Skahan v. Stutts Construction Company. ( 2020 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
24-DEC-2020
11:28 AM
Dkt. 12 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
________________________________________________________________
SCWC-XX-XXXXXXX
KENNETH M. SKAHAN,
Petitioner/Claimant-Appellant/Appellant,
vs.
STUTTS CONSTRUCTION COMPANY, INC.,
Respondent/Employer-Cross-Appellant/Appellee,
and
FIRST INSURANCE COMPANY OF HAWAII, LTD.,
Respondent/Insurance Carrier-Cross-Appellant/Appellee.
(CASE NO.: AB 2014-019 (WH); DCD NO.: 9-04-45072(M))
SCWC-XX-XXXXXXX
KENNETH M. SKAHAN,
Petitioner/Claimant-Appellant,
vs.
STUTTS CONSTRUCTION COMPANY, INC.,
Respondent/Employer-Appellee,
and
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FIRST INSURANCE COMPANY OF HAWAII, LTD.,
Respondent/Insurance Carrier-Appellee.
(CASE NO.: AB 2014-041 (WH); DCD NO.: 9-13-45106(M))
_____________________________________
SCWC-XX-XXXXXXX
KENNETH M. SKAHAN,
Petitioner/Claimant-Appellant,
vs.
STUTTS CONSTRUCTION COMPANY, INC.,
Respondent/Employer-Appellee,
and
FIRST INSURANCE COMPANY OF HAWAII, LTD.,
Respondent/Insurance Carrier-Appellee.
(CASE NO.: AB 2015-374 (M); DCD NO.: 7-14-45105)
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CAAP-XX-XXXXXXX; and CAAP-XX-XXXXXXX)
DECEMBER 24, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND
CIRCUIT JUDGE JOHNSON, IN PLACE OF POLLACK, J., RECUSED
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
These consolidated cases arise from pro se litigant Kenneth
Skahan’s (“Skahan”) claims for workers’ compensation benefits
against his former employer, Stutts Construction Company
(“Stutts”), and its insurance carrier, First Insurance Company
of Hawai‘i (collectively with Stutts, “Employer”).
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On November 30, 2004, Skahan injured his back while working
for Stutts, and Stutts accepted workers’ compensation liability
for the injury. On June 12, 2012, after Skahan’s employment
with Stutts had ended, Skahan experienced mid and low back pain
while wading in the ocean. Skahan was subsequently diagnosed
with Diffuse Idiopathic Skeletal Hyperostosis (“DISH”)1 affecting
his thoracic spine, and he filed multiple claims for additional
workers’ compensation benefits against Employer.
The Labor and Industrial Relations Appeals Board (“LIRAB”)
issued three decisions. On June 17, 2016, LIRAB determined
Skahan’s DISH injury was compensable because it was causally
related to the November 30, 2004 work injury, but his low back
injury was not compensable because it was not causally related
to the November 30, 2004 work injury. On June 21, 2016, LIRAB
determined the dates for which Skahan was entitled to temporary
total disability (“TTD”) benefits. In a January 3, 2019
decision, LIRAB again stated that Skahan’s DISH injury was
related to his November 30, 2004 work injury.2
1 “DISH” is a condition involving the “bony hardening of ligaments in
areas where they attach to your spine” and may or may not cause symptoms.
Diffuse Idiopathic Skeletal Hyperostosis (DISH), Mayo Clinic,
https://perma.cc/ZUL6-UJFZ (last visited June 24, 2020).
2 As LIRAB’s January 3, 2019 decision reiterated its findings and
determinations from earlier decisions, this opinion does not further discuss
the January 3, 2019 decision.
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Skahan appealed all three LIRAB decisions. The
Intermediate Court of Appeals (“ICA”) consolidated and addressed
Skahan’s appeals of LIRAB’s June 21, 2016 and January 3, 2019
decisions in a summary disposition order (“SDO”), and it
addressed Skahan’s appeal of LIRAB’s June 17, 2016 decision in a
separate SDO. Ultimately, the ICA affirmed all three LIRAB
decisions. We accepted and have consolidated Skahan’s
applications for writ of certiorari from both SDOs, and we rule
as follows.
The ICA erred in holding that Employer rebutted the Hawai‘i
Revised Statutes (“HRS”) § 386-85 (2015) presumption that
Skahan’s low back claim was for a covered work injury. In
addition, LIRAB’s finding that Skahan’s injury was “permanent
and stationary and at maximum medical improvement” by April 19,
2013 is clearly erroneous, and LIRAB’s COL ending Skahan’s TTD
benefits on April 19, 2013 is also clearly erroneous as it is
not supported by the record. The additional issues raised by
Skahan on certiorari are without merit.3
3 With respect to LIRAB’s June 17, 2016 decision, those issues are:
(1) Did the ICA err by failing to apply the right/wrong
standard of review to LIRAB’s conclusions of law?
