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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-11-0001019
                                                               04-NOV-2015
                                                               09:43 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---o0o---
________________________________________________________________

                        BENJAMIN N. PULAWA, III,
                     Petitioner/Claimant-Appellant,

                                     vs.

                      OAHU CONSTRUCTION CO., LTD.,
                     Respondent/Employer-Appellee,

                                     and

                  SEABRIGHT INSURANCE COMPANY,
             Respondent/Insurance Carrier-Appellee.
________________________________________________________________

                              SCWC-11-0001019

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
       (CAAP-11-0001019; CASE NO. AB 2009-496 (2-96-12947))

                             NOVEMBER 4, 2015

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                  OPINION OF THE COURT BY WILSON, J.

            This case arises out of a work-related injury

Petitioner Benjamin Pulawa, III (Pulawa) incurred while employed
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as a construction supervisor for Oahu Construction Co., Ltd.

(Oahu Construction) and the subsequent workers’ compensation

claims made against Oahu Construction, insured by Seabright

Insurance Company.     The issues presented on appeal are 1)

whether there was substantial evidence to show that a

neuromonics device was reasonably needed to treat Pulawa’s

tinnitus and 2) whether Pulawa was no longer entitled to total

temporary disability (TTD) payments because he was able to

resume work.    We hold that there was substantial evidence that

the neuromonics device was reasonably needed for treating

Pulawa’s tinnitus, and that based on this finding, Pulawa was

not medically stable and unable to return to work.            Thus, the

Labor and Industrial Relations Appeals Board (LIRAB) clearly

erred in its determination that Pulawa was not entitled to the

neuromonics device and in its decision to terminate Pulawa’s TTD

payments.    Accordingly, the Intermediate Court of Appeals’ (ICA)

December 16, 2014 Judgment on Appeal and LIRAB’s November 2,

2011 Decision and Order are vacated.         The case is remanded to

LIRAB for proceedings consistent with this opinion.

                              I.   Background

A.   Pulawa’s Work-Related Accident

            Pulawa’s tinnitus diagnosis is due to a work-related

accident.    On August 20, 1996, Pulawa was employed by Oahu


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Construction as a construction supervisor when he was injured.

As he was observing the construction operations, Pulawa was

struck in the head by a 12 inch by 6 inch rock that became

airborne after being run over by a loader vehicle.            The force

from this projectile cracked Pulawa’s hard hat and fractured his

skull.1    As a result of this accident, Pulawa now suffers severe

headaches, tinnitus, and depression.         Tinnitus sufferers hear

ringing or other sounds in the ear when no external sound is

present.    See 11 Roscoe N. Gray & Louise J. Gordy, Attorneys’

Textbook of Medicine ¶ 84.63 (3d ed. 2014).           Pulawa suffers from

chronic bilateral tinnitus, which is described as a “constant,

high-pitched tone.”      Pulawa has not returned to work since he

was injured in August 1996.

B.   Pulawa’s Medical Treatment and Doctor Evaluations

            Immediately after the accident, Pulawa was treated at

The Queen’s Medical Center and required surgery to repair a left

frontal skull depressed fracture.         As he recovered from surgery,

Pulawa suffered from impaired cognitive functions.            After more

than two weeks of hospitalization, Pulawa was transferred to the

Rehabilitation Hospital of the Pacific for another two weeks,

where he received physical, occupational, and speech therapy.


     1
            Pulawa sued the landowner and other parties involved for
negligence, but he did not prevail. Pulawa v. GTE Hawaiian Tel, 112 Hawaii
3, 7-8, 143 P.3d 1205, 1209-10 (2006).

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After his release from the Rehabilitation Hospital, Pulawa

continued outpatient therapy on a monthly basis for

approximately two years.       His primary complaints consisted of

headaches, cognitive issues, and sleep problems.            While early

reports do not specifically list tinnitus as a complaint, he was

briefly prescribed tinnitus medication (amitriptyline) in 1997

and also complained of ringing in his ears during an independent

neuropsychological evaluation performed in 2000.

            Pulawa has been continuously treated for his ailments—

primarily headaches and tinnitus—from the time of the accident.

Dr. Barry Odegaard, Pulawa’s family physician, treated Pulawa

from 1997 to approximately 2001.          Dr. Robert Marvit, a

psychiatrist, treated Pulawa from early 2001 to late 2009, when

he retired.    In 2001, Dr. Marvit prescribed a treatment plan

that consisted of Pulawa attending the Casa Colina Center of

Rehabilitation (Casa Colina), a residential brain injury

treatment program in Pomona, California, for several months.2

Dr. Marvit believed that the residential treatment program would

allow Pulawa to maximize his capacities so that he would be


      2
             Dr. Marvit’s status as an attending or concurrent physician under
Hawaii Administrative Rules (HAR) § 12-15-32 or § 12-15-40, which is required
to submit a treatment plan, was challenged by Oahu Construction.
Subsequently, Dr. Marvit was found to be a concurrent physician by the
Director of the Department of Labor and Industrial Relations. However,
further challenges to Dr. Marvit’s treatment plan, including attendance in
the Casa Colina treatment program, were brought by Oahu Construction.

