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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
11-MAY-2026
07:54 AM
Dkt. 53 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

MARTIN S. GOUR, Claimant/Appellant-Appellant,
v.
THE PEPSI BOTTLING GROUP, Employer/Appellee-Appellee,
and
SEDGWICK CMS HAWAII, Insurance Carrier/Appellee-Appellee

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2019-170(H); DCD NO. 1-12-00430)

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

Self-represented Claimant/Appellant-Appellant Martin

S. Gour (Gour) appeals from the Labor and Industrial Relations

Appeals Board's (LIRAB) "Decision and Order" (Order) filed on

October 2, 2024.

Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration
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to the arguments advanced and the issues raised by the parties,

we affirm the Order.

Gour's opening brief fails to comply with Hawaiʻi Rules

of Appellate Procedure (HRAP) Rule 28(b). Among other things,

the opening brief does not set forth the points of error being

raised on appeal. Nevertheless, "a pro se litigant's failure to

state the alleged errors of the lower court in precise

compliance with HRAP Rule 28(b) . . . will not foreclose

consideration of the appeal, so long as the litigant's argument

can reasonably be discerned." Erum v. Llego, 147 Hawaiʻi 368,

380, 465 P.3d 815, 827 (2020) (cleaned up). Here, it appears

that Gour challenges the LIRAB's conclusion that his workers'

compensation benefits "should remain suspended, pursuant to

[Hawaii Revised Statutes (HRS) §] 386-79 [(2015)]."

Our review of the LIRAB's Order is governed by HRS

§ 91-14(g) (Supp. 2016), which provides,

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;

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(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.

See also Tam v. Kaiser Permanente, 94 Hawaiʻi 487, 494, 17 P.3d

219, 226 (2001).

Under HRS § 91-14(g), conclusions of law are reviewable
under subsections (1), (2), and (4); questions regarding
procedural defects are reviewable under subsection (3);
[findings of fact] are reviewable under subsection (5); and
an agency's exercise of discretion is reviewable under
subsection (6).

Paul v. Dep't. of Transp., 115 Hawaiʻi 416, 426, 168 P.3d 546,

556 (2007) (citations omitted).

This matter arises from Gour's July 2012 work injury. 1

Employer/Appellee-Appellee The Pepsi Bottling Group (Employer)

accepted liability for Gour's injury. In December 2018,

Employer requested that the Director of Labor and Industrial

Relations (Director) issue an order compelling Gour to attend an

independent medical examination (IME) that was scheduled for

March 9, 2019 with Dr. Leonard Cupo (Dr. Cupo) in Hilo, Hawaiʻi.

The Director ordered Gour to attend the scheduled IME.

In a January 30, 2019 letter to the Director, Gour

objected to the IME on the ground that he would not be able to

attend the IME due to "work" and "prior obligations." Gour did

1 The LIRAB findings of fact discussed herein are unchallenged on
appeal and are therefore binding on this court. See Okada Trucking Co. v.
Bd. of Water Supply, 97 Hawaiʻi 450, 459, 40 P.3d 73, 82 (2002).

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not object to the IME prior to the Director's issuance of the

December 28, 2018 order and failed to appear for the March 2019

IME with Dr. Cupo.

In April 2019, Employer requested a hearing with the

Department of Labor and Industrial Relations Disability

Compensation Division (DCD) on the matter of Gour's no-show to

the IME. A hearing was calendared for June 3, 2019. The Notice

of Hearing informed the parties that the issue of suspension of

Gour's benefits and other issues as appropriate would be

discussed at the hearing. Gour advised the DCD that he would

not attend the June 2019 hearing due to a work conflict, and did

not appear at the hearing.

The Director issued its supplemental decision, which

suspended Gour's compensation, and assessed Gour $250 to be

applied towards the cost of his no-show fee to the IME. 2 Gour

appealed to the LIRAB.

While the LIRAB appeal was pending, Employer made

additional attempts to schedule an IME for Gour. Employer

scheduled a March 26, 2020 IME for Gour with Dr. Jon Streltzer

(Dr. Streltzer). Gour objected on the basis that Dr. Streltzer

was a "psychiatrist, not a MD," and that Dr. Streltzer

2 Gour does not challenge the $250 no-show fee assessment on
appeal. "Points not argued may be deemed waived." HRAP Rule 28(b)(7).

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"specializes [in] addiction to opioid pain medications" and

"[Gour] does not use anything but over the counter pain

relievers."

By a letter dated February 26, 2020, Gour demanded

that Employer agree to the following should it "continue to

request" Gour's submission to an IME: reimbursement of "$350.00

in lost wages per day"; "[t]ravel arrangements for [Gour], and

his attendant, should it be in Oahu, ([Gour] will pay for his

attendants trip)"; "any other reimbursements"; and "a mutual

agreed choice of requested IME doctor." In an email on

January 19, 2021, Employer asked Gour if any of the doctors he

identified would travel to Hilo. It appears that Gour did not

respond to Employer, but Employer's February 17, 2021 follow-up

email to Gour indicated that the doctors either did not travel

to Hilo or would not consider a review of Gour's work injury

claim.

The matter went to trial, and the LIRAB heard Gour's

testimony. The LIRAB found that Gour had not complied with the

Director's December 28, 2018 order directing Gour to attend an

IME, and suspended Gour's benefits effective March 9, 2019. The

LIRAB determined, in its "Analysis/Discussion," that,

[Gour's] failure to submit to the examination
presented an obstacle, hindered completion of the
examination, and showed an unwillingness to attend the
examination, thereby not allowing the examination to
proceed.

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Despite attempts to reschedule the IME with a
mutually agreeable physician, the record is devoid of
evidence that [Gour] eventually complied with the
Director's December 28, 2018 Order requiring him to submit
to an IME prior to the date of the trial in this matter.

Gour appealed to this court.

We conclude that the LIRAB's decision was not in

violation of any statutory provision, nor was it in excess of

statutory authority. HRS § 386-79(a) directs that "the

employee, whenever ordered by the [Director], shall submit to

examination . . . by a duly qualified physician." Where the

"employee refuses to submit to . . . 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." Id.

We further conclude that the LIRAB's decision was not

"[c]learly erroneous in view of the reliable, probative, and

substantial evidence on the whole record." See HRS § 91-

14(g)(5). Gour objected to all attempts by Employer to schedule

an IME. He was a no-show for his scheduled March 2019 IME with

Dr. Cupo, and he refused to submit to an IME with Dr. Streltzer.

The record reflects that Gour has not complied with the

Director's December 28, 2018 order requiring him to submit to an

IME.

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For the foregoing reasons, we affirm the LIRAB's

Order.

DATED: Honolulu, Hawaiʻi, May 11, 2026.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Martin S. Gour,
/s/ Katherine G. Leonard
Self-represented
Associate Judge
Claimant/Appellant-Appellant.
/s/ Kimberly T. Guidry
Brian G.S. Choy,
Associate Judge
for Employer/Appellee-
Appellee and Insurance
Carrier/Appellee-Appellee.