Noborikawa v. Host International. Inc.

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-SEP-2024
08:06 AM
Dkt. 60 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

CARRIE N. NOBORIKAWA, Claimant-Appellant-Appellant,
v.
HOST INTERNATIONAL, INC., Employer-Appellee-Appellee,
and
ACE INSURANCE CO., adjusted by CORVEL CORPORATION,
Insurance Carrier-Appellee-Appellee

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2018-009)

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

This is an appeal from an order by the Labor and
Industrial Relations Appeals Board (LIRAB) regarding permanent
partial disability (PPD) benefits.
Claimant-Appellant-Appellant Carrie N. Noborikawa
(Claimant) appeals from the February 19, 2020 Decision and Order
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

(2020 D&O) by LIRAB. In the 2020 D&O, LIRAB held that Claimant
was entitled to 8% PPD of the right lower extremity and 3% PPD
of the left lower extremity from the result of a March 9, 2007
work injury.
On appeal, Claimant challenges the 2020 D&O, and
argues that there were insufficient findings to support LIRAB's
PPD percentages, and that LIRAB erred in its interpretation of
the law regarding PPD.
Upon review of the record on appeal and relevant legal
authorities, giving due consideration to the issues raised and
arguments advanced by the parties, we affirm.
Claimant was employed as store manager, trainer, and
specialized opener for new facilities by Employer-Appellee-
Appellee Host International, Inc. (Employer) since January 27,
1994. On March 9, 2007, Claimant injured both knees while on
the job. Employer accepted responsibility for Claimant's injury
in a WC-1 Employer's Report of Industrial Injury.
On July 30, 2010, James R. Langworthy, M.D. (Dr.
Langworthy) evaluated Claimant pursuant to Hawaii Revised
Statutes (HRS) § 386-79. Dr. Langworthy noted: "pain,"
"swelling," and a "catching sensation" in Claimant's right knee;
and "lesser pain" in Claimant's left knee with periodic
"buckling" and "minor swelling." Dr. Langworthy determined that
Claimant was "medically stable," and noted a "5% impairment of
the right lower extremity" and "no rateable impairment in the
left knee" according to the American Medical Association (AMA)
Guides. Dr. Langworthy also noted that Claimant "will have to
live with her residual symptoms."
On April 29, 2013, Claimant was reevaluated by Dr.
Langworthy. Dr. Langworthy noted: a "tingling" sensation down
the right leg, and a "tingling" sensation in the left leg when

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

overworked; "pain," "swelling," and "catching" in the right
knee; "milder pain" and "swelling" in the left knee and
occasional "buckl[ing]." Dr. Langworth determined that Claimant
was "medically stable," and that the impairment ratings were the
same.
Claimant engaged in vocational rehab (VR) services,
which terminated on February 4, 2016. Claimant started a new
job as a medical coder in 2016.
On September 13, 2016, Dr. Langworthy evaluated
Claimant for a third time. Dr. Langworthy noted: "little pain"
in the left knee; and "pain and swelling" in the right knee
along with a "grinding noise with movement." Dr. Langworthy
determined that Claimant was "medically stable," that there was
a "5% impairment of the right lower extremity," and did not give
a rating for the left lower extremity.
On October 18, 2017, a hearing was held to determine,
inter alia, whether Claimant suffered any permanent disability
or disfigurement as a result of the industrial injury.
On December 13, 2017, the Director of the Department
of Labor and Industrial Relations filed a Supplemental Decision
and Order (2017 D&O), determining that Claimant was entitled to
7% PPD of the right knee and no PPD of the left knee. Employer
was ordered to pay Claimant weekly compensation of $540.83 for
the 7% PPD of the right knee for approximately 25 weeks, for a
total of $13,668.48 pursuant to HRS § 386-32(a).
On January 2, 2018, Claimant appealed the 2017 D&O to
LIRAB. On appeal to LIRAB, Claimant argued that she should be
awarded 20% PPD of the right knee and 7% PPD of the left knee.
Claimant argued that other factors were to be considered in
determining PPD, such as her inability to continue work with

