Opinion
No. CAAP–12–0000204.
06-12-2015
Lin C. WATANABE, Claimant–Appellee, v. FOODLAND SUPERMARKET, LTD., Employer–Appellant, and First Insurance Company of Hawaii, Ltd., Insurance Carrier –Appellant.
Scott G. Leong, Shawn L.M. Benton, (Leong Kunihiro Lezy & Benton), on the briefs, for employer-appellant.
Scott G. Leong, Shawn L.M. Benton, (Leong Kunihiro Lezy & Benton), on the briefs, for employer-appellant.
LEONARD, Presiding Judge, and GINOZA, J.; and REIFURTH, J., dissenting.
SUMMARY DISPOSITION ORDER
This workers' compensation case arises out of a March 11, 2010 incident during which Claimant–Appellee Lin C. Watanabe (Watanabe ) aggravated a pre-existing back injury while in the course of her employment as a stocking clerk at Foodland Supermarket in Kihei Town Center, Kihei, Hawai‘i. Employer–Appellant Foodland Supermarket, Ltd. and Insurance Carrier–Appellant First Insurance Company of Hawaii, Ltd. (collectively, “Foodland ”) appeal from the February 16, 2012 Decision and Order of the Labor and Industrial Relations Appeals Board (LIRAB ).
On appeal, Foodland challenges the LIRAB's Conclusion of Law (COL ) 1, which states that:
1. The Board concludes that [Foodland] may be liable for, and [Watanabe] entitled to, medical care, services and supplies after May 3, 2010.
As the Board has previously stated in Jochola v. Maui Economic Opportunity, Inc. et al. [,] AB 2005–206(M) [ (Haw. LIR App. Bd. Sept 25, 2008) ]:
The entitlement of an injured worker to receive medical care, services, and supplies as the nature of the injury requires for so long as reasonably needed is one of the core components of compensation. Simply because an injury returns to pre-work injury status does not necessarily mean that the duty to pay compensation ends. Absent a showing of an intervening or superseding event or cause (see, for example, Diaz v. Oahu Sugar Co., Ltd., 77 Haw[ai‘i] 152 (1994) ), fraud (see HRS § 386–98(e) ), or other appropriate terminating event, there is a likelihood that such obligation to provide medical care, services, and supplies will not terminate. No such terminating event has been shown in this case. However, a claimant's entitlement to such care, services, and supplies is dependent upon all other requirements of Chapter 386, HRS and the Hawaii Workers' Compensation Medical Fee Schedule being met, (e.g., such care, services, and supplies, so long as reasonably needed and as the nature of the injury requires, and appropriately requested, reported, authorized, and billed).
Accordingly, the Board concludes that [Watanabe]'s rights under Section 386–21, HRS, are not terminated. [Foodland] may be liable for, and [Watanabe] may be entitled to, medical care, services, and supplies after May 3, 2010, for her low back injury consistent with and subject to the foregoing.
Specifically, Foodland argues that the LIRAB erred by (1) relying on Jochola v. Maui Econ. Opportunity, Inc., Case No. AB 2005–206(M) (7–03–00739) to conclude that an employer's obligation to provide medical care, services, and supplies will not terminate absent an intervening or superseding event, and (2) concluding that Foodland may be liable for, and Watanabe may be entitled to, medical care, services, and supplies after May 3, 2010 for the March 11, 2010 work injury.
Upon careful review of the records and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised, we resolve Foodland's point of error as follows:
Watanabe did not file an answering brief.
(1) Although Foodland challenges a single COL, COL 1 actually consists of two determinations: the conclusion that the principle articulated in Jochola is correct and the conclusion that when the principle is applied to the LIRAB's findings, Foodland may be liable for future medical care, supplies, and services. The first determination is a conclusion of law, and “[p]ursuant to [Hawaii Revised Statutes (HRS) ] § 91–14(g) [ (2012) ], an agency's conclusions of law are reviewed de novo.” United Pub. Workers, AFSCME, Local 646, AFL–CIO v. Hanneman, 106 Hawai‘i 359, 363, 105 P.3d 236, 240 (2005) (citations and internal quotation marks omitted). The second is an application of the law to the facts and circumstances of this particular case and thus resolves a mixed question of fact and law. In re Water Use Permit Applications, 94 Hawai‘i 97, 119, 9 P.3d 409, 431 (2000). Thus, it is reviewed under the clearly erroneous standard. Id.