(2) Did the ICA err in determining that the issue of
whether his DISH injury was causally related to the
November 2004 work injury was moot?
With respect to LIRAB’s June 21, 2016 and January 3, 2019 decisions,
those additional issues are:
(1) Was LIRAB required to explain how granting Employer’s
motion for stay of payments would comply with HRS
(continued . . .)
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We therefore vacate the ICA’s May 19, 2020 judgment on
appeal affirming LIRAB’s June 17, 2016 decision and also vacate
in part the ICA’s May 27, 2020 judgment on appeal affirming
LIRAB’s June 21, 2016 and January 3, 2019 decisions and we
remand to LIRAB for further proceedings consistent with this
opinion.
II. Background
A. Factual background
On November 30, 2004, Skahan injured his back while working
for Stutts, and Employer accepted liability for the injury.
Skahan was treated by doctor Lora Aller (“Dr. Aller”), who
diagnosed him with a chest and thoracic spine strain and opined
that Skahan was temporarily disabled from working. Dr. Aller
released Skahan to return to work on August 8, 2005. Employer
ended Skahan’s TTD benefits on October 4, 2005, and Skahan
requested a hearing with the Department of Labor and Industrial
Relations Disability Compensation Division (“DCD”). On January
6, 2006, DCD issued its decision determining that the
termination of TTD was proper. DCD left the matters of
(. . . continued)
§ 91-14(c)?
(2) Did the ICA fail to apply the proper standards of
review to LIRAB’s COLs and application of HRS
§ 386-3(a)?
(3) Did LIRAB err in concluding he was not permanently
and totally disabled?
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permanent disability and disfigurement to be determined at a
later date. Skahan did not appeal.
On June 12, 2012, Skahan experienced pain in his back while
wading in the ocean. Skahan no longer worked for Stutts at the
time of the injury. In a June 27, 2012 letter to First
Insurance, Skahan stated that he had reinjured his back and
asked to change physicians because Dr. Aller had left the state.
The letter claimed the “date of injury” was November 30, 2004,
but it did not explain how Skahan had injured his back. Skahan
asked First Insurance to “respond quickly as [he was] in a great
deal of pain and [was] having difficulty breathing.” First
Insurance did not respond.
On July 3, 2012, Skahan filed a claim for workers’
compensation against Employer listing the date of accident as
November 30, 2004 and seeking to reopen his prior claim. In an
August 16, 2012 letter to First Insurance, Skahan stated that
this was “not a new injury,” but an aggravation of the November
30, 2004 work injury. In a September 12, 2012 letter to DCD,
Skahan further explained that he had been unable to see a doctor
because they did not take workers’ compensation patients or
would not see him without the insurer’s approval, First
Insurance had not allowed him to change physicians, and he could
not afford to see a physician without insurance.
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Skahan was eventually treated by Dr. Capen and saw him on
an almost monthly basis beginning on November 16, 2012. Dr.
Capen’s November 16, 2012 initial physician’s report diagnosed
Skahan with a thoracic spine strain. Dr. Capen’s December 28,
2012 report described Skahan’s June 12, 2012 injury as an
aggravation or recurrence of his November 30, 2004 injury. In
an April 19, 2013 report, Dr. Capen concluded that Skahan was
“never going back to doing heavy work.” Dr. Capen connected
Skahan’s low back injury to the November 30, 2004 injury.
At Employer’s request, Skahan was also evaluated by doctor
Lorne Direnfeld (“Dr. Direnfeld”). In his July 19, 2013 report,
Dr. Direnfeld opined that Skahan suffered from DISH, the
November 30, 2004 accident had caused his DISH to become
symptomatic, and the June 12, 2012 injury “may represent a non-
work related symptomatic aggravation” of his DISH. Dr.
Direnfeld disagreed with Dr. Capen’s opinion that Skahan’s low
back injury was caused by the November 30, 2004 work accident,
as no investigation of Skahan’s lumbar spine had been required
in relation to the November 30, 2004 work accident and Skahan
had suffered a low back injury before the November 30, 2004 work
accident. Dr. Direnfeld noted that Skahan himself attributed
his low back problems to a previous 1994 injury.
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B. Procedural background related to Skahan’s first application
for certiorari
1. DCD proceedings
On August 19, 2013, Skahan filed a claim for workers’
compensation against Employer describing his injury as an
occupational disease affecting his low and mid back and “a
preexisting [a]symptomatic condition which was first evident in
2004,” and stating that the “date of accident” was April 7,
2013.4 The claim also stated that Skahan had filed for DISH
injury benefits, and that his DISH was causally related to the
November 30, 2004 injury.
