*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Electronically Filed Supreme Court SCWC-XX-XXXXXXX 11-FEB-2025 07:56 AM Dkt. 9 OPA
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
RICHARD SCOTT WEBB, Petitioner/Claimant-Appellant-Appellant,
vs.
OSF INTERNATIONAL, INC., Respondent/Employer-Appellee-Appellee,
and
HAWAII INSURANCE GUARANTY ASSOCIATION, Respondent/Insurance Carrier-Appellee-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. AB 2017-280; DCD NO. 2-99-04705)
FEBRUARY 11, 2025
RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.
OPINION OF THE COURT BY GINOZA, J.
I. INTRODUCTION
The workers’ compensation law in Hawai‘i allows an
employee to reopen a claim within eight years after the last *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
payment of compensation. Specifically, Hawai‘i Revised Statutes
(HRS) § 386-89(c) (2015) provides in relevant part:
On the application of any party in interest, supported by a showing of substantial evidence, on the ground of a change in or of a mistake in a determination of fact related to the physical condition of the injured employee, the director may, at any time prior to eight years after date of the last payment of compensation, whether or not a decision awarding compensation has been issued, or at any time prior to eight years after the rejection of a claim, review a compensation case and issue a decision which may award, terminate, continue, reinstate, increase, or decrease compensation.
(Emphasis added.)
Petitioner-Claimant Richard Scott Webb (Webb)
submitted an application in 2017 to reopen his claim.
Respondent-Employer OSF International, Inc. (OSF) challenged
Webb’s application because the last payment on Webb’s claim had
been made twelve years before in 2005. The Director of the
Department of Labor and Industrial Relations (Director), through
the Disability Compensation Division (DCD), denied Webb’s
application to reopen his claim on grounds it was barred by the
eight-year limit under HRS § 386-89(c). The Department of Labor
and Industrial Relations Appeals Board (LIRAB) affirmed the
Director. However, the three-member LIRAB had differing views
as to which party had the burden of proof on whether Webb’s
application for reopening occurred within the required time
period. The LIRAB majority stated claimant Webb had the burden
of proof and failed to meet his burden. In a concurring
opinion, the remaining LIRAB member expressed the view that the
2 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
eight-year period in HRS § 386-89(c) serves as a statute of
limitations for which employer OSF had the burden of proof, and
that OSF met its burden.
Webb appealed the LIRAB decision to the Intermediate
Court of Appeals (ICA). The ICA affirmed the LIRAB and placed
the burden of proof on Webb to support his application for
reopening his claim under HRS § 386-89(c).
We hold that the eight-year period in HRS § 386-89(c)
for reopening a workers’ compensation claim sets out a statute
of limitations. As such, the employer has the burden of proof
if it asserts that an application for reopening a claim is
untimely under HRS § 386-89(c).
In this case, we conclude that employer OSF met its
burden of proof to show that Webb did not reopen his claim
within the statutory eight-year period. We further conclude
that Webb’s other challenges to the ICA’s Summary Disposition
Order (SDO) are without merit. For the reasons set forth
herein, we affirm the ICA’s Judgment on Appeal.
II. BACKGROUND
A. Work Injury and Stipulation
On April 1, 1999, Webb sustained a work injury as a
waiter at the Old Spaghetti Factory restaurant. On May 7, 2002,
a stipulation and settlement agreement was entered between Webb,
OSF, and OSF’s insurance carrier, Respondent-Insurance Carrier
3 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Hawaii Insurance Guaranty Association (HIGA), which was approved
by the Director through the DCD. The stipulation provided that,
without prejudicing Webb’s “rights respecting reopening under
[HRS] Chapter 386,” Webb “sustained an injury to his back and
left hip out of and in the course of his employment with [OSF],
on or about 04/01/99[;]” and that as a result of said injury,
Webb “sustained permanent partial disability, to wit: 12% of the
left lower extremity.” The stipulation also provided for a lump
sum payment of $17,936.64 for the permanent partial disability,
and that OSF was to furnish Webb “so long as reasonably
necessary, such medical care, services and supplies as the
nature of the injury may require, pursuant to [HRS] Section[s]
386-21 [(2015)] and 386-26 [(2015)][.]”1
B. 2003 DCD Proceedings
On August 10, 2002, Dr. Coswin Saito, M.D. (Dr.
Saito), Webb’s physician at Kaiser Permanente, submitted a
treatment plan with a diagnosis of “mechanical low back pain”
for additional services and for acupuncture treatments. HIGA
advised Dr. Saito that it was denying the acupuncture treatment
because it had not received a report indicating the need for
further treatment from Dr. Saito since July 16, 2000, and
because Dr. Donald Maruyama (Dr. Maruyama) had indicated that
1 Webb does not argue, and thus we do not address, whether the stipulation affected application of the eight-year period under HRS § 386- 89(c). 4 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Webb’s back condition/strain had resolved and no further
treatment was recommended. Webb contested HIGA’s denial of Dr.
Saito’s treatment plan and requested review by the DCD.
On February 5, 2003, the DCD held a hearing to
determine OSF’s liability for Dr. Saito’s treatment plan. On
March 12, 2003, the Director through DCD issued a decision (2003
DCD Decision) denying Dr. Saito’s treatment plan because the low
back condition was not due to the 1999 work injury. The
Director credited concurring opinions by Dr. Porter Turnbull,
Dr. Maruyama and Dr. Maurice Nicholson that Webb’s low back
strain had resolved, and an MRI showing normal lumbar vertebral
bodies and disc spaces. The Director found, however, that OSF
was still liable for Webb’s left leg/hip pain. The 2003 DCD
Decision concluded:
Pursuant to Sections 386-21 and 386-26, HRS, said employer shall pay for such medical care, services and supplies as the nature of the injury may require to the left hip, but not to include the low back. [Dr. Saito’s treatment plan] request for acupuncture treatment with respect to mechanical low back pain beginning 7/2002 to 10/2002 is denied. Dr. Saito is advised to resubmit a treatment plan request for acupuncture treatment with respect to [Webb’s] diagnosis of a possible femoral neuropathy pursuant to Sections 12-15-32 and 12-15-80 of the Workers’ Compensation Medical Fee Schedule Administrative Rules.