[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.
Id.
(1)(a) “Immediately after a work injury sustained by an employee and so long as reasonably needed the employer shall furnish to the employee all medical care, services, and supplies as the nature of the injury requires.” HRS § 386–21(a) (Supp.2014). The LIRAB erred insofar as it held that a superceding or intervening event is required before an employer's liability under HRS § 386–21 terminates.
Generally, when an agency interprets a statute that the agency is tasked with upholding, our review is generally deferential:
Ordinarily, deference will be given to decisions of administrative agencies acting within the realm of their expertise. The rule of judicial deference, however, does not apply when the agency's reading of the statute contravenes the legislature's manifest purpose. Consequently, we have not hesitated to reject an incorrect or unreasonable statutory construction advanced by the agency entrusted with the statute's implementation.
Coon v. City & Cnty. of Honolulu, 98 Hawai‘i 233, 245, 47 P.3d 348, 360 (2002) (citations, internal quotation marks and brackets omitted). Even under a deferential review, we conclude that the LIRAB's statutory interpretation is in error.
We first note that the principle expressed by the LIRAB has been disagreed with and narrowed by this court in a previous, albeit unpublished, decision. In Perkins v. Puna Plantation Haw., Ltd., No. CAAP–12–0000563, 2013 WL 5019431 at *3 (App. Sept. 13, 2013) (mem.), although we stated that “[e]ven if there is no present manifestation of symptoms, it may be possible to predict that a claimant will require medical treatment in the future as a result of a work injury[,]” we ultimately held that “even absent an intervening cause, fraud, or other terminating event, an award of future treatment cannot be affirmed without evidence in the record supporting a determination that future treatment will be ‘reasonably needed’ to relieve the claimant from the effects of the work injury.” Id. (citation omitted).
We conclude that there is no reason to depart from this holding. HRS § 386–21(a) requires that the medical treatment be “reasonably needed ... as the nature of the injury requires.” “Therefore, an award of future treatment as part of the original claim cannot be affirmed without evidence in the record supporting a determination that future treatment will be ‘reasonably needed’ to relieve the claimant from the effects of the work injury.”Kuaimoku v. State, Dept. of Educ.-Kauai, No. CAAP–11–0000616, 2014 WL 2921835 at *2 (App. June 27, 2014) (sdo) (citation omitted), cert. denied, No. SCWC–11–0000616, 2014 WL 4811494 (Haw. Sept. 29, 2014). Indeed, the holding of Jochola expresses that “a claimant's entitlement to such care ... is dependent upon all other requirements of Chapter 386, HRS ... (e.g., such care, services, and supplies, so long as reasonably needed and as the nature of the injury requires ....)” Case No. AB 2005–206(M) (7–03–00739) (emphasis added). Although workers' compensation statutes are to be interpreted liberally (see, e.g., Flor v. Holguin, 94 Hawai‘i 70, 79, 9 P.3d 382, 391 (2000) ), a test based solely on the existence of a “terminating event” might hold an employer liable for future medical care even if such medical care is no longer reasonably necessary to relieve the claimant from the effects of the work injury. Thus, the express requirements of HRS § 386–21(a) would be violated. While a terminating event may provide compelling evidence that treatment is no longer reasonably necessary due to the subject work injury, it is not a prerequisite for the termination of liability. See Perkins, 2013 WL 5019431 at *3. We conclude that, whether future medical treatment is reasonably necessary to relieve the claimant from the effects of the work injury, is the proper test for determining the termination of an employer's liability under HRS § 386–21(a).
In light of our conclusion, we need not address Foodland's remaining arguments regarding why the LIRAB's statutory interpretation was incorrect.
(1)(b) Although we disagree with the Jochola opinion insofar as it requires a terminating event, we do not disagree with its determination that: “[s]imply because an injury returns to pre-work injury status does not necessarily mean that the duty to pay compensation ends.” Case No. AB 2005–206(M) (7–03–00739).