On January 10, 2014, DCD issued its decision denying
Skahan’s August 19, 2013 claim. DCD found that Skahan was not
employed by Stutts on April 7, 2013 and did not suffer injuries
“arising out of and in the course of employment” under HRS
§§ 386-3 (2015)5 and 386-85.6 Skahan appealed DCD’s decision to
4 Although the August 19, 2013 claim listed the “date of accident” as
April 7, 2013, Skahan’s opening brief and his first application referred to
the June 12, 2012 injury.
5 HRS § 386-3(a) provides:
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.
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LIRAB.
2. LIRAB proceedings
On June 17, 2016, LIRAB issued its decision reversing in
part DCD’s January 10, 2014 decision. LIRAB credited Dr.
Direnfeld’s opinion that Skahan’s thoracic spine symptoms were
due to DISH, his DISH became symptomatic as a result of the
November 30, 2004 incident, and his DISH was attributable to his
work for Stutts. While DCD had construed Skahan’s August 19,
2013 claim as a claim for new injury, LIRAB found that Skahan’s
claim was actually a “claim for DISH that was causally related
to the November 30, 2004 work accident,” and that his DISH claim
should be decided under his November 30, 2004 injury claim.
LIRAB concluded that Employer failed to rebut the presumption
that Skahan’s DISH was a covered work injury.
However, LIRAB also found that Employer had presented
evidence from Dr. Direnfeld that Skahan’s low back injury was
not related to the November 30, 2004 injury, and Dr. Capen did
not provide an opinion connecting Skahan’s low back injury to
the November 30, 2004 work injury. LIRAB determined that,
therefore, Employer met its burdens of production and persuasion
to show that Skahan’s low back condition was not causally
(. . . continued)
6 HRS § 386-85 provides, in relevant part: “In any proceeding for the
enforcement of a claim for compensation under this chapter it shall be
presumed, in the absence of substantial evidence to the contrary: (1) That
the claim is for a covered work injury[.]”
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related to the November 30, 2004 injury, and it denied his low
back claim.
On July 11, 2016, Skahan filed a motion for reconsideration,
which LIRAB also denied. Skahan appealed LIRAB’s June 17, 2016
decision and order denying motion for reconsideration to the ICA.
3. ICA proceedings
Skahan raised various points of error challenging nearly
all of LIRAB’s June 17, 2016 findings of fact (“FOFs”) and
conclusions of law (“COLs”). The relevant point of error is
Skahan’s claim that Employer did not meet its burden of
production regarding his low back condition because Dr.
Direnfeld’s opinion did not address whether the November 30,
2004 work injury could have aggravated or accelerated his
condition.
On April 1, 2020, the ICA issued its SDO affirming LIRAB’s
decision. Skahan v. Stutts Construction Co. (Skahan I), CAAP-
XX-XXXXXXX (App. April 1, 2020) (SDO). In relevant part, the
ICA addressed Skahan’s argument that Employer failed to show his
low back injury was not causally related to the November 30,
2004 work injury. Skahan I, SDO at 5. The ICA noted that,
under HRS § 386-85, there is a presumption that a claim is for a
covered work injury, and it is the employer’s burden to
introduce substantial evidence to rebut the presumption. Id.
(citing Panoke v. Reef Dev. of Hawaii, Inc., 136 Hawai‘i 448, 461,
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363 P.3d 296, 309 (2015)). According to the ICA, Dr.
Direnfeld’s July 19, 2013 report stated Skahan’s low back injury
was unrelated to the November 30, 2004 injury. Skahan I, SDO at
5-6. Furthermore, the ICA stated that “nothing in Dr. Capen’s
reports produced in this record provide[d] any opinion or
medical basis to relate Skahan’s lower back injury to the
November 30, 2004 incident.” Skahan I, SDO at 6. The ICA held
that LIRAB therefore did not err in concluding that Employer
rebutted the HRS § 386-85 presumption. Skahan I, SDO at 7.
4. Application for certiorari
In relevant part, Skahan maintains his low back injury was
causally connected to his previous work-related injuries, and
that LIRAB misapplied HRS §§ 386-3(a) and 386-85 by concluding
that his “low back injury was not [a] work-related [injury.]”
C. Procedural background related to Skahan’s second
application for certiorari
1. DCD proceedings
On July 2, 2013, Skahan filed a workers’ compensation claim
for permanent total disability as a result of the November 30,
2004 injury, as aggravated by the June 12, 2012 injury.