(Emphases added.)
There was no appeal from the 2003 DCD Decision.
C. Last Payment of Compensation in 2005
On October 18, 2004, HIGA wrote to Dr. Saito
requesting an updated report on Webb’s treatment, noting that
5 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
its records showed Webb was last seen on February 20, 2003. On
November 5, 2004, Dr. Saito responded to HIGA, stating that Webb
was “evaluated in our clinic on November 5, 2004[,]” “continues
with left hip pain that is rated 5/10 on a 0 to 10 scale[,]” and
“has been receiving ongoing treatments involving acupuncture for
pain relief to his left hip.” Dr. Saito also stated that Webb
“has been paying for these treatments on his own as he has been
unable to get the [HIGA] to pay for treatments. He related to
me a hearing with the Department of Labor in 2003 but was unable
to get a ruling either in favor of or against him for ongoing
acupuncture treatments.”
On June 24, 2005, OSF through HIGA made a payment via
check in the amount of $139.49 to Kaiser Foundation Hospitals on
behalf of Webb for medical services from November 5, 2004 to
November 23, 2004.
On December 28, 2005, HIGA filed a WC-3 Carrier’s Case
Report as a “Year End Report” for 2005.2 The report noted a
“Medical/Other Costs” benefit payment of $139.49, and stated in
the comments section that “no payments [were] made in 2004.”
2 HRS § 386-95 (2015) sets out requirements for employers to report work injuries to the Director, including that “[b]y January 31 of each year, the employer shall file with the director a report with respect to each injury on which the employer is continuing to pay compensation, showing all amounts paid by the employer on account of the injury.”
On December 27, 2004, HIGA filed a WC-3 Carrier’s Case Report as a “Year End Report” for 2004. The comments section for this report noted that “no payments [were] made in 2004[.]” 6 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
On March 5, 2007, HIGA filed a WC-3 Carrier’s Case
Report (2007 WC-3 Report) as a final report for 2007 with a copy
sent to Webb at his address. The report reflected the lump sum
paid for permanent partial disability ($17,936.64) and the total
payments made for medical/other costs ($8,175.68). The report
further indicated that Webb was last treated on November 23,
2004. Included at the bottom of the 2007 WC-3 Report was a
“Notice to Employee” stating: “With the final payment of
compensation (as indicated hereon) on your industrial injury of
04/01/1999 identified as Case No. 29904705 the case shall be
closed. This determination shall not constitute a bar to your
reopening rights as provided by Section 386-89, HRS, nor to
future medical benefits.”
D. Webb’s 2017 Application to Reopen His Case and DCD’s 2017 Decision
On April 26, 2017, Dr. Joseph R. DiCostanzo, M.D. (Dr.
DiCostanzo) mailed a treatment plan request for additional
services (DiCostanzo Treatment Plan) for Webb to HIGA. The
DiCostanzo Treatment Plan included a diagnosis of: 1) “right
knee joint pain > 3 months”; 2) “right shoulder joint pain > 3
months”; 3) “right iliotibial band syndrome”; and 4) “left hip
injury[.]” The services requested stated “Physician treatment
beyond 120 days or 120 day collaborative care by covering KP MD,
PA, or APRN[.]”
7 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
In a letter dated May 2, 2017, OSF/HIGA’s counsel
advised the DCD that the DiCostanzo Treatment Plan was denied,
stating that the denial was based in part on HRS § 386-89(c).
On May 18, 2017, Webb filed a WC-5 Employee’s Claim
for Workers’ Compensation Benefits Form (2017 WC-5 Form), which
indicated that the reason for filing it was “[r]eopening of old
claim.” This form indicated Dr. DiCostanzo as the attending
physician. The 2017 WC-5 Form served as Webb’s application to
reopen his workers’ compensation case. See Hawai‘i
Administrative Rules (HAR) § 12-10-63 (eff. 1981).
In response, OSF/HIGA asserted, among other things,
that Webb’s attempt to reopen his 1999 claim was barred by HRS §
386-89(c) and that Webb could not meet his burden of proof to
show by substantial evidence a change in condition.
A DCD hearing was held on September 6, 2017. On
November 3, 2017, the Director through the DCD issued a decision
(2017 DCD Decision) addressing 1) whether Webb was “entitled to
a reopening for further medical treatment” and 2) whether Webb
was “entitled to treatment pursuant to the treatment plan of
[Dr. DiCostanzo], dated 4/26/2017[.]” In its Findings of Fact,
the Director stated that:
[OSF’s] testimony and the final WC-3 for the year 2005 indicates the last payment of a benefit on this claim was for medical benefits paid in the year 2005 in the amount of $139.49.
Dr. DiCostanzo’s treatment plan dated 4/26/2017 indicates treatment was being requested for right knee 8 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
joint pain, right shoulder joint pain, right iliotibial band syndrome and the left hip injury.
[Webb’s] testimony indicates the following: 1) [Webb] did not receive any treatment pursuant to Dr. DiCostanzo’s treatment plan dated 4/26/2017; 2) [Webb] was requesting a reopening for further medical treatment for the left hip/leg and right knee; 3) the problems with the left hip/leg have been present since the industrial injury occurred on 4/1/1999; and 4) the problems with the right knee have been present for the past ten years.