In Alayon, we wrote:
If the portion of an employee's injury and condition that is attributable to a work-related accident has been resolved and the employee has returned to his or her pre-work-accident condition, it is not clear why an employer would remain liable for future medical care. The Board should clarify these matters when the case is remanded.
Id. Moreover, in Perkins, we stated: “Even if there is no present manifestation of symptoms, it may be possible to predict that a claimant will require medical treatment in the future as a result of a work injury.” 2013 WL 5019431 at *3 (emphasis added). This reasoning appears to be sound. We do not foreclose the possibility of a case where an employee's injury returns to pre-work injury status but his or her doctors nonetheless conclude that medical care to alleviate the work injury is still reasonably necessary (perhaps to ensure that healing is sustained). That case, however, is not before us.
(2) We need not remand this case to the LIRAB for a correct application of the “reasonably necessary” test. The findings of the LIRAB and the record on appeal reveal a lack of substantial evidence that any future treatment for Watanabe's work injury was reasonably necessary. In its finding of fact (FOF ) 24, the LIRAB explicitly credited the opinions of Drs. Ronald H. Kienitz (Dr.Kienitz ), Francis G. Brewer, and James F. Scoggin, III (Dr.Scoggin ) that “Claimant's March 11, 2010 work injury resulted in a temporary aggravation of her chronic low back pain, which resolved by May 3, 2010.” This unchallenged FOF is binding on the appellate court. Okada Trucking Co., Ltd. v. Bd. of Water Supply, 97 Hawai‘i 450, 458, 40 P.3d 73, 81 (2002). There is no finding that any future treatment would be reasonably necessary for the March 11, 2010 work injury.
(2)(a) If future treatment is necessitated at this point, the evidence reveals that it would be for the treatment of Watanabe's pre-existing, non-work related back problems (or some future injury or aggravation), which are not compensable. Davenport v. City and Cnty. of Honolulu, 100 Hawai‘i 297, 306, 59 P.3d 932, 941 (App.2001) (only injuries arising out of and in the course of employment are compensable under HRS § 386–3(a) ). For example, in Dr. Kienitz's September 1, 2010 report, he indicates that “[a]lthough [Watanabe] will likely continue to exhibit pain complaints, it is medically likely that she has returned to status quo ante. Further complaints should no longer be associated with the minor interim event of 03/11/10.” Likewise, Dr. Scoggin's June 8, 2010 report stated that “[t]he prognosis is good for the 3/11/10 lumbrosacral strain since, to a reasonable degree of medical probability, [Watanabe] has returned to her baseline. The prognosis is extremely poor overall, given her chronic history of low back pain.”
(2)(b) The LIRAB's COL 1 is not rectified merely because it makes no “award” of future treatment but rather, held that Watanabe's rights under HRS § 386–21 are not terminated and Foodland may be liable for costs associated with the work injury after May 3, 2010. As indicated, there is insufficient evidence in the record to support a conclusion that Watanabe is entitled to any future treatments for her March 11, 2010 injury. As such, there is no basis to conclude that Foodland's obligations under HRS § 386–21 have not been terminated.
This case is thus analogous to Perkins where there was no evidence in the record that future treatment for the claimant's back injury was “reasonably needed,” the LIRAB had made no findings of fact that specifically addressed the claimant's need for future treatment, and the LIRAB had credited a doctor's opinion that “the work injury resulted in a temporary aggravation of Claimant's pre-existing condition and the aggravation had resolved....” 2013 WL 5019431 at *4. In that case, we concluded that the LIRAB was wrong in holding that “Claimant's rights under Section 386–21, HRS, are not terminated. Employer may be liable for, and Claimant may be entitled to [treatment] after May 3, 2010[sic], for her [sic] low back injury[.]” Id. at *1, *4.
(2)(c) If, in the future, additional facts reveal that further treatment is “reasonably necessary” for Watanabe's March 11, 2010 injury, then Watanabe may apply to the director of the Department of Labor and Industrial Relations for a reopening of her claim and an award of compensation under HRS § 386–89(c) (1993) . See Perkins, 2013 WL 5019431 at *3 (“[W]e note the statutes provide an appropriate procedure for injured workers if no present need for treatment exists but a need later appears: HRS § 386–89 (1993) allows a claimant to reopen a case within eight years after the last payment of compensation or the rejection of a claim.”) (footnote omitted). However, a reopening would depend on facts not in the record before us.
