Cabatbat v. County of Hawaii
| Decision Date | 04 November 2003 |
| Docket Number | No. 23836.,23836. |
| Citation | 103 Haw. 1,78 P.3d 756 |
| Parties | Clarence P. CABATBAT, Claimant-Appellant, v. COUNTY OF HAWAI'I, DEPARTMENT OF WATER SUPPLY, Employer-Appellee, Self-Insured. |
| Court | Hawaii Supreme Court |
Nelson H. Kinoshita, on the briefs, for claimant-appellant.
Joseph K. Kamelamela, Deputy Corporation Counsel, County of Hawai'i, on the briefs, for employer-appellee, self-insured.
We hold that the Labor and Industrial Relations Appeals Board (the Board) erred in relying exclusively on a part of the American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed., AMA 1993) [hereinafter AMA Guides] in affirming a Hawai'i Department of Labor and Industrial Relations Disability Compensation Division (DCD) decision determining that Claimant-Appellant Clarence Cabatbat (Cabatbat) suffered a permanent partial disability (PPD) of eight percent as a result of a work-related injury to his temporomandibular joint (TMJ).1 We hold further that Hawai`i Administrative Rule (HAR) § 12-10-21 permitted the use of other guides, and the Board's decision was against the reliable, probative, and substantial evidence on the record.
On January 25, 1994, while driving a County of Hawai`i van in the course of his employment as a pipefitter with Employer-Appellee County of Hawai`i, Department of Water Supply (the County), Cabatbat was rear-ended by another vehicle. Cabatbat sustained injuries to his left foot, neck, and mandible near the TMJ as a result of this accident.
Immediately after the accident, Cabatbat sought treatment with Roy Koga, M.D. In May of 1994, Dr. Koga referred Cabatbat to Dentist Neal Nakashima to begin extensive treatment for his TMJ condition.2 On August 29, 1995, Dr. Nakashima submitted a report to the County detailing Cabatbat's progress during Phase I, the pain management phase of the treatment plan. The report indicated that Cabatbat's TMJ injury had improved by ninety percent. By November 2, 1995, Dr. Nakashima listed Cabatbat's status as "nearly stable." On April 3, 1996, Dr. Nakashima submitted an update which placed Cabatbat's progress in Phase II of the treatment plan at sixty to seventy percent, and rated Cabatbat's status as "stable." By August 9, 1996, Dr. Nakashima's updated treatment plan report noted that Cabatbat had achieved ninety percent progress in Phase II.
On September 25, 1996, the DCD filed a stipulation and settlement agreement between Cabatbat and the County concerning the injuries to Cabatbat's neck and left foot. The parties agreed that Cabatbat suffered eight percent PPD for the neck injury, and twelve-point-five percent PPD for the injury to the left foot. Cabatbat's PPD rating in regard to his TMJ was not determined at this time. On or around February 12, 1997, Dr. Nakashima submitted a PPD rating for Cabatbat's TMJ injury.3 Dr. Nakashima rated Cabatbat's permanent impairment for his TMJ condition at twenty-three percent of the whole person. In reaching his rating, Dr. Nakashima relied upon the "Recommended Guide to the Evaluation of Permanent Impairment of the Temporomandibular Joint"4 [hereinafter, Recommended Guide], and the AMA Guides.5
On June 4, 1997, the County made a PPD rating examination appointment for Cabatbat with Dentist Henry Hammer. Dr. Hammer concluded that it would be premature to determine Cabatbat's PPD at that time. Cabatbat continued to receive treatment from Dr. Nakashima. On November 12, 1997, Dr. Nakashima's second TMJ rating report was filed with the DCD. See supra note 5. Again, Dr. Nakashima determined that Cabatbat's TMJ injury resulted in a twenty-three percent PPD rating.6
Thereafter, the County requested that Cabatbat undergo an independent medical examination by Dentist Todd Tasaki for the TMJ condition. In his report dated June 1, 1998, Dr. Tasaki rendered a rating of eighteen percent PPD. Dr. Tasaki's rating was based on Cabatbat's TMJ range of motion restriction as well as dietary restrictions such as the avoidance of "hard" foods.
