Scarlett v. Macy's W. Stores, Inc.
| Docket Number | CAAP-19-0000868 |
| Decision Date | 31 July 2023 |
| Parties | MONICA G. SCARLETT, Claimant-Appellee-Appellant, v. MACY'S WEST STORES, INC., Employer-Appellant-Appellee, and SEDGWICK CMS-HAWAII, Third-Party Administrator-Appellant-Appellee |
| Court | Hawaii Court of Appeals |
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2018-091 AND DCD NO. 2-17-05258)
Paul A. Brooke, Kira J. Goo, for Employer-Appellant- Appellee Macy's West Stores, Inc. and Third-Party Administrator Appellant-Appellee Sedgwick CMS-Hawai'i.
Andrew A. Cheng, for Claimant-Appellee- Appellant.
Claimant-Appellee-Appellant Monica G. Scarlett appeals from the "Order Adopting Proposed Decision and Order" entered by the Labor and Industrial Relations Appeals Board (LIRAB or Board) on November 25, 2019. The LIRAB majority adopted its "Proposed Decision and Order" entered on October 4 2019. For the reasons explained below, we affirm.
Scarlett worked for Employer-Appellant-Appellee Macy's West Stores, Inc. as a fragrance specialist in the Ala Moana Center Bloomingdale's store. On July 9, 2017, she injured her lower back while lifting boxes at work. Macy's accepted liability for workers compensation benefits. Scarlett received temporary total disability (TTD) benefits through July 16 2017. She was then released to perform modified duty work for no more than five hours per day. She worked part-time beginning July 17, 2017, and received temporary partial disability (TPD) benefits until January 7, 2018.
On January 7, 2018, Macy's suspended Scarlett's employment and denied further benefits. Scarlett's employment was terminated on January 9, 2018.[1]
DLIR's Disability Compensation Division (DCD) conducted a hearing on Scarlett's claim for workers compensation benefits on March 16, 2018. Macy's did not attend the hearing or file a memorandum.[2] The Director of Labor and Industrial Relations issued a decision on March 23, 2018. The Director: (1) awarded Scarlett TTD benefits beginning January 7, 2018, "and terminating at such time as is determined by the Director that such disability has ended"; (2) assessed a penalty against Macy's under Hawai'i Revised Statutes (HRS) § 386-92 (); and (3) awarded Scarlett attorney's fees and costs under HRS § 386-93; but (4) deferred a decision on a treatment plan "until such time that [Macy's] has been provided sufficient and adequate notice of a hearing."
Macy's appealed the Director's decision to LIRAB. LIRAB issued a pretrial order. The issues to be determined were: (1) whether Scarlett was entitled to TTD benefits after January 7, 2018 (the date Scarlett was suspended);[3] (2) whether the Director erred by assessing the penalty against Macy's; and (3) whether the Director erred by assessing attorney's fees and costs against Macy's.
LIRAB conducted a trial. On October 4, 2019, LIRAB entered the Proposed Decision and Order, with the Chair dissenting. Scarlett filed exceptions. Macy's filed a response. LIRAB held a hearing on Scarlett's exceptions. On November 25, 2019, LIRAB entered the Order Adopting Proposed Decision and Order, over a dissent by the Chair. The LIRAB majority concluded that: (1) Scarlett was not entitled to TTD benefits after January 7, 2018; (2) the Director erred in assessing a penalty against Macy's for late payment of TTD benefits; and (3) the Director erred in assessing attorney's fees and costs against Macy's. This appeal followed.
