NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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 Employer- NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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.
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
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.
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
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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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.
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
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.
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
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
the appeal as "'[t]here is no appealable decision or final order
because compensability remains undetermined.'" Id. The
employee appealed to this court. Id.
On appeal, this court explained HRS § 91-14(a) governs
review of a LIRAB decision. 134 Hawai‘i at 102, 332 P.3d at 704.
This court held "the LIRAB was required to exercise jurisdiction
over [the employee's] appeal because the LIRAB's failure to
review the Director's Decision until the entry of a final
decision on [the employee's] entitlement to benefits will
deprive [him] of adequate relief." Id. at 103, 332 P.3d at 705.
This court vacated LIRAB's decision and remanded the case for
further proceedings. Gour, 134 Hawai‘i at 103, 332 P.3d at 705.
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Similar to Gour, Novak challenges the Director's order
compelling a medical examination. See 134 Hawai‘i at 100-01, 332
P.3d at 702-03. LIRAB dismissed Novak's appeal for lack of
jurisdiction, relying on HAR § 12-10-75's language that an order
compelling a medical examination is not appealable. HAR § 12-
10-75 was in effect when Gour was decided. See HAR § 12-10-75;
Gour, 134 Hawai‘i 99, 332 P.3d 701. HAR § 12-10-75 was
promulgated to effectuate HRS § 386-79. 5 See HAR § 12-10-75.
But nothing in HRS § 386-79 indicates the Director's order
compelling a medical examination is not an appealable order.
Following Gour, we hold LIRAB has jurisdiction over
Novak's appeal. See Gour, 134 Hawai‘i at 103, 332 P.3d at 705;
see generally Suzuki v. Am. Healthways, Inc., 153 Hawai‘i 265,
268, 533 P.3d 1212, 1215 (2023) ("An order compelling a claimant
to undergo an IME is sufficient to constitute the deprivation of
adequate relief that is required under the preliminary ruling
language of HRS § 91-14(a).").
Based on the foregoing, we vacate LIRAB's September 6,
2023 Amended Decision and Order to the extent it determined the
Director's order compelling Novak to submit to a medical
examination was not appealable and affirm in all other respects.
5 HAR 12-10-75 also lists HRS § 386-95, which governs reports of injuries and other reports by employers, but does not discuss orders compelling medical examination or appealability. See HRS § 386-95 (Supp. 2017).
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
We remand this case to LIRAB for proceedings consistent with
this summary disposition order.
DATED: Honolulu, Hawaiʻi, September 18, 2025.
On the briefs: /s/ Karen T. Nakasone Chief Judge Layne Novak, Self represented Claimant- /s/ Keith K. Hiraoka Appellant-Appellant. Associate Judge
Gary N. Kunihiro, /s/ Sonja M.P. McCullen Christine J. Kim, Associate Judge Raquelle A. Pendleton, (Leong Kunihiro Brooke & Kim), for Employer-Appellee- Appellee and Adjuster- Appellee-Appellee.