HRS § 386–89(c) reads, in relevant part:
On the application of any party in interest, supported by a showing of substantial evidence, on the ground of a change in or of a mistake in a determination of fact related to the physical condition of the injured employee, the director may, at any time prior to eight years after date of the last payment of compensation, whether or not a decision awarding compensation has been issued, or at any time prior to eight years after the rejection of a claim, review a compensation case and issue a decision which may award, terminate, continue, reinstate, increase, or decrease compensation.
(2)(d) Similarly, our decision does not preclude Watanabe from making a claim or obtaining an award if a future work-related incident exacerbates her pre-existing back injuries. Like the March 11, 2010 injury, any work-related aggravation of Watanabe's pre-existing conditions would be compensable. However, based on the facts before us, any such future aggravation would have no relation to the March 11, 2010 injury which by all indications has been resolved.
For the foregoing reasons, we reverse in part the LIRAB's February 16, 2012 Decision and Order to the extent that it concludes that Watanabe's rights to post-May 3, 2010 medical care, services and supplies for the March 11, 2010 aggravation of her pre-existing back injury are not terminated.
Dissenting Opinion of REIFURTH, J.
I agree with the majority's decision not to overturn Jochola's holding that: “[s]imply because an injury returns to pre-work injury status does not necessarily mean that the duty to pay compensation ends.” Jochola v. Maui Econ. Opportunity, Inc. et al., Case No. AB 2005–206(M) (7–03–00739) (Haw. LIR App. Bd. Sept. 25, 2008). However, I disagree with the majority in several important respects. Therefore, I respectfully dissent.
First, I disagree that “[t]he LIRAB erred insofar as it held that a superceding or intervening event is required before an employer's liability under HRS § 386–21 terminates.” (Emphasis added.) In my view, the majority misconstrues the Labor and Industrial Relations Appeals Board (the “Board”) holding, and rejects an essential component of conclusion-of-law language that the Board regularly uses in this type of workers' compensation case.
Second, I disagree with the majority's assertion that any future treatment Watanabe needs will be for the purpose of treating her pre-existing condition. I believe, and apparently the Board believes, this to be a fact-specific, medical determination that should not be made until Watanabe submits any future claim. Indeed, Foodland offers no argument as to what difference this refusal-to-terminate conclusion of law (“COL”) makes or why, therefore, we should not defer to the agency, which has made no findings of fact (“FOFs”) that specifically address the claimant's need for future treatment. In fact, the only statement the Board has made regarding a possible need for future treatment arising out of Watanabe's compensable work injury is its statement in COL. 1 that such treatment “may be warranted” in the future.
Irrespective of the decision here, Watanabe will be able to secure further compensation if and only if she establishes at the time of any subsequent claim that such treatment is “reasonably needed.” See Kuaimoku v. State, Dep't of Educ.-Kauai, No. CAAP–11–0000616, 2014 WL 2921835, at *5 (Haw. Ct.App. June 27, 2014), cert denied, 2014 WL 4811494 (Haw. Sept. 29, 2014). Thus, this appeal appears to be about semantics, that is, whether and when an employer/insurance carrier will be able to characterize the claim as “open” or “closed.” Respectfully, I observe no legal basis upon which we may override the Board's decision, which I would affirm.
(1)(a) With all due respect, the majority's characterization of Jochola's rule as a “test based solely on the existence of a ‘terminating event’ “ is imprecise. (Emphasis added.) The Board has not determined that an employer's liability will never terminate in the absence of a qualifying event. Rather, COL 1, quoting Jochola, states that:
[a]bsent a showing of an intervening or superseding event or cause ..., fraud ..., or other appropriate terminating event, there is a likelihood that such obligation to provide medical care, services, and supplies will not terminate .... However, a claimant's entitlement to such care, services, and supplies is dependent upon all other requirements of Chapter 386, HRS and the Hawaii Workers' Compensation Medical Fee Schedule being met, (e.g., such care, services, and supplies, so long as reasonably needed and as the nature of the injury requires, and appropriately requested, reported, authorized and billed).
