Kapuwai v. Honolulu, Parks and Recreation, 27915.

• Court: Court of Appeals of Hawai'i
• Writing for the Court: Nakamura
• Citation: 119 Haw. 304,196 P.3d 306
• Parties: Darrell N. KAPUWAI, Claimant-Appellant, v. CITY AND COUNTY OF HONOLULU, DEPARTMENT OF PARKS AND RECREATION, Employer-Appellee, Self-Insured.
• Docket Number: No. 27915.,27915.
• Decision Date: 12 November 2008

196 P.3d 306 119 Haw. 304 Darrell N. KAPUWAI, Claimant-Appellant,
v.
CITY AND COUNTY OF HONOLULU, DEPARTMENT OF PARKS AND RECREATION, Employer-Appellee, Self-Insured. No. 27915. Intermediate Court of Appeals of Hawai`i. November 12, 2008. As Corrected December 8, 2008.

[196 P.3d 308]

Herbert R. Takahashi, Danny J. Vasconcellos, Rebecca K. Covert (Takahashi Vasconcellos & Covert), Honolulu, on the briefs, for Claimant-Appellant.

Carrie K.S. Okinaga, Corporation Counsel, Florencio C. Baguio, Jr., Deputy Corporation Counsel, City & County of Honolulu, on the briefs, for Employer-Appellee, Self-Insured.

FOLEY, Presiding Judge, NAKAMURA, and LEONARD, JJ.

Opinion of the Court by NAKAMURA, J.

In this workers' compensation case, Claimant-Appellant Darrell N. Kapuwai (Kapuwai) sustained a work-related injury to his right great toe, a body part covered by the schedule of awards for permanent partial disability (PPD) set forth in Hawaii Revised Statutes (HRS) § 386-32(a) (Supp.2007). The injury affected Kapuwai's ability to walk and interfered with his daily living activities. The Labor and Industrial Relations Appeals Board (LIRAB) awarded PPD benefits to Kapuwai based on the impairment of his whole person; it did not determine what the PPD award would have been if based on the impairment of Kapuwai's great toe under the statutory schedule. We conclude that Kapuwai is entitled to a PPD award based on the impairment of his great toe if that exceeds an

196 P.3d 309

award based on the impairment of his whole person. We therefore vacate the LIRAB's decision and remand the case for a determination of a PPD award based on the impairment of Kapuwai's great toe as requested by Kapuwai.

Because we are remanding the case for further proceedings, we do not decide Kapuwai's claim that the LIRAB erred in denying his request to assess one-half of his attorney's fees and costs against his employer pursuant to HRS § 386-93(b) (Supp.2007). That statute provides for the assessment of attorney's fees and costs against the employer, if the employer appeals to the LIRAB or the appellate court and "loses." However, we provide guidance on how to apply HRS § 386-93(b) to assist the LIRAB on remand.

BACKGROUND

Kapuwai was employed by Employer-Appellee City and County of Honolulu, Department of Parks and Recreation, (the City) as a mason. He developed a bunion and calluses on his right great toe which were aggravated by wearing steel-toed shoes at work. On November 23, 2001, Kapuwai underwent surgery on his right foot that consisted of metatarsal osteotomy and distal phalangeal exostectomy. The surgery was not successful in alleviating the pain and sensitivity Kapuwai experienced in his right great toe. Kapuwai walked with a mild limp, had difficulty going up and down stairs, and had problems with balance. He gave up driving because he experienced twitching under his toe when stepping on the accelerator. The surgery left a scar and a flexion deformity of his right great toe.

The City accepted liability for Kapuwai's injury on October 28, 2002, and on December 1, 2002, the Director of the Department of Labor and Industrial Relations (the Director) ordered the City to pay for Kapuwai's necessary medical expenses as well as $5,421.25 in temporary total disability benefits.

In December 2003, Kapuwai was evaluated by Dr. Wayne Nadamoto for permanent impairment. Dr. Nadamoto used the Fifth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) in rating Kapuwai's impairment. Dr. Nadamoto applied the gait-derangement method rather that the range-of-motion method for assessing impairment under the Fifth Edition of the AMA Guides. Based on the gait-derangement method, Dr. Nadamoto rated Kapuwai's impairment as a 7 percent PPD of the whole person.