The WC-5 filed on 5/18/2017 indicates [Webb] was requesting a reopening of an old claim as [HIGA] failed to return calls.
The Director denied Webb’s request for a reopening and
medical treatment under the DiCostanzo Treatment Plan, pursuant
to HRS § 386-89(c), stating:
The Director finds, based upon the above Findings of Fact and Principles of Law, the claimant’s request for a reopening for further benefits, or any other injured body parts under this claim (including the treatment requested in the treatment plan dated 4/26/2017), is denied. The Director credits the employer’s testimony, the final WC-3 for the year 2005, Dr. DiCostanzo’s treatment plan dated 4/26/2017, the claimant’s testimony, and the WC-5 filed on 5/18/2017, and determines the claimant’s right to further benefits is barred by the eight-year statute of limitations pursuant to Section 386-89, HRS.
E. 2019 LIRAB Decision
Webb filed an appeal to the LIRAB from the 2017 DCD
Decision. The issue before the LIRAB was whether the Director
erred in denying Webb’s request to reopen his claim for the work
injury sustained in 1999, for treatment under Dr. DiCostanzo’s
2017 Treatment Plan.
The LIRAB held a trial over the course of two days in
November 2018. In addition to considering exhibits, the LIRAB
9 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
heard testimony from Webb and Lianne Ching (Ching), the claims
examiner for HIGA. On August 21, 2019, the LIRAB issued a
decision and order (2019 LIRAB Decision) affirming the Director,
with majority and concurring opinions. The LIRAB majority made
findings, including:
1. On April 1, 1999, Claimant sustained a work injury to his low back and left hip.
. . .
6. Based on the Director’s unchallenged March 12, 2003 decision, the Board finds that Claimant was awarded medical care, services and supplies for the left hip, but not for the low back, which resolved.
7. The Board finds that Claimant’s April 1, 1999 work injury claim was properly and administratively closed by Employer in 2007, by a final WC-3 report, after Claimant last treated with Dr. Saito on November 23, 2004. The Board credits Ms. Ching’s testimony.
8. The Board credits Ms. Ching’s testimony that it was Employer’s practice to mail copies of Claimant’s WC-3 reports to Claimant’s home address. The Board finds that Claimant’s allegation of “gross mismanagement” of Claimant’s file, including “concealing” the 2007 closure of Claimant’s case in March 2007, is unsupported by the credible evidence in this case.
9. The Board finds that Claimant’s May 18, [2017] WC-5 request for reopening of his April 1, 1999 work injury for medical treatment was filed more than eight years after Employer’s last payment for medical benefits and is therefore barred by the applicable 8-year statute of limitations.
10. The Board finds no treatment plan requests were submitted after the Director’s 2003 decision, until 2017.
11. The Board finds that Claimant’s 2017 request for reopening for an alleged change in condition is barred by the 8-year statute of limitations for reopening a claim. Claimant did not meet his burden, by substantial evidence, to support his application for reopening.
10 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
In its analysis, the LIRAB majority stated that Webb’s
records show that after his last treatment with Dr. Saito in
November 2005, he sought treatment under his private medical
insurance and only sought further treatment under workers’
compensation in 2017. The LIRAB majority further stated:
Contrary to Claimant’s allegation that Employer had the burden of proof regarding a statute of limitations defense, Section 386-89(c), HRS and the applicable case law clearly establish that it is Claimant’s burden to show, by substantial evidence, a change in or a mistake in a determination of fact relating to the claimant’s physical condition. The presumption applies only to the work- relatedness of the injuries once a case is reopened, not to reopening or review. In the instant case, the Board finds that Claimant did not present substantial evidence to support his request for reopening.
(Emphases added.) The LIRAB majority ultimately concluded that
Webb’s request for reopening was barred by the “statute of
limitations” under HRS § 386-89(c).3
3 The LIRAB majority also concluded Webb’s 2017 claims related to his right wrist and right leg/knee were barred by HRS § 386-82 (2015). The LIRAB majority found these were additional injuries that were not part of the April 1, 1999 work injury, such that 2-year and 5-year limitation periods applied under HRS § 386-82, which states:
The right to compensation under this chapter shall be barred unless a written claim therefor is made to the director of labor and industrial relations[:] (1) Within two years after the date at which the effects of the injury for which the employee is entitled to compensation have become manifest; and (2) Within five years after the date of the accident or occurrence which caused the injury.
We decide this case under the eight-year period for reopening a claim under HRS § 386-89(c) and thus do not reach any issues pertaining to HRS § 386-82.
11 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
The LIRAB concurring opinion, on the other hand,
stated that employer OSF was raising a statute of limitations
defense under HRS § 386-89(c) that the eight-year period had
expired. The concurring opinion further stated:
I find that a statute of limitations defense is an affirmative defense and that Employer, who raises a defense based on a statute of limitations, has the burden of proving that Claimant’s reopening request is barred by the time limitations provisions under HRS Section 386-89(c). Therefore, in my view, it is Employer’s burden of proof to support its statute of limitations defense under HRS Section 386-89(c).
(Emphasis added.) The concurring opinion found, among other
things, that Webb’s claim was administratively closed by a WC-3
Final Report filed on March 6, 2007, and that his request to
reopen was barred by the eight-year limitations period under HRS
§ 386-89(c) because his request to reopen was filed about twelve
years after the last payment of compensation made by Employer in
2005. The concurring opinion noted it was thus unnecessary “to
address whether Employer ha[d] rebutted the presumption of
compensability by substantial evidence,” i.e., whether OSF had
rebutted Webb’s claims that his current right wrist and right
knee injuries were related to the primary injury of April 1999.