On January 15, 2014, DCD issued a supplemental decision on
whether Skahan was entitled to vocational rehabilitation (“VR”)
services and whether he was temporarily disabled and the period
of temporary disability. DCD found that Skahan’s November 30,
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2004 work injury resulted in his DISH becoming symptomatic, and
the June 12, 2012 injury was a non-work-related aggravation of
his DISH condition. DCD did not credit Dr. Capen’s
certification of disability beginning November 16, 2012. DCD
also concluded that Skahan was entitled to VR services and TTD
benefits beginning August 8, 2013 through October 15, 2013.
Skahan appealed DCD’s decision to LIRAB, and Employer filed a
cross-appeal.
2. LIRAB proceedings
On June 21, 2016, LIRAB issued its decision affirming in
part, reversing in part, and modifying DCD’s January 15, 2014
supplemental decision.
LIRAB’s FOFs included the following. Skahan’s DISH was
causally related to his November 30, 2004 injury, the June 12,
2012 ocean injury aggravated Skahan’s DISH, and his benefits
should be determined under the November 30, 2004 claim. There
was no medical evidence to support a finding of TTD between June
12, 2012 and November 15, 2012. Based on Dr. Capen’s reports,
Skahan was temporarily and totally disabled from November 16,
2012 through April 19, 2013, and Skahan’s condition was
“permanent and stationary” by April 19, 2013. Based on Dr.
Capen’s reports, Skahan was unable to return to carpentry work
as a result of the November 30, 2004 work injury. Skahan self-
referred for VR on August 8, 2013.
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LIRAB’s COLs included the following. The June 12, 2012
injury was a direct and natural result of the November 30, 2004
work injury and did not terminate Employer’s liability. Skahan
was entitled to TTD benefits from November 16, 2012 to April 19,
2013, while enrolled in VR from August 8, 2013 through October
15, 2013, and for any periods thereafter while enrolled in VR.
LIRAB therefore affirmed in part, reversed in part, and
modified DCD’s January 15, 2014 supplemental decision. Skahan
appealed LIRAB’s June 21, 2016 decision to the ICA.
3. ICA proceedings
Skahan raised 46 points of error challenging most of the
FOFs and COLs in LIRAB’s June 21, 2016 decision. The relevant
point of error to this appeal was that Skahan should have been
awarded TTD from June 12, 2012 to November 15, 2012, and TTD
should not have been terminated on April 19, 2013.
On April 29, 2020, the ICA issued its SDO affirming LIRAB’s
decisions. Skahan v. Stutts Construction Co. (Skahan II), CAAP-
XX-XXXXXXX/CAAP-XX-XXXXXXX (App. April 29, 2020) (SDO). The ICA
addressed Skahan’s challenge to LIRAB’s June 21, 2016 FOFs,
including LIRAB’s finding that Skahan was entitled to TTD
benefits from November 16, 2012 through April 19, 2013 and while
enrolled in VR from August 8, 2013 through October 15, 2013.
After reviewing the record, the ICA was “not left with a
definite or firm conviction that a mistake [had] been made.”
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Skahan II, SDO at 11. The ICA also held that LIRAB’s COLs were
supported by its FOFs and reflected an application of the
correct rule of law. Skahan II, SDO at 12. The ICA affirmed
LIRAB’s June 21, 2016 decision and January 3, 2019 decision.
Skahan II, SDO at 14-15.
4. Application for certiorari
In relevant part, Skahan argues the ICA erred in affirming
LIRAB’s termination of TTD benefits on April 19, 2013 and in
denying TTD benefits from June 12, 2012 through November 15,
2012. Skahan asserts the DCD director did not terminate his TTD
benefits as required under HRS § 386-31(b), and that there was
no legal ground to terminate TTD because he was not “able to
resume work” as defined by HRS § 386-1.
III. Standard of Review
A. LIRAB decisions
“Appellate review of a LIRAB decision is governed by HRS
§ 91-14(g)[.]” Igawa v. Koa House Rest., 97 Hawaiʻi 402, 405-06,
38 P.3d 570, 573-74 (2001). “[I]t is well-established that
appellate courts review [LIRAB’s] findings of fact under the
clearly erroneous standard.” Davenport v. City and Cty. of
Honolulu, 100 Hawai‘i 297, 305, 59 P.3d 932, 940 (App. 2001).
“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
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right/wrong standard.’” Id. (quoting Korsak v. Hawaii
Permanente Medical Group, 94 Hawai‘i 297, 303, 12 P.3d 1238, 1244
(2000)).