3
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Employer and the suffering she faced daily as a result of her
injury.
On February 5, 2019, a trial was held before LIRAB.
Claimant testified that since 1994, she worked for Employer as
an assistant manager, store manager, certified trainer,
instructor, and helped open new facilities. Claimant testified
that her duties required her to travel interisland, be on her
feet for "80 percent" of the time, and lift beer kegs up to 125
pounds. Claimant testified that she made around $65,000 per
year, including bonuses. Claimant testified that after her
March 9, 2007 injury, she was unable to return to work with
Employer. As to the right knee, Claimant testified that she
continued to have "painful, throbbing, swelling[,]" and
"buckling"; that her right knee felt "hot" at the end of the
day; and that she could not sit for extended periods of time
without having to get up. As to the left knee, Claimant
testified that she continued to have "[w]eakness, some
aching[,]" "sharp pain," "buckling," occasional "swelling," and
a "crunchy" sound. Claimant testified that after her injury,
she enrolled in VR and later found work as a medical coder as of
January 2016. As a medical coder, Claimant testified that she
made approximately $16.00 an hour. Claimant testified that her
injury affected her work because she has to "get up more often
than others and walk around" due to not being able to sit for
extended periods of time. Claimant testified that she can no
longer lift heavy weights, has to wear special footwear, and has
difficulty performing daily activities. Dr. Langworthy's July
30, 2010; April 29, 2013; and September 13, 2016 medical reports
were also received in evidence.
On February 19, 2020, LIRAB filed its 2020 D&O, in
which it modified in part and reversed in part the 2017 D&O.

4
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

LIRAB determined that Claimant was entitled to "8% PPD of the
right lower extremity" and "3% PPD of the left lower extremity."
LIRAB made the following findings of fact (FOFs) and conclusions
of law (COLs):
FINDINGS OF FACT

1. Claimant, a high school graduate in her 30's, was
unable to return to her usual and customary job as
restaurant and bar manager as a result of her work injury
to both knees.

2. While in VR, Claimant attended classes at Hawaiʻi
Medical College to train as a medical coder or biller.

3. Claimant completed VR and was successfully
rehabilitated. She found suitable and gainful employment as
a medical coder/biller beginning January 6, 2016.

4. Claimant received an impairment rating of 5% for
the right lower extremity and 0% for the left lower
extremity from Dr. Langworthy, based on the AMA Guides.

5. [LIRAB] credits Claimant's testimony regarding her
recurrent symptoms in the right knee and how they impacted
her daily activities at home and at work.

6. [LIRAB] credits Claimant's testimony regarding her
intermittent and recurrent symptoms in the left knee and
how they impacted her daily activities at home and at work.

7. Claimant suffered a loss of physical function of
both the right and left legs, as a result of the work-
related bilateral knee injury.

8. In evaluating Claimant's PPD for the right and
left lower extremities, [LIRAB] considered the impairment
ratings by Dr. Langworthy based on the AMA Guides,
Claimant's post-injury inability to return to her usual and
customary job, the impact of the injury on Claimant's work
in her new job, and her residual symptoms.

9. Claimant argued that she was 100% disabled from
her usual and customary job, but presented no evidence to
meet her burden of proving Claimant's entitlement to an
award of 20% PPD for the right leg and 7% PPD for the left
leg.

10. On this record and based on the foregoing
findings, [LIRAB], in exercising its discretion as an
expertise [sic] board, finds that Claimant sustained a
permanent impairment of 8% of the right lower extremity and
a permanent impairment of 3% of the left lower extremity.

5
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

. . . .

ANALYSIS/DISCUSSION

In assessing Claimant's impairment, [LIRAB] has
considered not only Dr. Langworthy's impairment ratings,
but also Claimant's testimony and documented reports
regarding her symptoms in the right and left lower
extremities, Claimant's inability to return to her bar and
restaurant manager job, the injury's impact on the job she
has been rehabilitated into, and any other factors that
affect PPD assessment pursuant to Ihara.

Claimant argues that she should get a larger PPD
award than a secretary (her example), who suffered the same
injury and had the same residual symptoms, because that
secretary is able to return to her usual and customary
sedentary job; whereas, Claimant, who had a more physically
demanding job, is 100% disabled from her usual and
customary job. Claimant contends that it would be unfair
for her to receive a PPD award that is comparable to that
of the secretary whose injury did not impact her ability to
return to her pre-injury job.