F. The ICA Decision
On September 4, 2019, Webb timely filed a Notice of
Appeal to the ICA from the 2019 LIRAB Decision. At the ICA,
Webb raised six points of error, including that the LIRAB erred
by not requiring OSF/HIGA to prove essential facts for a statute
12 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
of limitations defense under HRS § 386-89(c), and by determining
that Webb’s workers’ compensation case was properly closed. The
ICA affirmed the LIRAB. With regard to the burden of proof
under HRS § 386-89(c), the ICA concluded that the LIRAB “did not
clearly err in finding that Webb did not provide substantial
evidence to support his reopening application.”
We granted Webb’s application for writ of certiorari
to address whether Webb or OSF/HIGA had the burden of proof to
show if Webb’s reopening request was within the eight-year
statute of limitations period under HRS § 386-89(c).
III. STANDARD OF REVIEW
In this case, we interpret a workers’ compensation statute.
The interpretation of a statute is a question of law that is reviewed 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.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists . . . .
In construing an ambiguous statute, the meaning of the ambiguous words may be sought by examining the context with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool.
Botelho v. Atlas Recycling Ctr., LLC, 146 Hawai‘i 435, 442, 463
P.3d 1092, 1099 (2020) (citations and quotation marks omitted). 13 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
IV. DISCUSSION
A. The Eight-Year Period in HRS § 386-89(c) is a Statute of Limitations For Which the Employer Has the Burden of Proof
Webb raised a variety of issues before the ICA that
are not entirely consistent with the questions he raises before
this court.4 However, one issue before the LIRAB that he argued
to both the ICA and to this court is that the burden of proof
related to reopening of a claim under HRS § 386-89(c) rests on
the employer. Webb argued to the ICA that the LIRAB majority
conflated two different requirements under HRS § 386-89(c) —
first, the requirement that an application for reopening of the
claim is made within the eight-year period after the last
compensation was paid; and second, the requirement to show by
substantial evidence a change in, or a mistake in a
determination of fact as to, the physical condition of the
injured employee. Webb argued to the ICA that employer OSF had
the burden of proof as to both requirements under HRS § 386-
89(c).
In addressing this issue, the ICA stated: “Here, the
[LIRAB] found that Webb did not meet his burden to support his
application for reopening. We conclude that the [LIRAB] did not
4 Webb’s application for writ of certiorari to this court asserts the following issues which were not issues before the LIRAB or points of error raised in the ICA: whether there should have been scrutiny of HIGA’s breach of good faith for unilateral termination and concealment; whether such errors contributed to years-long denial of benefits to Webb. These issues are deemed waived and we will not address them. 14 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
evidence to support his reopening application.” (Emphasis
added.) Although the ICA’s discussion on burden of proof did
not specify what aspect of HRS § 386-89(c) it was addressing
(i.e., the eight-year requirement or a change in condition), the
ICA SDO later recognized that “the [LIRAB] concluded that Webb’s
2017 request for reopening for an alleged change in condition
was barred by the 8-year statute of limitations for reopening a
claim.” (Emphasis added.) It thus appears the ICA held that
Webb had the burden of proof to establish that his reopening
request was timely under the statutory eight-year requirement.
Moreover, as previously explained, the LIRAB had a
split of opinion as to which party bears the burden of proof
regarding the eight-year statute of limitations. The LIRAB
majority seems to have relied on language in HRS § 386-89(c),
pertaining to the need for substantial evidence on a claimant’s
change in condition, and extrapolated that to hold that the
claimant also has the burden of proof on the eight-year
requirement. The LIRAB concurring opinion, on the other hand,
expressly treated the eight-year period as a statute of
limitations, and thus as an affirmative defense raised by
OSF/HIGA. The concurring opinion determined that OSF/HIGA “has
the burden of proving that [Webb’s] reopening request is barred
by the time limitations provisions under HRS Section 386-89(c).”
15 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
The concurring opinion then concluded that OSF/HIGA met their
burden to show that Webb’s reopening claim was untimely.
We focus on the burden of proof for the requirement in
HRS § 386-89(c) that an application to reopen a claim must be
made “prior to eight years after date of the last payment of
compensation[.]” If an application for reopening is barred by
the eight-year period, it is not necessary to address the other
requirement of a showing by substantial evidence of a change in,
or a mistake in a determination of fact as to, the physical
condition of the injured employee.5
HRS § 386-89(c) is silent as to which party has the
burden of proof on the requirement that application for
reopening be made in the eight-year period. The applicable
administrative rule for reopening a workers’ compensation case
5 We note that this court, in De Victoria v. H & K Contractors, 56 Haw. 552, 556, 561, 545 P.2d 692, 696, 699 (1976), stated that “[w]e do not believe that a showing of substantial evidence is necessary as a prerequisite to a review by the Director or the [LIRAB] of an application under subparagraph (c) of HRS § 386–89,” and held that:
a proceeding brought by a claimant under HRS s 386-89(c) is plainly a ‘proceeding for the enforcement of a claim for compensation under (our workmen's compensation) chapter.’ HRS s 386-85. Where . . . the primary issue is whether or not an injury is related to a work accident, a claimant is entitled to the same presumption on review of a case once closed that his claim is for a covered injury as that in an original hearing.
See also Mitchell v. BWK Joint Venture, 57 Haw. 535, 548, 560 P.2d 1292, 1300 (1977) (citations omitted) (noting the “presumption that ‘the claim is for a covered work injury’ in the absence of substantial evidence to the contrary”).
16 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
is likewise silent as to the burden of proof. HAR § 12-10-63
provides:
(a) An application for reopening of a case pursuant to section 386-89, HRS, shall be in writing, shall state specifically the grounds upon which the application is based, and shall be served upon each party at the time of filing with the director.
(b) Whenever an application for reopening of a case is made, the director shall review the case file and may, by discretion, hear the interested parties. The director shall deny or grant a reopening and notify the parties in writing.
