NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 06-JUN-2024 07:50 AM Dkt. 89 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
ROXANNE K. LANE, Claimant-Appellant-Appellant, v. AVIS BUDGET GROUP, INC., Employer-Appellee-Appellee, and FIRMS CLAIMS SERVICES, Insurance Adjuster-Appellee-Appellee
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2017-06; DCD NO. 2-14-48809)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.)
Claimant-Appellant-Appellant Roxanne K. Lane (Lane or
Claimant) appeals from: (1) the November 26, 2019 Decision and
Order (November 26, 2019 Order) issued by the Department of Labor
and Industrial Relations Appeals Board (LIRAB or Board), in favor
of Employer-Appellee-Appellee Avis Budget Group, Inc. (Avis) and
Insurance Adjuster-Appellee-Appellee Firms Claims Services; and
(2) from the Board's January 22, 2020 Order Denying Motion for
Reconsideration (Order Denying Reconsideration).
Lane raises two points of error on appeal, contending
that the LIRAB erred by: (1) failing to properly apply the NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
presumption of compensability under Hawaii Revised Statutes (HRS)
§ 386-85(1) (2015);1 and (2) denying Lane's Motion for
Reconsideration.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Lane's points of error as follows:
(1) The central issue in this appeal is whether Avis
met its burden and presented substantial evidence to overcome the statutory presumption in favor of compensability for an injury to
Lane's nose. More specifically at issue here is whether the
Board's FOFs and COLs are supported by substantial evidence, and
not clearly erroneous in light of the evidence adduced, as well
as whether this evidence satisfies Avis's burden.
Substantial evidence "signifies a high quantum of
evidence which, at the minimum, must be relevant and credible
evidence of a quality and quantity sufficient to justify a
conclusion by a reasonable person[.]" Yadao v. Dep't of Land and
Nat. Res., 137 Hawai#i 162, 173, 366 P.3d 1041, 1052 (App. 2016)
(brackets and internal quotation marks omitted) (quoting Nakamura
v. State, 98 Hawai#i 263, 267-68, 47 P.3d 730, 734-35 (2002)).
"The [Hawai#i Supreme Court] has recognized that the high burden
placed on the employer is consistent with the purpose of the
workers' compensation law." Id. (citing Van Ness v. Dep't of
Educ., 131 Hawai#i 545, 558, 319 P.3d 464, 477 (2014)).
1 In conjunction with this point of error, Lane challenges Findings of Fact (FOFs) 7-12, 14-17, 19, and 20, the Board's analysis, Conclusion of Law (COL) 4, and Order 3.
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
"Furthermore, the supreme court has recognized that
'generalized' medical testimony concerning the cause of an injury
is insufficient to rebut the presumption of compensability." Id.
at 174, 366 P.3d at 1053 (citing Nakamura, 98 Hawai#i at 268, 47
P.3d at 735; Akamine v. Hawaiian Packing & Crating Co., 53 Haw.
406, 410-12, 495 P.2d 1164, 1167-68 (1972)).
Here, the challenged FOFs, COL, analysis, and Order
were supported by medical reports by Dr. Leonard N. Cupo (Dr.
Cupo) and Dr. Vern K. Sasaki (Dr. Sasaki), whose reports are
clearly relevant. The Board found both doctors to be credible.
We conclude that the quantity and the quality of the reports are
sufficient to meet the high burden placed on Avis, as the
employer here, to overcome the strong presumption of
compensability in favor of Lane with respect to her assertion
that she broke her nose in the October 26, 2014 work place
accident.
Dr. Cupo examined Claimant on January 13, 2015,
reviewed her previous medical history, and completed his report
on February 28, 2015. Dr. Cupo stated, in part: In closing, [Lane] has a nasal fracture, which was diagnosed at Kapiolani Medical Center for Women and Children Emergency Room on 11/2/14 by Dr. Tom. [Lane] has attributed the fracture of the nasal bone to the motor vehicle accident of 10/26/14. It is my medical opinion that the fracture of the nasal bone bears no relationship to and was not caused, aggravated, or accelerated by the motor vehicle accident of 10/26/14. I base this on the fact that when [Lane] was evaluated at Pali Momi Medical Center Emergency Room [( Pali Momi)]on the date of the motor vehicle accident of 10/26/14, she did not complain of nasal pain or demonstrate an abnormality on physical examination of the nose, such as edema, ecchymosis, or tenderness. If [Lane] had sustained trauma resulting in a nasal fracture at the time of the motor vehicle accident of 10/26/14, she would have been acutely and markedly symptomatic when she was initially evaluated the same day at Pali Momi Medical Center Emergency Room by Ms. Della and Dr. Nguyen. I base this on the fact that Dr. Chan did not record a diagnosis related to the
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
employee's nose in the Physician Work Activity Status Report of 10/27/14.
(Emphasis added).
