Cabico v. Liberty Dialysis – Hawaii, LLC

Hawaii Intermediate Court of Appeals

Cabico v. Liberty Dialysis – Hawaii, LLC

503 P.3d 971, 150 Haw. 405

Hawaii Intermediate Court of Appeals·Decided February 23, 2022·No. CAAP-17-0000550·Published

Opinion

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 23-FEB-2022 07:44 AM Dkt. 114 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

LISA JOY T. CABICO, Claimant-Appellant, v.

LIBERTY DIALYSIS - HAWAII, LLC, Employer-Appellee, and

LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier-Appellee, and

SPECIAL COMPENSATION FUND, Appellee

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2015-023) (DCD NO. 2-11-00612)

SUMMARY DISPOSITION ORDER (By: Ginoza, Chief Judge, Leonard and McCullen, JJ.)

Claimant-Appellant/Appellant Lisa Cabico (Cabico), self-represented, appeals from the June 19, 2017 "Order Adopting Proposed Decision and Order" (Order) by the Labor and Industrial Relations Appeals Board (Board), which affirmed in part and modified in part the amended supplemental decision by the Director of the Department of Labor and Industrial Relations (Director) regarding Cabico's claims for workers' compensation benefits against Employer-Appellee/Appellee Liberty Dialysis- Hawaii (Liberty Dialysis), Insurance-Carrier/Appellee/Appellee

Liberty Mutual Insurance Company (Insurer), and Appellee/Appellee Special Compensation Fund (SCF).1 In its January 16, 2015 amended supplemental decision, the Director determined that due to a work injury, Cabico was entitled to, inter alia: additional temporary total disability (TTD) benefits from Liberty Dialysis from May 1, 2013, through November 14, 2014; additional TTD benefits from SCF from May 25, 2013, through June 12, 2013, and September 26, 2013, through November 12, 2013; and temporary partial disability (TPD) benefits from Liberty Dialysis from September 19, 2010, through April 30, 2013. Cabico appealed to the Board and the sole issue before the Board was whether she was entitled to TTD or TPD benefits from September 16, 2010, through March 30, 2013. In its Order, the Board affirmed in part the Director's finding that Cabico was entitled to TPD benefits from September 19, 2010, through March 30, 2013, and modified in part the Director's calculation of benefits payable by Liberty Dialysis and SCF.

On appeal,2 we discern that Cabico contends the Board erred in: (1) determining she was entitled to TPD as opposed to TTD; (2) finding she returned to work with "modified" instead of "light" duties; (3) allowing Liberty Dialysis to continue submitting documents beyond the discovery cutoff date; (4) adopting the calculation of Cabico's TPD benefits in the proposed decision and order; and (5) deciding on matters that were already binding on the parties.3

1 Members Melanie S. Matsui and Marie C. Laderta adopted in toto the proposed decision and order by the Hearings Officer for the Board, with a concurring opinion by Chair D.J. Vasconcellos.

2 We address issues raised by Cabico to the extent we can discern them from her opening brief and she provides cogent argument. We note her opening brief does not comply with Rule 28 of the Hawai#i Rules of Appellate Procedure (HRAP) in multiple ways, including that she does not specify where in the record she objected to the Board's purported errors or brought it to the Board's attention. HRAP Rule 28(b)(4). However, given that Cabico is self- represented, we endeavor to address the merits of her appeal to the extent possible. Schefke v. Reliable Collection Agency, Ltd., 96 Hawai#i 408, 420, 32 P.3d 52, 64 (2001).

3 Cabico also appears to generally assert that the Board violated her procedural due process rights, erred in considering the Director's January 16, (continued...)

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced, the issues raised by the parties, and the relevant legal authority, we resolve Cabico's points of error as follows and affirm.

A direct appeal from a Board decision is reviewed according to Hawai#i Revised Statutes (HRS) § 91-14(g), which provides in relevant part:

(g) 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;

(2) In excess of the statutory authority or jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

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

HRS § 91-14(g) (2012 and Supp. 2019).

Appeals taken from findings of fact set forth in decisions of the Board are reviewed under the clearly erroneous standard. Thus, this court considers whether such a finding is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. The clearly erroneous standard requires this court to sustain the Board's findings unless the court is left with a firm and definite conviction that a mistake has been made.

3 (...continued)

2015 amended supplemental decision and not the January 2, 2015 decision which Cabico appealed to the Board, and erred in finding she worked an "average" of five hour shifts although the concurring opinion by Chair Vasconcellos and the First Amended Affidavit of Mary Ann Whaley states that Cabico worked "approximately" five hours a day or twenty-five hours weekly. However, Cabico fails to provide any cogent argument on these assertions and thus these points are deemed waived. See Ass'n of Apt. Owners of Wailea Elua v. Wailea Resort Co., 100 Hawai#i 97, 110, 58 P.3d 608, 621 (2002) ("Where an appellant raises a point of error but fails to present any accompanying argument, the point is deemed waived.").

A conclusion of law is not binding on an appellate court and is freely reviewable for its correctness. Thus, this court reviews conclusions of law de novo, under the right/wrong standard.

Bumanglag v. Oahu Sugar Co., 78 Hawai#i 275, 281, 892 P.2d 468, 474 (1995) (brackets and ellipsis omitted) (quoting Tate v. GTE Hawaiian Tel. Co., 77 Hawai#i 100, 102-03, 881 P.2d 1246, 1248-49 (1994)).

(1) We understand the gist of Cabico's argument is that the Board erred in determining she was entitled to TPD under HRS § 386-32(b), as opposed to TTD under HRS § 386-31(b). This argument is without merit.

HRS § 386-31(b) (2015) provides, in pertinent part: (b) Temporary total disability. Where a work injury causes total disability not determined to be permanent in character, the employer, for the duration of the disability, but not including the first three calendar days thereof, shall pay the injured employee a weekly benefit at the rate of sixty-six and two-thirds per cent of the employee's average weekly wages . . . .

If an employee is unable to complete a regular daily work shift due to a work injury, the employee shall be deemed totally disabled for work for that day.

(Emphasis added.) Cabico apparently argues that based on the underlined portion of HRS § 386-31(b), she should be considered TTD for the days she was unable to complete her regular daily shift of eight hours and instead could only complete five hours of her shift. We do not read the statute in this manner. Rather, as set forth in HRS § 386-31(b), that section addresses "total disability not determined to be permanent[.]" (Emphasis added.)

The interpretation of a statute is a question of law reviewable de novo.

When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.

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