The LIRAB majority and concurring opinions, and the
parties, refer to the eight-year period as a “statute of
limitations.” We agree that the eight-year period under HRS
§ 386-89(c) serves as a statute of limitations. The plain
effect of the eight-year period is that it sets a time limit
within which an application for reopening should be made. We
agree with the LIRAB’s concurring opinion that, as a statute of
limitations, the eight-year period in HRS § 386-89(c) is
properly treated as an affirmative defense, and thus, the
employer has the burden of proof on this issue.
We note that HRS § 386-89(c) is titled “Reopening of
cases; continuing jurisdiction of director.” Neither party
contends that the eight-year period serves as a jurisdictional
prerequisite for the Director to act. “Where a statute is
ambiguous, its title may be referred to as an aid in
construing the statute.” Tauese v. State, Dep’t of Lab. &
Indus. Rels., 113 Hawai‘i 1, 37, 147 P.3d 785, 821 (2006)
17 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
(quoting Honolulu Star Bull., Ltd. v. Burns, 50 Haw. 603, 606,
446 P.2d 171, 173 (1968)). Here, however, we conclude the
statute plainly sets out the eight-year period as a statute of
limitations and not a bar to the Director’s jurisdiction.
First, there is no reference in the statutory language that a
jurisdictional bar is intended.
Second, given the humanitarian purposes of the
workers’ compensation scheme, HRS § 386-89(c) must be liberally
construed in favor of injured employees. “[T]his court has long
recognized the remedial character of the workers’ compensation
statutes and has construed them liberally to effectuate their
beneficent purposes.” Puchert v. Agsalud, 67 Haw. 25, 36, 677
P.2d 449, 457 (1984) (citations omitted); Van Ness v. State,
Dep’t of Educ., 131 Hawai‘i 545, 558, 319 P.3d 464, 477 (2014)
(“[T]he broad humanitarian purpose of the workers’ compensation
statute read as a whole requires that all reasonable doubts be
resolved in favor of the claimant.” (quoting Lawhead v. United
Air Lines, 59 Haw. 551, 560, 584 P.2d 119, 125 (1978))).
It is beneficial to employees to construe the eight-
year period as a statute of limitations, rather than a
requirement that could preclude the Director from having
jurisdiction to consider a reopening application. As a statute
of limitations, the eight-year period would properly be treated
as an affirmative defense that the employer must establish and
18 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
which can be waived. Hawai‘i law generally treats statutes of
limitations as affirmative defenses. See Pac. Lightnet, Inc. v.
Time Warner Telecom, Inc., 131 Hawai‘i 257, 281, 318 P.3d 97, 121
(2013); State v. Stan’s Contracting, Inc., 111 Hawai‘i 17, 33,
137 P.3d 331, 347 (2006) (citations omitted); Hawai‘i Rules of
Civil Procedure Rule 8(c) (listing statute of limitations as an
affirmative defense). Moreover, the party asserting an
affirmative defense generally has the burden of proving the
facts essential to the defense. See, e.g., U.S. Bank Nat. Ass’n
v. Castro, 131 Hawai῾i 28, 41, 313 P.3d 717, 730 (2013) (citation
omitted); Lambert v. Waha, 137 Hawai῾i 423, 432, 375 P.3d 202,
211 (2016) (citations omitted) (for the affirmative defense of
adverse possession, defendant asserting the defense had the
burden “to produce admissible evidence to support the elements
of adverse possession”); Molokoa Vill. Dev. Co. v. Kauai Elec.
Co., 60 Haw. 582, 589, 593 P.2d 375, 380 (1979); Quinn v.
Wilshire Ins. Co., 53 Haw. 19, 21, 486 P.2d 59, 60 (1971)
(citations omitted) (when an insurer relies on an exclusionary
clause of a policy as an affirmative defense to liability, “it
has the burden of proving facts which bring the case within the
exclusion”); In re Dowsett Tr., 7 Haw. App. 640, 646, 791 P.2d
398, 402–03 (1990) (for the affirmative defense of res judicata,
“the party asserting the defense has the burden of proving
19 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
adequate representation of the interests and proper protection
of the rights of the nonparty in the prior action”).
Placing the burden of proof on employers rather than
employees further effectuates the humanitarian purposes of the
statute because employers are more likely to be in possession of
the documentation showing the last payment of compensation. It
is thus consistent with the workers’ compensation scheme that
employers have the burden of proof to establish whether the
eight-year period has been met.
In other jurisdictions, statutes for reopening a
workers’ compensation case have generally been treated as
statute of limitations defenses.
Among the issues affecting reopening time periods, there may be noted the question whether failure to make timely application goes to the Commission’s jurisdiction or merely gives rise to an affirmative defense which may be waived, for example, by failure to raise it promptly. The majority rule here, as in the case of original notice or claim, is that the defect is not jurisdictional and may be waived, but the opposite view has some case support.
13 Arthur Larson, Lex K. Larson & Thomas A. Robinson, Larson’s
Workers’ Compensation Law § 131.02[5] (Matthew Bender, rev. ed.
2024). See also Lang v. Erlanger Tubular Corp., 206 P.3d 589,
590, 592 (Okla. 2009) (affirming the Workers’ Compensation Court
denial of Claimant’s “Motion to Reopen” because it was barred by
the limitation period); Gang v. Montgomery Cnty., 211 A.3d 355,
369 (Md. 2019) (determining plaintiff’s claim was not barred by
20 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
the reopening provision’s “statute of limitations”); Vest v.
Giant Food Stores, Inc., 620 A.2d 340, 341-43 (Md. 1993) (five-
year period from last payment of compensation to reopen a
workers’ compensation award treated as a limitations period);
Calvert v. Indus. Claim Appeals Off., 155 P.3d 474, 476 (Colo.
