Webb v. OSF International, Inc.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-MAR-2024
07:53 AM
Dkt. 89 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

RICHARD SCOTT WEBB, Claimant-Appellant-Appellant, v.
OSF INTERNATIONAL, INC., Employer-Appellee-Appellee, and
HAWAII INSURANCE GUARANTY ASSOCIATION, Insurance
Carrier-Appellee-Appellee

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2017-280; DCD NO. 2-99-4705)

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

Claimant-Appellant-Appellant Richard Scott Webb (Webb)

appeals from the August 21, 2019 Decision and Order entered by

the Department of Labor and Industrial Relations Appeals Board

(the LIRAB or the Board) (August 21, 2019 Order), in favor of

Employer-Appellee-Appellee OSF International, Inc., (Employer)

and Insurance Carrier-Appellee-Appellee Hawaii Insurance Guaranty

Association (HIGA). The August 21, 2019 Order denied Webb's

appeal of the Decision of the Disability Compensation Division

(DCD), LIRAB, State of Hawai#i, filed November 3, 2017 (November

3, 2017 Order). The November 3, 2017 Order denied Webb's request

for reopening and treatment pursuant to Joseph DiCostanzo, M.D.'s

(Dr. DiCostanzo's) treatment plan dated April 26, 2017.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Webb raises six points of error on appeal, contending

that the Board: (1) erred when it denied Webb a full hearing de

novo as required by Hawaii Revised Statutes (HRS) § 386-87(b)

(2015);1 (2) erred by not requiring HIGA to prove facts essential

to a limitations defense under HRS § 386-89(c) (2015); (3)

wrongfully terminated Webb's independent rights to medical and

disability benefits; (4) erred in denying the presumption of

compensability favorable to Webb's reopening for the compensable

consequence injuries to his right knee and wrist; (5) erred by
failing to provide reasons for its denial of Webb's request for

discovery orders/sanctions; and (6) erred in its rejection into

evidence Webb's trial exhibits "H," "I," and "L."

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 Webb's points of error as follows:

(1) Webb argues that because the Board stated in its

pretrial order the "issues to be determined," and stated in the

majority opinion, "the sole issue to be determined on this

appeal. . .," Webb was denied a full trial de novo. More

specifically, Webb argues that Hawai#i Administrative Rules (HAR)

1
HRS § 386-87 states, in pertinent part:
HRS § 386-87 Appeals to appellate board.
. . . .
(b) The appellate board shall hold a full hearing
de novo on the appeal.

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§ 12-47-22(c) (eff. 1994),2 is inconsistent with the policies of

the workers' compensation statute, and its application in this

case produced an absurd result because the Board did not consider

Webb's contention that HIGA fraudulently mismanaged Webb's

workers' compensation claim file.

First, HAR § 12-47-22(a)(2) gives the Board the

authority to set the "issues for hearing" in its pretrial order.

Second, Webb cites no authority supporting the

proposition that the Board's statement of the issues to be
determined before conducting its hearing deprives an appellant of

a full hearing de novo, and we find none. Here, Webb's counsel

2
HAR § 12-47-22 states, in pertinent part:

HAR § 12-47-22 Pretrial order. (a) When an initial
conference is held, the board may enter a pretrial order
which recites the action taken at the conference, including:
(1) The agreements made by the parties as to any of
the matters considered;
(2) The issues for hearing not otherwise disposed of
by stipulation or agreement of the parties; and
(3) The discovery deadlines.
(b) When the pretrial order establishes discovery
deadlines, the specified deadline means as follows:
(1) Unnamed witness means identification of the name
and address of an individual not previously
identified in the party's pretrial statement.
(2) Live witness means identification of individuals
previously identified in the party's pretrial
statement or unnamed witness statement, and who
the party, in good faith, intends to have testify
at trial. An individual not identified in the
party's live witness statement shall not be allowed
to testify at trial.
(3) Medical report deadlne means the date that all
medical reports or records shall be filed at the
board.
(4) Discovery deadline means the date that all
non-medical documents or records shall be filed at
the board, except that the transcript of an oral
deposition of any individual conducted before such
deadline may be filed after such deadline.
(c) The pretrial order shall control the subsequent
course of the appeal, unless modified by the board at the
trial or prior thereto to prevent manifest injustice. The
pretrial order shall supersede the pleadings where there is
any conflict and shall supplement the pleadings in all other
respects.