Dr. Sasaki examined Lane on July 6, 2017, reviewed
her previous medical history, and published a report on his
findings dated October 16, 2017. At the time of her examination,
Claimant complained of nasal pain, obstruction, and increased
sinus pressure. Dr. Sasaki concluded, in part: DIAGNOSTIC IMPRESSION: NASAL FRACTURE.
FINDINGS AND RECOMMENDATIONS:
1. The diagnoses, etiology and prognosis of Claimant's current nose injury. The diagnosis is noted in the Diagnostic Impression section above. Based on the history, physical examination, and review of medical records, clinical findings of a nasal fracture were first apparent at a visit to Pali Momi Medical Center - Emergency Room on 11/02/14, approximately one week post injury. The medical examinations on 10/26/14, 10/27/14, and 10/29/14 by the Pali Momi Medical Center - Emergency Room, Concentra Medical Centers, and Jack Hsieh, M.D., respectively, did not reveal any findings of a nasal fracture or complaints of nose pain or swelling. The medical examination by Dr. Hsieh revealed a normal nose examination. Therefore, the nasal fracture occurred sometime after 10/29/14 and before 11/02/14 when her nasal fracture was diagnosed in the Emergency Room. One would expect clinical findings of bruising, swelling, or epistaxis (bloody nose) if there was a history of acute trauma related to a nasal fracture. The force required to cause a nasal fracture would be a significant amount of force with clinical symptoms apparent almost immediately. These clinical symptoms were absent on the day of the injury and a few days following the injury, which supports my opinion that the injury occurred sometime after the date of injury and before 11/02/14 when the nasal fracture was first diagnosed.
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 06-JUN-2024 07:50 AM Dkt. 89 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
ROXANNE K. LANE, Claimant-Appellant-Appellant, v. AVIS BUDGET GROUP, INC., Employer-Appellee-Appellee, and FIRMS CLAIMS SERVICES, Insurance Adjuster-Appellee-Appellee
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2017-06; DCD NO. 2-14-48809)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.)
Claimant-Appellant-Appellant Roxanne K. Lane (Lane or
Claimant) appeals from: (1) the November 26, 2019 Decision and
Order (November 26, 2019 Order) issued by the Department of Labor
and Industrial Relations Appeals Board (LIRAB or Board), in favor
of Employer-Appellee-Appellee Avis Budget Group, Inc. (Avis) and
Insurance Adjuster-Appellee-Appellee Firms Claims Services; and
(2) from the Board's January 22, 2020 Order Denying Motion for
Reconsideration (Order Denying Reconsideration).
Lane raises two points of error on appeal, contending
that the LIRAB erred by: (1) failing to properly apply the NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
presumption of compensability under Hawaii Revised Statutes (HRS)
§ 386-85(1) (2015);1 and (2) denying Lane's Motion for
Reconsideration.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Lane's points of error as follows:
(1) The central issue in this appeal is whether Avis
met its burden and presented substantial evidence to overcome the statutory presumption in favor of compensability for an injury to
Lane's nose. More specifically at issue here is whether the
Board's FOFs and COLs are supported by substantial evidence, and
not clearly erroneous in light of the evidence adduced, as well
as whether this evidence satisfies Avis's burden.
Substantial evidence "signifies a high quantum of
evidence which, at the minimum, must be relevant and credible
evidence of a quality and quantity sufficient to justify a
conclusion by a reasonable person[.]" Yadao v. Dep't of Land and
Nat. Res., 137 Hawai#i 162, 173, 366 P.3d 1041, 1052 (App. 2016)
(brackets and internal quotation marks omitted) (quoting Nakamura
v. State, 98 Hawai#i 263, 267-68, 47 P.3d 730, 734-35 (2002)).
"The [Hawai#i Supreme Court] has recognized that the high burden
placed on the employer is consistent with the purpose of the
workers' compensation law." Id. (citing Van Ness v. Dep't of
Educ., 131 Hawai#i 545, 558, 319 P.3d 464, 477 (2014)).
1 In conjunction with this point of error, Lane challenges Findings of Fact (FOFs) 7-12, 14-17, 19, and 20, the Board's analysis, Conclusion of Law (COL) 4, and Order 3.
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
"Furthermore, the supreme court has recognized that
'generalized' medical testimony concerning the cause of an injury
is insufficient to rebut the presumption of compensability." Id.
at 174, 366 P.3d at 1053 (citing Nakamura, 98 Hawai#i at 268, 47
P.3d at 735; Akamine v. Hawaiian Packing & Crating Co., 53 Haw.
406, 410-12, 495 P.2d 1164, 1167-68 (1972)).
Here, the challenged FOFs, COL, analysis, and Order
were supported by medical reports by Dr. Leonard N. Cupo (Dr.
Cupo) and Dr. Vern K. Sasaki (Dr. Sasaki), whose reports are
clearly relevant. The Board found both doctors to be credible.
