NOT FOR
PUBLICATION
NO. 25368
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
VICTOR
D. GILFILLAN, Claimant-Appellant, v.
CITY AND COUNTY OF HONOLULU, HONOLULU POLICE
DEPARTMENT, Employer/Insurance Carrier-Appellee
APPEAL
FROM LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 96-347 (2-92-28339))
MEMORANDUM OPINION
(By: Burns, C.J., Lim and Foley, JJ.)
On November 26, 1992, Gilfillan suffered injuries from a motor vehicle accident while he was working for the City and County of Honolulu. The first hearing by the Director of the State of Hawai`i Department of Labor and Industrial Relations (the Director) occurred on April 3, 1996. On May 31, 1996, the Director issued a decision awarding Gilfillan fifteen percent (15%) permanent partial disability (PPD) of the whole person as a result of his work injuries.
Gilfillan then filed his claim with the LIRAB. The LIRAB awarded him benefits for a twenty-nine (29%) PPD. Gilfillan is now appealing the LIRAB's judgment. He argues "that a permanent partial disability of 35% to 40% would more accurately reflect the long-standing and significant residual impairment found in this case." We affirm.
BACKGROUND
On November 26, 1992, Gilfillan, a police sergeant, was struck from behind while the car he was driving was stopped in traffic. He suffered "pain to back of neck". A letter was sent to Gilfillan from Employer-Appellee City and County of Honolulu (the City and County of Honolulu) acknowledging that "[w]orker's compensation benefits are being provided to you by the City and County of Honolulu as a result of your accident."
On December 8, 1992, Gilfillan was examined by Dr. Peter Diamond, who had in the past treated Gilfillan for lower back pain. Dr. Diamond diagnosed him with "musculogigamentous strain, lumber spine with mild radiculitis." In his December 15, 1992 notes, Dr. Diamond wrote that "patient complains of increase in back pain with radiation into the left leg[.]" After trying physical therapy and pain medications without much success, Gilfillan was referred to Dr. John S. Smith. On July 2, 1993, Dr. John S. Smith performed surgery on Gilfillan's L4-5 and L5-S1. In a follow-up visit, Dr. John S. Smith reported that "[Gilfillan] is still having some pain and on occasion gets some left leg spasms, but is generally better and improving in this endurance."
On January 24, 1995, Dr. Deborah Agles evaluated Gilfillan's medical case. Dr. Agles recounted Gilfillan's history of back problems including recurrent pain which continues to persist after surgery was completed on July 2, 1993. Using the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, Dr. Agles rated Gilfillan's injury to be in "DRE Lumbosacral Category III, Radiculopathy. This equates to a 10% whole person impairment." Dr. Agles also stated that Gilfillan's "low back impairment rating of 10% whole person should be apportioned so that 60% or 6% whole person is apportioned to the slip and fall injury of 1990 and 40% or 4% whole person is apportioned to the motor vehicle accident of 11/26/92 which resulted in permanent aggravation of symptoms with surgical intervention."
On July 20, 1995, Dr. Robert Smith evaluated Gilfillan to determine the permanent disability rating for Gilfillan's injury. Dr. Robert Smith used the Guides to the Evaluation of Permanent Impairment, 4th Edition, for purposes of the partial permanent disability rating and concluded, in relevant part, as follows:
The total lumbar range of motion impairment is 1%.
On April 3, 1996, the Department of Labor and Industrial Relations Disability Compensation Division held a hearing. The Director's May 31, 1996 Decision states as follows:
DECISION
Due to persisting complaints of increasing back pain and lower extremity problems, Gilfillan was, on September 9, 1996, referred to Dr. Thomas Drazin, a neurologist, for further evaluation. After testing, Dr. Drazin reported that there is "electrical evidence to suggest a chronic left L4-L5 and L5-S1 radculopathy." After a few visits with Dr. Drazin, Gilfillan was referred back to Dr. John S. Smith who eventually recommended further surgery. On August 22, 1997, Gilfillan underwent a posterior spinal fusion revision at the L4-5 level. Gilfillan returned to work on November 15, 1997.
On April 7, 1998, Dr. John Sterling Endicott performed an independent medical evaluation of Gilfillan and reported, in relevant part, that Gilfillan
reports that he has persistent lower back pain that ranges from a 5 to 8 on a 1 to 10 scale. He has intermittent right radicular pain, and he has a chronic left leg and foot numbness. He has bilateral lower extremity aching to the mid calf. He notes crepitation with movement and painful range of motion. . . .
