87 Hawai'i 492, Ostrowski v. Wasa Elec. Services, Inc.

• Decision Date: 04 June 1998
• Docket Number: No. 20728,20728
• Citation: 87 Hawai'i 492, Ostrowski v. Wasa Elec. Services, Inc., 960 P.2d 162, 87 Hawaii 492 (Haw. App. 1998)
• Parties: 87 Hawai'i 492 Damian K. OSTROWSKI, Claimant-Appellant, v. WASA ELECTRICAL SERVICES, INC. and Tokio Marine and Fire Insurance Company, Employer/Insurance Carrier-Appellee.
• Court: Hawaii Court of Appeals

Page 162

960 P.2d 162

87 Hawai'i 492

Damian K. OSTROWSKI, Claimant-Appellant, v. WASA ELECTRICAL SERVICES, INC. and Tokio Marine and Fire Insurance Company, Employer/Insurance Carrier-Appellee.

No. 20728.

Intermediate Court of Appeals of Hawai'i.

June 4, 1998.

Certiorari Denied July 9, 1998.

David C. Schutter, and Christopher A. Dias, Honolulu, (David C. Schutter & Associates, of counsel) on the briefs, for claimant-appellant.

Leroy T. Kuwasaki, Jr. and John A. Roney, Honolulu, on the brief for employer/insurance carrier-appellee.

Before BURNS, C.J., and WATANABE and KIRIMITSU, JJ.

KIRIMITSU, Judge.

This appeal involves a dispute over the nature and scope of coverage under the Hawai'i workers' compensation law, Hawai'i Revised Statutes (HRS) chapter 386 (1985). ¹ Claimant-Appellant Damian K. Ostrowski (Ostrowski) appeals from the May 20, 1997 Decision and Order (decision and order) of the Labor and Industrial Relations Appeals Board (LIRAB) denying his claim for workers' compensation benefits. Employer-Appellee is Wasa Electrical Services, Inc. (Wasa). Ostrowski argues that the LIRAB erred by: (1) concluding that the drinking party during which he sustained his injury was not an incident of his employment; (2) finding that the after-hours sidewalk drinking party was a social activity that was not sponsored or organized by Wasa; (3) finding that Ostrowski returned to the after-hours drinking party at 6:00 p.m. on his own initiative and for purely social reasons; (4) finding that Ostrowski's physical altercation with Lawrence Chang, Jr. (Chang, Jr.) was over Chang, Jr.'s belligerent behavior towards his father, Lawrence Chang, Sr. (Chang, Sr.), and Ostrowski's concern for Chang, Sr.'s safety, and was therefore not related to Ostrowski's employment; and (5) finding and concluding that the drinking party did not in any way "benefit" Wasa. ²

We disagree with Ostrowski that the LIRAB's pertinent findings of fact were clearly erroneous or that its conclusions of law were wrong. Accordingly, we affirm the LIRAB's decision and order.

I. BACKGROUND

A. Factual history

Before or around 1989, Wasa employed Ostrowski as a "field" electrician. On December 29, 1989, Ostrowski began work at 7:00 a.m. at an Ala Moana job site. Around 11:30 a.m., a co-worker informed him that Wasa was sponsoring a New Year's Eve party for its employees, on Wasa's business premises. Ostrowski testified that a foreperson for whom he worked also encouraged him to attend the party, leaving Ostrowski with the impression that attendance was encouraged, if not mandatory.

Ostrowski left the Ala Moana job site early in order to attend the New Year's Eve party, arriving at Wasa's business premises around 1:30 p.m.; the party apparently began at 11:30 a.m. Ostrowski testified that he expected to be paid for a full, eight-hour day, but was paid for only a half-day. Other employees who attended the party were similarly paid for only a half-day of work.

At the party, Wasa provided catered food and soft drinks. No alcoholic beverages were served because of Wasa's company policy prohibiting alcoholic beverages from being served or consumed on its premises, ³ of which policy Ostrowski and other employees were aware.

However, a group of approximately twenty-five to thirty employees, including members of Wasa's management, had assembled on a sidewalk across the street from Wasa's premises to drink beer and alcohol. A large cooler filled with ice and beer was placed on the public sidewalk, as was a couch on which to sit. The beer was purchased with the personal funds of the employees, but the ice was from Wasa's ice machine, and the ice cooler was owned and supplied by Wasa.

