Leopoldino v. State

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-MAY-2024
09:03 AM
Dkt. 93 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

WANDA L. LEOPOLDINO, Claimant-Appellant-Appellant, v.
STATE OF HAWAIʻI, DEPARTMENT OF EDUCATION,
Employer-Appellee/Self-Insured-Appellee.

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2015-463(H)(T)(1-08-10021))

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

Claimant-Appellant-Appellant Wanda L. Leopoldino

(Leopoldino) appeals from the Labor and Industrial Relations

Appeals Board's (Board) May 14, 2019 Decision and Order. In her

points of error, Leopoldino challenges several findings of fact

(FOF) and a conclusion of law (COL).

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 the

points of error as discussed below.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Specifically, Leopoldino challenges FOF numbers 3, 4,

5, 7, and 8, and COL number 1. FOF numbers 3, 4, 5, and 7 made

credibility determinations, which we will not disturb. See

generally, Pave v. Prod. Processing, Inc., 152 Hawaiʻi 164, 172,

524 P.3d 355, 363 (App. 2022) (holding when reviewing FOF, this

court "cannot consider the weight of the evidence to ascertain

whether it weighs in favor of the administrative findings, or

review the agency's findings of fact by passing upon the

credibility of witnesses or conflicts in testimony . . . .")

(citation and internal quotation marks omitted).

FOF number 8 and COL number 1 are related, and state:

FOF 8: "The Board finds that [Leopoldino] has not
met her burden of proving that she sustained
[permanent partial disability] as a result
of her October 25, 2007 work injury."

COL 1: "The Board concludes that [Leopoldino]
sustained no permanent partial disability as
a result of the work injury of October 25,
2007."

(Emphases added.) The issue before the Board was whether

Leopoldino "sustained any permanent partial disability as a

result of the work injury of October 25, 2007. If so, what is

the extent of permanent partial disability." (Emphasis added.)

The Board relied on Hawai‘i Revised Statutes (HRS)

§ 91-10(5) (2012), under the Administrative Procedure chapter,

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which provides "[e]xcept as otherwise provided by law, the party

initiating the proceeding shall have the burden of proof,

including the burden of producing evidence as well as the burden

of persuasion. The degree or quantum of proof shall be a

preponderance of the evidence." (Emphasis added.)

HRS chapter 386, the Workers' Compensation Law,

otherwise provides in part, "[i]n any proceeding for enforcement

of a claim for compensation under this chapter it shall be

presumed, in the absence of substantial evidence to the contrary

. . . [t]hat the claim is for a covered work injury[.]" HRS

§ 386-85(1) (2015).

The HRS § 386-85(1) presumption applies "in any

proceeding for compensation due to an allegedly compensable

consequence of a work-related injury." Igawa v. Koa House

Rest., 97 Hawai‘i 402, 407, 38 P.3d 570, 575 (2001) (holding the

presumption applied where the "issue before the Board was not

merely whether and to what extent Claimant was permanently

disabled, but also whether the disability was a result of the

work injury"). "In order to overcome the HRS § 386-85(1)

presumption of work-relatedness, the employer must introduce

substantial evidence to the contrary." Id.

In Igawa, the director awarded the claimant temporary

total disability, "but stated that permanent disability and

disfigurement benefits, if any, would be determined at a later

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date." Id. at 404, 38 P.3d at 572. Two years later, the

director held a hearing, and issued a decision discussing in

part, permanent disability. Id. The employer appealed to the

Board, who framed the permanent disability issue as, "[w]hat is

the extent of permanent disability resulting from the work

injury[.]" Id. The Board concluded the claimant "did not

sustain any permanent disability attributable to his October 3,

1991 work injury[.]" Id. at 405, 38 P.3d at 573. This court

however held that the Board erred because under HRS § 386-85(1),

the employer had the burden to rebut the presumption the

claimant suffered permanent partial disability as a result of

the work injury. Id.

On certiorari to the Hawai‘i Supreme Court, the

employer argued because the director's earlier "decision already

established that Claimant's injury arose out of and in the

course of his employment, the [HRS § 386-85] presumptions did

not apply." Id. at 406, 38 P.3d at 574. The supreme court

disagreed, and explained the "issue before the Board was not

merely whether and to what extent Claimant was permanently

disabled, but also whether the disability was a result of the

work injury." Id. at 407, 38 P.3d at 575. "Thus, whether the

cause of Claimant's permanent disability was work-related was

clearly at issue in the proceedings and the HRS § 386-85

presumptions applied." Id.

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Like Igawa, the issue of permanent partial disability

here was deferred to a later date. Id. at 404, 38 P.3d at 572.

Also like Igawa, in finally addressing permanent partial

disability, the "issue before the Board was not merely whether

and to what extent Claimant was permanently disabled, but also

whether the disability was a result of the work injury." Igawa,

97 Hawai‘i at 407, 38 P.3d at 575. Further, FOF number 8 and COL

number 1 in the Board's May 14, 2019 Decision and Order did not

stop at whether disability existed, but determined whether the

disability was work related. Thus, the HRS § 386-85(1)

presumption applied, and the Board erred in applying the HRS

§ 91-10(5) burden of proof. 1

Based on the foregoing, we vacate the Board's May 14,

2019 Decision and Order, and remand this case for further

proceedings consistent with this summary disposition order.

DATED: Honolulu, Hawai‘i, May 17, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Ted H.S. Hong,
for Claimant-Appellant- /s/ Keith K. Hiraoka
Appellant. Associate Judge

James E. Halvorson, /s/ Sonja M.P. McCullen
Deputy Attorney General, Associate Judge
for Employer-Appellee/Self-
Insured-Appellee.

1 In its answering brief, the employer, the State of Hawai‘i Department
of Education, does not argue it adduced substantial credible evidence that
Leopoldino did not suffer any permanent impairment as a result of the work
accident; thus, we do not address this issue. See generally, Igawa, 97
Hawai‘i at 407, 38 P.3d at 575.

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