Bocalbos v. Kapiolani Medical Center

• Decision Date: 09 March 2000
• Docket Number: No. 20719.,20719.
• Parties: Mila BOCALBOS, Claimant-Appellant, v. KAPIOLANI MEDICAL CENTER FOR WOMEN AND CHILDREN and John Mullen & Co., Inc., Employer/Insurance Carrier-Appellee.
• Court: Hawaii Court of Appeals

997 P.2d 42

93 Haw. 116

Mila BOCALBOS, Claimant-Appellant, v. KAPIOLANI MEDICAL CENTER FOR WOMEN AND CHILDREN and John Mullen & Co., Inc., Employer/Insurance Carrier-Appellee.

No. 20719.

Intermediate Court of Appeals of Hawaii.

March 9, 2000.

Certiorari Denied April 20, 2000.

Mila Bocalbos, claimant-appellant, on the briefs, pro se.

Robert C. Kessner and Beverly S.K. Tom (Kessner Duca Umebayashi Bain & Matsunaga), on the briefs, for employer/insurance carrier-appellee.

WATANABE, ACOBA, and LIM, JJ.

Opinion of the Court by ACOBA, J.

We hold in this appeal¹ from the March 14, 1997 "Second Amended Order and Decision" of the Labor and Industrial Relations Appeals Board (the Board) by Claimant-Appellant Mila Bocalbos (Bocalbos) that Bocalbos was entitled to medical care, services, and supplies as "the nature of [her] injury require[d]" pursuant to Hawai`i Revised Statutes (HRS) § 386-21 (1985). Accordingly, while we respect the Board's extensive efforts to resolve her claim, we conclude the Board's denial of coverage for orthodontic², orthopedic,³ and prosthodontic⁴ treatments claimed by Bocalbos as necessary for treatment of a temporomandibular joint (TMJ) disorder or syndrome (TMJD) was clearly erroneous and wrong and that Employer-Appellee Kapiolani Medical Center for Women and Children (Kapiolani) and Insurance Carrier-Appellee John Mullen & Co. (collectively, Employer⁵) are responsible for such treatment.

I.

"Temporomandibular joint syndrome" is defined as a

dysfunction of the temporomandibular joint marked by a clicking or grinding sensation in the joint and often by pain in or about the ears, muscle tiredness and slight soreness upon waking, and stiffness of the jaw or actual trismus; it results from mandibular overclosure, condylar displacement, or stress, with deforming arthritis an occasional factor.

The Sloane-Dorland Annotated Medical-Legal Dictionary 696 (West 1987). The TMJs connect the mandibula, or the jaw bone, with the skull. See id. at 431.

A.

The following relevant evidence is obtained from the record.

It appears that at some point prior to July 25, 1986, the date of the subject work injury, Bocalbos was apparently missing ten upper teeth and two lower teeth.⁶ It is not clear whether some of the teeth were missing at different points in time. According to a January 12, 1989 report by Alan Sue, D.D.S. (Sue), Arthur Kamisugi, D.D.S. (Kamisugi) treated Bocalbos in 1974 for "lower arch⁷ malocclusion" by "uprighting of [her] posterior teeth" and in 1978 Bocalbos was "placed on a retainer and active treatment was terminated." Sue indicated that Bocalbos had an upper partial denture which had replaced the missing upper teeth. Sue also reported there was no evidence of any [TMJD] between the last treatment by Kamisugi and the date of the work injury.⁸ At a hearing before the Board on her claim herein, Bocalbos denied any "jaw, TMJ [or] dental problems" prior to the subject injury.

On or about July 25, 1986, Bocalbos was employed as a part-time medical technician with Kapiolani and a full-time secondary school teacher. While at work at Kapiolani, she was injured when water-soaked ceiling tiles fell on her neck and shoulder. That day, she was examined by Brian Kutsunai, M.D. (Kutsunai), an "occu-med" physician, whose diagnosis was that Bocalbos suffered cranial⁹ and shoulder contusions; however, Kutsunai declared her fit to return to "regular" work "on 7/25/86," the same day as the incident.

On August 6, 1986, Bocalbos saw Thomas Walinski, M.D. (Walinski), an orthopedic surgeon. She complained of a headache and pain in her neck area and he treated her with a soft neck collar. Walinski referred Bocalbos to James Pierce, M.D. (Pierce), a neurologist, regarding the headaches. In his August 23, 1986 consultative report to Walinski, Pierce stated, "At most, [Bocalbos] could have suffered an extremely mild concussion considering the mechanism of injury which she described. These symptoms should clear rather quickly."

Bocalbos however continued to experience problems with "headaches and crunching and popping in her neck." Walinski next ordered physical therapy treatment for "probable persistent cervical strain."

On January 26, 1987, Bocalbos returned to full-time work as a teacher.

In March 1987 Walinski authorized Bocalbos for work at Kapiolani. Bocalbos briefly returned to Kapiolani, but left soon thereafter because she could not tolerate the neck pain she endured when bending over a microscope.

