Ihara v. State

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-MAY-2024
08:11 AM
Dkt. 67 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

DENNIS T. IHARA, Claimant-Appellee-Cross-Appellant/Appellant, v.
STATE OF HAWAIʻI, DEPARTMENT OF LAND AND NATURAL RESOURCES,
Employer-Appellant-Cross-Appellee/Appellee, and
STATE OF HAWAIʻI, DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT,
Adjuster-Appellant-Appellee.

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2008-266(S); (2-07-40277))

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

Claimant-Appellee-Cross-Appellant/Appellant Dennis T.

Ihara (Ihara) appeals from the Labor and Industrial Relations

Appeals Board's (Board) August 21, 2019 "Order Adopting Proposed

Decision and Order" (Decision and Order).

The Board determined Ihara was entitled to vocational

rehabilitation services, and awarded him 1% permanent partial

disability (or PPD) of the entire person for hypertension and a

2% permanent partial disability of the entire person for a
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psychological injury suffered in the course of his employment

with Employer-Appellant-Cross-Appellee/Appellee State of Hawai‘i,

Department of Land and Natural Resources (DLNR). In his points

of error on appeal, Ihara challenges Findings of Fact (FOF) 11,

12, 14, and 17, and Conclusion of Law (COL) 1. 1

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 Ihara's

points of error as discussed below, and affirm.

(1) First, Ihara contends the Board "erred in FOF 11

that [he] has no ratable permanent impairment as a result of his

work injury." This finding states:

FOF 11: "The Board finds that Claimant has no
ratable permanent impairment as a
result of his work injury."

Hawai‘i Revised Statutes (HRS) chapter 386 does not

define "ratable permanent impairment." This court previously

1 In his points of error on appeal, Ihara also challenges FOF 4, 6, 8,
and 15.

FOF 4, 6, and 8 make credibility determinations, which we will not
disturb on appeal. See generally, Pave v. Prod. Processing, Inc., 152 Hawaiʻi
164, 172, 524 P.3d 355, 363 (App. 2022) (stating 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 credibility of witnesses or conflicts in
testimony") (citation and internal quotation marks omitted).

Regarding FOF 15, Ihara presents no discussion, factual analysis, or
authority to support his challenge to this finding and, thus, we consider
this point of error waived. Hawai‘i Rules of Appellate Procedure
Rule 28(b)(4) and (b)(7).

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observed that the Board's finding of "no ratable permanent

impairment" was ambiguous in that it either meant Ihara

"suffered no impairment," or "that he had suffered some

impairment; but in an amount incapable of being measured."

Ihara v. State, Dep't of Land & Nat. Res., 136 Hawai‘i 372, 362

P.3d 805, No. CAAP-XX-XXXXXXX, 2015 WL 6739078 at *8 (App.

Oct. 30, 2015) (mem. op.) Because the Board entered the same

finding on remand, but also found Ihara was entitled to 2% PPD,

we construe FOF 11 as meaning Ihara suffered some impairment,

but in an amount the doctors could not rate under the American

Medical Association Guides.

As none of the doctors opined on a specific impairment

rating, FOF 11 is not clearly erroneous. See generally, Tauese

v. State, Dep't of Lab. & Indus. Rels., 113 Hawai‘i 1, 25, 147

P.3d 785, 809 (2006) (applying clearly erroneous standard of

review to FOF).

(2) Next, Ihara challenges FOF 12 and 14, which

state:

FOF 12: "The Board further finds, that Claimant
is able to resume regular duty work,
but his sole restriction is that it not
be with the co-workers he had at the
time of the February 1, 2007 work
injury."

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FOF 14: "The Board finds that Claimant's only
permanent impairment of a mental
function is his inability to work with
the co-workers he worked with at the
time of his February 1, 2007 work
injury, which also affects his
hypertension."