IV. Discussion
A. Employer did not rebut the presumption that Skahan’s low
back injury was work-related
1. Employer did not meet its burden of production
Skahan argues LIRAB misapplied HRS § 386-85 in determining
that his low back injury was not work related. HRS § 386-85(1)
provides: “In any proceeding for the enforcement of a claim for
compensation under this chapter it shall be presumed, in the
absence of substantial evidence to the contrary . . . [t]hat the
claim is for a covered work injury[.]” “The statute nowhere
requires . . . some preliminary showing that the injury occurred
‘in the course of employment’ before the presumption will be
triggered.” Chung v. Animal Clinic, Inc., 63 Haw. 642, 650, 636
P.2d 721, 727 (1981). “[T]o rebut the presumption, the employer
has the burden of going forward with the evidence, which is the
burden of production, as well as the burden of persuasion.”
Panoke, 136 Hawai‘i at 461, 363 P.3d at 309.
“The burden of production means that ‘the employer must
initially introduce substantial evidence that, if true, could
rebut the presumption that the injury is work-related.’” Id.
(quoting Nakamura v. State, 98 Hawai‘i 263, 267, 47 P.3d 730, 734
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(2002)). “‘[S]ubstantial evidence’ means ‘a high quantum of
evidence which, at the minimum, must be relevant and credible
evidence of a quality and quantity sufficient to justify a
conclusion by a reasonable [person] that an injury or death is
not work connected.’” 136 Hawai‘i at 462, 363 P.3d at 310
(quoting Nakamura, 98 Hawai‘i at 267-68, 47 P.3d at 734-35).
“In evaluating whether the burden of producing substantial
evidence has been met, ‘the slightest aggravation or
acceleration of an injury by the employment activity mandates
compensation.’” 136 Hawai‘i at 461, 363 P.3d at 309 (quoting Van
Ness v. State of Hawai‘i, Dept. of Educ., 131 Hawai‘i 545, 562,
319 P.3d 464, 481 (2014)).
The ICA held that Employer met its burdens of production
and persuasion to show the low back injury was not causally
related to the November 30, 2004 injury through: Dr. Direnfeld’s
report noting that the medical records for the November 30, 2004
injury did not reference a low back condition; Dr. Direnfeld’s
opinion that the low back injury was not related to the November
30, 2004 injury; evidence of Skahan’s 1990s low back injury
sustained under a different employer; and Dr. Capen’s lack of
opinion that Skahan’s low back injury was related to the
November 30, 2004 injury. Skahan I, SDO at 5-6.
Dr. Direnfeld’s report is similar to the doctors’ reports
in Panoke. Panoke initially claimed to have injured his back as
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the result of a work injury. Panoke, 136 Hawai‘i at 450, 363
P.3d at 298. The next month, Panoke also reported shoulder pain.
136 Hawai‘i at 451, 363 P.3d at 299. Panoke had previously
fractured both shoulders in a motor vehicle accident over a
decade earlier. 136 Hawai‘i at 452, 363 P.3d at 300.
At trial before LIRAB, the employer presented doctors’
opinions that Panoke had not initially reported shoulder pain,
his shoulder injury was not related to the work accident, and
“more likely than not” the work accident did not cause or
aggravate Panoke’s prior shoulder injury. 136 Hawai‘i at 453-54,
363 P.3d at 301-02. Two doctors opined that Panoke would have
likely experienced immediate pain if his shoulder injuries were
related to the work injury. 136 Hawai‘i at 453, 455-56, 363 P.3d
at 301, 303-04. One doctor also testified that Panoke’s
shoulder injuries were inconsistent with the work accident. 136
Hawai‘i at 463, 363 P.3d at 311. In contrast, Panoke’s treating
physician opined that his shoulder injuries were related to the
work accident and that he had “fully and totally recovered” from
the motor vehicle accident. Id. LIRAB denied Panoke’s shoulder
injury claim. 136 Hawai‘i at 458, 363 P.3d at 306.
On certiorari, we held that the employer had not presented
substantial evidence sufficient to overcome the presumption that
Panoke’s shoulder injury was work-related. 136 Hawai‘i at 461,
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363 P.3d at 309. We held that “generalized” testimony that
there was no connection between an injury and work without
further explanation does not rebut the presumption of coverage,
and “the primary focus of the medical testimony should have been
a discussion on whether the employment effort, whether great or
little, in any way aggravated [the employee’s condition.]” 136
Hawai‘i at 462, 363 P.3d at 310 (emphasis added). Regarding
Panoke’s history of shoulder injuries, we stated that “evidence
showing why Panoke’s [work] accident could not have aggravated
these conditions was necessary for the employer to adduce
‘substantial evidence’ and overcome the presumption of coverage.”
