Borrson v. Weeks

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-MAY-2024
07:51 AM
Dkt. 62 SO

NO. CAAP-XX-XXXXXXX

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

JAMES C. BORRSON, Claimant-Appellee-Appellant, v.
BRENDA B. WEEKS, Employer-Appellant-Appellee,
and
SPECIAL COMPENSATION FUND, Appellee-Appellee

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2017-041(WH); DCD NO. 9-16-00359)

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

Claimant-Appellee-Appellant James C. Borrson (Borrson)

appeals from the July 3, 2019 Decision and Order (July 3, 2019

Order) issued by the Department of Labor and Industrial Relations

Appeals Board (LIRAB or Board) in favor of Employer-Appellant-

Appellee, Brenda B. Weeks (Weeks).1 The July 3, 2019 Order

affirmed in part, and reversed in part, the March 8, 2017

Decision and Order (March 8, 2017 Order) issued by the Director

of the Department of Labor and Industrial Relations (Director).

Borrson raises two points of error on appeal,

contending that the LIRAB: (1) clearly erred in entering

1
The July 3, 2019 Order includes a Dissenting/Concurring Opinion by
Chair D.J. Vasconcellos.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Findings of Fact (FOFs) 4, 5, 6, 7, 12, 13, 15, 17, 18, 19, 20,

and 21; and (2) erred in entering Conclusions of Law (COLs) 1-4.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Borrson's points of error as follows:

(1) Borrson argues that the LIRAB erred when it found

as follows:
4. The Board credits Ms. Weeks's explanation of her
own intention in including the handwritten language into the
2015 Yard Maintenance Agreement.
5. The Board finds that in 2015, when Ms. Weeks felt
as though the Tenants had taken advantage of her, Ms. Weeks
added a handwritten change into the Yard Maintenance
Agreement, limiting any work performed by the Tenants to no
more than 10 hours per month.

6. The Board finds Claimant's testimony about his
yard maintenance work for other tenants, that he always
received Ms. Weeks's approval for projects, and his
assistance to Ms. Weeks to be internally inconsistent,
exaggerated, and unreliable.
7. The Board does not credit Claimant's testimony
regarding the scope of the work he performed or that he
always received Ms. Weeks's prior approval. His emails do
not document her approval. Instead, they show that he
proceeded as he independently saw fit.

These FOFs state credibility determinations and reflect
the consideration and weight that the LIRAB gave to certain

evidence. They are supported by evidence in the record. We

decline to substitute our judgment for that of the LIRAB, as

"credibility of witnesses and the weight to be given their

testimony are within the province of the trier of fact and,

generally, will not be disturbed on appeal." Yadao v. Dep't of

Land and Nat. Res., 137 Hawai#i 162, 172, 366 P.3d 1041, 1051

(App. 2016) (quoting Tamashiro v. Control Specialist, Inc., 97

Hawai#i 86, 92, 34 P.3d 16, 22 (2001)); see also Igawa v. Koa

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House Rest., 97 Hawai#i 402, 410, 38 P.3d 570, 578 (2001)

(acknowledging that "courts decline to consider the weight of the

evidence to ascertain whether it weighs in favor of the

administrative findings, or to review the agency's findings of

fact by passing upon the credibility of witnesses or conflicts in

testimony"). We conclude that FOFs 4-7 are not clearly

erroneous.

Borrson argues that the LIRAB clearly erred in FOF 12,

when it stated:
12. The Board credits Ms. Weeks's testimony that
Claimant did not have her permission to perform work on the
roof on September 23, 2015. There is no evidence - not even
Claimant's own testimony - that it was done at her request
or that he received her prior authorization.

Although Borrson does not point to where in the record

there is evidence contrary to the LIRAB's finding in FOF 12, we

nevertheless conclude that the LIRAB plainly erred in the second

sentence, as Borrson testified as follows:
Q. Do you recall at one time Ms. Weeks claimed that
she did not know you were working on the roof?
A. Yes.
Q. Is there any way she could have not known that you
were working on the roof?
A. She had to know. She told me to do it.

On remand, the LIRAB remains free to credit the

testimony of Weeks and not Borrson, or vice versa. However, in

light of its error in the second part of FOF 12, we vacate all of

FOF 12 for the LIRAB's further consideration.

Borrson argues that the LIRAB clearly erred in FOFs 13,

15, 17, and 18, which state:
13. The Board further finds that while Ms. Weeks may
have informed Claimant of projects she wanted him to do and
had input as to where and what she wished to have done, she
did not have the absolute power to dictate the means and
methods by which the work was to be accomplished. Rather,
their history demonstrates that upon Ms. Weeks's request for

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his help with a project, Claimant would dictate his own
means and methods to perform the work by determining and
obtaining the necessary materials and working on the
requested project.
. . . .

15. The Board finds that the activity of performing
work on the projects for which Ms. Weeks requested
Claimant's help were not integral to her business of renting
homes.

. . . .
17. Upon request, Claimant performed specific repair
and maintenance work for Ms. Weeks, for which the Tenants
received a rent reduction as payment. The Board finds that
Claimant was in the business of repair and maintenance work
and performed work for Ms. Weeks in furtherance of such
business.

18. Having balanced the factors regarding the general
relationship that Claimant had with regard to the work
performed, the Board finds that the activity of performing
repair or maintenance work was not an integral part of Ms.
Weeks's rental business, that Claimant was in a business of
his own, and that the work Claimant performed was in his
interest over that of Ms. Weeks.