From this, it is clear that the Board has not stated that an employer's liability will never terminate in the absence of a qualifying event. Therefore, any concern that “the express requirements of HRS § 386–21(a) would be violated” by adherence to Jochola's rule is unwarranted.
Moreover, COL 1 expressly subjects the Board's determination that future liability may not yet be extinguished for Watanabe's March 11, 2010 work injury to all parts of the Decision & Order that precede it: “[Foodland] may be liable for, and [Watanabe] may be entitled to, medical care, services and supplies after May 3, 2010, for her low back injury consistent with and subject to the foregoing. ” (Emphasis added). As such, COL 1 does nothing to negate Watanabe's duty to demonstrate that a particular treatment is still “reasonably needed” in order to be successfully compensated for any future claims she might bring, should the need for such future treatment arise after the date of this disposition. Perkins v. Puna Plantation Haw., Ltd., No. CAAP–12–0000563, 2013 WL 5019431, at *3 (Haw.App. Sept. 13, 2013) (construing HRS §§ 386–21 and 386–89(c) in pari materia and holding that § 386–89(c) provides the appropriate procedure for injured workers to re-open their case if a need for treatment manifests itself at a future time).
Furthermore, I am unaware of any authority suggesting that HRS § 386–21(a) imposes a duty on the Board to expressly “terminate” an employer's liability when a workers' compensation claimant fails to make the requisite showing. See, e.g., Nadine L. (Esmeralda) Cortez v. Alu Like, Inc. & First Ins. Co. of Haw., Case No. AB 93–518(WH) (9–90–02403), 1995 WL 1942798, at *3 (Haw. LIR App. Bd.1995) (crediting three doctors' opinions “that the injury was a temporary aggravation of a pre-existing low back condition that' reverted to pre-injury status within three to six months of the injury[,]” but nonetheless concluding that the Director's termination of the employer's liability for medical treatment more than one year after the condition reverted to preinjury status was proper). In fact, this court has held that “an award of future treatment as part of the original claim cannot be affirmed without evidence in the record supporting a determination that future treatment will be ‘reasonably needed’ to relieve the claimant from the effects of the work injury.” Kuaimoku, 2014 WL 2921835, at *5 (emphasis added) (citing Barnes v. Workers' Comp. Appeals Bd., 2 P.3d–1180, 1185 (Cal.2000); Grover v. Indus. Comm'n of Colorado, 759 P.2d 705, 711–12 (Colo.1988) ; Foote v. O'Neill Packing, 632 N.W.2d 313, 321 (Neb.2001) ). Yet here, there has been no award of future treatment for the Board to affirm or deny.
Instead, the Board has merely refused to terminate Foodland's liability for the effects of Watanabe's compensable work injury, holding that “[Foodland] may be liable for, and [Watanabe] may be entitled to, medical care, services, and supplies after May 3, 2010, for her low back injury consistent with and subject to the foregoing .” If medical treatment becomes necessary and Watanabe files a claim for further medical benefits arising out of the work injury, t hen the Director will issue a decision regarding reasonableness of the treatment.
Thus, although “it is not clear why an employer would remain liable for future medical care” when credible physicians have found that the injury has already resolved to a baseline, Alayon v. Urban Mgmt. Corp., No. CAAP–11–0000676, 2014 WL 7451297, at *8 (Haw. Ct.App. Dec. 31/ 2014) (emphasis added) (making the aforementioned observation, yet declining to rule on its related COL for procedural reasons because it determined that “[t]he nature and extent of said injury ... has yet to be determined by the Director”), I am unconvinced that the Board's reading of workers' compensation statutes “contravenes the legislature's manifest purpose” and therefore justifies our departure from the ordinary practice of affording “deference ... to decisions of administrative agencies acting within the realm of their expertise.” Coon v. City & Cnty. of Honolulu, 98 Hawai‘i 233, 245, 47 P.3d 348, 360 (2002) (quoting In re Water Permit Applications, 94 Hawai‘i 97, 145, 9 p.3d 409, 457 (2000) and Mahaulepu v. Land Use Comm'n, 71 Haw. 332, 335, 790 P.2d 906, 908 (1990) ) (internal quotation marks and brackets omitted); Kuaimoku, 2014 WL 2921835, at *4 (“ ‘[A] presumption of validity is accorded to decisions of administrative bodies acting within their sphere of expertise and one seeking to upset the order bears the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences.” ’ (quoting Tam v. Kaiser Permanente, 94 Hawai‘i 487, 490, 17 P.3d 219, 222 (2001) )).
