Lane v. Avis Budget Group, Inc

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
06-JUN-2024
07:50 AM
Dkt. 89 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

ROXANNE K. LANE, Claimant-Appellant-Appellant, v.
AVIS BUDGET GROUP, INC., Employer-Appellee-Appellee,
and
FIRMS CLAIMS SERVICES, Insurance Adjuster-Appellee-Appellee

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2017-06; DCD NO. 2-14-48809)

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

Claimant-Appellant-Appellant Roxanne K. Lane (Lane or

Claimant) appeals from: (1) the November 26, 2019 Decision and

Order (November 26, 2019 Order) issued by the Department of Labor

and Industrial Relations Appeals Board (LIRAB or Board), in favor

of Employer-Appellee-Appellee Avis Budget Group, Inc. (Avis) and

Insurance Adjuster-Appellee-Appellee Firms Claims Services; and

(2) from the Board's January 22, 2020 Order Denying Motion for

Reconsideration (Order Denying Reconsideration).

Lane raises two points of error on appeal, contending

that the LIRAB erred by: (1) failing to properly apply the
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

presumption of compensability under Hawaii Revised Statutes (HRS)

§ 386-85(1) (2015);1 and (2) denying Lane's Motion for

Reconsideration.

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 Lane's points of error as follows:

(1) The central issue in this appeal is whether Avis

met its burden and presented substantial evidence to overcome the
statutory presumption in favor of compensability for an injury to

Lane's nose. More specifically at issue here is whether the

Board's FOFs and COLs are supported by substantial evidence, and

not clearly erroneous in light of the evidence adduced, as well

as whether this evidence satisfies Avis's burden.

Substantial evidence "signifies a high quantum of

evidence which, at the minimum, must be relevant and credible

evidence of a quality and quantity sufficient to justify a

conclusion by a reasonable person[.]" Yadao v. Dep't of Land and

Nat. Res., 137 Hawai#i 162, 173, 366 P.3d 1041, 1052 (App. 2016)

(brackets and internal quotation marks omitted) (quoting Nakamura

v. State, 98 Hawai#i 263, 267-68, 47 P.3d 730, 734-35 (2002)).

"The [Hawai#i Supreme Court] has recognized that the high burden

placed on the employer is consistent with the purpose of the

workers' compensation law." Id. (citing Van Ness v. Dep't of

Educ., 131 Hawai#i 545, 558, 319 P.3d 464, 477 (2014)).

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In conjunction with this point of error, Lane challenges Findings
of Fact (FOFs) 7-12, 14-17, 19, and 20, the Board's analysis, Conclusion of
Law (COL) 4, and Order 3.

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"Furthermore, the supreme court has recognized that

'generalized' medical testimony concerning the cause of an injury

is insufficient to rebut the presumption of compensability." Id.

at 174, 366 P.3d at 1053 (citing Nakamura, 98 Hawai#i at 268, 47

P.3d at 735; Akamine v. Hawaiian Packing & Crating Co., 53 Haw.

406, 410-12, 495 P.2d 1164, 1167-68 (1972)).

Here, the challenged FOFs, COL, analysis, and Order

were supported by medical reports by Dr. Leonard N. Cupo (Dr.

Cupo) and Dr. Vern K. Sasaki (Dr. Sasaki), whose reports are

clearly relevant. The Board found both doctors to be credible.

We conclude that the quantity and the quality of the reports are

sufficient to meet the high burden placed on Avis, as the

employer here, to overcome the strong presumption of

compensability in favor of Lane with respect to her assertion

that she broke her nose in the October 26, 2014 work place

accident.

Dr. Cupo examined Claimant on January 13, 2015,

reviewed her previous medical history, and completed his report

on February 28, 2015. Dr. Cupo stated, in part:
In closing, [Lane] has a nasal fracture, which was diagnosed
at Kapiolani Medical Center for Women and Children Emergency
Room on 11/2/14 by Dr. Tom. [Lane] has attributed the
fracture of the nasal bone to the motor vehicle accident of
10/26/14. It is my medical opinion that the fracture of the
nasal bone bears no relationship to and was not caused,
aggravated, or accelerated by the motor vehicle accident of
10/26/14. I base this on the fact that when [Lane] was
evaluated at Pali Momi Medical Center Emergency Room [( Pali
Momi)]on the date of the motor vehicle accident of 10/26/14,
she did not complain of nasal pain or demonstrate an
abnormality on physical examination of the nose, such as
edema, ecchymosis, or tenderness. If [Lane] had sustained
trauma resulting in a nasal fracture at the time of the
motor vehicle accident of 10/26/14, she would have been
acutely and markedly symptomatic when she was initially
evaluated the same day at Pali Momi Medical Center Emergency
Room by Ms. Della and Dr. Nguyen. I base this on the fact
that Dr. Chan did not record a diagnosis related to the

