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Cabatbat v. County of Hawaii11/4/2003
FOR PUBLICATION
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 Hawaii 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). We hold further that Hawaii Administrative Rule (HAR) ยง 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.
I.
On January 25, 1994, while driving a County of Hawaii van in the course of his employment as a pipefitter with Employer-Appellee County of Hawaii, 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. 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. 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" [hereinafter, Recommended Guide], and the AMA Guides.
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.
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 clarifica
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