Claimant's argument is without merit. One cannot look
only at the PPD award and conclude that the injured
employee was or was not unfairly compensated for his or her
injury. Each case is different and requires individual
analysis.

Claimant's position ignores the statutory scheme in
which injured employees who are not able to return to their
pre-injury job are entitled to additional or different
benefits, such as VR services and additional [Temporary
Total Disability (TTD)] benefits during VR, the purpose of
which is to reduce or remove barriers to reemployment.

In assessing impairment and awarding PPD for loss of
physical or mental function, [LIRAB], as an expertise [sic]
board, has the discretion to consider the entire record,
beyond the doctor's impairment rating, including but not
limited to, the impact of the injury on the injured
employee's activities at home and at work, in the old, as
well as any new job that the employee was rehabilitated
into.
CONCLUSIONS OF LAW

1. [LIRAB] concludes that Claimant sustained
permanent disability of the left leg as a result of her
March 9, 2007 work injury. [LIRAB] concludes that Claimant
is entitled to benefits for 3% PPD of the left
lower extremity.

2. [LIRAB] concludes that Claimant is entitled to
benefits for 8% PPD of the right lower extremity, as a
result of her March 9, 2007 work injury.

6
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Claimant timely appealed.
On appeal, 1 Claimant contends that LIRAB erred by
holding that she was only entitled to 8% PPD of the right lower
extremity and 3% PPD of the left lower extremity.
"Appellate review of a LIRAB decision is governed by
HRS § 91-14(g)." Botelho v. Atlas Recycling Ctr., LLC, 146
Hawaiʻi 435, 442, 463 P.3d 1092, 1099 (2020) (cleaned up).
Upon review of the record the court may affirm the decision
of the agency or remand the case with instructions for
further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the
petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory
provisions;

(2) In excess of the statutory authority or
jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or

(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted exercise
of discretion.

Id. (quoting HRS § 91-14(g)).
Our HRS § 91-14 review of an agency's decision is
"qualified by the principle that the agency's decision

1 Claimant's points of error (POEs) in the Opening Brief do not
comply with Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 28(b)(4).
Claimant's POEs are not "set forth in separately numbered paragraphs." See
HRAP Rule 28(b)(4) (emphasis added). While Claimant raises numerous POEs
challenging various FOFs and COLs, Claimant does not present argument on why
the challenged FOFs and COLs are clearly erroneous or wrong. See HRAP Rule
28(b)(7) ("Points not argued may be deemed waived."). Rather, Claimant
presents other arguments on why LIRAB erred in its PPD determination, which
we address.

7
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

carries a presumption of validity and appellant has the
heavy burden of making a convincing showing that the
decision is invalid because it is unjust and unreasonable
in its consequences." In re Water Use Permit Applications,
94 Hawai‘i 97, 118–19, 9 P.3d 409, 430–31 (2000) (citations
omitted). We are to give deference to the agency's
expertise and experience in the particular field and not
substitute our own judgment for that of the agency. Dole
Haw. Div.-Castle & Cooke, Inc. v. Ramil, 71 Haw. 419, 424,
794 P.2d 1115, 1118 (1990).
Claimant argues that LIRAB erred in its PPD
determination because LIRAB: failed to "sufficiently explain
how it reached its PPD award[]"; did not consider that "Claimant
was permanently unable to perform the demanding duties of her
job" with Employer; "erroneously relied on the efforts of VR to
train Claimant as a medical coder/biller"; and "refused to
recognize that PPD benefits are not indemnity [(TTD)] benefits."
A PPD award "compensates the worker not for total loss
of income but for partial loss of function, either physical
function or mental function." Ihara v. State Dep't of Land &
Nat. Res., 141 Hawaiʻi 36, 46, 404 P.3d 302, 312 (2017) (emphasis
added). "[U]ltimately the director of the [LIRAB] . . . decides
the final PPD rating." Id. at 43, 404 P.3d at 309 (citation
omitted). "LIRAB generally places great weight upon a
physician's initial impairment rating, but it is not the only
component of [LIRAB]'s assessment." Id. (citation omitted).
"LIRAB has the discretion to consider the entire record, even
beyond the physician's impairment rating, to determine the most
accurate impairment rating possible." Id. at 45, 404 P.3d at
311. LIRAB may consider "whether the complainant is able to
participate in the same types of hobbies and daily and work