App. 2006) (explaining “[t]he time limits set forth in [the
reopening provision] operate as a statute of limitations”)
(citation omitted); Granite Constr. Co. v. Workers’ Comp.
Appeals Bd., 112 Cal. App. 4th 1453, 1457 (Cal. Ct. App. 2003)
(explaining that the reopening provision of the labor code,
“establishes a five-year statute of limitations for claims of
further disability”); Newton v. Workers’ Comp. Appeals Bd., 17
Cal. App. 4th 147, 154 (Cal. Ct. App. 1993) (citations omitted)
(explaining “the statute of limitations provisions in the Labor
Code must be liberally construed in favor of the injured
employee”).
Under Hawai‘i’s workers’ compensation scheme, the time
period for asserting the original notice or claim is treated as
a statute of limitations. See Hayashi v. Scott Co., 93
Hawai‘i 8, 9, 11-12, 994 P.2d 1054, 1055, 1057-58 (2000)
(construing HRS § 386-82). Thus, in the context of the entire
workers’ compensation scheme, it is consistent to construe an
application for reopening a workers’ compensation claim in a
similar manner. The definition of a “statute of limitations”
21 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
includes “[a] law that bars claims after a specified period[,]”
and “[t]he purpose of such a statute is to require diligent
prosecution of known claims, thereby providing finality and
predictability in legal affairs and ensuring that claims will be
resolved while evidence is reasonably available and fresh.”
Statute of Limitations, Black’s Law Dictionary (12th ed. 2024).
This court has explained that “[t]he primary purpose of a
statute of limitations is to compel the exercise of a right of
action within a reasonable time so that the opposing party has a
fair opportunity to defend.” Levi v. Univ. of Haw., 67 Haw. 90,
93, 679 P.2d 129, 131 (1984) (quoting 51 Am. Jur. 2d Limitations
of Actions § 17); see also Shin v. McLaughlin, 89 Hawai‘i 1, 6,
967 P.2d 1059, 1064 (1998) (“ It is generally recognized that the
purpose of the statutes of limitations is to encourage
promptness in the prosecution of actions and thus avoid the
injustice which may result from the prosecution of stale claims.
Statutes of limitations attempt to protect against the
difficulties caused by lost evidence, faded memories and
disappearing witnesses.” (quoting Byrne v. Ogle, 488 P.2d 716,
718 (Alaska 1971))); Wiegand v. Allstate Ins. Co., 68 Haw. 117,
122, 706 P.2d 16, 20 (1985) (“The purpose of a statute of
limitations is to discourage delay and the presentation of stale
claims.”).
22 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Further, a statute of limitations is a policy decision
by the Legislature.
Statutes of limitations are best understood as an accommodation of competing interests: the plaintiff wishes to have a reasonable time to bring the suit . . . while the defendant, on the other hand, seeks to avoid having to defend against stale claims. Limitation statutes afford plaintiffs what the legislature deems a reasonable time to present their claims. They reflect policy determinations of the legislature and represent a policy decision regarding what constitutes an adequate period of time for a person of ordinary diligence to pursue a claim.
51 Am. Jur. 2d Limitation of Actions § 2 (2024). With respect
to HRS § 386-89(c) and its predecessor statutes, the Territorial
and State Legislatures of Hawai‘i have addressed multiple times
the policy question of the appropriate time period in which an
application to reopen a workers’ compensation case must be made.
Hawai‘i’s first Workers’ Compensation Act was adopted
in 1915. 1915 Haw. Sess. Laws Act 221, at 323-50. In 1939, the
Act was amended to expressly state the period in which a
workers’ compensation case could be reopened, providing:6
Sec. 7517. Reopening case; modification of awards and agreements. . . .
On the application of any party on the ground of a change of conditions, the board may, at any time within seven years after the date of the injury or accident or within three years after the date of final payment of compensation previously awarded, whichever period is longer, and not oftener than once in six months, review any
6 The Workers’ Compensation Act (then, the “Workmen’s Compensation Act”) was first codified in the Revised Laws of Hawai῾i (RLH) in 1925, then renumbered multiple times. See, e.g., RLH §§ 3604-3667 (1925); RLH §§ 7480- 7541 (1935); RLH §§ 4401-4467 (1945); RLH §§ 97-1 to 97-123 (1955). In 1963, the legislature subsequently recodified RLH chapter 97 as HRS chapter 386. See RLH Tables of Disposition, Table 1, at 9 (1968); HRS chapter 386 (1968) (indicating as a historical note, “[t]his chapter is based on L 1963, c 116, which completely revised and reenacted this chapter”); see also 1963 Haw. Sess. Laws Act 116, at 103-28.
23 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
agreement or award, and on review may make an award ending, diminishing or increasing the compensation previously agreed upon or awarded subject to the maximum and minimum provided in this chapter[.]
1939 Haw. Sess. Laws Act 206, § 3 at 306 (emphasis added). A
prior version of the 1939 bill had provided no limit for
reopening a case, but a report by the House Committee on
Judiciary explained why a time limitation was added:
In computing premiums on compensation policies, it is necessary that some rule should obtain under which the premiums may be more or less definitely fixed, and your Committee believes that while an award should be subject to reopening at any time for fraud, nevertheless, where it is sought by either party to reopen it because of changed conditions, there should be a limitation of seven years from the date of the injury or accident or three years from the date of the last payment of compensation whichever period is the longer, and your Committee has therefore amended the second paragraph of section 7517, as contained in section 3 of the Bill, accordingly.
H. Stand. Comm. Rep. No. 396, in 1939 House Journal, at 1340
(emphasis added).
In 1953, the relevant provision was amended to state:
the director may, at any time prior to three years after date of the last payment of compensation, . . . or at any time prior to three years after the rejection of a claim, review a compensation case and issue a new decision which may terminate, continue, reinstate, increase or decrease such compensation, or award compensation.