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“functionally capable of returning to useful, gainful activity.”

Dr. Marvit noted that the program “would also include less

reliance on medication, increased interpersonal, positive

interactions, avoidance of self-destructive behaviors, pain

control, and an exercise of his vocational potential.”

           Dr. David Patterson, the Medical Director at Casa

Colina, stated in his preadmission screening report that Pulawa

was an acceptable candidate for the brain injury treatment

program, even though Pulawa had some “psychological overlay”

that was preventing further recovery.          Despite this

psychological hindrance, Dr. Patterson believed that Pulawa had

persistent physical and neurocognitive symptoms, such as

tinnitus, that needed to be addressed.          Proposed treatment

included admission to Casa Colina’s comprehensive

neuropsychological program that would provide Pulawa with

“compensatory strategies to deal with the emotional, cognitive

and psychological difficulties.”          In addition, Dr. Patterson

recommended cervical trigger point injections to promote

movement in the neck, an evaluation of his migraine-type

medications, and evaluations by specialists in otology,

neurology, audiology, oral/maxillofacial, and neuro-optometry to

further his recovery.      Pulawa agreed to attend the treatment

program.


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           However, admission to Casa Colina was delayed for

nearly six years due to Oahu Construction’s challenge of Dr.

Marvit’s treatment plan recommending admission.           After the

Director of the Department of Labor and Industrial Relations,

Disability Compensation Division (Director) approved the

treatment plan and LIRAB affirmed the Director’s decision,

Pulawa attended Casa Colina, where he participated in the

program from September 2007 to February 2008.

           During the treatment program, Pulawa received several

treatments to manage and relieve his headaches, tinnitus, and

depression.    Relevant to this appeal, Dr. Lucy Shih, a

specialist in otology and neurotology at the Casa Colina center,

examined Pulawa and recommended that he be fitted with a

neuromonics device, a device that at the time was only available

at the House Ear Institute in Los Angeles, California.             Dr. Shih

was referred by Dr. Patterson specifically to assess treatment

options for Pulawa’s tinnitus symptoms.          Dr. Shih stated in a

letter to Dr. Patterson that she informed Pulawa of “a

relatively new tinnitus treatment which may be beneficial.”              Dr.

Shih described the device as “a listening device manufactured by

Neuromonics which incorporates a neural stimulus into music to

interrupt and desensitize the brain from continued perception of

[tinnitus].”    The device consists of earphones connected to a


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small compact music player.       Dr. Patterson agreed with Dr.

Shih’s recommendation to fit Pulawa with a neuromonics device.

However, Pulawa was released from Casa Colina after five months

of treatment, returning to Hawaii in February 2008, without

being fitted for the neuromonic device.3

           Rather than authorizing the neuromonics device after

Pulawa completed the Casa Colina program, Oahu Construction

requested two independent evaluations by Drs. Brian Goodyear, a

neuropsychologist, and Anthony Mauro, a neurologist, as well as

a vocational rehabilitation assessment, to update Pulawa’s

workers’ compensation disability status.

     1.    Dr. Brian Goodyear’s Supplemental Independent
           Psychological Evaluation

           Dr. Goodyear, a neuropsychologist, evaluated Pulawa on

May 23, 2008 and May 27, 2008 after Pulawa sought authorization

from Oahu Construction for the neuromonics device that he had

not received during his treatment in California.            Although Dr.

Goodyear concluded Pulawa was medically stable and therefore

would not improve with future treatment, he did not discuss the

utility of the neuromonics device in his report; nor did he

      3
            From the record, it appears that Pulawa was unable to be fitted
with the device in California for several reasons, including: 1) Seabright
Insurance required extensive documentation in order to process the request
for the neuromonics device consultation; 2) the insurance adjustor assigned
to Pulawa’s case retired while the request was pending; and 3) the House Ear
Institute had a large backlog of patients, and appointments were scheduled
several weeks or months in advance.

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address the opinions of Dr. Shih and Dr. Patterson recommending

the neuromonics device for treatment of Pulawa’s tinnitus.

           In his report, Dr. Goodyear noted that he evaluated

Pulawa on two previous occasions, December 1999 and July 2004.

After briefly summarizing Pulawa’s extensive medical history,

Dr. Goodyear opined there was no significant change in Pulawa’s

condition since the 2004 evaluation.         Although Pulawa had

completed the Casa Colina program and met with Dr. Marvit on a

regular basis, Dr. Goodyear concluded there was little

improvement for a number of reasons—primarily because Pulawa

lacked motivation and was magnifying his symptoms.            Dr. Goodyear

reasoned that Pulawa “had become very entrenched in the disabled

role” and that he had powerful financial incentives to not give

up that role.    Specifically, Dr. Goodyear mentioned that Pulawa

was receiving about $5,000 per month in benefits.            Based on the

foregoing, Dr. Goodyear concluded that from a neuropsychological

perspective, Pulawa’s condition remained stable and ratable, and

he remained at a 25% permanent impairment rating.

