Tam v. Permanente2/8/2001
at the LIRAB's decision to deny her requested subpoena was not arbitrary and was supported by the record, see Bank of Hawaii v. Shaw, 83 Hawaii 50, 59 924 P.2d 544, 553 (App. 1996) ("On review, the action of a trial court in enforcing or quashing the subpoena will be disturbed only if plainly arbitrary and without support in the record.") (Citations omitted.); and (5) that, even though the LIRAB erred in failing to give retrospective effect to the June 29, 1995 amendment to HRS § 386-79, see supra note 1, the error was harmless, inasmuch as the reasons given by the Director for ordering the repeated medical examination were related to "the medical progress of [Tam's] treatment." Accordingly, we affirm the LIRAB's decision and order.
I. BACKGROUND
On December 14, 1990, Tam was employed as a registered nurse in the inpatient nursing department of Kaiser Foundation Hospital. On that day, Tam sustained a lower back injury at work when she slipped and almost fell off a high stool. Initially, the symptoms did not appear to be serious, but within a few days the pain in Tam's lower back and right leg became severe. Tam first saw a Kaiser physician in connection with her injury on December 22, 1990. She was off work commencing January 1, 1991 and continued to receive medical treatment, first from Kaiser physicians and later from an independent physician.
Kaiser accepted liability for Tam's injury in its "Employer's Report of Industrial Injury," Department of Labor and Industrial Relations (DLIR) Form WC-1, filed on January 22, 1991. Tam began receiving physical therapy on March 28, 1991. She returned to work on May 26, 1991, but the activity of pushing and pulling cribs, which entailed frequent bending, aggravated her condition, and she was off work again by the end of July 1991. On August 28, 1991, she attempted working as a quality assurance nurse, but the prolonged sitting required by that position aggravated her symptoms. The progress of Tam's physical therapy and treatment was slow and, in a letter to Kaiser dated March 30, 1992, Tam's physician opined that she would not be able to return to her previous job.
On June 3, 1992, Kaiser informed Tam that it wished to exercise its prerogative, pursuant to HRS § 386-79 (1993), see supra note 1, to have her examined by a physician of its choice. On June 12, 1992, Tam's physician noted that her condition was improving, but that she (1) was unable to lift over ten pounds, (2) was uncomfortable (a) sitting or standing for any prolonged period of time or (b) repeatedly bending or reaching, and (3) had begun to receive vocational rehabilitation services. On her physician's recommendation, Tam's physical therapy was discontinued on June 18, 1992. On June 13, 1992, Kaiser requested that the DLIR issue a medical examination order, pursuant to HAR Rule 12-10-75, see supra note 2, to compel Tam to appear for an examination to be performed by Herbert K.N. Luke, M.D., on August 5, 1992. Kaiser stated that " e are requesting issuance of [a medical examination] order to determine if the employee's medical condition has stabilized." The DLIR issued the requested order on July 7, 1992.
On August 20, 1992, at her attorney's behest, Tam was examined by Thomas H. Sakoda, M.D., for the purpose of obtaining a permanent impairment rating for her back injury. Dr. Sakoda noted that his initial findings were varied and inaccurate due to the fact that Tam's pain gradually increased during testing and her motor capacity was limited. However, her condition stabilized over the course of the examination, producing results that were sufficiently consistent to satisfy Dr. Sakoda. Based on these results, Dr. Sakoda rated Tam's overall impairment in c
Page 1 2 3 4 5 6 7 8 Hawaii Employee Leasing Services
Employee Leasing Services
|