FOF 12 and 14 are supported by the opinions of several

doctors. Dr. Ronald A. Morton indicated Ihara could return to

regular duty work. Dr. Ajit S. Arora opined Ihara's

hypertension was "never a labor disabling condition" and should

not prevent him from returning to his regular and customary

duties. Dr. Dennis B. Lind opined Ihara could obtain gainful

employment outside of the DLNR and that he could return to

regular duty work without functional limitations in any

department, except that he could not work with his former DLNR

co-workers. Dr. Jon Streltzer opined that Ihara could return to

work within the same capabilities, but in a different setting.

And Dr. Danilo E. Ponce confirmed Ihara's psychiatric disorder

was in remission, he reached medical stability, "his job itself

seemed to be the main source of his . . . injury claim," and he

had "no discernible, residual, permanent psychiatric impairment"

rating. (Emphasis omitted.)

Because the record supports these findings, they are

not clearly erroneous.

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(3) Finally, Ihara challenges FOF 17 and COL 1.

Limiting his argument to the 2% permanent partial disability

rating, Ihara asserts the Board's "conclusion suggests [he] was

able to recover 98% of his psychiatric functioning, however,

that conclusion is clearly erroneous as all parties agreed that

[he] was disqualified from his usual and customary work, or any

other work at the DLNR." Ihara further argues "consideration of

[his] ability to function away from the DLNR is erroneous."

FOF 17 and COL 1 state:

FOF 17: "The Board finds that Claimant has
sustained 1% PPD of the whole person as
a result of his February 1, 2007 work
injury for hypertension and 2% PPD of
the whole person as a result of his
February 1, 2007 work injury for his
psychiatric work injury."

COL 1: "The Board concludes that Claimant
sustained 1% PPD of the whole person
for hypertension and 2% PPD of the
whole person for his psychiatric work
injury as a result of the work injury
of February 1, 2007."

The purpose of a permanent partial disability award

"is to compensate a worker for the loss or impairment of a

physical or mental function." Ihara v. State, Dep't of Land &

Nat. Res., 141 Hawai‘i 36, 42, 404 P.3d 302, 308 (2017). It is

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not based on wages lost. Id. "For loss or impairment of

function that is not listed in the schedule, . . . the permanent

partial disability is rated as a percentage of the total loss or

impairment of a physical or mental function of the whole

person." Id. at 43, 404 P.3d at 309; HRS § 386-32(a) (2015).

Ultimately, it is the director of the Department of

Labor and Industrial Relations or the Board that decides a

permanent partial disability rating. 141 Hawai‘i at 43, 404 P.3d

at 309. The Board "generally places great weight upon a

physician's initial impairment rating, but it is not the only

component of the Board's assessment." Id. The Board also

considers other factors, "such as whether the complainant is

able to participate in the same types of hobbies and daily and

work activities as prior to the accident." Id. And the Board

may consider the inability to perform "usual and customary work

activities." Id. at 47, 404 P.3d at 313.

Here, the Board considered whether Ihara could

participate in the same daily and work activities as prior to

the accident. The Board considered Ihara's ability to function

at highly intelligent work, such as teaching and practicing law,

following the work injury. The Board credited Ihara's testimony

that "he was able to teach at Hawaii Pacific University, serve

on various non-profit boards, and performed legal work"

following his work injury. The Board thus considered Ihara's

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loss of function to be minimal, and his only restriction was to

not work with the DLNR co-workers there at the time of his

injury.

Ihara has not shown that the Board violated

constitutional or statutory provisions, exceeded its authority,

followed unlawful procedure, clearly erred, or abused its

discretion in arriving at a 2% permanent partial disability

rating of the whole person for his psychiatric work injury. See

HRS § 91-14(g) (Supp. 2019).

Based on the foregoing, we affirm the Board's

August 21, 2019 Decision and Order.

DATED: Honolulu, Hawai‘i, May 23, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Wayne H. Mukaida,
for Claimant-Appellee-Cross- /s/ Keith K. Hiraoka
Appellant/Appellant. Associate Judge

Shawn L.M. Benton, /s/ Sonja M.P. McCullen
for Employer-Appellant-Cross- Associate Judge
Appellee/Appellee and
Adjuster-Appellant-Appellee.

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