We conclude that the quantity and the quality of the reports are
sufficient to meet the high burden placed on Avis, as the
employer here, to overcome the strong presumption of
compensability in favor of Lane with respect to her assertion
that she broke her nose in the October 26, 2014 work place
accident.
Dr. Cupo examined Claimant on January 13, 2015,
reviewed her previous medical history, and completed his report
on February 28, 2015. Dr. Cupo stated, in part: In closing, [Lane] has a nasal fracture, which was diagnosed at Kapiolani Medical Center for Women and Children Emergency Room on 11/2/14 by Dr. Tom. [Lane] has attributed the fracture of the nasal bone to the motor vehicle accident of 10/26/14. It is my medical opinion that the fracture of the nasal bone bears no relationship to and was not caused, aggravated, or accelerated by the motor vehicle accident of 10/26/14. I base this on the fact that when [Lane] was evaluated at Pali Momi Medical Center Emergency Room [( Pali Momi)]on the date of the motor vehicle accident of 10/26/14, she did not complain of nasal pain or demonstrate an abnormality on physical examination of the nose, such as edema, ecchymosis, or tenderness. If [Lane] had sustained trauma resulting in a nasal fracture at the time of the motor vehicle accident of 10/26/14, she would have been acutely and markedly symptomatic when she was initially evaluated the same day at Pali Momi Medical Center Emergency Room by Ms. Della and Dr. Nguyen. I base this on the fact that Dr. Chan did not record a diagnosis related to the
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
employee's nose in the Physician Work Activity Status Report of 10/27/14.
(Emphasis added).
Dr. Sasaki examined Lane on July 6, 2017, reviewed
her previous medical history, and published a report on his
findings dated October 16, 2017. At the time of her examination,
Claimant complained of nasal pain, obstruction, and increased
sinus pressure. Dr. Sasaki concluded, in part: DIAGNOSTIC IMPRESSION: NASAL FRACTURE.
FINDINGS AND RECOMMENDATIONS:
1. The diagnoses, etiology and prognosis of Claimant's current nose injury. The diagnosis is noted in the Diagnostic Impression section above. Based on the history, physical examination, and review of medical records, clinical findings of a nasal fracture were first apparent at a visit to Pali Momi Medical Center - Emergency Room on 11/02/14, approximately one week post injury. The medical examinations on 10/26/14, 10/27/14, and 10/29/14 by the Pali Momi Medical Center - Emergency Room, Concentra Medical Centers, and Jack Hsieh, M.D., respectively, did not reveal any findings of a nasal fracture or complaints of nose pain or swelling. The medical examination by Dr. Hsieh revealed a normal nose examination. Therefore, the nasal fracture occurred sometime after 10/29/14 and before 11/02/14 when her nasal fracture was diagnosed in the Emergency Room. One would expect clinical findings of bruising, swelling, or epistaxis (bloody nose) if there was a history of acute trauma related to a nasal fracture. The force required to cause a nasal fracture would be a significant amount of force with clinical symptoms apparent almost immediately. These clinical symptoms were absent on the day of the injury and a few days following the injury, which supports my opinion that the injury occurred sometime after the date of injury and before 11/02/14 when the nasal fracture was first diagnosed.
In short, Dr. Cupo opined that, if Lane's nose was
broken in the workplace accident, she would have been "acutely
and markedly" symptomatic when she got to Pali Momi. Dr. Sasaki
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
also opined that the force necessary to cause a broken nose would
cause apparent clinical symptoms almost immediately. Lane did
not complain to Pali Momi doctors' staff about nasal pain, and
examination did not reveal fracture, pain, swelling or bruising.
Both doctors opined that in their medical opinions, the injury to
Lane's nose occurred after the date of the workplace injury.
We conclude that the LIRAB did not clearly err in
crediting the doctors' opinions, which specifically, directly,
and expressly address the presumption that Lane injured her nose in the October 26, 2014 workplace accident. Accordingly, we
further conclude that the LIRAB did not err or abuse its
discretion in entering the November 26, 2019 Order.
(2) Lane challenges the LIRAB's January 22, 2020 Order
Denying Reconsideration, but makes no argument in support of this
point of error. This argument is deemed waived. See Hawai#i
Rules of Appellate Procedure Rule 28(b)(7).
Moreover, "it has been consistently held that
rehearings before administrative bodies are addressed to their
own discretion, and only a showing of the clearest abuse of
discretion could sustain an exception to that rule." Yadao, 137
Hawai#i at 171, 366 P.3d at 1050 (citation and brackets omitted).
5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
For these reasons, the LIRAB's November 26, 2019 Order
and the January 22, 2020 Order Denying Reconsideration are
affirmed.
DATED: Honolulu, Hawai#i, June 6, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Michael J.Y. Wong, for Claimant-Appellant- /s/ Clyde J. Wadsworth Appellant. Associate Judge
Leighton K. Oshima, /s/ Karen T. Nakasone Darlene Y.F. Itomura, Associate Judge for Employer-Appellee- Appellee.