Novak v. County of Hawai'i

CourtHawaii Intermediate Court of Appeals
DecidedSeptember 18, 2025
DocketCAAP-23-0000527
StatusPublished

This text of Novak v. County of Hawai'i (Novak v. County of Hawai'i) 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
Novak v. County of Hawai'i, (hawapp 2025).

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-SEP-2025 08:33 AM Dkt. 47 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

LAYNE NOVAK, Claimant-Appellant-Appellant, v. COUNTY OF HAWAIʻI, DEPARTMENT OF INFORMATION TECHNOLOGY, Employer-Appellee-Appellee, Self-Insured, and COUNTY OF HAWAIʻI, WORKERS' COMPENSATION DIVISION, Adjuster-Appellee-Appellee.

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2023-090(H); DCD NO. 1-2023-303133)

SUMMARY DISPOSITION ORDER (By: Nakasone, Chief Judge, Hiraoka and McCullen, JJ.)

Self-represented Claimant-Appellant-Appellant Layne

Novak appeals from the Labor and Industrial Relations Appeals

Board's (LIRAB) September 6, 2023 Amended Decision and Order

dismissing Novak's appeal to LIRAB for lack of jurisdiction. On

appeal, Novak challenges LIRAB's dismissal for lack of

jurisdiction. We vacate in part, and remand for further

proceedings consistent with this summary disposition order.

As relevant to this appeal, Novak filed a claim for

injuries resulting from an April 19, 2023 incident. Employer- NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Appellee-Appellee, County of Hawai‘i, Department of Information

Technology, notified Novak of scheduled appointments with its

chosen physician for a medical evaluation (namely, a

psychometric test and clinical interview). Novak responded she

would not attend the scheduled appointments and that she had

chosen another doctor to complete an independent medical

examination (IME) for her injury. Employer moved for an order

to compel the medical evaluation.

The Director of the Department of Labor and Industrial

Relations granted the motion. Pursuant to Hawai‘i Revised

Statutes (HRS) § 386-79 (Supp. 2019), 1 the Director ordered Novak

1 HRS § 386-79(a) provides:

Medical examination by employer's physician. (a) After an injury and during the period of disability, the employee, whenever ordered by the director of labor and industrial relations, shall submit to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer. The employee shall have the right to have a physician, surgeon, or chaperone designated and paid by the employee present at the examination, which right, however, shall not be construed to deny to the employer's physician the right to visit the injured employee at all reasonable times and under all reasonable conditions during total disability. . . .

If an employee refuses to submit to, or the employee or the employee's designated chaperone in any way obstructs such examination, the employee's right to claim compensation for the work injury shall be suspended until the refusal or obstruction ceases and no compensation shall be payable for the period during which the refusal or obstruction continues.

(Emphasis added.)

2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

to submit to the medical evaluation. The order stated, "This

Order is not appealable."

Novak appealed to LIRAB, asserting the language "This

Order is not appealable" was unlawful. LIRAB ordered the

parties to show cause why the appeal "should not be dismissed

for lack of jurisdiction[,]" citing Hawai‘i Administrative Rules

(HAR) § 12-10-75 (eff. 1985, amended 1994). 2 Novak relied in

part on Gour v. Honsador Lumber, LLC, 134 Hawai‘i 99, 332 P.3d

701 (App. 2014). Employer did not address Gour.

In its Amended Decision and Order, LIRAB concluded

"[u]nder HAR § 12-10-75(c), the Director's order compelling the

injured employee to appear for a medical examination is not

2 HAR § 12-10-75 provides in pertinent part:

Medical examination orders and reports. (a) Orders requiring the injured employee to appear for examination by the physician of the employer's choosing may be issued by the director.

. . . .

(c) The director, upon review of the case file and without necessity of hearing, and upon finding that the examination will assist in the expedient disposition of the case or in determining the need for or sufficiency of medical care or rehabilitation, shall issue a medical examination order. The order shall not be appealable and will inform the claimant that compensation may be suspended for failure to submit to the examination without good cause. The injured employee may be responsible for a reasonable no-show fee not to exceed $250 charged by the physician.

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appealable." 3 Among other things, LIRAB dismissed the appeal for

lack of jurisdiction. Novak appealed.

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve this

appeal as discussed below and vacate and remand.

On appeal to this court, Novak challenges LIRAB's

dismissal for lack of jurisdiction. 4 Novak again relies in part

on Gour.

3 LIRAB also concluded it had no jurisdiction to determine the validity of an administrative rule, namely HAR § 12-10-75(c). Novak does not appear to challenge this conclusion in her points of error.

4 Novak asserts fourteen points of error:

1. "The County violated Novak's access to equal protection"; 2. "The LIRAB does have jurisdiction in the current case"; 3. "Novak appealed the LIRAB's Decision and Order dated June 30, 2023"; 4. "The County required the [sic] Novak to submit to five IMEs"; 5. "Novak submitted an appeal to LIRAB on April 4, 2023"; 6. "LIRAB did not hear any of the [sic] Novak's cases de novo"; 7. "The County provided primary care service to Novak and denied all other treatments as requested by Dr. Carol Orr"; 8. "The County submitted a motion to dismiss the appeal to the ICA"; 9. "LIRAB shall have jurisdiction to determine if the [sic] Novak is compelled to attend, yet another, IME"; 10. "The County refused to pay for [certain] services, claiming that services were not authorized"; 11. "The County refused to pay for [certain] services, claiming that services were not authorized"; 12. "The State and County violated Novak's constitutional rights by not adhering to laws, statutes, procedures, etc., in providing medical care for my disability"; 13. "County failed to provide all documents related to Novak's case"; and 14. "Treatment plan denials submitted to Novak, her attorney and Dr. Orr did not follow the rule of law (Exhibit 27)."

Because Novak's challenge to LIRAB's dismissal for jurisdiction is dispositive, we need not reach the remaining points of error.

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In Gour, the employer informed the employee of a

scheduled independent psychological examination. 134 Hawai‘i at

100, 332 P.3d at 702. When employee failed to appear, employer

sought and obtained an order compelling him to undergo an

independent psychological examination. Id.

The employee again failed to appear. 134 Hawai‘i at

101, 332 P.3d at 703. The Director issued another decision

deferring determination of compensability until the employee

complied with the order to submit to examination. Id.

The employee appealed to LIRAB. Id. LIRAB dismissed

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Related

Gour v. Honsador Lumber, LLC
332 P.3d 701 (Hawaii Intermediate Court of Appeals, 2014)

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Novak v. County of Hawai'i, Counsel Stack Legal Research, https://law.counselstack.com/opinion/novak-v-county-of-hawaii-hawapp-2025.