The County subsequently requested a clarification of the rating provided by Dr. Tasaki, asking that he limit his consideration to the guidelines set forth by the AMA Guides, Fourth Edition (1993). The DCD County specifically requested that Dr. Tasaki limit his rating evaluation to the guidelines indicated on page 231, § 9.3, Mastication and Deglutition Table 6 of the AMA Guides (Fourth Edition). Table 6 of § 9.3 allows for an impairment rating of between five and nineteen percent for a diet limited to semisolid or soft foods.
On September 30, 1998, Dr. Tasaki provided an impairment rating of between six and eight percent of the whole person for Cabatbat's TMJ injury based on the AMA Guides, as designated by the County. However, Dr. Tasaki indicated that the AMA Guides alone did not provide an adequate basis for assessing Cabatbat's impairment7:
The AMA Guides inappropriately restrict[] impairment rating with regard to temporomandibular disorders (TMD) solely to consistency of food one is able to chew. In many cases, this is an inaccurate assessment of a patient's TMD impairment. In fact, in the AMA Guides, the [TMJ] and [TMD] in general are not rated in the same manner as other major joints of the body even though the same criteria for rating can be applied to the [TMJ]. For this reason, I do not recommend sole use of the AMA Guides. Throughout the AMA Guides, for any other joint in the body, one [can] find criteria for rating such as limitation of range of motion, changes to the osseous or soft tissues within the joint, improper meniscus or disc relationship.... Again, these are all criteria which can be applied to impairment related to TMD. This kind of inequity and inconsistency makes pure reliance on the AMA Guides inappropriate in a large number of TMD cases.... In conclusion, while there are times that the AMA Guides provide[ ] a fair assessment for rating a[TMD], in Mr. Cabatbat's case, the condition within the joint (left TMJ) and jaw muscles and the long term impact on his life is not adequately assessed using the AMA Guides. I stand by my previous impairment rating of [eighteen] percent of the whole person for the TMD condition.
(Emphases added.)
On October 2, 1998, Dr. Nakashima submitted a letter which stated that his rating of Cabatbat's TMJ injury was determined using the 8 (Emphasis added.)
On October 2, 1998, a hearing was held before the DCD to determine Cabatbat's temporary total disability (TTD) and PPD. On December 4, 1998, the DCD awarded Cabatbat $394.21 in TTD and $12,005.76 in PPD. The DCD determined Cabatbat's PPD rating to be eight percent of the whole person, based upon the AMA Guides.9 On December 8, 1998, Cabatbat filed a request for reconsideration by the DCD and, alternatively, an appeal and notice of appeal of the December 4, 1998 DCD decision to the Board.
Reconsideration of the decision was denied. Cabatbat's sole issue on appeal to the Board was whether the DCD erred by relying on the AMA Guides rather than the Recommended Guide to determine Cabatbat's PPD rating. Cabatbat argued that the DCD should have found his PPD rating to be eighteen percent. Both parties agreed to waive an evidentiary hearing and to submit the matter on the record and on position memoranda.
(Emphasis added.) Cabatbat provided Dr. Chong's opinion to the Board on September 16, 1999.
On October 4, 2000, the Board issued its decision and order affirming the DCD rating of eight percent PPD. The Board's only conclusion of law was that "[Cabatbat] sustained an eight percent permanent disability of the whole person for the TMJ condition sustained on January 25, 1994." The Board stated that it based its "conclusion on the rating by Dr. Tasaki using the AMA Guides."
On October 24, 2000, Cabatbat appealed the Board's October 4, 2000 decision and order to this court. He contends (1) that the Board erred in its determination that Cabatbat's impairment rating for the TMJ injury be limited to the AMA Guides and (2) that the Board erred in its determination that Cabatbat sustained an eight percent permanent disability of the whole person for his TMJ injury.
We review agency decisions based on the standards set forth in Hawai'i Revised Statutes (HRS) § 91-14(g) (1993).11 This court applies a...
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