Kawakami v. Board of Water Supply

• Decision Date: 24 December 2002
• Docket Number: No. 24523.,24523.
• Citation: 59 P.3d 920,100 Haw. 285
• Parties: Richard S. KAWAKAMI, Claimant-Appellant, v. CITY AND COUNTY OF HONOLULU, BOARD OF WATER SUPPLY, Employer-Appellee, Self-Insured.
• Court: Hawaii Supreme Court

59 P.3d 920

100 Haw. 285

Richard S. KAWAKAMI, Claimant-Appellant, v. CITY AND COUNTY OF HONOLULU, BOARD OF WATER SUPPLY, Employer-Appellee, Self-Insured.

No. 24523.

Supreme Court of Hawaii.

December 24, 2002.

Ronald G.S. Au and Gerald H. Kurashima, Honolulu, for claimant-appellant.

Paul Au, Deputy Corporation Counsel, for employer-appellee, self-insured.

MOON, C.J., LEVINSON, NAKAYAMA, and RAMIL, JJ., and ACOBA, J., Dissenting.

Opinion of the Court by RAMIL, J.

I. INTRODUCTION

Claimant-Appellant Richard S. Kawakami appeals the decision and order of the Labor and Industrial Relations Appeals Board ("Board") denying his claim for worker's compensation benefits for an injury sustained by Kawakami while operating a vehicle owned by his employer, the City and County of Honolulu Board of Water Supply ("BOWS").

On appeal, Kawakami argues that the Board erred by: (1) failing to apply the presumption of worker's compensation coverage under Hawai`i Revised Statutes ("HRS") § 386-85 (1993); (2) concluding that Kawakami had "substantially deviated" from his employment; and (3) concluding that Kawakami made a "second deviation" when he turned around to look for Ms. Onaga. For reasons discussed below, we affirm the decision and order of the Board.

II. BACKGROUND

Kawakami was employed with BOWS as a senior construction inspector. His normal work day lasted from 7:00 a.m. to 3:30 p.m. BOWS's construction supervisors are provided company vehicles for the purpose of traveling between the baseyard and job site and for performing daily work responsibilities. Supervisors pick up their assigned vehicles from the baseyard at the start of the day and are required to return the vehicle to the baseyard at the end of their work day. If an employee returns the BOWS vehicle after 5:30 p.m. as a result of overtime work, the employee checks in at the Control Center to obtain the gate key, parks the BOWS vehicle, and returns the gate key to the Control Center.

This dispute arose out of an accident that occurred on June 18, 1997 while Kawakami was operating his assigned company vehicle after work hours. On the day of the incident, Kawakami was assigned to a job site in Ka`a`awa. That morning, Ms. Jane Onaga ("Onaga"), Kawakami's then girlfriend, dropped Kawakami off for work at the baseyard on Beretania Street. Kawakami picked up his assigned vehicle and proceeded to the Ka`a`awa job site. At around 2:30 p.m., Kawakami called Onaga in response to a page he received. Onaga explained that a sewer line on her Wai`anae property was backing up and asked whether Kawakami could help resolve the problem. After securing the Ka`a`awa job site, Kawakami went to Wai`anae to correct the sewer line problem. Because the repair took longer than expected, the couple ate dinner, Kawakami consumed two beers, and Kawakami took a nap. At approximately 10:00 p.m., Kawakami woke up and instructed Onaga on which route he planned to take to return the BOWS vehicle. Onaga planned to follow Kawakami to the Beretania Street baseyard and take him home after he dropped off the BOWS vehicle. The couple then proceeded towards the baseyard. While traveling on Pa`akea Street, Kawakami noticed that there were no headlights behind him. Concerned about Onaga's well-being, Kawakami proceeded down Hakimo Road to Farrington Highway where he took a right turn heading back towards Wai`anae and away from the baseyard. While traveling west on Farrington Highway, Kawakami was struck by a car traveling in the opposite direction at approximately 11:50 p.m.

On April 21, 1998, BOWS filed an Employer's Report of Industrial Injury (WC-1) denying liability for Kawakami's claim of injury on June 18, 1997. On June 18, 1999, Kawakami filed an Employee's Claim for Worker's Compensation Benefits (WC-5). The Department of Labor and Industrial Relations Disability Compensation Division ("DCD") held a hearing to determine compensability of Kawakami's injuries and denied his claim.

