Wilson v. State
| Decision Date | 03 December 2012 |
| Docket Number | No. CAAP–11–0000612.,CAAP–11–0000612. |
| Citation | 130 Hawai'i 347,310 P.3d 1048 |
| Parties | Kimberly K.F. WILSON, Claimant–Appellant, v. STATE of Hawai‘i, DEPARTMENT OF HEALTH, Employer–Appellee, Self–Insured. |
| Court | Hawaii Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from the Labor and Industrial Relations Appeals Board (Case No. AB 2007–479(M) (7–03–10114)).
Wayne H. Mukaida for Claimant–Appellant.
Steve K. Miyasaka Deputy Attorney General for Employer–Appellee, Self–Insured (James E. Halvorson, Deputy Attorney General, with him on the brief).
FOLEY, Presiding J., FUJISE and LEONARD, JJ.
Claimant–Appellant Kimberly K.F. Wilson (Wilson) appeals from the Decision and Order (D & O) of the Labor and Industrial Relations Appeals Board (LIRAB) filed July 22, 2011, affirming the Disability Compensation Division, Department of Labor and Industrial Relations' (DLIR) October 16, 2007 decision in favor of self-insured Employer–Appellee State of Hawai‘i, Department of Health (DOH). The decision found the DOH not liable for medical treatment Wilson received from May 7, 2004 to December 1, 2006.
On March 19, 2003, Wilson suffered an injury while employed by the DOH, and she submitted a workers' compensation claim. The State Workers' Compensation Division, which administers and processes workers' compensation claims for the DOH and other state agencies, assigned a claims adjuster (adjuster) to Wilson's case and instructed interested parties to direct further correspondence to the adjuster.
The adjuster contacted Wilson to discuss her claim and ongoing treatment. The adjuster informed Wilson that the DOH accepted liability temporarily through September 4, 2003 but denied further liability pending an independent medical examination (IME) by Lorne Direnfeld, M.D. (Dr. Direnfeld). The adjuster also confirmed that Marcus Griffin, M.D. (Dr. Griffin) would be Wilson's attending physician and that only disability certifications from Dr. Griffin would be honored. Wilson had already obtained treatment and consultations from a number of doctors, and the adjuster informed Wilson that other primary care providers would no longer be honored and that all referrals were subject to the DOH's approval.
Dr. Direnfeld conducted an IME of Wilson, and his medical opinion concluded she had suffered a compensable neck injury, but her ongoing condition was unrelated to her work injury. The adjuster informed Wilson and Dr. Griffin that, based on Dr. Direnfeld's opinion, the DOH contested liability for further medical services, effective March 11, 2004. The DLIR conducted a hearing and issued a decision on June 7, 2004, crediting Dr. Direnfeld's post-IME medical opinion and relieving the DOH of further liability for Wilson's treatment after March 11, 2004. Wilson appealed the DLIR's decision to the LIRAB on June 15, 2004.
In the time between the DLIR decision and the LIRAB hearing, Wilson received further treatment from Dr. Griffin and from a number of out-of-state health care providers. The record is devoid of any approved treatment plan provided by Dr. Griffin during the relevant time period. Dr. Griffin referred Wilson to the Mayo Clinic on March 29, 2004, but nothing in the record indicates when, if ever, the DOH received this referral. On May 7, 2004, Wilson received treatment from Dr. Griffin at the Kihei–Wailea Medical Center. On June 17, 2004, Wilson permanently relocated from Hawai‘i and underwent surgery at the Mayo Clinic in Minnesota on June 30, 2004. She continued to receive further treatment from the Mayo Clinic and also received treatment from Altru Health System, Altru Hospital, and Laidlaw Psychological Services. Nothing in the record indicates Wilson submitted a request for change of physicians or referrals for the treatment she received from any of these health care providers. The earliest clear indication that the DOH had received actual notice of Wilson's out-of-state treatment is from late January 2005, when the Mayo Clinic first communicated with the adjuster regarding payment.
On October 12, 2005, the LIRAB held a hearing on Wilson's appeal. The LIRAB received testimony from Nicholas Maragos, M.D. (Dr. Maragos), Wilson's doctor at the Mayo Clinic, and from Dr. Direnfeld, who had changed his opinion after reviewing Dr. Maragos's reports. The DOH denied liability on the grounds that Wilson's ongoing condition was unrelated to her work injury; nothing in the record indicates the DOH mentioned the lack of a treatment plan or referral for Wilson's treatment. The LIRAB credited the doctors' testimony and issued a decision on January 11, 2006, vacating the DLIR's decision and concluding Wilson was entitled to continuing medical care after March 11, 2004.