Mr. Gilfillan was injured when he was at a stop light and was rear ended by a Ford Taurus going about approximately 50 miles per hour, apparently. . . .
[Gilfillan] would be preliminarily classified based on the Fourth Edition of the AMA Guides to the Evaluation of Permanent Impairment, according to Table 70, page 108. Initially he would have been placed and still would be placed under previous spine operation with loss of motion segment integrity or radiculopathy, which placed him in either Category III, IV, or V.
Given his current situation of re-fusion at the L4-L5 level due to lack of stability there, and his findings on exam today, his categorization appears to be beyond that of DRE Category III, clearly. When utilizing differentiators of electrodiagnostic studies, Dr. Drazin's evaluation showed multiple level radiculopathy, chronically, at L4-L5 and L5-S1 on the left. His exam clinically shows both right and left radicular findings, consistent with L4 and S1 radiculopathies.
ANSWER: Given the type of
injury he had, and he had two-level disc pathology, the initial
recovery from his fusion was appropriate at
about little over
one year post-fusion returning to regular work. However . . . he had
progressive increased pain and
subsequently
required a second surgery. He now is left with chronic bilateral
radiculopathy and chronic pain, and he is
medically
retired from his police officer work as of the upcoming June date. It
is not an unusual scenario, after multiple
fusion
surgeries, to be left with significant residual."
The LIRAB noted that the parties waived a hearing in place of simultaneously submitted written closing arguments.
In his written closing argument, Gilfillan argues, in relevant part, as follows:
As projected, [Gilfillan] retired from his job as a police officer in June of 1998 after more than 22 years of service.
Despite a long course of medical treatment and two surgical procedures on the low back, [Gilfillan] is left, as noted by Dr. Endicott above, "with significant residual." [Gilfillan's] condition is certainly not improved since his rating in 1998 and appears to have worsened with the passage of time. With what [Gilfillan] has had to endure since the rating in 1998 and his lack of employability, it is submitted that the 24% rating recommended by Dr. Endicott, although significant, is too low and does not adequately account for [Gilfillan's] current symptoms and condition.
[Gilfillan] has apparently accepted the rating contained in Dr. Endicott's April 7, 1998 report as he declined to submit any other rating examination. The sole issue on appeal can therefore be more aptly described as the extent of [Gilfillan's] residuals due to the November 26, 1992 accident.
For the reasons stated below, we modify the Director's decision to conclude that Claimant is entitled to benefits for 29% permanent partial disability ("PPD") of the whole person for the November 22, 1992 work injury.
2. Claimant had a prior low back injury in 1990 that resulted in protrusions at the L4-5 and L5-S1 levels. Claimant did not have any nerve root impingement prior to the November 26, 1992 industrial injury.
4. On January 24 , 1995, Dr. Deborah Agles evaluated Claimant for permanent impairment. Using the 4th edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment ("AMA Guide"), Dr. Agles placed Claimant in DRE (or Diagnosis Related Estimate) lumbosacral category III, and rated him at 10% permanent partial impairment of the whole person. Dr. Agles attributed 6% of that rating to his 1990 injury and the remaining 4% to the 1992 motor vehicle accident.
6. By decision dated May 31, 1996, the Director awarded Claimant benefits for 15% PPD of the whole person for his low back condition.
9. Although the MRI showed no evidence of disc re-herniations, according to Dr. Smith, Claimant's persisting complaints of cramps and shooting pains were suggestive of motion or instability at L4-5. Dr. Smith recommended further surgery to re-fuse the L4-5 level.
13. In June of 1998,
Claimant retired from his job.
14. There is no record of Claimant seeking or receiving further medical treatment since 1998.
STANDARDS OF REVIEW
Appellate review of a LIRAB decision is governed by HRS § 91-14(g) (1993), which states that:
(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
We have previously stated:
[COLs] 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. Hardin v. Akiba, 84 Hawai`i 305, 310, 933 P.2d 1339, 1344 (1997) (citations omitted); HRS §§ 91-14(g)(1), (2), and (4).
In re Water Use Permit Applications, 94 Hawai`i 97, 119, 9 P.3d 409, 431 (2000) (quoting Curtis v. Board of Appeals, 90 Hawai`i 384, 392-93, 978 P.2d 822, 830-31 (1999) (quoting Poe v. Hawai`i Labor Relations Board, 87 Hawai`i 191, 197, 953 P.2d 569, 573 (1998))) (alterations in original).