           In regard to returning to work, Dr. Goodyear concluded

that while Pulawa would have some difficulty returning to his

usual and customary work, he was capable of returning to

productive employment.      He did not believe any significant

changes in Pulawa’s subjective complaints and functional status

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would occur in the future.       Thus, according to Dr. Goodyear,

Pulawa required no further psychological or neuropsychological

testing and no significant changes in Pulawa’s subjective

complaints and functional status would occur in the future.

However, Dr. Goodyear’s report did acknowledge the need to

engage in further review of his current medical regimen for

headaches.    Throbbing headaches, tinnitus, interrupted sleep,

memory problems, difficulty with loud noises, and depression

were reported to Dr. Goodyear during each of his evaluations of

Pulawa.   Based on this history, Dr. Goodyear recommended that a

neurologist evaluate Pulawa to review the effectiveness of his

current treatment regimen for his headaches and determine

whether Pulawa had achieved maximum medical improvement.

     2.      Dr. Anthony Mauro’s Independent Medical Evaluation

             On July 3, 2008, Dr. Mauro, a neurologist, completed

Pulawa’s second independent medical examination due to Pulawa’s

request for the neuromonics device.         His examination was limited

to a records review; he did not personally communicate with

Pulawa.   Regarding the neuromonics device, Dr. Mauro admitted

that he was not aware of the device being “available for

treatment of tinnitus” or whether the device met “an accepted

standard of treatment for tinnitus.”         Nonetheless, based on his

review of the medical records, Dr. Mauro concluded Pulawa’s


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medical condition was medically stable and ratable, and that his

symptoms would never completely subside.          Dr. Mauro was

concerned that Pulawa had an “inappropriate hope for ‘100%’

recovery.”    In particular, Dr. Mauro pointed out that in late

1997, the Chief of Psychology Services at the Rehabilitation

Hospital of the Pacific, Kathleen S. Brown, Ph.D., stated that

Pulawa “[did] not appear to fully appreciate the need for self

management and treatment of chronic pain and continues to seek

[a] medical cure for his pain.”        Dr. Mauro was concerned that

Pulawa’s history of seeking a medical cure meant that he

required his condition to return to “100%” prior to returning to

any type of employment.

           Dr. Mauro concluded that although Pulawa suffers from

significant cognitive and personality deficits from his head

injury, he is capable of gainful employment, albeit not as a

construction supervisor.       Indeed, based on his review of

Pulawa’s records, Dr. Mauro reasoned that Pulawa would never

report improvement in his symptoms, regardless of future

treatment.

           Dr. Mauro’s opinion did not include a position as to

whether the neuromonics device was reasonably needed for

Pulawa’s greatest possible medical rehabilitation.            Nor did he

address the opinions of Dr. Shih and Dr. Patterson recommending


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the neuromonics device for treatment of Pulawa’s tinnitus.              He

reviewed two academic studies of the device—one of which found

the treatment “promising,” although it lacked “ideal placebo

control.”    According to Dr. Mauro’s report, the second study

stated that “electrical suppression of the tinnitus does not

offer a promising outcome for patients.”          After reading the two

articles, he concluded there was no “basis for enthusiasm for

ongoing efforts to treat the tinnitus.”

     3.     Vocational Counselor Priscilla Ballesteros Havre’s
            Independent Vocational Rehabilitation Report

            Ms. Priscilla Ballesteros Havre performed an

independent vocational rehabilitation review dated November 6,

2008, at the request of Oahu Construction to determine whether

Pulawa was capable of returning to work.          She did not address

the opinions of Dr. Shih and Dr. Patterson, recommending the

neuromonics device for treatment of Pulawa’s tinnitus.             After

reviewing the reports of Dr. Goodyear and Dr. Mauro and a prior

vocational rehabilitation report from 1997, Ms. Ballesteros

Havre endorsed the views of Dr. Mauro and Goodyear to conclude

that Pulawa’s symptoms, his current daily activities, his

tendency to magnify symptoms, his average cognitive abilities,

and the amount of compensation he received on disability

rendered him capable of returning to gainful employment if he

were motivated to do so.
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           Based on her opinion that Pulawa lacked motivation,

Ms. Ballesteros Havre conducted no independent analysis as to

whether Pulawa was capable of returning to work.

     4.    Pulawa’s Treating Physician Rejects Opinions of
           Independent Medical Examiners

           Dr. Marvit submitted a treatment plan on December 2,

2008 rejecting the opinions of the three independent medical

examiners retained by the employer.         As Pulawa’s treating

physician, Dr. Marvit was not of the view that Pulawa was

medically stable and would not benefit from further treatment.