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appears to have agreed that the issue statement was sufficiently

broad, as after he is asked by the Chairman if the issue

statement was correctly read and identified at the start of trial

on November 5, 2018, he responds: "yes, it does, but . . . it

encompasses way more issues, subissues, if you will, than just

that bare statement."

Finally, Webb fails to identify how he was prejudiced

by the Board's statement of the issues. As evidenced by the

Board's findings of fact, the Board did consider Webb's claims of
gross mismanagement and fraudulent concealment, and rejected

them.

We conclude this argument is without merit.

(2) Webb contends that the Board misstated the burden

of proof. However, HRS § 386-89(c), provides, in pertinent part:
On the application of any party in interest, supported by a
showing of substantial evidence, on the ground of a change
in or of a mistake in a determination of fact related to the
physical condition of the injured employee, the director
may, at any time prior to eight years after date of the last
payment of compensation, whether or not a decision awarding
compensation has been issued, or at any time prior to eight
years after the rejection of a claim, review a compensation
case and issue a decision which may award, terminate . . .

(Emphasis added); see also Porter v. Queen's Med. Ctr., 148

Hawai#i 530, 532-33, 479 P.3d 148, 150-51 (2021); Smith v.

Kanemoto, CAAP-XX-XXXXXXX, 2013 WL 6150720, *1 (Haw. App. Nov.

22, 2013) (SDO); Otani v. State, Dep't. of Pub. Safety, No.

30496, 2012 WL 540103, *1 (Haw. App. Feb. 17, 2012) (SDO);

Enocencio v. State, Dep't. of Hum. Servs., No. 29537, 2010 WL

543973, *1 (Haw. App. Feb. 17, 2010) (SDO).

Here, the Board found that Webb did not meet his burden

to support his application for reopening. We conclude that the

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Board did not clearly err in finding that Webb did not provide

substantial evidence to support his reopening application. Thus,

Webb's second point of error has no merit.

(3) Webb's third point of error states that the Board

wrongfully terminated his independent rights to medical and

disability benefits, citing the 1963 amendments to the medical

benefits section of the Hawai#i Workmen's Compensation Law, § 97-

22, and a study stating that medical benefits are now unlimited.

However, Webb makes no argument in support of this point of error
and it is deemed waived. See Hawai#i Rules of Appellate

Procedure Rule 28(b)(7).

In conjunction with this point, Webb seems to raise two

other issues, that: (1) the Board's finding that Webb's April 1,

1999 work injury claim was properly and administratively closed

by Employer in 2007, by a final WC-3 report, after Claimant was

last treated by Dr. Saito on November 23, 2004, was clearly

wrong; and (2) the date of the last payment of compensation is

wrong. However, when HIGA filed the final WC-3 indicating that

Webb's file was to be closed, sending a copy to Webb's home

address, the claim was properly closed. See, e.g., Skahan v.

Stutts Constr. Co., CAAP-XX-XXXXXXX, 2019 WL 3765413, *9 (Haw.

App. Aug. 9, 2019) (SDO). In addition, although Webb disputes

the date of the last payment in 2005, he does not point to any

evidence supporting an alternate date. These arguments are

without merit.

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(4) Webb argues that the Board erred by not applying

the presumption of compensability found in HRS § 386-85 (2015)3

when considering Webb's request for reopening. However, the

presumption of compensability applies to the question of whether

an injury is work-connected. See, e.g., Tamashiro v. Control

Specialist, Inc., where the Hawai#i Supreme Court stated that

"[t]his presumption applies to the 'work relatedness' of an

injury." 97 Hawai#i 86, 91, 34 P.3d 16, 21 (2001).

