Gao v. Labor and Industrial Relations Appeals Board

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-SEP-2022
08:09 AM
Dkt. 66 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

GENBAO GAO, Claimant-Appellant,
v.
LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD,
STATE OF HAWAI#I, Agency-Appellee,
and
STATE OF HAWAI#I, DEPARTMENT OF THE ATTORNEY
GENERAL, Employer-Appellee

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2009-020(S))

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

Self-represented Claimant-Appellant Genbao Gao appeals
from: (1) the "Order Denying Motion to Award Attorney's Fees"
entered by Agency-Appellee Labor and Industrial Relations Appeals
Board (LIRAB) on April 25, 2018; and (2) the "Order Denying
Motion for Reconsideration and/or Reopening" entered by LIRAB on
June 6, 2018. It appears that LIRAB did not explain the factual
or legal bases for its decisions. We vacate both orders and
remand to LIRAB for entry of amended orders explaining the
factual and legal bases for its decisions.
The factual and procedural background for this appeal
comes from Gao v. Haw. Lab. Rels. Bd., No. CAAP-XX-XXXXXXX, 2013
WL 656787 (Haw. App. Feb. 22, 2013) (SDO) (Gao I); Gao v. Dep't
of Att'y Gen., No. CAAP-XX-XXXXXXX, 2013 WL 3863101 (Haw. App.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

July 22, 2013) (SDO), cert. rejected, SCWC-XX-XXXXXXX, 2013 WL
5809980 (Haw. Oct. 28, 2013) (Gao II); and Gao v. Dep't of Att'y
Gen., No. CAAP-XX-XXXXXXX, 2015 WL 1880738 (Haw. App. April 23,
2015) (SDO) (Gao III), vacated by Gao v. Dep't of Att'y Gen., 137
Hawai#i 450, 375 P.3d 229 (2016) (Gao IV).
Gao worked for Employer-Appellee State of Hawai#i
Department of the Attorney General. He received a written
reprimand on October 9, 2007; a 30-day suspension without pay on
December 10, 2007; and a "Notice to Improve Performance" (NTIP)
during a meeting on January 28, 2008.
Gao's employment was terminated on January 20, 2009.
He filed a prohibited practice complaint with the Hawai#i Labor
Relations Board (HLRB). HLRB dismissed the complaint as
untimely. Gao appealed to the circuit court. The circuit court
affirmed, and denied Gao's motions for reconsideration and for a
new trial. Gao appealed to this court. We affirmed in Gao I.
Gao did not petition for certiorari.
Gao also brought three grievances against the State,
with the aid of his union. The grievances were arbitrated. The
arbitrator issued a decision in favor of the State on all three
grievances. Gao appealed to the circuit court. The circuit
court dismissed the appeal. Gao appealed to this court. We
affirmed in Gao II. The supreme court rejected Gao's petition
for certiorari.
Gao also made a claim for workers compensation benefits
for psychological injury based on the NTIP. The Disability
Compensation Division (DCD) denied the claim. Gao appealed to
LIRAB. LIRAB affirmed the denial. Gao appealed to this court.
We affirmed in Gao III. The supreme court granted Gao's petition
for certiorari (Gao was represented by counsel from the Hawai#i
Appellate Pro Bono Program). The supreme court held that the
NTIP was not a "disciplinary action" as defined and used in HRS
§§ 386–1 and 386–3 and, accordingly, that Gao's workers
compensation claim was not barred by HRS § 386–3(c). Gao IV, 137

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Hawai#i at 452, 375 P.3d at 231. The supreme court remanded the
case to LIRAB for further proceedings.
Gao retained counsel for the remand. LIRAB issued a
pretrial order framing the issue presented:

Whether [Gao] sustained a personal psychological injury on
January 28, 2008, arising out of and in the course of
employment.

The State ultimately conceded that Gao "sustained a personal
psychological injury on January 28, 2008, arising out of [his]
employment, which was caused in part by the issuance of the
Notice to Improve Performance (NTIP)[.]" The State reserved its
"right to challenge the extent and degree of injury" and
"limitations on the benefits" should Gao pursue [those] issues in
another forum.1
On March 16, 2018, LIRAB vacated its previous order
affirming the DCD's denial of benefits and dismissed Gao's appeal
as moot based upon the State's concession of liability. Gao did
not appeal from that order.
On March 22, 2018, Gao's counsel requested approval of
his attorney fees and costs pursuant to Hawaii Revised Statutes
(HRS) § 386-94 (2015).2 The request stated: "It is requested

1
The record does not indicate whether Gao's DCD claim was re-
opened.
2
HRS § 386-94 provides, in relevant part:
Attorneys, physicians, other health care providers, and
other fees. Claims for services shall not be valid unless
approved by the director or, if an appeal is had, by the
appellate board or court deciding the appeal. Any claim so
approved shall be a lien upon the compensation in the manner
and to the extent fixed by the director, the appellate
board, or the court.
In approving fee requests, the director, appeals
board, or court may consider factors such as the attorney's
skill and experience in state workers' compensation matters,
the amount of time and effort required by the complexity of
the case, the novelty and difficulty of issues involved, the
amount of fees awarded in similar cases, benefits obtained
for the claimant, and the hourly rate customarily awarded
attorneys possessing similar skills and experience. In all
(continued...)

