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                         NO. CAAP-12-0000204

               IN THE INTERMEDIATE COURT OF APPEALS
                       OF THE STATE OF HAWAI#I


              LIN C. WATANABE, Claimant-Appellee, v.
         FOODLAND SUPERMARKET, LTD., Employer-Appellant,
           and FIRST INSURANCE COMPANY OF HAWAII, LTD.,
                    Insurance Carrier-Appellant


  APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
            (CASE NO. AB 2010-435(M); (7-10-45086 ))

                    SUMMARY DISPOSITION ORDER
         (By: Leonard, Presiding Judge, and Ginoza, J.;
                  and Reifurth, J., dissenting)

          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)]:
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                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,1 we resolve
Foodland's point of error as follows:
          (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


     1
          Watanabe did not file an answering brief.

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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.


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          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

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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).2
          (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


      2
            In light of our conclusion, we need not address Foodland's
remaining arguments regarding why the LIRAB's statutory interpretation was
incorrect.

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(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.


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          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)3. 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.
          (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.


     3
          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.

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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.
          DATED: Honolulu, Hawai#i, June 12, 2015.
On the briefs:

Scott G. Leong                        Presiding Judge
Shawn L.M. Benton
(Leong Kunihiro Lezy &
 Benton)
for Employer-Appellant                Associate Judge




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