1953 Haw. Sess. Laws Act 51, § 1 at 167.
In 1955, the reopening statute was amended to change
the period of time from three years after the date of last
payment of compensation or rejection of a claim, to ten years
after the date of last payment of compensation or rejection of a
claim. 1955 Haw. Sess. Laws Act 5, § 1 at 4.
24 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Finally, in 1985, the applicable time period under HRS
§ 386-89(c) was adopted, changing the ten-year period to the
eight-year period. 1985 Haw. Sess. Laws Act 296, § 9 at 645-
46. Thus, the relevant part of the statute now reads:
On the application of any party in interest, supported by a showing of substantial evidence, on the ground of a change in or of a mistake in a determination of fact related to the physical condition of the injured employee, the director may, at any time prior to eight years after date of the last payment of compensation, whether or not a decision awarding compensation has been issued, or at any time prior to eight years after the rejection of a claim, review a compensation case and issue a decision which may award, terminate, continue, reinstate, increase, or decrease compensation.
(Emphases added.) Addressing the 1985 amendment on reopening a
case, the House Committee on Employment Opportunities and Labor
Relations and the House Committee on Consumer Protection and
Commerce issued a joint committee report stating:
The purpose of Section 11 of this Bill is to amend the provisions of section 386-89(c) to reduce the ten-year time limit for reopening applications to an eight-year time limit for reopening requests.
Your Committees believe that a shorter timeframe furthers the timely and expeditious disposition of cases within the Department of Labor and Industrial Relations.
H. Stand. Comm. Rep. No. 326, in 1985 House Journal, at 1130
(emphases added). Describing the overall purpose of the 1985
legislation, the Senate Committee on Labor and Employment
explained that:
The purpose of this bill is to amend the Workers’ Compensation law to make the system both effective and efficient. . . .
After careful review of both house drafts of this measure and consideration of recommendations proposed in the Study of Workers’ Compensation Program of the State of Hawaii by Haldi Associates, Inc. as submitted by the 25 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Legislative Auditor . . ., your Committee recognizes the need to effectively reform existing insurance and workers’ compensation laws. Alternate approaches consistent with the humanitarian objectives and purposes of the workers’ compensation law have been adopted to achieve meaningful controls upon costs and to reestablish the integrity of the process of claim handling and rate making.
S. Stand. Comm. Rep. No. 806, in 1985 Senate Journal, at 1230
(underlining deleted and added). Further, the Senate Ways and
Means Committee explained generally that “[t]he purpose of this
bill is to address a major insurance crisis confronting
employers and businesses in Hawaii brought about by skyrocketing
costs of workers’ compensation insurance coverage in recent
years.” S. Stand. Comm. Rep. No. 853, in 1985 Senate Journal,
at 1254.
Given this history of the current eight-year time
period, the Legislature has expressed an intent to set a time
limit by statute for reopening a workers’ compensation case for
policy reasons that include: the ability to better compute
premiums, the timely disposition of cases, balancing the
humanitarian purpose of workers’ compensation with meaningful
controls on the cost, and promoting integrity in claims handling
and rate making. Consistent with this intent, we conclude it is
proper to construe the eight-year period in HRS § 386-89(c) as a
statute of limitations.
As noted above, because the eight-year period under
HRS § 386-89(c) is a statute of limitations, it operates as an
affirmative defense for which employer OSF had the burden of 26 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
proof. In this case, OSF clearly raised the eight-year limit in
responding to Webb’s application to the Director to reopen his
case. Further, the eight-year period was triggered by the “date
of the last payment of compensation” and the record shows that
OSF established the last payment of workers’ compensation
benefits made by OSF/HIGA was in 2005. Webb’s application to
reopen was filed with the Director on May 18, 2017,7 nearly
twelve years after the last payment of compensation made by
OSF/HIGA in 2005. OSF/HIGA thus met their burden to prove that
Webb’s application to reopen his workers’ compensation case is
barred by the eight-year limitations period under HRS § 386-
B. The ICA Did Not Err in Holding that Webb’s Workers’ Compensation Case was Properly Closed in 2007
Webb argues that the ICA erred in affirming the
administrative closure of his workers’ compensation claim
because HRS § 386-95 (2015) does not provide an administrative
basis for closure of a claim.8 Webb cites to the portion of HRS
§ 386-95, governing reports of injuries, other reports, and
penalty, which provides in relevant part, “[w]ithin thirty days
after final payment of compensation for an injury, the employer
7 HAR § 12-10-63 provides, inter alia, that an application for reopening of a case under HRS § 386-89 shall be in writing and served upon each party at the time it is filed with the Director.
8 It should be noted that neither the 2019 LIRAB Decision nor the ICA's SDO discuss or rely on HRS § 386-95. 27 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
shall file a final report with the director showing the total
payments made, the date of termination of temporary total
disability, and such other information as the director may
require.” Webb appears to believe that HRS § 386-95 is
applicable here because he asserts the statute “is the only
worker’s compensation statutory reference to reports.” The ICA
held that “when HIGA filed the final WC-3 indicating that Webb’s
file was to be closed . . . the claim was properly closed.”
The ICA relied on Skahan v. Stutts Construction Co.,
No. CAAP-XX-XXXXXXX and No. CAAP-XX-XXXXXXX, 2019 WL 3765413
(Haw. App. Aug. 9, 2019) (SDO), cert. denied, No. SCWC-16-
0000537 and No. SCWC-XX-XXXXXXX, 2019 WL 6737092. In Skahan, a
claimant asserted that the LIRAB erred in denying his request
for a reopening of his workers’ compensation claim. Id. at *3.