Kawakami appealed to the Board. The Board ruled that Kawakami's injuries were not compensable because Kawakami substantially deviated from the scope of employment when he left work to embark on a personal errand, and, accordingly, was not capable of re-entering the scope of employment when the accident occurred. The Board specifically ruled:

We have found that the initial deviation was substantial in this case, based on the fact that Claimant, who had a fixed work schedule and a fixed workplace, was, at the time of the accident, outside the boundaries of his employment in terms of time and space, the number and nature of the personal activities engaged in by Claimant between his last work activity and the accident, and the fact that the deviation played a role in Claimant's injuries, because it was the deviation and not the work that brought Claimant to Waianae and to the site where the accident occurred. Given our finding of substantial deviation, we conclude that the 10:00 p.m. trip to Honolulu to return Employer's vehicle, which was delayed by at least seven hours, lost its business character and any work connection that the trip to return Employer's vehicle may have had was severed by the initial deviation.

The Board further held that, even assuming Kawakami had re-entered the scope of employment when he headed toward Honolulu to return the vehicle to BOWS, the accident occurred during a second deviation, commencing when Kawakami turned away from the direction of the baseyard to search for Onaga. Kawakami appealed the Board's decision, and oral arguments were heard on November 13, 2002. Upon carefully reviewing the record and briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we affirm the Board's decision to deny compensation.

III. STANDARD OF REVIEW

Review of the Board's decisions is governed by HRS chapter 91 (1993). Findings of fact are reviewed under the clearly erroneous standard. Tate v. GTE Hawaiian Telephone Co., 77 Hawai`i 100, 102, 881 P.2d 1246, 1248 (1994). Conclusions of law are not binding on an appellate court and are freely reviewable for correctness. Id. Thus, the de novo standard of review is applied to conclusions of law. Id.

IV. ANALYSIS

The issue of compensability of work-related accidents is governed by HRS § 386-3 (1993), which provided in relevant part:

Injuries Covered. If an employee suffers personal injury either by accident arising out of and in the course of the employment or by disease proximately caused by or resulting from the nature of the employment, the employee's employer or the special compensation fund shall pay compensation to the employee or the employee's dependents as provided in this chapter.

Accident arising out of and in the course of the employment includes the wilful act of a third person directed against an employee because of the employee's employment.

In all compensability cases, we are guided by the unitary test, which considers

whether there is a sufficient work connection to bring the accident within the scope of the statute. First articulated in Royal State National Insurance Co. v. Labor and Industrial Relations Appeal Board, 53 Haw. 32, 487 P.2d 278 (1971), the work connection approach simply requires the finding of a causal connection between the injury and any incidents or conditions of employment.

Tate, 77 Hawai`i at 103, 881 P.2d at 1249 (citations omitted). The "unitary test" was formally adopted by this court in Chung v. Animal Clinic, Inc., 63 Haw. 642, 636 P.2d 721 (1981). In addition, HRS § 386-85 (1993) expressly provides a presumption in favor of employees that a claim for worker's compensation is compensable. Thus, to rebut the claim, an employer must provide "substantial evidence" that the injury is not work-related. Royal State, 53 Haw. at 34-35, 487 P.2d at 280; Acoustic, Insulation & Drywall, Inc. v. Labor & Industrial Relations Appeal Board, 51 Haw. 312, 316, 459 P.2d 541, 544, rehearing denied, 51 Haw. 632, 466 P.2d 439 (1970).

A. Substantial Deviation

BOWS adduced substantial evidence that Kawakami left the scope of employment to embark on a purely personal and unauthorized journey. Kawakami argues, however, that he re-entered the course of employment over seven hours later when he attempted to return the BOWS vehicle to the Beretania Street baseyard. The Board ruled that Kawakami was precluded from re-entering the course of employment because his deviation was substantial, thus severing any work connection. We agree with the Board's analysis and hold that Kawakami is precluded from compensability under the doctrine of substantial deviation.

Within the unitary test, the deviation doctrine teaches that when an employee departs from his normal job duties on a personal errand that serves no purpose of the employer, there is no longer a work connection and any injury sustained during that deviation will not be compensable. See Larson's Workers' Compensation Law § 17.03[1] (2002) ("When an employee deviates from the business route by taking a side-trip that is clearly identifiable as such, the employee is unquestionably beyond the course of employment while going away from the business route and toward the personal objective[.]" (Footnote omitted.)). The question whether the return trip from the personal deviation is covered, however, is unsettled. "The majority of compensation cases deny recovery in these circumstances, on the ground that a side-trip is a personal deviation until completed[.]" Larson's § 17.03[3]. Thus, until the employee resumes his normal work route, the personal deviation is not complete and any injury sustained during that interval is not compensable.

Many employees, however, especially those who are provided the use of a company car, may engage in substantial personal activities temporally and spatially remote from their work. These situations raise the question whether an employee can re-enter the course of employment after such a...