Consistent with Dr. Shih and Patterson, he requested Pulawa

receive concurrent care at the House Ear Institute in order to

be fitted with the neuromonics device.          In a letter dated

February 26, 2009, Dr. Marvit stated that “without approval of

the treatment plan outlined by myself and Casa Colina, he will

remain in a permanently impaired disabled state, and the

likelihood of any kind of recovery will be minimal to absent.”

He also noted that “[i]n addition, one would expect further

deterioration of his function, which would end up ultimately in

either his premature death, or institutionalization.”

     5.    Oahu Construction Denies the Neuromonics Device and
           Seeks To Terminate TTD Payments

           Based on the evaluations of Drs. Goodyear and Mauro,

and the review by vocational counselor Ms. Ballesteros Havre,


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Oahu Construction took two actions.         First, on December 5, 2008,

it denied Dr. Marvit’s December 2, 2008 treatment plan

requesting that Pulawa be fitted for the neuromonics device at

the House Ear Institute in California.          Second, on December 16,

2008, Oahu Construction gave notice to Pulawa, in accordance

with Hawaii Revised Statutes (HRS) § 386-31 and Hawaii

Administrative Rules (HAR) § 12-10-26, seeking to terminate TTD

payments no later than December 30, 2008 because the reports of

Drs. Goodyear and Mauro and vocational counselor Ms. Ballesteros

Havre showed that Pulawa had “retired from the labor market and

is not entitled to income and indemnity benefits.”            After Oahu

Construction denied Pulawa’s request to be fitted with a

neuromonics device and gave notice of its intent to terminate

TTD payments, Pulawa sought relief from the Director.

C.   Department of Labor and Industrial Relations Proceedings

           Pulawa requested a hearing to determine whether Dr.

Marvit’s treatment plan dated December 2, 2008 was improperly

denied and to determine if TTD payments were properly

terminated.4    On March 30, 2009, the Director determined that


      4
            On January 5, 2009, Pulawa’s first request for the neuromonics
device was denied on the basis that the attending physician did not submit to
Oahu Construction a written request for the neuromonics device that comported
with the requirements of HAR § 12-15-51(a), which outlines the notice
requirements applicable when an attending physician requests approval from
the employer to treat the employee.


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Pulawa was not entitled to a neuromonics device.5           The Director

also concluded on March 30, 2009 that Pulawa was entitled to TTD

benefits only through December 16, 20086 based on Dr. Goodyear’s

and Mauro’s opinion that Pulawa was capable of returning to

work.     The Director also awarded Oahu Construction a credit for

TTD payments from December 17, 2008 through December 30, 2008.

Finally, the Director found that the issue of permanent

disability was premature because there was no impairment rating

for Pulawa’s injuries and that the issue would be decided at a

later date.    Pulawa appealed the March 2009 decision to LIRAB,

which triggered Oahu Construction’s request for an additional

independent medical evaluation performed by Dr. Ajit Arora, an

internist.

     1.     Dr. Ajit Arora’s Independent Medical Evaluation

            Dr. Arora performed Pulawa’s third independent medical

evaluation on behalf of Oahu Construction on July 6, 2010.                 Dr.

Arora addressed Pulawa’s medical stability, ability to return to

work, and need for further treatment.         He did not conclude that




     5
            The Director’s decision was based on Pulawa’s failure to appeal
the January 5, 2009 decision within the 20 days required by HRS § 386-87(a).
LIRAB and the ICA, however, reached the merits of Pulawa’s claim, as
discussed infra. The procedural issue cited by the Director was not raised
by the parties on certiorari and is thus not addressed herein.
     6
            Oahu Construction gave notice of its intent to terminate TTD
payments on December 16, 2008.

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the neuromonics device was not reasonably needed for Pulawa’s

greatest possible rehabilitation.

           After examining Pulawa and reviewing the medical

records, Dr. Arora came to several conclusions.           First, Dr.

Arora determined that Pulawa’s condition was medically stable

and eligible for a permanent disability rating because his

symptoms had remained unchanged for several years.            Second, Dr.

Arora concluded that while Pulawa suffers from throbbing

headaches and tinnitus, he is able to be employed in a position

that will accommodate his limitations.          Dr. Arora pointed out

that he had several patients who were able to work with severe

tinnitus symptoms.     Like Drs. Goodyear and Mauro, Dr. Arora

agreed that motivation was an important factor in Pulawa’s

return to work because Pulawa “is probably making more money now

than he would if he returned to some type of modified

employment.”

           Third, Dr. Arora determined that although Pulawa

received appropriate treatment for the throbbing headaches,

cognitive dysfunction, and depression, the treatment at Casa

Colina was of questionable relevance and significance.             Dr.