Unlike the employer in Alayon, Foodland asks this court to foreclose all possibility of Watanabe's future recovery for the March 11, 2010 work injury. Yet Foodland has failed to show that it would be theoretically impossible for Watanabe to demonstrate, at some future time, that further treatment will be “reasonably necessary.” Thus, it is unclear at this time whether some future treatment will be related to the aggravation of Watanabe's pre-existing condition. Accordingly, I would defer to the Board and refrain from foreclosing all possibility of her future recovery under this claim.
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Accordingly, I would hold that an employer's liability under HRS § 386–21 need not terminate simply because an injured worker fails to demonstrate that he or she is either presently symptomatic or undergoing treatment, and I would not require the Board to expressly terminate liability in the absence of such a showing.
(2) Foodland's second point of error contends that the Board failed to properly apply the law when it concluded that Foodland may be liable for, and Watanabe entitled to, medical care, services and supplies after May 3, 2010.
(2)(a) The majority focuses on the Board's FOF 24 and the fact that the Board did not make a “finding that any future treatment would be reasonably necessary for the March 11, 2010 work injury[,]” as support for its disposition. In essence, then, the majority interprets the Decision & Order's omission of such a finding as the Board's affirmative statement that Watanabe will not ever propose a hypothetical future treatment plan that is “reasonably necessary” within the meaning of HRS § 386–21(a) to treat the effects of Watanabe's March 11, 2010 work injury. However, if this had been the Board's intent, then the Board likely would have made an express finding to that effect. Moreover, if this had been the Board's intent, then the Board likely would not have issued a COL explicitly stating that Watanabe “may” be entitled to compensation under some hypothetical future treatment plan.
I would not interpret the Board's lack of “reasonably necessary” findings as a statement that no reasonably necessary treatment can ever manifest itself. Rather, I view the Board's practice of issuing such findings, when appropriate, is an indication that the Board would have done the same here if it had intended the majority's reading to result. For example, in Delaney v. Immanual Enterprises, Ltd., although the Board found that the claimant's work injury “resulted in a temporary aggravation of [his] preexisting low back condition,” the Board also specifically determined that Delaney “did not require further medical treatment ” beyond the date specified by the Director in his earlier decision. No. 29384, 2011 WL 5561154, at *3 (Haw.Ct.App. Nov. 15, 2011) (emphasis added). Here, similar to Delaney, the Board “credit[ed] the opinions of Drs. Kienitz, Brewer, and Scoggin that [Watanabe]'s March 11, 2010 work injury resulted in a temporary aggravation of her chronic low back pain, which resolved by May 3, 2010.” Unlike Delaney, however, the Board made no blanket statements regarding Watanabe's need for future treatment. Rather, it denied the specific treatment plan before it, which was submitted by Watanabe's chiropractor, Dr. Alejandro Lazo, and in doing so explicitly left open the possibility “that [Foodland] may be liable for, and [Watanabe] entitled to, medical care, services and supplies after May 3, 2010.” (Emphasis added.)
(2)(b) The majority also supports its disposition by analogizing the instant case to Perkins, 2013 WL 5019431. There, we concluded that the Board has the authority to order an employer to pay for future medical treatment, even without a manifestation of symptoms or a specific course of treatment in dispute at the time of the decision, but we reversed the Board upon determining that there was “no evidence in the record that future treatment was ‘reasonably needed.’ “ Id. at *3, *4. Here, however, the facts justify a different outcome.