From August 6, 1986 through July 1987, Bocalbos saw several physicians concerning headaches and her difficulties in concentrating. After speaking with her vocational rehabilitation counselor, Julie Hernandez, Bocalbos sought treatment from Teresa Denney, O.D., an osteopathic¹⁰ physician. She referred Bocalbos to Mr. Jeb Dishman (Dishman), an acupuncturist.¹¹

Bocalbos underwent occupational therapy from May 26, 1987 to August 1987.

In a February 25, 1987 "interim report," Walinski indicated he "had no problem" with Bocalbos seeing a physiatrist.¹²

On June 8, 1987, Bocalbos began seeing Erlinda Cachola, M.D. (Cachola) for treatment.

A June 12, 1987 report by John A. Griffith, Ph.D. indicated Bocalbos was "experiencing psychological consequences and loss of function so typical of patients with Chronic Intractable Benign Pain Syndrome."

In October 1987 Cachola referred Bocalbos to the care of Emerson Jou, M.D. (Jou), a physiatrist. Jou diagnosed Bocalbos as suffering from TMJD and told her to "reduce her work or to stay off work entirely."

In January 1988, Jou referred Bocalbos to Edmund Wong, D.D.S. (Wong) for a dental evaluation, and in the same month, Jou found Bocalbos ready to resume light work at Kapiolani, subject to restrictions. However, Kapiolani refused to allow Bocalbos to return until she was able to work without any restrictions.

In August 1988, Bocalbos took a one-year leave of absence from her position with the Department of Education.

On August 15, 1988, Bocalbos was examined by Wong. Wong diagnosed Bocalbos as suffering from TMJD. According to Wong, Bocalbos's "previous medical and dental histories" were "non-contributory," and "the accident of July 25, 1986 [was] responsible for [Bocalbos's TMJD] and ... headaches and other symptoms after the accident." (Emphasis added.) He recommended a two-phase treatment plan. Phase one, "[p]reliminary [t]reatment," involved "treating the inflamed tissue of the temporalis and stylomandibular ligament and locating the precise condyle¹³-disc-fossa¹⁴ relationship and maintaining the position by re-lining the patient's prosthesis (using the upper partial as an orthotic appliance)." Phase two, "permanent treatment," entailed "[o]rthodontics and [a] new upper partial ... to maintain the correct condyle-disc-fossa relationship."

Shortly thereafter, Bocalbos apparently relocated to the mainland United States and began to attend osteopathy school for what she refers to as "self-treatment." The record indicates that she returned to Hawai`i periodically.

In January 1989, while in Hawai`i, Bocalbos was seen by Sue at Employer's request, for an independent medical examination (IME). In his January 12, 1989 report, Sue stated, "My recommendation is to continue the patient on bite splint therapy to relieve as many of the acute symptoms as possible. Orthodontic treatment may be employed to improve the relationship of the remaining teeth, after which a new dental prosthesis will be required to stabilize the occlusion¹⁵ and provide the optimum function." (Emphases added.)

Wong had referred Bocalbos to James Roucis, D.D.S. (Roucis) for further treatment if required. On March 3, 1989, while on the mainland, Bocalbos sought assistance from Roucis to fix her "retainer." According to the bill from Roucis, he made the repair.

From October 21, 1987 until March 21, 1992, Jou continued to act as Bocalbos's primary care physician. During this time, Bocalbos also sought treatment from Alan Becker, O.D. (Becker), an osteopath.

In November 1989, David Kimura, M.D. (Kimura), an orthopedist, conducted another IME of Bocalbos at Employer's request. He examined Bocalbos on November 24, 1989, and in his December 1, 1989 report, noted that Bocalbos "denie[d] having problems with TMJ syndrome in the past." While "[s]he saw [Kamisugi] from 1973 to 1978 for ... orthodontic treatment[, s]he apparently did not have TMJ pain at that time." Kimura stated that "[a]s far as [Bocalbos's] TMJ problem is concerned, she is still undergoing treatment for this area and is not stable and stationary as far as the TMJ syndrome is concerned .... I would recommend continued follow-up and treatment by [Wong] for her TMJ problem. ..." (Emphasis added.)

On April 5, 1991, Richard Courson, D.D.S. (Courson) performed a further independent medical examination of Bocalbos at Employer's request. In his April 11, 1991 report, he stated:

[I]f it is determined that the [TMJD] is related to the [work accident], then splint therapy and reconstruction of the teeth would be a necessary part of [Bocalbos's] total rehabilitation. ...

Definitive occlusal rehabilitation and reconstruction should be accomplished only after the occlusion is stable and the muscle tenderness has subsided.

(Emphasis added.)

On April 16, 1991, Becker issued a "projected treatment plan" in which he recommended "manipulative therapy to areas of dysfunction." He stated that the "goal" of the treatment plan was "to improve ROM [(range of motion)] of [the] back and neck, [to] correct [the] TMJ mis-alignment [and to] alleviate pain and discomfort[] in areas affected."

Bocalbos relocated to Philadelphia in March 1992 and began to receive treatment for her TMJD from Terry McRoberts, D.D.S. (McRoberts) on August 5, 1992. In an August 25, 1993 letter, McRoberts wrote, "I saw [Bocalbos] in my office on 8/5/92, and she was experiencing TMJ symptoms, balancing interferences¹⁶and Class II malocclusion¹⁷due to heavy, wet ceiling tiles...