Arora opined that the necessity and utility of such a program

was highly questionable because Pulawa’s injury was over 10




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years old at the time, and thus resulted in a waste of resources

and time.

            Next, Dr. Arora acknowledged in his report that the

work injury and noise exposure caused Pulawa’s tinnitus, but he

did not recommend the neuromonics device.          He stated that he had

“serious[] doubt” that the use of “a neuromonics device for this

symptom” “would be of any benefit”—noting that “[t]here is no

proven treatment for tinnitus.”        In apparent contradiction,

however, Dr. Arora endorsed a treatment for tinnitus; he agreed

that the medication prescribed by his treating physician,

amitriptyline, “is typically the . . . medication prescribed for

such patients and may help some cases.”          Further, Dr. Arora

acknowledged that Pulawa’s tinnitus condition was capable of

improvement.    He stated that better control of Pulawa’s

throbbing headaches, which “aggravate and exacerbate his

tinnitus to a great extent,” would lead to reduced tinnitus

symptoms.    Dr. Arora left unanswered why amitriptyline

medication qualified for treatment of the tinnitus, but the

neuromonics device did not.       Dr. Arora ventured agreement with

Dr. Mauro that the neuromonics device “would be of questionable

value and benefit to Mr. Pulawa for treatment of his tinnitus.”

He did not directly address the opinions of Dr. Shih and Dr.




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Patterson recommending the neuromonics device for treatment of

Pulawa’s tinnitus.

           Having found that Pulawa suffered from tinnitus; that

it was capable of improvement with medication; and that

continuing treatment for tinnitus, depression, and headaches was

necessary, Dr. Arora recommended Pulawa seek a one-time

consultation with a “Dr. Raskin” at the University of California

at San Francisco, who was a specialist in headaches.            Though

this analysis does not connote medical stability, Dr. Arora

nonetheless determined that Pulawa’s condition was medically

stable.

     2.    LIRAB Affirms the Director’s March 30, 2009 Decision

           LIRAB heard testimony at the hearing from Pulawa and

Dr. Scott McCaffrey that was contrary to Dr. Arora’s report.

They testified in support of Pulawa’s request for the

neuromonics device and for the continuation of TTD benefits.

Pulawa testified that he was not able to work with his headaches

and tinnitus.    He stated that the primary ailments that remain

from the accident include heavy throbbing and “head pains” along

with ringing in the ears.       Pulawa confirmed that he had seen

several specialists since the accident for his headaches,

tinnitus, and depression.       Regarding his tinnitus, Pulawa




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confirmed that he was prescribed oral medication and a noise-

masking device, but these treatments were unsuccessful.

            Dr. Scott McCaffrey, Pulawa’s attending physician at

the time of the hearing, testified that he did not believe

Pulawa was medically stable.       Dr. McCaffrey explained that his

office was addressing injuries to Pulawa’s neck and lower back

that were not treated by previous doctors, Pulawa’s tinnitus was

still untreated, and he was receiving treatment for emotional

problems.    Dr. McCaffrey noted that tinnitus is a very difficult

problem and that “no one has found a cure,” although he stated

that there are medications that show promise in clinical

studies.    No witnesses testified in support of the Director’s

decision denying the neuromonics device and terminating Pulawa’s

TTD payments.

            LIRAB affirmed the Director’s decision denying Pulawa

the neuromonics device and terminating his TTD payments in its

November 2, 2011 Decision and Order.         It made no finding as to

whether the neuromonics device was reasonably needed for

Pulawa’s greatest possible rehabilitation, although it did opine

that the neuromonics device was not “reasonable or necessary”

medical care.7


     7
            As discussed infra, in its Decision and Order, LIRAB incorrectly
applied “reasonable and necessary” as the standard to determine Pulawa’s
request for the neuromonics device:
                                                             (continued . . .)
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            In affirming the Director’s termination of TTD

payments, LIRAB credited Dr. Mauro’s opinion that Pulawa’s

medical condition was stable and that although he would have some

difficulty returning to his job as a construction supervisor, he

was capable of returning to gainful employment.

            LIRAB found that Pulawa’s testimony supported his

ability to return to work.       It emphasized Pulawa’s testimony

regarding his ability to operate a vehicle, his visits to Ala

Moana Beach Park three days a week, and his ability to care for

himself without assistance at home.8         LIRAB found unconvincing

Pulawa’s testimony that he could not return “to work in his

present condition.”

            Accordingly, LIRAB concluded that the neuromonics

device was not “reasonable or necessary” medical care, that


(. . . continued)

            The Board finds that the requested Neuromonics device
            is not reasonable and necessary medical care,
            services, or supplies relative to Claimant’s work
            injury.

            . . . .

            The Board concludes that the Director did not err in
            denying Claimant’s request for a Neuromonics device.
            Such device is not reasonable or necessary medical
            treatment for Claimant’s work injuries.