On December 6, 2006, Wilson's attorney wrote to the adjuster seeking payment of Wilson's treatment from the Mayo Clinic, Altru Hospital, Altru Health System, and Laidlaw Psychological Services, and for her treatment from Kihei–Wailea Medical Center on May 7, 2004. On May 31, 2007, Wilson's attorney filed a request for a hearing based on the DOH's refusal to pay benefits.
On August 23, 2007, the DLIR held a hearing on the issue of whether the DOH was liable for the medical treatment Wilson had received from May 7, 2004 to December 1, 2006. The DOH denied liability for these treatments because Wilson had failed to submit WC–2 Physician's Reports, treatment plans, or requests for consultations and concurrent treatment during the relevant period as required by Hawai‘i Revised Statutes (HRS) Chapter 386 and its related rules. The DLIR's decision, issued October 16, 2007, credited the DOH's evidence and found the DOH not liable.
Wilson timely appealed the DLIR's decision to the LIRAB, and on July 22, 2011, the LIRAB issued the D & O affirming the DLIR's decision and concluding the DOH was not liable for Wilson's medical treatment from May 7, 2004 to December 1, 2006. Wilson timely filed this appeal on August 12, 2011.
On appeal, Wilson contends the LIRAB erred as a matter of law in finding the following Findings of Fact (FOFs):
....
9. The Board finds that the foregoing “Referral” [completed by Dr. Griffin referring Wilson to Mayo Clinic] does not meet the requirements of Sections 12–15–42 or 12–15–40 of the Hawaii Workers' Compensation Medical Fee Schedule.
10. Nicholas E. Maragos, M.D., a physician at the Mayo Clinic, identified himself as the attending physician on a WC–2 Physician's Report form (“WC–2”) dated September 13, 2006 and Claimant, during her deposition, described him as the “commander” of her medical treatment. However, there was no request that Claimant be allowed a change in attending physician, and Dr. Griffin remained Claimant's attending physician during the relevant time period.
....
13. The Board finds that the medical care, services, and supplies provided by Altru Health Systems, Laidlaw Psychological Services, and Mayo clinic were not directed by her attending physician, Dr. Griffin.
Wilson also challenges the following language from the LIRAB's Conclusion of Law (COL):
[T]he Board concludes that Employer is not liable for medical care, services, or supplies provided by Altru Health Systems, Laidlaw Psychological Services, and Mayo Clinic from May 7, 2004 to December 1, 2006. Said services were not requested by or even directed by Claimant's attending physician.... The Board further concludes that with regard to medical care, services, or supplies provided by Dr. Griffin, that the same were not provided pursuant to a valid Workers' Compensation Treatment Plan.
The standard of review is one in which court must determine whether the court under review was right or wrong in its decision.” Lanai Co. v. Land Use Comm'n, 105 Hawai‘i 296, 306–07, 97 P.3d 372, 382–83 (2004) () (internal quotation marks and citation omitted).
Appellate review of the LIRAB's decision is governed by HRS § 91–14(g) (1993), which provides that:
Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(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
(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
“Under HRS § 91–14(g), [conclusions] are reviewable under subsections (1), (2), and (4); questions regarding procedural defects are reviewable under subsection (3); [findings] are reviewable under subsection (5); and an agency's exercise of discretion is reviewable under subsection (6).” Potter v. Hawai ‘i Newspaper Agency, 89 Hawai‘i 411, 422, 974 P.2d 51, 62 (1999) (internal quotation marks and citations omitted).
“ ‘[T]he courts may freely review an agency's conclusions of law.’ “ Lanai Co., 105 Hawai‘i at 307, 97 P.3d at 383 (quoting Dole Hawaii Div.-Castle & Cooke, Inc. v. Ramil, 71 Haw. 419, 424, 794 P.2d 1115, 1118 (1990)). The LIRAB's conclusions will be reviewed de novo, under the right/wrong standard. Tate v. GTE Hawaiian Tel. Co., 77 Hawai‘i 100, 103, 881 P.2d 1246, 1249 (1994) (citing State v. Furutani, 76 Hawai‘i 172, 180, 873 P.2d 51, 59 (1994)).
“An agency's findings are reviewable under the clearly erroneous standard to determine if the agency decision was clearly erroneous in view of reliable, probative,...
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