During the year or so that Ostrowski was employed by Wasa, there were approximately four similar office-sponsored parties, as well as less formal "pau hana," after-work parties that allegedly occurred at least three times per week. On all such occasions, employees, including management, would consume alcoholic beverages on the sidewalk with arrangements similar to the December 29, 1989 New Year's Eve party. Wasa was aware of this practice and did not prohibit it. ⁴

Ostrowski was at the December 29, 1989 party from approximately 1:30 p.m. to 3:15 p.m. He then left the party to pick up his wife and drive home to Aiea. After showering and eating dinner at home, he returned to the sidewalk drinking party at or around 6:00 p.m., taking with him a cooler and eight bottles of beer. By this time, most of the seventy employees from the afternoon party had left, and Wasa's office had officially closed. However, a group of ten to fifteen employees continued to "party" in the sidewalk area across the street from Wasa's premises. This group included Chang, Sr., vice-president of the company, his son, Chang, Jr., who was an employee, and other employees.

At or around 7:00 p.m., Chang, Sr. and Chang, Jr. began arguing. Chang, Sr. tried to take away Chang, Jr.'s car keys because he thought his son was too intoxicated to drive. Chang, Jr. then threw his car keys at Chang, Sr. It is undisputed that Ostrowski then tried to intervene, allegedly "for the benefit of everyone [involved]."

Chang, Jr. then began yelling and throwing beer bottles at Chang, Sr. and threw a cooler against a wall. Ostrowski then grabbed Chang, Jr. to stop him from attacking his father. When Chang, Jr. resisted, he and Ostrowski began fighting. Chang, Jr. allegedly punched Ostrowski twice in the face and knocked him into a tile wall and onto the sidewalk. Ostrowski suffered serious head injuries that resulted in a cerebrospinal fluid leak that, as of December 31, 1991, prevented him from returning to work.

B. Procedural history

On October 3, 1990, Ostrowski filed a Form WC-5 claim for workers' compensation benefits. On June 17, 1991, the Director of the Department of Labor and Industrial Relations, Disability Compensation Division, State of Hawai'i (the Director) filed a decision denying workers' compensation benefits to Ostrowski. After Ostrowski appealed the Director's decision, the LIRAB filed its May 20, 1997 decision and order, similarly denying Ostrowski workers' compensation benefits. The LIRAB found, in pertinent part, that:

[1.] The evidence shows that the evening drinking party during which [Ostrowski] sustained his injury was not an incident of [Ostrowski's] employment. Even though drinking parties similar to the one that occurred on December 29, 1989, may have been held with regularity in the form of [weekly] parties, they took place on a public sidewalk outside of [Wasa's] premises, after work hours, and without [Wasa's] approval or encouragement. Furthermore, the beer consumed at the evening gathering was purchased with the personal funds of the employees. These facts support our finding that the evening drinking party outside of [Wasa's] premises was a social event that was not an incident of [Ostrowski's] employment. That employees at the evening gathering may have had access to [Wasa's] premises ... or ... that the cooler and ice belonged to [Wasa] do not, in our view, provide sufficient nexus to bring the activity within the orbit of employment.

[2.] The evidence also shows that [Wasa] did not expressly or impliedly require participation or attendance at either the daytime New Year's party, or the after-hours drinking party, and did not make either activity part of the services of its employees.... Of particular significance was [Ostrowski's] departure from the New Year's party near the end of his work shift to pick up his wife and return home from dinner. [Ostrowski's] departure ... support[s] our finding that ... the Kahikapu Street party at 6:00 p.m., was voluntary and for purely social reasons.

[3.] Finally, [Ostrowski] has presented no evidence that [Wasa] derived a substantial benefit from the New Year's party or the after-hours drinking party outside of its premises beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

After entry of the decision and order, Ostrowski filed a timely notice of appeal.

II. STANDARD OF REVIEW

Appellate review of the LIRAB's decision is governed by HRS § 91-14 (1993), which provides in relevant part:

(g) 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; or

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

(3) Made upon unlawful procedure; or

(4) Affected by other error of law; or

(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.

HRS § 91-14(g).

Conclusions of law are reviewed under subsections (1), (2), and (4) of HRS § 91-14(g); findings of fact are reviewed under subsection (5); and an agency's exercise of discretion is reviewed under subsection (6). Zemis v. SCI Contractors, Inc., 80 Hawai'i 442, 445, 911 P.2d 77, 80 (1996) (citation omitted).

Being governed by the Hawai'i Administrative Procedure Act, HRS ch. 91 (1985 & Supp.1992), appeals taken from findings set forth in decisions of the Board are reviewed under the "clearly erroneous" standard. Thus, this court considers whether such a finding is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. The clearly erroneous standard requires this court to sustain the Board's findings unless the court is left with a firm and definite conviction that a mistake has been made.

A conclusion of law (COL) is not binding on an appellate court and...