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employee's nose in the Physician Work Activity Status Report
of 10/27/14.

(Emphasis added).

Dr. Sasaki examined Lane on July 6, 2017, reviewed

her previous medical history, and published a report on his

findings dated October 16, 2017. At the time of her examination,

Claimant complained of nasal pain, obstruction, and increased

sinus pressure. Dr. Sasaki concluded, in part:
DIAGNOSTIC IMPRESSION:
NASAL FRACTURE.

FINDINGS AND RECOMMENDATIONS:

1. The diagnoses, etiology and prognosis of Claimant's
current nose injury.
The diagnosis is noted in the Diagnostic Impression
section above. Based on the history, physical
examination, and review of medical records, clinical
findings of a nasal fracture were first apparent at a
visit to Pali Momi Medical Center - Emergency Room on
11/02/14, approximately one week post injury. The
medical examinations on 10/26/14, 10/27/14, and
10/29/14 by the Pali Momi Medical Center - Emergency
Room, Concentra Medical Centers, and Jack Hsieh, M.D.,
respectively, did not reveal any findings of a nasal
fracture or complaints of nose pain or swelling. The
medical examination by Dr. Hsieh revealed a normal
nose examination. Therefore, the nasal fracture
occurred sometime after 10/29/14 and before 11/02/14
when her nasal fracture was diagnosed in the Emergency
Room.
One would expect clinical findings of bruising,
swelling, or epistaxis (bloody nose) if there was a
history of acute trauma related to a nasal fracture.
The force required to cause a nasal fracture would be
a significant amount of force with clinical symptoms
apparent almost immediately. These clinical symptoms
were absent on the day of the injury and a few days
following the injury, which supports my opinion that
the injury occurred sometime after the date of injury
and before 11/02/14 when the nasal fracture was first
diagnosed.

(Emphasis added).

In short, Dr. Cupo opined that, if Lane's nose was

broken in the workplace accident, she would have been "acutely

and markedly" symptomatic when she got to Pali Momi. Dr. Sasaki

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also opined that the force necessary to cause a broken nose would

cause apparent clinical symptoms almost immediately. Lane did

not complain to Pali Momi doctors' staff about nasal pain, and

examination did not reveal fracture, pain, swelling or bruising.

Both doctors opined that in their medical opinions, the injury to

Lane's nose occurred after the date of the workplace injury.

We conclude that the LIRAB did not clearly err in

crediting the doctors' opinions, which specifically, directly,

and expressly address the presumption that Lane injured her nose
in the October 26, 2014 workplace accident. Accordingly, we

further conclude that the LIRAB did not err or abuse its

discretion in entering the November 26, 2019 Order.

(2) Lane challenges the LIRAB's January 22, 2020 Order

Denying Reconsideration, but makes no argument in support of this

point of error. This argument is deemed waived. See Hawai#i

Rules of Appellate Procedure Rule 28(b)(7).

Moreover, "it has been consistently held that

rehearings before administrative bodies are addressed to their

own discretion, and only a showing of the clearest abuse of

discretion could sustain an exception to that rule." Yadao, 137

Hawai#i at 171, 366 P.3d at 1050 (citation and brackets omitted).

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For these reasons, the LIRAB's November 26, 2019 Order

and the January 22, 2020 Order Denying Reconsideration are

affirmed.

DATED: Honolulu, Hawai#i, June 6, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Michael J.Y. Wong,
for Claimant-Appellant- /s/ Clyde J. Wadsworth
Appellant. Associate Judge

Leighton K. Oshima, /s/ Karen T. Nakasone
Darlene Y.F. Itomura, Associate Judge
for Employer-Appellee-
Appellee.

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