For example, it is true that Drs. Kienitz, Scoggin and Brewer opined that “no further treatment was indicated” beyond a particular date to treat Watanabe's March 11, 2010 work injury, but, as the majority acknowledges, there is also evidence in the record indicating that Watanabe's overall prognosis is poor. No such evidence existed in Perkins. In fact, after the Perkins claimant underwent surgery to treat his work injury he admitted to the Board that “his condition [had] improved.” Id. at *4. Watanabe has made no similar statements.
Further, the Board in Perkins determined that the claimant was no longer eligible for temporary disability benefits. Id. This determination related to potential future claims and lent itself to the inference that no future claims could ever be reasonably needed for the claimant's injury. Id. (recognizing that, “[a]lthough the right to treatment is distinct from the right to disability benefits ..., the [Board's] findings support our conclusion that there was no showing that the temporary exacerbation of Claimant's pre-existing condition resulted in the need for post-surgery future medical treatment”); see also Igawa v. Koa House Rest., 97 Hawai‘i 402, 406, 38 P.3d 570, 574 (2001) (explaining that appellate courts must defer to an agency's expertise and experience and should not substitute their own judgment for that of the agency). The Board, however, made no similar findings here.
The Jochola rule states that “[s]imply because an injury returns to pre-work injury status does not necessarily mean that the duty to pay compensation ends.” AB 2005–206(M), at *11. Here, Watanabe's doctors appear to have based their opinions about her need for future treatment on the fact that Watanabe's March 11, 2010 work injury returned to her pre-injury status by May 3, 2010; as such, those opinions should not be read to foreclose the possibility of Foodland's future duty to pay.
(2)(c) Finally, even if I were to accept the rule adopted by the majority that “whether future medical treatment is ‘reasonably necessary’ is the proper test for the termination of an employer's liability under HRS § 386–21(a) ”, the proper disposition of the case, I believe, would be to remand to the Board.
As previously noted, the Board did not address the question of whether future treatment is “reasonably necessary” in its FOFs. Accordingly, the majority is correct: “[t]here is no finding that any future treatment would be reasonably necessary for the March 11, 2010 work injury.” However, it is also true that the Decision & Order contains no finding that any future treatment would not be reasonably necessary for the March 11, 2010 work injury. Cf. Igawa, 97 Hawai‘i at 406, 38 P.3d at 574. The Board has included such an express statement in its FOFs in other cases. E.g., Delaney, 2011 WL 5561154, at *3 ; cf. Perkins, 2013 WL 5019431, at *4 (finding claimant no longer eligible for total temporary disability benefits).
Rather than read an erroneous finding of fact into the Board's Decision & Order, the Board should be permitted to determine whether to enter such a finding under HRS § 386–21(a), aware now that the failure to do so requires a conclusion that the claimant's rights are-otherwise terminated. See Yarnell v. City Roofing Inc., 72 Haw. 272, 276, 813 P.2d 1386, 1389 (1991) ( “We agree with petitioner that the ICA exceeded its scope of review on this portion of the odd-lot test, by making its own determination.... Since there was no factual finding on this portion of the odd-lot test to review, the case should have been rem[anded to the Board] for further proceedings.”); cf. Kekauoha–Alisa v. Ameriquest Mortg. Co. (In re Kekauoha–Alisa ), 674 F.3d 1083, 1093 (9th Cir.2012) (“[R]ather than reading an erroneous finding of causation into the bankruptcy court's decision, we follow our ordinary procedure when a necessary factual finding is absent, and remand the case to the bankruptcy court to make the proper requisite findings of fact under HRS § 480–13.... This is the appropriate course because the factual record here may not be complete[.]” In re Kekauoha–Alisa, 674 F.3d at 1093 (citation omitted). Although the Decision & Order discusses Watanabe's trial testimony in FOF 10, for example, Foodland's Opening Brief does not mention any trial or hearing during which Watanabe testified, and the voluminous record on appeal contains no transcript. As such, if tasked with determining whether any future treatment could possibly be “reasonably needed,” the Board might well draw on facts before it below that were not provided to this court on appeal, and which are therefore absent from our record on review.
Based on the foregoing, I would affirm the Labor and Industrial Relations Appeals Board's February 16, 2012 Decision and Order.