Porter v. Queen's Med. Ctr.

• Decision Date: 21 February 2020
• Docket Number: NO. CAAP-16-0000602,CAAP-16-0000602
• Citation: 463 P.3d 1216
• Parties: Adeline N. PORTER, Claimant-Appellant, v. The QUEEN'S MEDICAL CENTER, Employer-Appellee, Self-Insured
• Court: Hawaii Court of Appeals

463 P.3d 1216

Adeline N. PORTER, Claimant-Appellant,

v.The QUEEN'S MEDICAL CENTER, Employer-Appellee, Self-Insured

NO. CAAP-16-0000602

Intermediate Court of Appeals of Hawai‘i.

FEBRUARY 21, 2020

On the briefs:

Adeline N. Porter, Claimant-Appellant, Self-Represented.

Scott G. Leong, and Shawn L.M. Benton, Honolulu, (Leong Kunihiro Benton & Brooke), for Employer-Appellee, Self-Insured.

GINOZA, CHIEF JUDGE, LEONARD and CHAN, JJ.

OPINION OF THE COURT BY CHAN, J.

Claimant-Appellant Adeline N. Porter (Porter), self-represented, appeals from the Decision and Order entered by the Labor and Industrial Relations Appeals Board (LIRAB) on August 10, 2016 in Case No. AB 2012-438 (August 10, 2016 D&O).¹ The August 10, 2016 D&O addressed whether Porter's requests to reopen her workers' compensation case for alleged Multiple Chemical Sensitivity (MCS) related injuries occurring in 2002 and 2003 met the requirements set forth in Hawaii Revised Statutes (HRS) § 386-89(c) (2015),² as remanded to the LIRAB by this court in Porter v. Queens Med. Ctr., No. CAAP-13-0006215, 2015 WL 1400787 (Haw. App. Mar. 27, 2015) (mem. op.) ( Porter I ).

For the reasons set forth herein, we hold that Porter waived her fraud claims in Porter I, including her claim to reopen a workers' compensation claim relating to an alleged May 13, 2003 injury. We also hold that the LIRAB did not err in determining that Porter failed to make the requisite showing of substantial evidence required by HRS § 386-89(c) to obtain the relief sought for her August 9, 2002, August 31, 2002, November 6, 2002, and November 8, 2002 workers' compensation claims. Accordingly, we affirm the LIRAB's August 10, 2016 D&O.

I. Background

A. The LIRAB's denial of Porter's claims prior to her first appeal

Porter asserted workers' compensation claims for alleged MCS injuries that occurred on August 9, 2002, August 31, 2002, November 6, 2002, and November 8, 2002 (collectively, 2002 Claims). Porter also filed a claim for an additional alleged MCS injury that occurred on May 13, 2003 (2003 Claim).

The Department of Labor and Industrial Relations, Disability Compensation Division (DCD) denied compensation for Porter's 2002 Claims and 2003 Claim. The LIRAB issued a decision on July 19, 2005, affirming the DCD's denial of compensation for the 2002 Claims (July 19, 2005 D&O). Porter then requested that the DCD reopen her 2002 Claims and 2003 Claim, which the DCD denied in its November 28, 2012 Decision (November 28, 2012 DCD Decision).

In a September 17, 2013 Decision and Order (September 17, 2013 D&O), the LIRAB affirmed in part the November 28, 2012 DCD Decision, holding that Porter was not entitled to reopen her 2002 Claims and 2003 Claim because they were administratively final, since she had not appealed the LIRAB's July 19, 2005 D&O affirming the DCD's denial of compensation for her 2002 Claims, nor had she appealed the DCD's March 10, 2011 Decision denying compensation for her 2003 Claim (March 10, 2011 DCD Decision). The LIRAB further held that Porter's filing of allegations of fraud on March 24, 2011, for incidences prior to March 24, 2009, were time-barred by HRS § 386-98(f) (Supp. 2014).³ Additionally, the LIRAB stated that the time-barred allegations of fraud would not warrant reopening of her 2002 Claims or 2003 Claim because the DCD did not exercise its discretion to pursue the fraud claims on its own. However, in concluding its September 17, 2013 D&O, the LIRAB held that Porter's remaining allegation of fraud in her March 24, 2011 complaint, relating to whether, by an October 1, 2010 letter, QMC committed fraud for any of Porter's 2002 Claims or 2003 Claim, was still left to be addressed by the LIRAB on appeal.

On September 30, 2013, Porter filed a "Request for Reconsideration or Appeal" (Motion for Reconsideration) from the September 17, 2013 D&O. The LIRAB issued its December 3, 2013 Order, denying the Motion for Reconsideration.

In a separate December 3, 2013 Decision and Order (December 3, 2013 D&O), the LIRAB determined the outstanding issue of whether QMC's October 1, 2010 letter amounted to fraud which would warrant the reopening of Porter's 2002 Claims or 2003 Claim. Ultimately, the LIRAB concluded that the October 1, 2010 letter did not constitute fraud and affirmed the November 28, 2012 DCD Decision denying Porter's request to reopen her 2002 Claims and 2003 Claim. Porter subsequently appealed to this court from the LIRAB's September 17, 2013 D&O, December 3, 2013 Order, and December 3, 2013 D&O.