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that the award be against [the State]; to the extent the fees are
not awarded against [the State], that [Gao] be responsible."
LIRAB approved the fees and costs. The approved sum was made a
lien upon any compensation payable by the State; otherwise, Gao
was responsible for payment of the approved amount.
On March 23, 2018, Gao (through counsel) filed a motion
for award of attorneys fees from the State under HRS § 386-93(a).
LIRAB entered the Order Denying Motion to Award Attorney's Fees
on April 25, 2018. Gao filed a motion for reconsideration on
May 23, 2018. LIRAB entered the Order Denying Motion for
Reconsideration and/or Reopening on June 6, 2018. Gao's counsel
withdrew on June 18, 2018. Gao — again self-represented — filed
a notice of appeal on June 29, 2018, creating this appeal.3
"Appellate review of a LIRAB decision is governed by
HRS § 91-14(g)[.]" Botelho v. Atlas Recycling Ctr., 146 Hawai#i
435, 442, 463 P.3d 1092, 1099 (2020). HRS § 91–14(g) (2012 &
Supp. 2016) provides:

Upon review of the record, the court may affirm the
decision of the agency or remand the case with
instructions for further proceedings; or it may
reverse or modify the decision and order if the
substantial rights of the petitioners may have been
prejudiced because the administrative findings,
conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory
provisions;

(2) In excess of the statutory authority or
jurisdiction of the agency;

(3) Made upon unlawful procedure;
(4) Affected by other error of law;

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(...continued)
cases, reasonable attorney's fees shall be awarded.
3
Gao's opening brief fails to comply with Hawai#i Rules of
Appellate Procedure Rule 28(b). Nevertheless, the Hawai#i Supreme Court
instructs that to promote access to justice, pleadings prepared by self-
represented litigants should be interpreted liberally, and self-represented
litigants should not automatically be foreclosed from appellate review because
they fail to comply with court rules. Erum v. Llego, 147 Hawai#i 368, 380-81,
465 P.3d 815, 827-28 (2020).

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(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or

(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted
exercise of discretion.

Under HRS § 91-14(g):

A court reviewing the decision of an agency should
ensure that the agency make[s] its findings reasonably
clear. The parties and the court should not be left to
guess the precise finding of the agency. An agency's
findings should be sufficient to allow the reviewing court
to track the steps by which the agency reached its decision.

In re Hawai#i Elec. Light Co., 145 Hawai#i 1, 11, 445 P.3d 673,
683 (2019) (cleaned up).
The statute under which Gao sought attorneys fees
provides, in relevant part:

If the . . . appellate board . . . finds that proceedings
under this chapter have been . . . defended without
reasonable ground, the whole costs of the proceedings
including reasonable attorney's fees may be assessed against
the party who has . . . defended the proceedings.

HRS § 386-93(a) (2015). Based upon the language of the statute,
LIRAB's denial of Gao's motion appears to indicate that LIRAB
found the State reasonably defended the remand. However, the
Order Denying Motion to Award Attorney's Fees summarily denied
the motion without explanation, and LIRAB did not enter findings
of fact. We are unable to determine whether LIRAB's decision was
clearly erroneous, right, wrong, or an abuse of discretion. See
Botelho, 146 Hawai#i at 451, 463 P.3d at 1108 (stating that LIRAB
must provide reasoning for how it awarded attorneys' fees that is
more than a recitation of the statutory factors considered, and
"must articulate how its considerations affected its ultimate
determination of attorneys' fees"); see also In re Haw. Elec.
Light Co., 145 Hawai#i at 11, 445 P.3d at 683.
Accordingly, we vacate the "Order Denying Motion to
Award Attorney's Fees" entered on April 25, 2018, and the "Order
Denying Motion for Reconsideration and/or Reopening" entered on
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June 6, 2018, and remand for LIRAB to enter amended orders
explaining the factual and legal bases for its decisions. See
Botelho, 146 Hawai#i at 451, 463 P.3d at 1108 (vacating
attorney's fees order and remanding for further proceedings
because "LIRAB recited factors it considered in reducing Masui's
requested attorney's fees without explaining how it applied these
factors[.]").
DATED: Honolulu, Hawai#i, September 8, 2022.

On the briefs:
/s/ Keith K. Hiraoka
Genbao Gao, Presiding Judge
Self-represented
Claimant-Appellant. /s/ Karen T. Nakasone
Associate Judge
James E. Halvorson,
Maria C. Cook, /s/ Sonja M.P. McCullen
Deputy Attorneys General, Associate Judge
Department of the Attorney
General, State of Hawai#i.

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