(Emphases added).
      8
            Pulawa stated that his drives to Ala Moana are about nine miles
in length and that he experiences headaches while driving forcing him to pull
over. Pulawa also testified that he is unable to handle family finances
because of his injury.

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Pulawa was not certified as temporarily and totally disabled,

that Pulawa was medically stable, and that Oahu Construction was

entitled to a credit for TTD payments paid between December 17,

2008 and December 30, 2008 to be applied to the future award of

permanent disability benefits.        Pulawa appealed to the ICA.

D.   ICA Appeal

            In its Summary Disposition Order, the ICA affirmed

LIRAB’s Decision and Order.       Pulawa v. Oahu Constr. Co., Ltd.,

No. CAAP-11-0001019, 2014 WL 5503365 (App. Oct. 30, 2014) (SDO).

The ICA rejected Pulawa’s position that he was entitled to the

neuromonics device for treatment of his tinnitus condition under

HRS §§ 386-21(a) and 386-24.       Id. at *3.     Giving deference to

LIRAB’s determination of credibility between the contrasting

doctor’s opinions as to the need for the neuromonics device, the

ICA affirmed denial of the device.         Id.

             The ICA also held that LIRAB properly terminated

Pulawa’s TTD payments.      Id. at *4-5.     The ICA reasoned that

under HRS §§ 386-1 and 386-31(b), TTD payments are terminated

“upon order of the director or if the employee is able to resume

work.”   Id. at *3 (citation omitted) (internal quotation mark

omitted).    Accordingly, the “able to resume work” definition

required that Pulawa’s injury was stable and that Pulawa was

capable of working “in an occupation for which [he] has received


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previous training or for which [he] has demonstrated aptitude.”

Id. at *4-5 (alteration in original) (internal quotation marks

omitted).    The ICA held that LIRAB’s determination regarding

Pulawa’s medical stability and his ability to return to work was

not clearly erroneous.        Id. at *5.    In this regard, the ICA

pointed to the physician reports opining that Pulawa’s condition

was stable and that he could return to work with his injury’s

limitations.    Id.   The ICA concluded that these reports amounted

to substantial evidence supporting Pulawa’s injury stability and

his ability to return to work.        Id.

                        II.    Standards of Review

A.   Findings of Fact and Conclusions of Law

            The standard of review for LIRAB decisions is well-

established:

            Appellate review of a LIRAB decision is governed by
            HRS § 91-14(g) (1993), which states 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



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           (6) Arbitrary, or capricious, or characterized by
           abuse of discretion or clearly unwarranted exercise
           of discretion.

           We have previously stated:

           [Findings of Fact] are reviewable under the clearly
           erroneous standard to determine if the agency
           decision was clearly erroneous in view of reliable,
           probative, and substantial evidence on the whole
           record.

           [Conclusions of Law] are freely reviewable to
           determine if the agency’s decision was in violation
           of constitutional or statutory provisions, in excess
           of statutory authority or jurisdiction of agency, or
           affected by other error of law.

           A [Conclusion of Law] that presents mixed questions
           of fact and law is reviewed under the clearly
           erroneous standard because the conclusion is
           dependent upon the facts and circumstances of the
           particular case. When mixed questions of law and
           fact are presented, an appellate court must give
           deference to the agency’s expertise and experience in
           the particular field. The court should not
           substitute its own judgment for that of the agency.

Igawa v. Koa House Rest., 97 Hawaii 402, 405-06, 38 P.3d 570,

573-74 (2001) (quoting In re Water Use Permit Applications, 94

Hawaii 97, 119, 9 P.3d 409, 431 (2000)) (internal quotation

marks omitted).

           [A Finding of Fact] or 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. We have defined
           “substantial evidence” as credible evidence which is
           of sufficient quality and probative value to enable a
           person of reasonable caution to support a conclusion.

In re Water Use Permit Applications, 94 Hawaii at 119, 9 P.3d at

431 (citations omitted) (internal quotation marks omitted).


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B.   LIRAB’s Statutory Interpretation

           An appellate court

           generally reviews questions of statutory interpretation de
           novo, but, [i]n the case of . . . ambiguous statutory
           language, the applicable standard of review regarding an
           agency’s interpretation of its own governing statute
           requires this court to defer to the agency’s expertise and
           to follow the agency’s construction of the statute unless
           that construction is palpably erroneous[.]

Gillan v. Gov’t Emps. Ins. Co., 119 Hawaii 109, 114, 194 P.3d

1071, 1076 (2008) (alteration in original) (citations omitted)

(internal quotation marks omitted).

