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Hawaiian worker injured 19 years ago to get new hearing on benefits

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A construction supervisor who suffered a traumatic brain injury is entitled to undergo a “relatively new” treatment for his tinnitus and to collect temporary total disability benefits, the Hawaii Supreme Court has ruled.

Benjamin Pulawa III was a construction supervisor for Oahu Construction Co. Ltd., court records show. In August 1996, he was struck in the head by a 12- by 6-inch rock that cracked his hard hat and fractured his skull.

Mr. Pulawa now suffers from severe headaches, depression and tinnitus, causing him to “hear ringing or other sounds in the ear when no external sound is present,” according to records. He hasn't returned to work since the accident.

After undergoing a surgery and spending more than two weeks in the hospital, he was transferred to a rehabilitation hospital, where he received physical, occupational and speech therapy, records show. He continued outpatient therapy on a monthly basis for about two years.

Mr. Pulawa's treating physician said he was an acceptable candidate for a brain injury treatment program. However, Oahu Construction challenged the treatment, delaying his admission for six years, according to records.

The director of the Disability Compensation Division of the Hawaii Department of Labor and Industrial Relations eventually approved the treatment, and Mr. Pulawa participated in the program from September 2007 to February 2008, records show.

A specialist at the treatment center recommended that Mr. Pulawa take advantage of "a relatively new tinnitus treatment which may be beneficial,” according to records. The “listening device … incorporates a neural stimulus into music to interrupt and desensitize the brain from continued perception of (tinnitus).”

Rather than authorizing the device, Oahu Construction requested two independent medical evaluations and a vocational rehabilitation assessment to update Mr. Pulawa's workers comp disability status, records show.

The physicians agreed that Mr. Pulawa is capable of gainful employment but not as a construction supervisor, according to records.

Based on the evaluations, Oahu Construction denied Mr. Pulawa's request for the listening device and sought to terminate his total temporary disability benefits no later than Dec. 30, 2008, records show.

On appeal, the director of the Department of Labor and Industrial Relations, Disability Compensation Division, determined in March 2009 that Mr. Pulawa wasn't entitled to the device, according to records. The director also said Mr. Pulawa's total temporary disability benefits would stop as of Dec. 16, 2008, since physicians determined he was capable of returning to work.

Mr. Pulawa appealed again, leading Oahu Construction to request an additional independent medical evaluation, records show.

The physician determined that Mr. Pulawa's condition was medically stable and eligible for a permanent disability rating because his symptoms had remained unchanged for several years, according to records.

Like the other independent medical reviewers, the physician also said “motivation was an important factor” since Mr. Pulawa "is probably making more money now than he would if he returned to some type of modified employment,” records show.

The Labor and Industrial Relations Appeals Board in November 2011 denied the listening device and terminated Mr. Pulawa's total temporary disability benefits. He appealed to the Intermediate Court of Appeals, which affirmed the board's decision.

The case made its way to the Hawaii Supreme Court, which ruled Wednesday that the board and the Intermediate Court of Appeals erred in determining that Mr. Pulawa wasn't entitled to the device or temporary total disability benefits.

“An employee is entitled to reasonably needed medical care after a work-related injury,” the ruling states. “The term 'reasonably needed' is not defined by statute, but it is less restrictive than the 'reasonable and necessary' standard … 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.”

Though Mr. Pulawa was "capable of resuming some form of full-time work," he is entitled to temporary total disability benefits “until he has had a reasonable opportunity to receive treatment for his tinnitus with the (listening) device and for any possible permanent partial disability rating to be assessed.”

The case has been remanded to Labor and Industrial Relations Appeals Board for proceedings consistent with the Hawaii Supreme Court's opinion.