Porter v. The Queen's Medical Center, 011921 HIISC, SCWC-16-0000602

Docket NºSCWC-16-0000602
Opinion JudgeWILSON, J.
Party NameADELINE N. PORTER, Petitioner/Claimant-Appellant, v. THE QUEEN'S MEDICAL CENTER, Respondent/Employer-Appellee, Self-Insured.
AttorneyAdeline N. Porter Pro Se Scott G. Leong Shawn L.M. Benton for Respondent
Judge PanelRECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND CIRCUIT JUDGE OCHIAI, IN PLACE OF POLLACK, J., RECUSED
Case DateJanuary 19, 2021

ADELINE N. PORTER, Petitioner/Claimant-Appellant,

v.

THE QUEEN'S MEDICAL CENTER, Respondent/Employer-Appellee, Self-Insured.

No. SCWC-16-0000602

Supreme Court of Hawaii

January 19, 2021

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-16-0000602; CASE NO. AB2012-438 (2-02-15470, 2-02-14444, 2-02-14445, 2-02-15471, 2-10-07337))

Adeline N. Porter Pro Se

Scott G. Leong Shawn L.M. Benton for Respondent

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND CIRCUIT JUDGE OCHIAI, IN PLACE OF POLLACK, J., RECUSED

OPINION

WILSON, J.

I. BACKGROUND

Pro se [1]Petitioner/Claimant-Appellant Adeline N. Porter ("Porter") is a registered nurse who worked for the Queen's Medical Center ("QMC") from 1967-when she graduated from the Queen's School of Nursing-until 2005 when her employment was terminated. In 2002, Porter and other QMC employees in her building began suffering from respiratory symptoms precipitated by "environmental health issues" that she believed were the result of "contaminated carpet and wall coverings[.]" As a result of the alleged chemical exposure, Porter was treated in the emergency room on five separate occasions in 2002 and 2003. Porter was subsequently diagnosed with a disease known as Multiple Chemical Sensitivity ("MCS")2 and filed multiple claims for workers' compensation ("WC") benefits alleging that she sustained MCS injuries that occurred on August 9, 2002, August 31, 2002, November 6, 2002, November 8, 2002, and May 13, 2003.3

II. DISCUSSION

The issue before this court arises from the Labor and Industrial Relations Appeal Board's ("LIRAB") denial of Porter's request to reopen her claims pursuant to HRS § 386-89 (2013), 4and the Intermediate Court of Appeals' ("ICA") affirmance of the denial. In particular, Porter claims that the ICA erred by: (1) affirming the LIRAB's conclusion that she failed to present substantial evidence of a mistake in a determination of fact that would warrant a reopening of her WC claims under HRS § 386-89(c); and (2) failing to apply the presumption of compensability under HRS § 386-85(1) (2011)5 to her case.

HRS § 386-89(c) provides that a request for reopening a WC claim must be "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," and if such a showing is made by the claimant, "the director may . . . review a compensation case and issue a decision which may award, terminate, continue, reinstate, increase, or decrease compensation." HRS § 386-89(c). A request for reopening is governed by the procedure provided in Hawai'i Administrative Rules ("HAR") § 12-10-63. HAR § 12-10-63 provides that an application for reopening "shall be in writing[ and] shall state specifically the grounds upon which the application is based[.]" HAR § 12-10-63. Following an application for reopening a case, "the director shall review the case file and may, by discretion, hear the interested parties." Id. Moreover, HAR § 12-10-30(d) provides that any request for reopening under HRS § 386-89(c) "shall be accompanied by medical information or any other substantial evidence showing a change in or of a mistake in a determination of fact related to the physical condition of the injured employee." HAR § 12-10-30(d). "Substantial evidence" must be "relevant and credible evidence of a quality and quantity sufficient to justify a conclusion by a reasonable [person.]" Van Ness v. State, Dep't of Educ, 131 Hawai'i 545, 558, 319 P.3d 464, 477 (2014) (quoting Flor v. Holguin, 94 Hawai'i 70, 79, 9 P.3d 382, 391 (2000)).

Here, Porter argues that it was a mistake for the Director to deny her claims based on his conclusion that "[s]ince there is no such injury as multiple chemical sensitivity, there is no injury per se." The LIRAB majority determined that Porter failed to produce "substantial evidence" of a mistake to support her HRS § 386-89(c) request for reopening. Porter challenges the ICA's affirmance of the LIRAB majority's determination that she failed to produce substantial evidence to support her allegations of a mistake of fact related to the Director's determination that she had not suffered a compensable illness because MCS is not an "injury per se." Porter also argues that it was a mistake for her claim to have been decided on the question of whether MCS is a legitimate diagnosis, rather than on the question of whether her injury-described as MCS or otherwise-was work related.

The LIRAB majority's conclusion that Porter failed to present substantial evidence of a mistake in the determination of a fact was based on its finding that Porter "offered no new credible or reliable evidence that that [sic] MCS is, was, or has become an accepted medical diagnosis or a valid medical disorder." The LIRAB's and subsequently the ICA's characterization of the basis for Porter's allegations of mistake was artificially narrow. The LIRAB's decision appears to assume that Porter was arguing that the alleged mistake was only that MCS became a more recognized diagnosis subsequent to the original disposition of her claims.

In fact, in addition to arguing the mistake recognized by the LIRAB, Porter also clearly argued that it was a mistake for the Director to dispose of her claims based on his conclusion that MCS is not an "injury per se" given that Disability Compensation Division ("DCD") Administrator Gary Hamada ("DCD Administrator Hamada") stated that the compensability of an MCS claim is dependent on whether or not it is work related. Porter supported this argument with substantial evidence, including two letters from DCD Administrator Hamada representing that an MCS injury may be compensable if it is determined to be work related. Throughout the litigation of her WC claims, Porter has repeatedly alleged that it was a mistake to deny her claims based on the Director's March 19, 2004 finding that "there is no such injury as multiple chemical sensitivity[.]"6 That decision, denying Porter's claims because MCS is not an injury, was signed by DCD Administrator Hamada. Just over two years later, on September 6, 2006, DCD Administrator Hamada represented to Senator Norman...

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