136 Hawai‘i at 463, 363 P.3d at 311 (emphases added).
We noted that the employer’s medical experts testified that
the work accident could not have caused Panoke’s shoulder injury
without adequately explaining whether the accident aggravated
his existing injury. 136 Hawai‘i at 463, 363 P.3d at 311. While
two doctors opined that the work accident had probably not
aggravated Panoke’s shoulder injury because he would have likely
experienced immediate shoulder pain if it had, we noted “there
is nothing in the record to explain why Panoke would have
started experiencing serious shoulder pain approximately two
weeks after the work accident if the work accident had not
caused the injury or aggravated some pre-existing injury.” 136
Hawai‘i at 463-64, 363 P.3d at 311-12. Therefore, the employer
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did not adduce substantial evidence because its experts merely
“opine[d] generally that Panoke had an injury predating his
employment[.]” 136 Hawai‘i at 464, 363 P.3d at 312. (internal
brackets and quotation marks omitted).
In this case, Dr. Direnfeld’s report was even more
generalized than the doctors’ reports in Panoke. Like the
doctors in Panoke, Dr. Direnfeld did not focus on whether
Skahan’s 1994 low back injury could have been aggravated or
accelerated by the November 30, 2004 accident. Instead, Dr.
Direnfeld opined that the low back injury was not caused by or
related to the November 30, 2004 accident without explaining how
he reached this conclusion. Dr. Direnfeld’s report also stated
that the medical record for the November 30, 2004 accident did
not reference a low back injury, implying that Skahan would have
reported low back pain if the November 30, 2004 accident had
caused or aggravated his low back injury. However, unlike the
doctors in Panoke, Dr. Direnfeld did not actually explain how
the November 30, 2004 accident was inconsistent with a low back
injury, or whether Skahan would have experienced immediate pain
if the accident had aggravated his low back condition. Nor did
Dr. Direnfeld’s report explain whether the November 30, 2004
accident could have aggravated Skahan’s low back injury so as to
make it more susceptible to reinjury. See Panoke, 136 Hawai‘i at
463, 363 P.3d at 311.
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Therefore, Employer did not meet its burden of production
to show that Skahan’s low back injury was not causally related
to the November 30, 2004 work injury.
2. LIRAB’s FOF 34 is clearly erroneous
We additionally note that LIRAB’s FOF 34, finding that
“[o]n this record, Dr. Capen did not provide any opinions or
medical basis to relate [Skahan’s] lumbar spine condition to the
November 30, 2004 work injury,” is clearly erroneous. Dr.
Direnfeld’s report referenced and responded to Dr. Capen’s
opinion that Skahan’s low back injury was related to the
November 30, 2004 incident. For instance, Dr. Direnfeld’s
report stated that he disagreed with Dr. Capen’s opinion that
Skahan’s lumbar disc protrusion was caused by the November 30,
2004 work accident. Dr. Direnfeld’s report also noted that Dr.
Capen opined in an April 19, 2013 report that Skahan’s injuries
were “due to the thoracic spine injury and the L4-5 disc injury,
both of which occurred in 2004.” (Emphasis added.) While Dr.
Capen’s April 19, 2013 report was not included in the record for
the CAAP-XX-XXXXXXX proceedings, it was part of the record in
the related CAAP-XX-XXXXXXX/CAAP-19-000077 proceedings.
Therefore, the record shows that Dr. Capen opined that
Skahan’s low back injury was related to the November 30, 2004
injury. However, in FOF 35, LIRAB determined that Employer met
its burden of persuasion because there was no evidence that
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Skahan’s low back injury was related to the November 30, 2004
work injury. While we need not reach whether Employer met its
burden of persuasion because it did not meet its burden of
production, we note that LIRAB did not properly weigh Employer’s
evidence against all of Skahan’s evidence.
We therefore vacate the ICA’s May 19, 2020 judgment on
appeal affirming LIRAB’s June 17, 2016 decision.7
B. Determination of TTD benefits
1. Termination of TTD on April 19, 2013
Skahan argues the ICA erred in affirming LIRAB’s
termination of TTD benefits on April 19, 2013. Skahan asserts
that the DCD director did not terminate his TTD benefits as
required under HRS § 386-31(b) and that there was no medical
opinion that he was able to resume work.
HRS § 386-31 provides in part that TTD benefits “shall only
be terminated upon order of the director or if the employee is
able to resume work.” HRS § 386-1 defines “able to resume work”
as meaning the worker has stabilized and “is capable of
performing work in an occupation for which the worker has
7 With respect to LIRAB’s June 17, 2016 decision, Skahan also argues that
the ICA failed to apply the right/wrong standard of review to LIRAB’s COLs.
However, it appears the ICA did apply the right/wrong standard of review.
Skahan relatedly argues that the ICA erred in determining that the
issue of whether his DISH injury was causally related to the November 30,
2004 work injury was moot because the right/wrong standard of review applied.
