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Tam v. Permanente2/8/2001
ing the law in effect as of April 13, 1995: "As the employer is entitled to have the claimant examined by a physician for purposes of determining permanent impairment, at the time of said report [sic -- order?], the mechanism of [a medical examination] order was the proper method for affirming the employer's rights." The LIRAB's decision and order expressly referred to the version of HRS § 386-79 in effect on April 13, 1995 in affirming, on de novo review, the validity of the Director's medical examination order issued on that date. HRS § 386-79, as amended, being remedial and procedural in nature, the Director and the LIRAB erred in failing to consider whether the order was supported by "good and valid reasons" pertaining to "the medical progress of [Tam's] treatment" and to enter findings of fact accordingly.
Nevertheless, in his September 19, 1995 order, the Director expressly ruled that "the employer [i.e., Kaiser] is entitled to have the claimant [i.e., Tam] examined by a physician [i.e., Dr. Nicholson] for purposes of determining permanent impairment[.]" The LIRAB's September 3, 1999 decision and order, which affirmed the Director, expressly stated that "the purpose of the examination with Dr. Nicholson was to . . . obtain a permanent impairment rating so as to address the issue of permanent disability[.]" In 1993, the Director had previously denied Kaiser's request to resolve the extent of Tam's permanent disability, finding the request to be premature. We have recognized the proposition, as a general matter, that " ermanent disability is . . . not determined until an injured worker's medical condition has stabilized." Bocalbos, 89 Hawaii at 442, 974 P.2d at 1032. It is therefore apparent that, as of 1993, the Director did not view Tam's current medical condition as being sufficiently stable to adjudicate her permanent partial disability and close the case. Accordingly, and of necessity, the Director's April 13, 1995 medical examination order related to the question whether Tam's medical condition had sufficiently changed between 1993 and 1995 to warrant a final decision regarding Tam's permanent partial disability. That being the case, we hold that the LIRAB's failure to apply HRS § 386-79, as amended, in its September 3, 1999 decision and order constituted harmless error, insofar as the record, on its face, reflects that the reason for the 1995 medical examination ordered by the Director related directly "to the medical progress of [Tam's] treatment" in accordance with the mandate of the amended statute. Cf. Tate, 77 Hawaii at 107-08, 881 P.2d at 1253-54 (LIRAB's failure to acknowledge statutory presumption of compensability of workers' compensation claim did not constitute reversible error when the record reflected that presumption had been rebutted).
IV. CONCLUSION
Based on the foregoing analysis, we affirm the LIRAB's decision and order.
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