Ermocida v. Destination Resorts Hawaii, Inc.

126 P.3d 415, 109 Haw. 372, 2005 Haw. App. LEXIS 530
CourtHawaii Intermediate Court of Appeals
DecidedDecember 21, 2005
DocketNo. 26269
StatusPublished
Cited by1 cases

This text of 126 P.3d 415 (Ermocida v. Destination Resorts Hawaii, Inc.) is published on Counsel Stack Legal Research, covering Hawaii Intermediate Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ermocida v. Destination Resorts Hawaii, Inc., 126 P.3d 415, 109 Haw. 372, 2005 Haw. App. LEXIS 530 (hawapp 2005).

Opinion

Opinion of the Court by

FOLEY, J.

Claimant-Appellant Edward F. Ermocida (Ermocida) appeals the Decision and Order filed on November 25, 2003 by the Labor and Industrial Relations Appeals Board (LIR-AB). The LIRAB decided that the offset provision set forth in Hawaii Revised Statutes (HRS) § 386-33(a)(l) (Supp.2004)1 applied to Ermocida’s prior out-of-state permanent partial disability award.

On appeal,2 Ermocida claims the following: (1) the LIRAB erred as a matter of law when it determined that HRS § 386-33(a)(l) applied to out-of-state disability awards, and (2) the LIRAB should have granted summary judgment in favor of Ermocida because HRS § 386—33(a)(1) did not apply to out-of-state disability awards. We disagree and affirm.

I.

On December 29, 1982, Ermocida injured his lower back in California while employed as a truck driver for Conoco, Inc. (Conoco). The record before this court reveals little regarding the procedure Ermocida followed in California to obtain a workers’ compensa[374]*374tion award for this injury; however, the record does show that on October 1, 1985, Er-mocida and Conoco entered into “Stipulations [sic] with Request for Award” (the Stipulation) before the Workers’ Compensation Appeals Board of the State of California. The Stipulation stated that Ermocida’s on-the-job injury “caused permanent disability of 46%, for which indemnity is payable at $70.00 per week beginning 4 days after rehab TD ends, in the sum of $15,172.50, less credit for such payments previously made.”

On November 16, 2001, while employed by Destination Resorts Hawaii, Inc. (Destination Resorts) in Hawai'i, Ermocida again “sustained a personal injury to the low back by accident arising out of and in the course of employment.” Ermocida filed a workers’ compensation claim with Destination Resorts. Destination Resorts forwarded the claim to its workers’ compensation carrier, Brandvold Associates, Inc. (hereinafter, Destination Resorts and Brandvold Associates will collectively be known as Employer). A hearing before the State of Hawai'i Department of Labor and Industrial Relations, Disability Compensation Division (Disability Compensation Division) was convened on September 18, 2002 “to determine the nature and extent of [Ermocida’s] disability and to determine further liability for medical care.” At the hearing, Ermocida

acknowledge^] having sustained an earlier back injury, while employed in California, ón December 29, 1982. [Ermocida] state[d] that, although he was awarded $15,172.50 for 46% permanent disability resulting from that accident, this cannot be deducted from his award for permanent disabilityf ] on this case[ ] because the 1982 injury did not occur in Hawaii. [Er-mocida] specifically state[d] that awards for injury in California cannot be compared with those for injuries which occur in Hawaii, because the California average weekly wages, and their method of calculating benefits, is [sic] different from that utilized in Hawaii.

On October 15, 2002, the Director of the Disability Compensation Division filed a Decision, in which the Director determined that Ermocida

suffered 15% permanent partial disability of the whole person, following this accident. Although the claimant suffered an earlier work injury, that injury occurred in the state of California and was not covered by Chapter 386, HRS. It is, therefore, determined that the offset provisions of Section 386-33(1), HRS, do not apply in this case.

The Director decided that “[p]ursuant to Section 386-32(a) [(Supp.2004)3], HRS, said employer shall pay to claimant weekly compensation of $346.68 for 15% permanent partial disability of the whole person beginning November 17, 2001, for 73.8422 weeks, for a [375]*375total of $25,599.60.” (Footnote not in original.)

On October 18, 2002, Employer filed an appeal to the LIRAB from the October 15, 2002 Decision. On October 31, 2002, Employer filed a Motion for Partial Stay of Payments with the LIRAB. In its motion, Employer argued that (1) the plain language of HRS § 386-33(a)(l) required that Ermoci-da’s permanent partial disability award be offset by the amount of his prior compensa-ble injury and (2) the LIRAB should ascertain and give effect to the legislature’s intent in enacting HRS § 386-33(a)(l).

On November 12, 2002, Ermoeida filed his opposition memorandum to the Motion for Partial Stay of Payments. In his memorandum, Ermoeida argued that (1) Employer failed to demonstrate that Destination Resorts would suffer irreparable damage and failed to make a strong showing that Destination Resorts would most likely prevail on the merits and (2) the Department of Labor would exceed its jurisdiction if it were to offset an out-of-state permanent partial disability award from a Hawaii compensable work injury. On November 15, 2002, the LIRAB granted Employer’s Motion for Partial Stay of Payments.

On October 15, 2003, Employer filed a Motion for Summary Judgment before the LIRAB. In its motion, Employer argued that “the plain language of HRS § 386-33(a)(1) makes it clear that Claimant’s permanent partial disability award must be offset by the amount of his previous California award.” Employer also argued that the LIRAB should give effect to the Hawaii legislature’s intent in enacting HRS § 386-33(a)(1). In support of the latter argument, Employer noted that

HRS § 386-33(a)(l) was part of a major workers’ compensation reform enacted by the Hawaii State Legislature in 1995. This section was part of H.B. No. 2133 entitled “A BILL FOR AN ACT RELATING TO WORKERS’ COMPENSATION REFORM.” The Conference Committee Report No. 112, dated April 28[,] 1995 provided in pertinent part:
The purpose of this bill is to amend Hawaii’s workers’ compensation and in-suranee laws to improve efficiency and cost-effectiveness in the workers’ compensation system. (Emphasis added.)
Amongst the various reforms was the offset provision[,] and the Conference Committee Report No. 112 provided in pertinent part:
For cases on or after July 1, 1995, providing that in successive injury cases where the claimant’s entire permanent partial disability is due to more than one compensable injury, the offset of the award for the subsequent injury be offset by the amount awarded for the prior compensable injury. (Emphasis added.)

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Related

Ermocida v. Destination Resorts Hawai'i, Inc.
128 P.3d 891 (Hawaii Supreme Court, 2006)

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126 P.3d 415, 109 Haw. 372, 2005 Haw. App. LEXIS 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ermocida-v-destination-resorts-hawaii-inc-hawapp-2005.