However, “[m]ootness is an issue of subject matter jurisdiction,” not of the
standard of review. State v. Nakanelua, 134 Hawai‘i 489, 501, 345 P.3d 155,
167 (2015). Therefore, Skahan’s arguments are without merit.
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received previous training or for which the worker has
demonstrated aptitude.” (Emphases added.) “[I]f an employee is
capable of performing work in an occupation for which the worker
has received previous training or for which the worker has
demonstrated aptitude, [they are] not totally disabled.”
Tamashiro v. Control Specialist, Inc., 97 Hawai‘i 86, 92, 34 P.3d
16, 22 (2001) (internal quotation marks omitted).
In its January 15, 2014 decision, DCD determined that
Skahan was entitled to TTD benefits from August 8, 2013 through
October 15, 2013 and while Skahan remained enrolled in VR. On
appeal, LIRAB awarded additional TTD between November 16, 2012
and April 19, 2013. Therefore, although Skahan argues the DCD
director did not terminate his TTD benefits on April 19, 2013,
DCD had not actually awarded TTD benefits between November 16,
2012 and April 19, 2013 in the first place.
As to LIRAB’s termination of TTD benefits, in its June 21,
2016 decision LIRAB credited Dr. Capen’s October 18, 2013 report
ostensibly stating that Skahan was totally disabled from work
from November 16, 2012 and was “permanent and stationary and at
maximum medical improvement” by April 19, 2013. Therefore,
LIRAB concluded that Skahan “was entitled to TTD benefits from
November 16, 2012 to April 19, 2013[.]” LIRAB did not award TTD
between April 19, 2013 and August 8, 2013. However, LIRAB
affirmed DCD’s award of TTD benefits “while [Skahan] was
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enrolled in VR from August 8, 2013 through October 15, 2013, and
for any periods thereafter while enrolled in VR.”
Contrary to LIRAB’s findings, Dr. Capen’s October 18, 2013
report did not actually state that Skahan’s condition was
permanent, stationary, and at maximum medical improvement on
April 19, 2013. Dr. Capen’s October 18, 2013 report actually
stated, “I previously rated the patient as permanent and
stationary and having reached Maximum Medical Improvement,” but
it did not specify when he made this assessment. (Emphasis
added.) Neither did Dr. Capen’s April 19, 2013 report state
that Skahan was permanent and stationary and at maximum medical
improvement. After reviewing the record, it appears that the
first time Dr. Capen opined that Skahan was “permanent and
stationary” was in an August 23, 2013 report.
Even assuming Dr. Capen determined that Skahan was at
maximum medical improvement by April 19, 2013, his report from
that date opined that Skahan was “never going back to doing
heavy work.” While LIRAB found Skahan’s condition was permanent
and stationary, it also found that he “was unable to return to
his usual and customary work as a carpenter as a result of the
November 30, 2004 work injury.” See HRS § 386-31; HRS § 386-1;
Tamashiro, 97 Hawai‘i at 92, 34 P.3d at 22. This finding
suggests that Skahan was not actually “able to return to work”
between April 19, 2013 and August 8, 2013. Furthermore, LIRAB
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did not explain why Skahan was entitled to TTD benefits as of
August 8, 2013, but not during the almost three months between
April 19, 2013 and August 8, 2013.
Therefore, LIRAB’s finding that Skahan was “permanent and
stationary and at maximum medical improvement” by April 19, 2013
is clearly erroneous, and LIRAB’s COL 3 stating that Skahan had
“returned to pre-June 12, 2012 aggravation status by April 19,
2013” and was therefore entitled to TTD benefits from November
16, 2012 through April 19, 2013 and while he was enrolled in VR
from August 8, 2013 through October 15, 2013 is not supported by
the record.
2. TTD benefits from June 12, 2012 through November 15,
2012
Skahan asserts that LIRAB also erred in denying TTD
benefits from June 12, 2012 through November 15, 2012. While
Skahan’s application does not provide further argument, one of
his opening briefs argued that nothing precluded awarding him
TTD from June 12, 2012 to November 15, 2012 despite the lack of
medical evidence, citing Panoke, 136 Hawai‘i 448, 363 P.3d 296.
In Panoke, the claimant promptly received medical treatment
for his work injuries. 136 Hawai‘i at 451, 363 P.3d at 299.
LIRAB denied TTD benefits for certain periods based on the lack
of a physician’s statement of certification that Panoke was
temporarily and totally disabled, and it did not credit
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physicians’ reports stating Panoke was significantly impaired
because they did not state that the impairment was due to a work
injury. 136 Hawai‘i at 464, 363 P.3d at 312. On certiorari, we
held that “LIRAB may not deny a claimant benefits based on
deficiencies in a physician’s certifications of disability.”