                             III.   Discussion

A.   The Neuromonics Device Was an Aid “Reasonably Needed for
     the Employee’s Greatest Possible Medical Rehabilitation”

           LIRAB and the ICA applied an incorrect “reasonable and

necessary” standard to determine whether to approve the

neuromonics device under HRS §§ 386-21(a) and 386-24.9            An

employee is entitled to reasonably needed medical care after a

work-related injury.      HRS § 386-21(a),10 titled “[m]edical care,


     9
            From the language of LIRAB’s decision, “reasonable and necessary”
and “reasonable or necessary” appear to be used interchangeably. This court
will apply the “reasonably needed” standard set forth in HRS §§ 386-21(a) and
386-24 to determine whether Pulawa is entitled to the neuromonics device.
     10
           HRS § 386-21(a) (1993) states as follows:

           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. The liability for the medical care,
           services, and supplies shall be subject to the
           deductible under section 386-100.


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services, and supplies,” requires that “[i]mmediately 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.”11    (Emphasis added).      In addition to medical treatment

for injury, an employee is entitled to medical services and

supplies reasonably needed for the employee’s greatest possible

medical rehabilitation.       HRS § 386-24,12 titled “[m]edical

rehabilitation,” states that “[t]he medical services and

supplies to which an employee suffering a work injury is

entitled shall include such services, aids, appliances,

apparatus, and supplies as are reasonably needed for the

employee’s greatest possible medical rehabilitation.”               (Emphases

added).


      11
            In 1963, the Hawaii workers’ compensation statute was amended for
the purpose of, inter alia, “mak[ing] changes necessary to eliminate
unnecessary hardships and inequities, . . . and mak[ing] certain major and
minor substantive improvements in the provisions governing workmen’s
compensation.” S. Stand. Comm. Rep. No. 334, in 1963 Senate Journal, at 788.
      12
            HRS § 386-24 (1993) states as follows:

            The medical services and supplies to which an
            employee suffering a work injury is entitled shall
            include such services, aids, appliances, apparatus,
            and supplies as are reasonably needed for the
            employee’s greatest possible medical rehabilitation.
            The director of labor and industrial relations, on
            competent medical advice, shall determine the need
            for or sufficiency of medical rehabilitation services
            furnished or to be furnished to the employee and may
            order any needed change of physician, hospital or
            rehabilitation facility.


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           LIRAB and the Director rejected the neuromonics device

based on a standard more strict than allowed by statute:

“reasonable and necessary.”       As noted, HRS §§ 386-21(a) and 386-

24 require application of a “reasonably needed” standard.             The

term “reasonably needed” is not defined by statute, but it is

less restrictive than the “reasonable and necessary” standard

used by LIRAB.13

           Additionally, the “greatest possible medical

rehabilitation” language in HRS § 386-24 lends a definition to

“reasonably needed” that is significantly more broad than

“reasonable and necessary.”       See HRS § 1-16 (2009) (“Laws in

pari materia, or upon the same subject matter, shall be

construed with reference to each other.          What is clear in one

statute may be called in aid to explain what is doubtful in

another.”); State v. Casugay-Badiang, 130 Hawaiʻi 21, 27, 305

P.3d 437, 443 (2013) (same).        The words “greatest” and

“possible” define the high degree of medical assistance due an

injured employee.     The statute does not say merely “possible”

medical rehabilitation; nor does it state simply “employee’s

medical rehabilitation.”       Thus, aid that can provide the



     13
            The Merriam-Webster Online Dictionary definition of “necessary”
is “absolutely needed” or “required”—a stricter definition than merely
“needed.” Merriam–Webster’s Online Dictionary, http://www.merriam-
webster.com/dictionary/necessary (last visited Oct. 30, 2015).

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“greatest possible” medical rehabilitation for a claimant is

“reasonably needed” absent substantial evidence to the contrary.

           Viewed under the reasonably needed standard as

properly applied, LIRAB clearly erred because “the record lacks

substantial evidence to support the finding” that the

neuromonics device was not reasonably needed for Pulawa’s

greatest possible medical rehabilitation.          See In re Water Use

Permit Applications, 94 Hawaii at 119, 9 P.3d at 431.            Our court

has defined substantial evidence as “credible evidence which is

of sufficient quality and probative value to enable a person of

reasonable caution to support a conclusion.”           Id. (citations

omitted) (internal quotation mark omitted).           The reports of Dr.

Goodyear, Mauro, and Arora, credited by LIRAB, do not constitute

substantial evidence supporting a finding that the neuromonics

device was not reasonably needed to treat Pulawa’s tinnitus for

his greatest possible medical rehabilitation.           None of the three

opined that the device is not reasonably needed.            Dr. Goodyear

never explicitly mentioned the neuromonics device to reach his

conclusion that any further treatment would not lead to Pulawa

reporting an improvement in symptoms.         Dr. Mauro conceded he was

not aware of whether the device is an accepted standard of

treatment or whether it is available for Pulawa in Hawaii; and

his observation that he experienced little enthusiasm about the

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device’s utility in treating Pulawa’s tinnitus cannot qualify as

substantial evidence the device is not reasonably needed for

Pulawa’s greatest possible medical rehabilitation.            Finally,

while Dr. Arora expressed “serious doubt” that the use of the

neuromonics device “would be of any benefit,” without further

analysis, he merely agreed with Dr. Mauro that the device has

“questionable value and benefit.”         Significantly, the three

doctors had no experience with the device.

