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Belarmino v. State, Department of Education

Intermediate Court of Appeals of Hawaii

December 14, 2016

SHEILA J. BELARMINO, Claimant-Appellee-Appellant,
v.
STATE OF HAWAI'I, DEPARTMENT OF EDUCATION, Employer-Appellant-Appellee, Self-Insured

         APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2010-04KK); (4-03-10035))

          On the briefs: Lowell K.Y. Chun-Hoon (King, Nakamura & Chun Hoon) for Claimant-Appellee

          James E. Halvorson and Steve K. Miyasaka, Deputy Attorneys General, State of Hawai'i, for Employer-Appellant- Appellee. Associate Judge

          Fujise, Presiding Judge, and Leonard and Reifurth, JJ.

          MEMORANDUM OPINION

         In this 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 Injury").[1]

         In its 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.

         On 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.-[2] We vacate in part and affirm in part the Board's August 14, 2012 Decision and Order.

          I. STANDARD OF REVIEW

         The 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; or
(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 omitted).

[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).

         II. BACKGROUND

         A. Belarmino's claim-related medical history.

         Belarmino 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.

         Following 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.

         On 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. ..."

         In an 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.

         On 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 anything."

         Dr. 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."

         Between 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.

         On May 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, ...


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