Igawa v. Koa House Rest., 97 Hawai`i 402, 405-06, 38 P.3d 570, 573-74 (2001).DISCUSSION
Gilfillan's point of error is as follows: "In awarding [Gilfillan] a twenty-nine (29%) permanent partial disability, the [LIRAB] took into consideration factors which are inappropriate to a determination of such disability, namely: 1) retirement, and 2) continuing medical care." Gilfillan argues that
[e]conomic factors and continued medical care are not relevant to determining PPD as the same be in cases of total disability. PPD is an indemnity payment for a loss or impairment of a physical function and unlike temporary total disability benefits, is not compensation to replace current loss of wages. (Emphasis added.) Cuarisma v. Urban Painters, Ltd., 583 P.2d 321, 59 Haw[.] 409, 420 (1975). See also: 1969 House Standing Commite[e] Report, No: 193.
The [LIRAB] offered no explanation or basis for its award of an additional five percent (5%) PPD over and above the impairment percentage of twenty-four percent (24%) determined by John S. Endicott, M.D. in his April 7, 1998 evaluation of [Gilfillan]. . . .
We conclude that Gilfillan's point lacks merit. First, we repeat Gilfillan's position stated in his written closing argument:
Despite a long course of medical treatment and two surgical procedures on the low back, [Gilfillan] is left, as noted by Dr. Endicott above, "with significant residual." [Gilfillan's] condition is certainly not improved since his rating in 1998 and appears to have worsened with the passage of time. With what [Gilfillan] has had to endure since the rating in 1998 and his lack of employability, it is submitted that the 24% rating recommended by Dr. Endicott, although significant, is too low and does not adequately account for [Gilfillan's] current symptoms and condition.
Second, in light of the position taken by the City and County of Honolulu in its written closing argument, it is impossible to understand Gilfillan's complaint that "[t]he [LIRAB] offered no explanation or basis for its award of an additional five percent (5%) PPD over and above the impairment percentage of twenty-four percent (24%) determined by John S. Endicott, M.D. in his April 7, 1998 evaluation of [Gilfillan]."
Third, in its findings of fact nos. 13 and 15, the LIRAB did no more than repeat undisputed facts noted in the record and in Gilfillan's closing argument. (4) Nothing supports Gilfillan's conclusion, in his opening brief, that
[t]he [LIRAB's] decision and order dated September 6, 2002 should be remanded for further proceedings to determine [Gilfillan's] PPD as a result of his November 26, 1992 work accident and with instructions that only loss of physical and mental function be considered in making a final determination. Matters related to retirement and continuing medical care should not be considered in this endeavor.
Accordingly, we affirm the September 6, 2002 Decision and Order entered by the State of Hawai`i Labor and Industrial Relations Appeals Board.
DATED: Honolulu, Hawai`i, March 23, 2004.
On the briefs:
Paul K. W. Au,
Deputy Corporation
Counsel,
City and County of
Honolulu,
for Employer/Insurance
Carrier-Appellee.
1. Presiding were Chairman Randall Y. Iwase and Members Carol K. Yamamoto and Vicente F. Aquino.
In other words, he is providing the second method of rating anticipating further deterioration as a result of the surgical fusion that was performed. My rating simply is directly related to the injury that was presented and as the DRE categories are the preferred method as per the AMA Guides, this is the model I utilized.
3. For legal support, Gilfillan
cited language from Cuarisma
v. Urban Painters, Ltd. , 59 Haw. 409, 420, 583 P.2d 321, 327
(1975), "Permanent partial
disability compensation is an indemnity payment for the loss or
impairment of a physical function and, unlike temporary total
disability benefits, is not compensation to replace current loss of
wages." Id. This
language, taken from a Legislative Committee Report, was intended to
explain the purpose of the permanent partial disability compensation
statute, § 386-32(a). The issue for the Cuarisma court to determine
was whether Chapter 386 "preclude[d] the award of benefits for
permanent total disability and for disfigurement resulting from the
same work accident." The court decided it did not and that both forms
of compensation could coexist. It is not clear how this case law is
relevant to the issue on appeal which deals with only PPD.
4.
The court record
includes an e-mail from Gilfillan to his counsel, submitted as exhibit
D, describing his current medical condition. In his e-mail, Gilfillan
said that his doctors have not requested him to come in for follow up
treatment.