A hearing was held before the Director on the issues of permanent disability and disfigurement. The Director credited Dr. Nadamoto's evaluation that Kapuwai suffered a 7 percent whole person disability. The Director found that "[t]his percentage should properly be converted to an award for the great toe only as that was the site of the injury." The Director used the Third Edition (Revised) of the AMA Guides to convert Dr. Nadamoto's 7 percent whole person disability rating to a 96 percent PPD of the right great toe, resulting in a PPD award of $19,954.56. The Director also ordered the City to pay Kapuwai $800.00 for disfigurement, to pay additional temporary total disability benefits, and to reimburse Kapuwai for the cost of Dr. Nadamoto's evaluation.

The City appealed the Director's decision to the LIRAB on July 13, 2004. The LIRAB issued a pretrial order identifying the issues on appeal as:

1. What is the extent of permanent disability resulting from [Kapuwai's] work injury ...; [and]

2. What is the extent of disfigurement resulting from [Kapuwai's] work injury....

At the City's request, Dr. S.Y. Tan conducted an independent medical examination of Kapuwai. Dr. Tan prepared a report and testified at the trial held before the LIRAB on the City's appeal. Dr. Tan disagreed with Dr. Nadamoto's use of the gait-derangement method of assessing Kapuwai's impairment because Kapuwai's condition did not fit the criteria for using that method under the Fifth Edition of the AMA Guides. Dr. Tan concluded that the range-of-motion method, which was based on measuring the range of motion of the great toe, was the appropriate method to use. Applying the range-of-motion method, Dr. Tan determined that Kapuwai had sustained a mild toe impairment

196 P.3d 310

equivalent to a 1 percent PPD of the whole person.

On February 6, 2006, the LIRAB entered a decision that modified the Director's PPD award and affirmed the Director's disfigurement award. The LIRAB credited Dr. Tan's opinion in finding 1) that Kapuwai should be rated under the range-of-motion method and 2) that under the Fifth Edition to the AMA Guides, Kapuwai's range of motion measurements corresponded to a 1 percent impairment of the whole person. The LIRAB also credited Kapuwai's testimony on "how his toe condition has interfered with his activities of daily living, such as walking, going up and down stairs, driving, and standing."

The LIRAB concluded:

Based on the foregoing, including Dr. Tan's impairment rating and [Kapuwai's] testimony regarding his pain symptoms and how his toe condition has interfered with his activities of daily living, we conclude that [Kapuwai] is entitled to benefits for 4% permanent partial disability of the whole person....

The LIRAB's decision did not separately determine what Kapuwai's PPD award would have been if based solely on the impairment to his right great toe. The LIRAB agreed with the Director's $800 disfigurement award.

Kapuwai moved for reconsideration on the ground that the LIRAB failed to convert its award of 4 percent PPD of the whole person to an award based on the impairment of his right great toe, a specific body part covered by the schedule of awards for PPD under HRS § 386-32(a). The LIRAB denied Kapuwai's motion for reconsideration on March 29, 2006.

Kapuwai also submitted a request to the LIRAB that the City be required to pay $2,535, which represented one-half of the attorney's fees and cost incurred by Kapuwai in the City's appeal to the LIRAB. In support of his request, Kapuwai argued that the City raised two issues in the appeal (the extent of the PPD award and the extent of the disfigurement award); that Kapuwai was the prevailing party on the issue of disfigurement; and that the LIRAB did not reverse but only modified the Director's decision on the issue of PPD. The LIRAB effectively denied Kapuwai's request by not assessing the City with 50 percent of Kapuwai's attorney's fees and costs, but instead making Kapuwai's attorney's fees and costs a lien upon the compensation payable by the City to Kapuwai.

STANDARDS OF REVIEW

I. Review of a LIRAB Decision.

Appellate review of the [LIRAB's] decision is governed by Hawai`i Revised Statutes (HRS) § 91-14(g) (1993), which 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; 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). Under HRS § 91-14(g), [conclusions of law] are reviewable under subsections (1), (2), and (4); questions regarding procedural defects are reviewable under subsection (3); [findings of fact] are reviewable under subsection (5); and an agency's exercise of discretion is reviewable under subsection (6).

Nakamura v. State, 98 Hawai`i 263, 266-67, 47 P.3d 730, 733-34 (2002) (quotation marks omitted).

II. Statutory Interpretation

Questions of statutory interpretation are questions of law to be reviewed de novo under the right/wrong standard.

196 P.3d 311

Our statutory construction is guided by the following well established principles:

[When construing a statute,] our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.

When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a...