These FOFs reflect the LIRAB's weighing of the evidence

before it. Borrson does not point to any evidence in the record

to the contrary, and his challenge to these FOFs is waived. See

Hawai#i Rules of Appellate Procedure Rule 28(b)(7). Moreover,

based upon our review of the record, we are not left with a firm

and definite conviction that a mistake has been made in FOFs 13,
15, 17 and 18 and/or that they are clearly erroneous. See Duque

v. Hilton Hawaiian Vill., 105 Hawai#i 433, 437-38, 98 P.3d 640,

644-45 (2004) (discussing the clearly erroneous standard of

review).

Borrson further argues that the LIRAB erred in FOF 19

when it found:
19. Applying the preponderance of the evidence
standard, the Board finds that Ms. Weeks met her burden of
establishing, under the control test and the relative nature
of the work test, that coverage for Claimant's injury is not
proper.

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Borrson argues that LIRAB erred in applying the

preponderance of the evidence standard, rather than the

substantial evidence standard here. This argument has merit.

Hawaii Revised Statutes (HRS) § 386-73.5 (2015)

provides:
§ 386-73.5 Proceedings to determine employment and
coverage. The director of labor and industrial relations
shall have original jurisdiction over all controversies and
disputes over employment and coverage under this chapter.
Except in cases where services are specifically and
expressly excluded from "employment" under section 386-1, it
shall be presumed that coverage applies unless the party
seeking exclusion is able to establish under both the
control test and the relative nature of the work test that
coverage is not appropriate under this chapter. There shall
be a right of appeal from decisions of the director to the
appellate board and thence to the intermediate appellate
court, subject to chapter 602.

(Emphasis added).

HRS § 386-85 (2015) provides, in relevant part:
§ 386-85 Presumptions. In any proceeding for the
enforcement of a claim for compensation under this chapter
it shall be presumed, in the absence of substantial evidence
to the contrary:
(1) That the claim is for a covered work injury[.]

In light of the clear mandate of this provision that

compensability is presumed "under this chapter" absent

substantial evidence to the contrary, and the broad remedial

purpose of Chapter 386, we conclude that the substantial evidence

standard applies to the analysis under HRS § 386-73.5. The LIRAB

erred in applying a preponderance of the evidence standard in FOF

19. Accordingly, FOF 19 must be vacated, and on remand, the

LIRAB must apply the correct standard to the evidence in this

case.

Lastly, Borrson argues that the LIRAB erred when it

found:

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20. Given the circumstances of this case, it was
reasonable for Ms. Weeks to present the issue of Claimant's
employment status to the Director for determination.
21. The Board finds that Claimant has not met his
burden of proving that Ms. Weeks proceeded without
reasonable grounds.

Borrson contends that the testimony by Weeks was

"inconsistent" and that she "presented no law to support her

argument." Borrson submits that Weeks "cannot be said to have

proceeded with reasonable ground" under HRS § 386-93(a) (2015).2

This argument is without merit. In light of the LIRAB's

unchallenged and/or undisturbed FOFs, as well as the entirety of
the record, FOFs 20 and 21 – stating in effect that it was not

unreasonable for Weeks to deny that she was Borrson's employer –

were not clearly erroneous.

(2) Borrson argues that the LIRAB erred when it

concluded as follows:
1. The Board concludes that Brenda B. Weeks was not
Claimant's employer on September 23, 2015.

2. The Board concludes that Claimant was not an
employee of Brenda B. Weeks on September 23, 2015.
3. Having concluded that Ms. Weeks was not Claimant's
employer and that Claimant was not her employee on September
23, 2015, the Board does not reach the issue of whether
Claimant sustained a personal injury involving his left arm
on September 23, 2015, arising out of and in the course of
employment.

In light of our conclusion that the LIRAB applied the

wrong standard in FOF 19, we conclude that COLs 1-3 must be

vacated. The LIRAB erred when it determined, using the

2
HRS § 386-93(a) provides:

§ 386-93 Costs. (a) If the director of labor and
industrial relations, appellate board, or any court finds
that proceedings under this chapter have been brought,
prosecuted, or defended without reasonable ground, the whole
costs of the proceedings including reasonable attorney's
fees may be assessed against the party who has brought,
prosecuted, or defended the proceedings.

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preponderance of the evidence standard, that Borrson was not an

employee under the control test and the relative nature of the

work test. The LIRAB must re-assess its conclusions after

applying the substantial evidence standard to the issue of

whether Weeks overcame the presumption of compensability,

including the presumption that Borrson was acting as her employee

when he was injured.

Borrson further argues that the LIRAB erred when it

concluded:
4. The Board concludes that Brenda B. Weeks is not
liable for Claimant's fees and costs pursuant to Section
386-93(a), HRS.

In light of our conclusion that the LIRAB did not err

in FOFs 20 and 21, we conclude that the LIRAB did not err in

entering COL 4.

For these reasons, the LIRAB's July 3, 2019 Order is

affirmed in part and vacated in part. This case is remanded to

the LIRAB for further proceedings consistent with this Summary

Disposition Order.

DATED: Honolulu, Hawai#i, May 23, 2024.
On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Wayne H. Mukaida,
for Claimant-Appellee-Appellant. /s/ Keith K. Hiraoka
Associate Judge
W. Anthony Aguinaldo,
for Employer-Appellant-Appellee. /s/ Sonja M.P. McCullen
Associate Judge

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