B. Porter I

In Porter I, this court noted that, as best as could be determined, Porter relied on the fraud provision of HRS § 386-89(b) (1993)⁴ to support reopening her 2003 Claim. 2015 WL 1400787, at *2 n.5, *7 n.9, *8. We further determined that Porter's failure to include fraud arguments in her Opening Brief amounted to a waiver of the fraud claims for both her 2002 Claims and 2003 Claim. Id. at *7, *7 n.9. Therefore, we limited our review to Porter's contention that the LIRAB erred in denying her request to reopen her 2002 Claims without first addressing whether she satisfied the requirements of HRS § 386-89(c) (1993).⁵ Upon review, we determined that, contrary to the LIRAB's holding in the September 17, 2013 D&O, an appeal of the July 19, 2005 D&O was not necessary to reopen Porter's 2002 Claims under HRS § 386-89(c). Id. at *7. As a result, we concluded that the LIRAB erred in its September 17, 2013 D&O when it affirmed the DCD's denial of Porter's 2002 Claims without first addressing whether Porter's request to reopen satisfied the requirements of HRS § 386-89(c). Id.

Accordingly, we affirmed the December 3, 2013 D&O based on our conclusion that Porter had waived her fraud claims. Id. at *7-8. We also vacated the December 3, 2013 Order and September 17, 2013 D&O, as they pertained to Porter's request to reopen her 2002 Claims under HRS § 386-89(c), and remanded the case to the LIRAB to determine whether Porter's request to reopen her 2002 Claims satisfied the requirements of HRS § 386-89(c). Id. at *8.

C. The LIRAB's August 10, 2016 D&O

On remand, Porter and QMC stipulated to forgo trial on the remanded issue and proceeded by the submission of post-trial memoranda. After reviewing the parties’ submissions, the LIRAB made numerous findings of fact (FOFs) and conclusions of law (COLs) and issued its August 10, 2016 D&O, wherein the LIRAB affirmed the November 28, 2012 DCD Decision, as it related to the denial of Porter's requests to reopen her claims. In COL 1, the LIRAB concluded that Porter was not entitled to reopen her 2002 Claims because she had not presented substantial evidence of a change or mistake relating to her condition under HRS § 386-89(c). More specifically, under COL 1(a), the LIRAB held that "the applicant has the burden of proof to justify a reopening under Section 386-89(c), HRS" and that the presumption of compensability in HRS § 386-85(1) (2015)⁶ applies to the question of compensability once a case is reopened, but not to the determination of an applicant's entitlement to reopening or review under HRS § 386-89(c). The LIRAB then held in COL 1(b) that Porter had not alleged a change relating to her physical condition, nor had she presented substantial evidence to support her request for reopening of her 2002 Claims based on a change relating to her physical conditions. The LIRAB further held in COL 1(c) that since it did not credit the various documents Porter offered in support of her claim that MCS was, is, or had become, a valid medical disorder, Porter had not presented substantial evidence to support her request to reopen her 2002 claims based on a mistake of fact at the time of the July 19, 2005 D&O. Finally, in COL 2, the LIRAB concluded that Porter's 2003 Claim was time-barred, and in COL 3, the LIRAB concluded that Porter's fraud claims could not be addressed because the LIRAB previously denied the allegations of fraud and this court deemed Porter's fraud claims waived in Porter I.

Porter timely appealed the August 10, 2016 D&O to this court on August 30, 2016.

II. Points of Error

On appeal, Porter contends that the LIRAB erred in its August 10, 2016 D&O by: (1) denying Porter's requests to reopen her 2002 Claims under HRS § 386-89(c) ; (2) declining to re-address Porter's fraud allegations; and (3) denying Porter's request to reopen her 2003 Claim on the grounds that it was time-barred. Porter challenges FOFs 41, 46, 50, 53-80, and 85, and COLs 1-3.⁷

III. Standard of Review

Appellate review of a LIRAB decision is governed by HRS § 91-14(g). Igawa v. Koa House Rest., 97 Hawai‘i 402, 405-06, 38 P.3d 570, 573-74 (2001). HRS § 91-14(g) (Supp. 2018) provides:

§ 91-14 Judicial review of contested cases.

....

(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;

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

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(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),

COLs are reviewed de novo, pursuant to subsections (1), (2) and (4); questions regarding procedural defects are reviewable under subsection (3); FOFs are reviewable under the clearly erroneous standard, pursuant to subsection (5); and an agency's exercise of discretion is reviewed under the arbitrary and capricious standard, pursuant to subsection (6).

Pilaa 400, LLC v. Bd. of Land & Nat. Res., 132 Hawai‘i 247, 263, 320 P.3d 912, 928 (2014) (citation and brackets omitted). We review COLs...