8
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

activities as prior to the accident." Id. at 43, 404 P.3d at
309 (citations omitted). LIRAB may also consider the inability
to perform "usual and customary work." Id. at 46, 404 P.3d at
312.
Here, in the 2020 D&O, LIRAB found that Claimant was
unable to return to her previous job with Employer in FOF 1:
"Claimant . . . was unable to return to her usual and customary
job as restaurant and bar manager as a result of her work injury
to both knees." In FOF 8, LIRAB specifically stated what it
considered in determining the PPD award: "In evaluating
Claimant's PPD . . ., [LIRAB] considered the impairment
ratings by Dr. Langworthy based on the AMA Guides, Claimant's
post-injury inability to return to her usual and customary job,
the impact of the injury on Claimant's work in her new job, and
her residual symptoms." (Emphases added.) These FOFs are
binding. See Okada Trucking Co., Ltd. v. Bd. of Water Supply,
97 Hawaiʻi 450, 459, 40 P.3d 73, 82 (2002) ("[U]nchallenged
factual findings are deemed to be binding on appeal . . . .").
LIRAB did not consider Claimant's new income as a medical coder,
but rather considered the impact Claimant's injury had on her
daily life, including the impact the injury had on her new job. 2
See Ihara, 141 Hawaiʻi at 46, 404 P.3d at 312 (explaining that
PPD compensation should not be based on loss of wages or earning
capacity; however, LIRAB could consider claimant's inability to
perform daily activities, as it may indicate a permanent partial
loss of function) ("[A] total disability award is ultimately
income-based; a partial disability award is ultimately function-
based." (emphasis added)).

2 Claimant testified that her injury affected her work because it
caused her to "get up more often than others and walk around."

9
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Additionally, in the "Analysis/Discussion" section,
LIRAB did not erroneously treat PPD benefits as TTD benefits.
Rather, LIRAB accurately informed Claimant that she was not
entitled to greater PPD benefits solely due to her inability to
return to work, and that there were other benefits such as TTD
for the inability to return to work with Employer: "Claimant's
position ignores the statutory scheme in which injured employees
who are not able to return to their pre-injury job are entitled
to additional or different benefits, such as VR services and
additional TTD benefits during VR, the purpose of which is [to]
reduce or remove barriers to reemployment." LIRAB also
accurately stated in its "Analysis/Discussion" section, that it
had "the discretion to consider the entire record, beyond the
doctor's impairment rating, including but not limited to, the
impact of the injury on the injured employee's activities at
home and at work, in the old, as well as any new job that the
employee was rehabilitated into." (Emphases added.)
Thus, the record reflects that LIRAB sufficiently
explained how it reached its PPD award; LIRAB considered
Claimant's inability to return to work with Employer; LIRAB did
not rely on Claimant's compensation from her new job as a
medical coder as a reason to reduce PPD; and LIRAB did not treat
PPD benefits as TTD benefits. See Kauai Springs, Inc. v. Plan.
Comm'n of Cnty. of Kauai, 133 Hawaiʻi 141, 173, 324 P.3d 951, 983
(2014) (explaining that an agency "must make findings sufficient
to enable an appellate court to track the steps that the agency
took in reaching its decision" (citation omitted)). Therefore,
LIRAB did not err in its PPD determination. See Botelho, 146
Hawaiʻi at 442, 463 P.3d at 1099; HRS § 91-14(g).

10
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

For the foregoing reasons, we affirm the February 19,
2020 Decision and Order by the Labor and Industrial Relations
Appeals Board.
Further, Noborikawa's July 27, 2024 Motion for
Retention of Oral Argument is also denied.
DATED: Honolulu, Hawai‘i, September 20, 2024.
On the briefs:
/s/ Katherine G. Leonard
Wayne H. Mukaida
Acting Chief Judge
for Claimant-Appellant-
Appellant.
/s/ Keith K. Hiraoka
Associate Judge
Jacqueline W.S. Amai
for Employer-Appellee-Appellee
/s/ Karen T. Nakasone
and Insurance Carrier-
Associate Judge
Appellee-Appellee.

11