Scarlett raises seven points of error: (1) "LIRAB erred in determining that [Scarlett] was able to work with restrictions and on a modified schedule pursuant to her physician's work release, [so] she was not temporarily totally disabled after January 7, 2018"; (2) "[t]he Board erred in finding that [Scarlett] was not temporarily totally disabled after January 7, 2018, on grounds that [Macy's] had accommodated her restrictions and subsequently terminated her for violating [Macy's] policies"; (3) "the Board erred in declining to determine whether [Macy's] termination of [Scarlett] was justified when it based [her] disentitlement to TTD on the grounds that her termination was for violating [Macy's] policies and that such termination had not been rescinded or otherwise modified"; (4) "the Board erred in disregarding the determination of the Unemployment Insurance Division, Department of Labor and Industrial Relations had not committed any misconduct and declining to give the determination preclusive effect in this case"; (5) "[t]he Board erred in finding that there is no evidence that [Scarlett], upon her suspension, made any attempt to return to work"; (6) "[t]he Board erred in finding that [Scarlett] is not entitled to penalties for the untimely payment of TTD benefits"; and (7) "[t]he Board erred in finding that [Scarlett] is not entitled to an assessment of attorney's fees and costs against [Macy's] for defending her claim for TTD benefits without reasonable ground under Section 386-93(a), HRS."
Appellate review of a LIRAB decision is governed by HRS § 91-14(g). It is well-established that appellate courts review LIRAB's findings of fact under the clearly erroneous standard. However, LIRAB's conclusions of law cannot bind an appellate court and are freely reviewable for their correctness. Thus, the court reviews conclusions of law de novo, under the right/wrong standard.
Skahan v. Stutts Constr. Co., 148 Hawai'i 460, 466, 478 P.3d 285, 291 (2021) (cleaned up). However, LIRAB's label of a finding of fact or a conclusion of law does not determine the standard of review. See Crosby v. State Dep't of Budget &Fin., 76 Hawai'i 332, 340, 876 P.2d 1300, 1308 (1994). Whether an agency's determination is a finding of fact or a conclusion of law is a question of law. The accuracy of the label affixed by the agency is freely reviewable on appeal. Kilauea Neighborhood Ass'n v. Land Use Comm'n, 7 Haw.App. 227, 229, 751 P.2d 1031, 1034 (1988).
(1) Scarlett contends that LIRAB erred by determining she was not temporarily totally disabled after January 7, 2018. She challenges the following findings of fact, analysis, and conclusion of law:
LIRAB's determination of a claimant's entitlement to TTD benefits is reviewed de novo. Tamashiro v. Control Specialist, Inc., 97 Hawai'i 86, 92, 34 P.3d 16, 22 (2001). "Total disability" means "disability of such an extent that the disabled employee has no reasonable prospect of finding regular employment of any kind in the normal labor market." HRS § 386-1 (2015). "If an employee is injured on the job and is unable to work in any capacity after the injury, he or she is eligible for a total disability benefit." Ihara v. State, Dep't of Land &Nat. Res., 141 Hawai'i 36, 42, 404 P.3d 302, 308 (2017) (emphasis added) (citation omitted). Temporary total disability benefits are available "[w]here a work injury causes total disability not determined to be permanent in character[.]" HRS § 386-31(b) (2015 &Supp. 2016).
Scarlett acknowledges that her doctor's January 12, 2018 disability certificate "states that [she] had modified duty restrictions of working no more than 5 hours per work day (25 hours per week) and no lifting/carrying/pushing/pulling more than 5 pounds, no twisting of the torso/spine, sitting and resting as needed, and only occasional bending at the waist." She "informed the unemployment insurance division that she was ready, willing, and able to work within her doctor's restrictions." Her "[d]isability certifications from January 2018 through December 18, 2018 (the date of the medical reports submission on appeal to the LIRAB) continued [to] certify [her] with the modified duty, part-time restrictions."
LIRAB's findings that Scarlett was not totally disabled are supported by substantial evidence in the record, and are not clearly erroneous. LIRAB's conclusion that Scarlett is not entitled to TTD benefits was not wrong.[4]
(2) Scarlett contends that LIRAB erred in finding that she was not temporarily totally disabled after January 7, 2018, "on grounds that [Macy's] had accommodated her restrictions and subsequently terminated her for violating [Macy's] policies." She challenges the following findings of fact, analysis, and conclusion of law:
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