Suzuki v. American Healthways, Inc.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-APR-2025
08:15 AM
Dkt. 204 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

LOLA L. SUZUKI, Claimant-Appellant-Appellant v.
AMERICAN HEALTHWAYS, INC., Employer-Appellee-Appellee, and
ST. PAUL TRAVELERS, Insurance Carrier-Appellee-Appellee, and
LORNE K. DIRENFELD, M.D.; GARY N. KUNIHIRO, ESQ.; and
SHAWN L.M. BENTON, ESQ., Appellees-Appellees

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NOS. AB 2007-497(S) and AB 2007-498(S);
DCD NOS. 2-06-14727 and 2-07-04617)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)

Lola L. Suzuki, representing herself, appeals from the
December 28, 2021 Order of the Labor and Industrial Relations
Appeals Board (LIRAB). The Order (1) granted two motions to
compel two independent medical examinations (IME) filed by
American Healthways,Inc. and St. Paul Travelers (together,
Employer); (2) denied Suzuki's motion for partial summary
judgment; and (3) denied Suzuki's request for sanctions against
Employer. We vacate the Order in part, to the extent it granted
Employer's motions to compel IMEs, and remand to the LIRAB for
entry of findings of fact and conclusions of law supporting its
decision to grant Employer's motions. We dismiss Suzuki's appeal
from the LIRAB's denials of her motion for partial summary
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

judgment and her request for sanctions against Employer, for lack
of jurisdiction.
On December 15, 2006, Suzuki reported injuring her
right wrist on November 28, 2006, while using a computer mouse at
work. She had an IME with Dr. Brian Mihara on March 30, 2007.
She claimed she injured her left arm during the examination.
Dr. Peter Lum performed an IME on July 6, 2007, to assess
Suzuki's left arm injury. During a September 6, 2007 hearing in
the Disability Compensation Division (DCD), Suzuki claimed she
also had a neck injury and a sleep disorder because of the
March 30, 2007 IME with Dr. Mihara.
On October 24, 2007, the Director of Labor and
Industrial Relations determined that Suzuki sustained compensable
work-related injuries, but denied her claim for her neck injury
and sleep disorder. Suzuki appealed to the LIRAB. Her appeals
were consolidated.
Suzuki had another IME with Dr. Lorne Direnfeld on
November 9, 2009. Dr. Direnfeld wrote a sixty-nine page report
dated November 16, 2009. In December 2011 Suzuki began filing
fraud claims with the DCD against Dr. Direnfeld and Employer's
counsel. The Director denied the fraud claims. Suzuki appealed
to the LIRAB.
On July 24, 2018, the LIRAB issued a "Third Amended
Pretrial Order" detailing the issues to be decided. They
included whether Suzuki sustained a neck injury and sleep
disorder injury on March 30, 2007, in the course of employment,
and whether Dr. Direnfeld "committed fraud in this claim by
willfully misrepresenting material facts for the purpose of
denying benefits to [Suzuki]."
On November 18, 2021, Employer moved to compel Suzuki's
attendance at two more IMEs. Suzuki filed an opposition, arguing
there was no good cause shown for the IMEs under Hawaii Revised
Statutes (HRS) § 386-79. She also moved for partial summary
judgment on her entitlement to benefits. Employer replied that
the IMEs "are proper and good cause exists" under HRS § 386-79(b)