           In contrast, Dr. Shih’s opinion was based upon

experience with the neuromonics device and medical expertise

specifically related to studying and treating diseases and

disorders of the ear: otology and neurotology.           Pulawa was

referred by Dr. Patterson, the Director of the Casa Colina brain

injury treatment program, to Dr. Shih because she specialized in

otology and neurotology.       In her opinion, the neuromonics device

could be beneficial to treat Pulawa’s tinnitus, although it was

a relatively new treatment.14

           Thus, the ICA’s deference to LIRAB was based on a

false factual assumption that “there were varying opinions among

the physicians as to whether a Neuromonics device was

‘reasonably needed.’”      Pulawa, SDO, 2014 WL 5503365, at *2.          In

actuality, as discussed supra, no physician mentioned whether
     14
            Her recommendation was of such significance to Dr. Patterson that
he arranged to have Pulawa fitted for the device.

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the device was “reasonably needed;” nor did LIRAB address

whether the device was “reasonably needed.”

            The nature of Pulawa’s injury and his treatment

history also establish a need to augment, albeit with a new

method, 14 years of unsuccessful strategies to treat his

tinnitus.    After his traumatic brain injury, he underwent

rehabilitative therapy, medications with varying side effects,

injections in his neck, and a five month treatment regimen in

California without relief from his tinnitus.           He was also

treated for tinnitus with a noise-masking device to no avail.

Conventional, approved treatment regimens have thus failed.              A

new device designed to treat his ailment is now available as a

treatment option.

            Thus, properly applied—and based on the evidence

before LIRAB—the “reasonably needed” standard enumerated in HRS

§§ 386-21(a) and 386-24 compels a finding that Pulawa’s claim

for the neuromonics device be granted in order for him to attain

the “greatest possible medical rehabilitation.”

B.   The Record Lacks Substantial Evidence that Pulawa Is Stable
     and Able To Resume Work

            The Director and LIRAB determined that Pulawa was no

longer entitled to TTD payments because he is “capable of

resuming some form of full-time work.”          The statutory definition

of “able to resume work” requires that Pulawa’s injury
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“stabilized after a period of recovery” and that he “is capable

of performing work in an occupation for which [he] has received

previous training or for which [he] has demonstrated aptitude”

prior to the termination of TTD payments.          HRS § 386-1 (Supp.

2005).15   As discussed supra, LIRAB’s finding—affirmed by the

ICA—that Pulawa was not entitled to the neuromonics device was

clearly erroneous.      Based on the present posture of the record,

until Pulawa receives the opportunity for the greatest possible

medical rehabilitation with the neuromonics device, his benefits

should not be terminated.16       Accordingly, Pulawa is entitled to

reinstatement of TTD payments until he has had a reasonable

      15
            HRS § 386-31(b) (Supp. 2005) states that employers can terminate
TTD payments “upon order of the director or if the employee is able to resume
work.”
      16
            Dr. Scott McCaffrey, Pulawa’s treating physician at the time of
the hearing before LIRAB, testified that Pulawa was not medically stable due
to, inter alia, his tinnitus:

            Well I do not believe he is [medically stable] for the
            following reasons, we’re still working up his complaints
            and pains that he has in his neck and his low back and have
            found some structural damage to those two areas; areas
            which by the way I don’t think were addressed much in the
            many years prior to his coming to see us, because his
            primary injury was a very severe head injury as you know
            . . . above and beyond that he has ongoing significant
            complaints of ringing in his ears, or tinnitus, headaches,
            post injury headaches which may be implicated by the neck
            as well which is one reason we’re pursuing the neck cause
            [sic] it can drive headaches in addition to primary
            injuries to the skull. Also he’s been struggling with
            emotional problems related to the injury; I believe he’s
            got a traumatic brain injury picture where he’s not—he
            doesn’t think as well as he did and that plus the pain plus
            all the impairment has resulted in a depression[.]

(Emphasis added).

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opportunity to receive treatment for his tinnitus with the

neuromonics device and for any possible permanent partial

disability rating to be assessed.

                             IV.   Conclusion

           For the foregoing reasons, the ICA’s December 16, 2014

Judgment on Appeal and the November 2, 2011 Decision and Order

of the Labor and Industrial Relations Appeals Board are vacated.

The case is remanded to LIRAB for proceedings consistent with

this opinion.

Dan. S. Ikehara                    /s/ Mark E. Recktenwald
for petitioner
                                   /s/ Paula A. Nakayama
Brian G.S. Choy and
Keith M. Yonamine                  /s/ Sabrina S. McKenna
for respondents
                                   /s/ Richard W. Pollack

                                   /s/ Michael D. Wilson




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