The LIRAB concluded that the claimant’s request to reopen was
filed more than eight years after the last date of compensation
was paid by his employer for the work injury, and was therefore
barred by the eight-year statute of limitations provided by HRS
§ 386-89(c). Id. at *9. In holding the LIRAB did not err in
denying the claimant’s request to reopen, the ICA determined
that the claimant was aware of the last payment of compensation
because the insurance carrier notified him that his case would
be closed following the final payment of compensation, but that
28 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
the claimant could reopen his claim pursuant to HRS § 386-89.
Id.
Similarly, here, Webb sought to reopen his workers’
compensation claim, but the LIRAB found that his request to
reopen was filed more than eight years after the last date of
compensation was paid by OSF/HIGA for his work injury, and was
therefore time barred by HRS § 386-89(c). The record, which
includes a declaration and testimony by HIGA’s claims examiner
Ching, indicates the 2007 WC-3 Report was filed as a “Final
Report” with a copy sent to Webb at his address and that the
last payment by HIGA was in 2005. Included at the bottom of the
2007 WC-3 Report was a “Notice to Employee” stating that: “With
the final payment of compensation (as indicated hereon) on your
industrial injury of 04/01/1999 identified as Case No. 29904705
the case shall be closed. This determination shall not
constitute a bar to your reopening rights as provided by Section
386-89, HRS, nor to future medical benefits.” (Emphasis added.)
Webb does not contest that he was sent the 2007 WC-3 Report
containing this information. Thus, it appears that Webb was
aware his case had been closed but that he could reopen his
claim pursuant to HRS § 386-89.
Webb also points to HRS § 386-31(b) (Supp. 2023) and
argues that the phrase “these benefits” in that statute should
29 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
be construed liberally to include all of the “independent
rights” to statutory workers’ compensation benefits announced in
Bocalbos v. Kapiolani Medical Center for Women & Children, 89
Hawai‘i 436, 974 P.2d 1026 (1999) and Lindinha v. Hilo Coast
Processing Co., 104 Hawai‘i 164, 86 P.3d 973 (2004).9 However,
HRS § 386-31(b) governs temporary total disability, stating:
The payment of these benefits shall only be terminated upon order of the director or if the employee is able to resume work. When the employer is of the opinion that temporary total disability benefits should be terminated because the injured employee is able to resume work, the employer shall notify the employee and the director in writing of an intent to terminate the benefits at least two weeks prior to the date when the last payment is to be made. The notice shall give the reason for stopping payment and shall inform the employee that the employee may make a written request to the director for a hearing if the employee disagrees with the employer. Upon receipt of the request from the employee, the director shall conduct a hearing as expeditiously as possible and render a prompt decision as specified in section 386-86. If the employee is unable to perform light work, if offered, temporary total disability
9 In Bocalbos, this court held in relevant part that:
One of the primary purposes of the Hawai‘i workers' compensation law is the prompt determination and disposition of claims for compensation. Under the law, claimants are entitled to: (1) medical care, services, and supplies immediately after a work injury and so long as reasonably needed, HRS § 386–21 (Supp.1998); (2) weekly wages for temporary disability, HRS §§ 386–31(b) (1993) and 386–32(b) (Supp.1998); and (3) weekly wages for permanent disability, HRS §§ 386–31(a) (1993) and 386– 32(a) (Supp.1998). These medical and wage benefits are independent benefits, separate and distinct from one another.
89 Hawai‘i at 442, 974 P.2d at 1032 (citations omitted).
In Lindinha, this court discussed Bocalbos to conclude that an order denying an HRS § 386–93(b) request for fees and costs is a final order for purposes of appeal in worker compensation cases. 104 Hawai‘i at 169, 86 P.3d at 978.
30 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
benefits shall not be discontinued based solely on the inability to perform or continue to perform light work.
Webb’s argument on this issue is not meritorious.
First, neither the 2019 LIRAB Decision nor the ICA’s SDO discuss
or rely on HRS § 386-31(b) in concluding that his workers’
compensation case was properly closed in 2007.
Second, HRS § 386-31(b) does not apply to Webb because
the record shows that Webb, OSF, and HIGA stipulated that Webb
sustained “permanent partial disability” to his left hip/leg. A
plain reading of HRS § 386-31(b) requires that the “work injury
cause[] total disability not determined to be permanent in
character” in order for the statute to apply. Webb’s work
injury does not fall under the purview of HRS § 386-31(b), and
thus the statute is inapplicable here.
Third, Webb does not provide any argument as to how
his proposed interpretation of HRS § 386-31(b) affects the ICA’s
holding that Webb’s workers’ compensation case was properly
closed. As discussed above, the ICA reasoned that HIGA sent the
2007 WC-3 report as a final report, which advised Webb his case
was to be closed. Further, as argued by OSF/HIGA to the ICA, by
the time the 2007 WC-3 final report was filed in March 2007, it
had been over two years since HIGA had received any medical
billing for Webb. The last billing had been received in
November of 2004. Under HRS § 386-21(g), failure of a medical
31 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
services provider to bill the employer or insurer within two
years of the date of service results in forfeiture of the
provider’s right to payment. Thus, when the 2007 WC-3 final
report was filed, it was reasonable for Webb’s case to be
closed. Webb’s reliance on HRS § 386-31(b) is misplaced.
In sum, Webb does not raise any meritorious arguments
that the ICA gravely erred in holding that Webb’s workers’
compensation case was properly closed.
V. CONCLUSION
For the reasons set forth herein, we affirm the ICA
Judgment on Appeal.
Christopher R. Evans /s/ Mark E. Recktenwald for petitioner /s/ Sabrina S. McKenna Matthew K. Wong for respondents /s/ Todd W. Eddins
/s/ Lisa M. Ginoza
/s/ Vladimir P. Devens