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because one IME was to assess Suzuki's neck pain, and the other
was to assess her sleep disorder, issues identified in the
pretrial order.
The LIRAB heard the motions on December 23, 2021.
During the hearing Suzuki requested sanctions against Employer.
On December 28, 2021, the LIRAB filed an order granting
Employer's motions to compel IMEs and denying Suzuki's motion for
partial summary judgment and request for sanctions. Suzuki moved
for reconsideration or "judicial review" on January 6, 2022. The
LIRAB filed an order denying reconsideration, but granting
judicial review. The order said: "Claimant's pleading filed on
January 6, 2022 shall be considered an appeal of the [LIRAB's]
December 28, 2021 order." This appeal followed.
On November 3, 2022, we dismissed Suzuki's appeal for
lack of jurisdiction. We concluded the Order was not appealable
because it "does not end the LIRAB proceedings, leaving nothing
further to be accomplished, nor does it finally adjudicate any
matter of medical and temporary disability benefits." On
certiorari, the supreme court held: "An order compelling a
claimant to undergo an IME is sufficient to constitute the
deprivation of adequate relief that is required under the
preliminary ruling language of HRS § 91-14(a)." Suzuki v. Am.
Healthways, Inc., 153 Hawai#i 265, 268, 533 P.3d 1212, 1215
(2023). The supreme court remanded the appeal for our further
consideration.
Our review of a LIRAB decision is governed by HRS
§ 91-14(g) (2012 & Supp. 2019). Cadiz v. QSI, Inc., 148 Hawai#i
96, 106, 468 P.3d 110, 120 (2020). Under HRS § 91-14(g) we may
remand the case with instructions for further proceedings.
Cadiz, 148 Hawai#i at 106–07, 468 P.3d at 120–21.
HRS § 386-79(b) (Supp. 2019) states that an employer is
limited to one IME per case "unless good and valid reasons exist
with regard to the medical progress of the employee's treatment."
Whether "good and valid reasons exist" for allowing more than one
IME presents a mixed question of fact and law. An agency's

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determination of a mixed question of fact and law is reviewed
under the clearly erroneous standard because it depends on the
facts and circumstances of the particular case. In re Wai#ola O
Moloka#i, Inc., 103 Hawai#i 401, 421, 83 P.3d 664, 684 (2004). An
agency's "mixed determination of law and fact is clearly
erroneous when (1) the record lacks substantial evidence to
support the finding or determination, or (2) despite substantial
evidence to support the finding or determination, the appellate
court is left with the definite and firm conviction that a
mistake has been made." Id.
Here, Suzuki argues "Employer did not meet the 'good
cause' exemption in HRS § 386-79[.]" Employer argues it did.
The parties disagree about the facts, and about which facts were
material to the LIRAB's decision. "Like any agency findings, the
LIRAB's findings should be sufficient to allow the reviewing
court to track the steps by which the agency reached its
decision." Cadiz, 148 Hawai#i at 107, 468 P.3d at 121 (cleaned
up).
The LIRAB's December 28, 2021 Order does not contain
findings of fact or conclusions of law. Because the LIRAB did
not make findings of fact or conclusions of law about whether
"good and valid reasons exist" for allowing the requested IMEs,
we remand this case to the LIRAB to make findings of fact and
conclusions of law explaining its decision. Cf. In re Elaine
Emma Short Revocable Living Tr. Agreement, 147 Hawai#i 456, 465,
465 P.3d 903, 912 (2020) (stating, after probate court did not
enter findings of fact supporting decision modifying trust
provisions, "the ICA should have remanded the case to the probate
court so that it could identify the facts it found to be in
support of the modification").
We lack jurisdiction over Suzuki's appeal from the
LIRAB's denial of her motion for partial summary judgment and her
request to sanction Employer. Those portions of the Order are
not "of the nature that deferral of review pending entry of a

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subsequent final decision would deprive [Suzuki] of adequate
relief[.]" HRS § 91-14(a).
We vacate the LIRAB's December 28, 2021 Order in part,
to the extent it granted Employer's motions to compel IMEs, and
remand to the LIRAB under HRS § 91-14(g) with instructions to
enter findings of fact and conclusions of law supporting its
decision to grant Employer's motions to compel IMEs. Suzuki's
appeal from the LIRAB's denials of her motion for partial summary
judgment and her request to sanction Employer is dismissed for
lack of jurisdiction, for the reasons stated in our November 3,
2022 order.
DATED: Honolulu, Hawai#i, April 17, 2025.

On the briefs:
/s/ Keith K. Hiraoka
Lola L. Suzuki, Presiding Judge
Self-represented
Claimant-Appellant- /s/ Clyde J. Wadsworth
Appellant. Associate Judge

Scott G. Leong, /s/ Sonja M.P. McCullen
Kira J. Goo, Associate Judge
for Employer-Appellee-
Appellee American Healthways,
Inc.; Insurance Carrier-
Appellee-Appellee St. Paul
Travelers; and Appellees-
Appellees Gary N. Kunihiro,
Esq. and Shawn L.M. Benton, Esq.

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