back, my neck, and it went down to my legs." It is
undisputed in this appeal that Belarmino's April 9, 2003
Injury, where Belarmino sustained a lower back injury, arose
out of and in the course of Belarmino's employment. On
April 22, 2003, Employer prepared a WC-1 Employer's
Report of Industrial Injury form, and later accepted
liability for Belarmino's work injury.
the April 9, 2003 Injury, Belarmino sought medical care from
Dr. Robert J. Teichman, at the Kauai Medical Clinic, and Dr.
William A. Renti Cruz, her primary care physician. Dr. Renti
Cruz referred Belarmino for physical therapy. Belarmino was
then referred to Dr. Heather Hopkins, a physiatrist, who
recommended more physical therapy.
November 3, 2003, Dr. Hopkins noted in a progress record that
Belarmino continued to have back pain, and no longer attended
physical therapy because she was not making significant
progress. Dr. Hopkins further noted that Belarmino wanted to
return to work, but that she was not able to return to the
heavy lifting required by her current job. Dr. Hopkins'
objective exam stated the following: "Sensation intact
to light touch to both lower extremities. Strength within
normal limits, both lower extremities. Trunk range of motion
within functional limits but painful on return to upright
position from flexion. Painful with extension and posterior
element over pressure. Gait, somewhat forward flexed posture,
tends to guard the back." Dr. Hopkins then recommended
that Belarmino "return to work in a light duty type
setting[, and i]f her current work environment is unable to
provide light duty, vocational rehabilitation should be
considered to retrain patient for another position that will
allow less lifting." Dr. Hopkins opined that Belarmino
"has reached maximum medical improvement[, and t]here
are no further treatment options I can offer. ..."
undated evaluation report reviewed by Dr. Robert Sussman,
Teresita de Dios, R.N., the evaluator, opined that, based
upon functional testing, Belarmino could work at a sedentary
level job. Between 2003 and 2005, Belarmino continued to see
Dr. Hopkins and Dr. Renti Cruz for treatment and medication
related to the April 9, 2003 Injury.
January 10, 2005, Dr. Lome K. Direnfeld, a neurologist,
examined Belarmino for an independent medical examination
("IME") at Employer's request. Belarmino
complained to Dr. Direnfeld that her back was "very sore
and very uncomfortable . . . in my back and okole . . . pains
running down my legs, front and back . . . like
somebody's grabbing me." She further stated that
"she is never comfortable sitting[, ] . . . has
difficulty standing comfortably for more than 10 minutest,
and] . . . has difficulty lifting a three-cup rice cooker
with rice in it." Belarmino informed Dr. Direnfeld that
she did not want to return to work for Employer, she did not
know what else she could do, but was "willing to try
Direnfeld made the following diagnoses, "1. Pain
disorder associated with both psychological factors and a
general medical condition, versus pain disorder associated
with psychological factors. 2. Chronic lumbosacral
strain." Dr. Direnfeld further opined that data suggests
that in Belarmino's case "diagnosis of pain disorder
associated with psychological factors is more likely than the
diagnosis of pain disorder associated with both psychological
factors and a general medical condition[.]" Dr.
Direnfeld stated that Belarmino reached maximum medical
stability as of her visit to Dr. Hopkins on January 15, 2004,
and that there was "no disfigurement related to the
effects of the 4/09/03 injury."
2005-2007, Belarmino sought the medical expertise of Dr.
Dennis Scheppers for continued care of her April 9, 2003
Injury. On February 20, 2007, Belarmino underwent a
Functional Capacity Evaluation ("FCE") in order to
determine her readiness to return to work, and assess current
functional abilities. According to Florian Flores, P.T., who
conducted the FCE, Belarmino "may be able to work below
SEDENTARY Physical Demand Level (PDL) for an 8 hour day;
however, there were indications of submaximal effort during
the FCE[, ]" and therefore, Flores estimated that
Belarmino should be able to work at the Sedentary-light PDL.
Flores also noted that Belarmino may not have exerted her
best effort during the functional capacity test.
1, 2007, Dr. Scheppers submitted an Estimated Capacity &
Limitation Form to Belarmino's vocational rehabilitation
provider. On the form, Dr. Scheppers provided Belarmino's
various physical limitations, which included an assessment
that Belarmino could frequently lift up to 10 pounds, ...