Here, the Board concluded that Webb's 2017 request for
reopening for an alleged change in condition was barred by the 8-

year statute of limitations for reopening a claim. See HRS 386-

89(c).4 Thus, the HRS § 386-85 presumption did not apply.

3
HRS § 386-85 states:
HRS § 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;
(2) That sufficient notice of such injury has been
given;
(3) That the injury was not caused by the intoxication
of the injured employee; and
(4) That the injury was not caused by the wilful
intention of the injured employee to injure oneself
or another.
4
HRS § 386-89 states, in pertinent part:
HRS § 386-89 Reopening of cases; continuing
jurisdiction of director.
. . . .
(c) On the application of any party in interest,
supported by a showing of substantial evidence, on the
ground of a change in or of a mistake in a determination of
fact related to the physical condition of the injured
employee, the director may, at any time prior to eight years
after date of the last payment of compensation, whether or
not a decision awarding compensation has been issued, or at
any time prior to eight years after the rejection of a
claim, review a compensation case and issue a decision which
may award, terminate, continue, reinstate, increase, or
decrease compensation. No compensation case may be reviewed
oftener than once in six months and no case in which a claim
(continued...)

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See also Skahan, 2019 WL 3765413 at *9.

(5) Webb argues that the Board erred when it denied

his Motion to Compel and Motion for Reconsideration without

providing reasons for the denial. Webb filed a discovery motion

seeking the physical copy of his workers' compensation file that

HIGA sent to a liquidator after issuing the final WC-3 in March

of 2007, closing Webb's workers' compensation case. While Webb

alleges that HIGA concealed facts from the parties, the Board

found the parties were informed, crediting HIGA claims examiner
Lianne Ching's testimony that it was "[e]mployer's practice to

mail copies of Claimant's WC-3 reports to claimant's home

address." Additionally, Webb sought a telephone log of calls

HIGA received from Webb or others calling on Webb's behalf that

he believes was with the physical file. However, Webb presented

no evidence that anyone called HIGA prior to Webb's calls in

2016, after the statute of limitations for reopening had already

expired.

In addition, Webb cites no authority that requires

LIRAB to state written findings or explanations in orders on

discovery requests. In light of the record before the Board, we

conclude that the Board did not abuse its discretion in denying

Webb's requests for discovery.

(6) Webb argues that the Board erred when it did not

allow into evidence Webb's trial exhibits "H," "I," and "L."

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(...continued)
has been rejected shall be reviewed more than once if on such
review the claim is again rejected.

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Webb asserts the Board erred because the exhibits were all

relevant to the Board's decision.

The Board declined to admit exhibit "H" because it was

filed on October 9, 2018, after the August 27, 2018 medical

reports submission deadline. The Board did not admit exhibit "I"

because it was filed on October 9, 2018, after the August 24,

2018 discovery cutoff deadline. Lastly, the Board did not admit

into evidence exhibit "L" during the November 20, 2018 trial,

because it was filed with the Board on November 19, 2018, after
both the medical reports submission deadline and discovery cutoff

deadline had passed. All three exhibits were filed after the

applicable deadlines established in the Board's pretrial order on

March 18, 2018, and Webb did not request the deadlines be

extended. Webb did not demonstrate that he could not have

obtained the medical records and reports prior to the discovery

deadline through the exercise of due diligence. We conclude that

the Board did not abuse its discretion in refusing to admit these

exhibits into evidence. See, e.g., Yadao v. State, Dep't of Land

& Nat. Res., 137 Hawai#i 162, 176-77, 366 P.3d 1041, 1055-56

(App. 2016).

For these reasons, the Board's August 21, 2019 Order is

affirmed.

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DATED: Honolulu, Hawai#i, March 13, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Christopher R. Evans,
for Claimant-Appellant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Wayne W.H. Wong,
Matthew K. Wong, /s/ Clyde J. Wadsworth
(Wong & Associates), Associate Judge
for Employer-Appellee-Appellee
and Insurance Carrier-Appellee-
Appellee.

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