136 Hawai‘i at 465, 363 P.3d at 313. While HRS § 386-96 (Supp.
2005)8 required physicians to include the dates of disability in
their reports, it did not provide that claimants’ benefits must
be denied due to a physician’s non-compliance. 136 Hawai‘i at
466, 363 P.3d at 314. We acknowledged that “nothing in [HRS §
386-31(b)9] prescribes a particular method of proof” of TTD, and
that “LIRAB must assess the quality of the evidence that is
presented, to determine whether the necessary showing has been
made.” Id.
The facts of this case differ from Panoke, where the
claimant received prompt medical treatment and medical records
existed for the disputed TTD period. 136 Hawai‘i at 451, 363
8 HRS § 386-96(a)(2) required physicians treating injured employees to
include in their reports the “dates of disability.” HRS § 386-96(b)
provided: “ No claim under this chapter for medical treatment . . . shall be
valid and enforceable unless the reports are made as provided in this
section[.]”
9 HRS § 386-31(b) provides in part: “The employer shall pay temporary
total disability benefits promptly as they accrue to the person entitled
thereto without waiting for a decision from the director, unless this right
is controverted by the employer in the employer’s initial report of
industrial injury.” HRS § 386-31(b) does not provide any particular method
of proof of total temporary disability.
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P.3d at 299. Skahan did not receive medical care for the June
12, 2012 injury until November 16, 2012. Additionally, while
LIRAB’s COL 3 relied on the lack of medical certification of
disability in denying TTD benefits in this case,10 LIRAB’s FOF 39
specifically determined that there was “no medical evidence to
support a finding of TTD” from June 12, 2012 to November 15,
2012. LIRAB’s COL 3 also referenced the existence of medical
records in awarding TTD from November 16, 2012 through April 19,
2013. Therefore, it appears that LIRAB based its denial of TTD
from June 12, 2012 to November 15, 2012 on the lack of any
medical evidence in the record, not just the lack of
certifications of disability.
10 LIRAB’s COL 3 read:
Claimant worked sporadically after being released to
work in 2005, but he stopped working altogether in 2009
after a heart attack and heart surgery in 2006. Claimant
did not seek medical treatment for the November 30, 2004
work injury between 2005 and June 2012.
There is no medical certification of disability
resulting from the November 30, 2004 work injury for the
period of June 12, 2012 to November 15, 2012.
Based on medical certification of disability from Dr.
Capen, the medical records documenting Claimant’s office
visits with Dr. Capen for the periods of November 16, 2012
through April 19, 2013, and the Board’s findings that
Claimant was stable and permanent and returned to pre-June
12, 2012 aggravation status by April 19, 2013, the Board
concludes that Claimant was entitled to TTD benefits from
November 16, 2012 to April 19, 2013, as a result of the
June 12, 2012 aggravation of his November 30, 2004 thoracic
spine injury.
Pursuant to HRS § 386-25, the Board further concludes
that Claimant is entitled to TTD benefits while he was
enrolled in VR from August 8, 2013 through October 15, 2013,
and for any periods thereafter while enrolled in VR.
(Emphasis added.)
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However, we stated in Panoke that “nothing in [HRS § 386-
31(b)] prescribes a particular method of proof” of TTD. 136
Hawai‘i at 466, 363 P.3d at 314. It is not clear in this case
that LIRAB considered the non-medical evidence in the record in
declining to award TTD for this period. For instance, LIRAB’s
FOF 24 found that Skahan sent a June 27, 2012 letter to First
Insurance seeking medical treatment due to the reinjury of his
back, requesting a change of physician, and stating that he “was
in a great deal of pain and having difficulty breathing.”
LIRAB’s COLs did not discuss this finding.
We have stated that “LIRAB must assess the quality of the
evidence that is presented, to determine whether the necessary
showing [of TTD] has been made.” Id. Considering the broad
humanitarian purpose of our workers’ compensation statutes, this
assessment should include non-medical evidence. See DeFries v.
Ass’n of Owners, 999 Wilder, 57 Haw. 296, 303, 555 P.2d 855, 860
(1976). However, it is possible that even if LIRAB considered
the non-medical evidence, it would have nevertheless determined
that Skahan failed to make a necessary showing of TTD from June
12, 2012 through November 15, 2012. LIRAB should clarify its
determination of this issue on remand.
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We therefore vacate in part the ICA’s May 27, 2020 judgment
on appeal affirming LIRAB’s June 21, 2016 and January 3, 2019
decisions.11
V. Conclusion
We vacate in part the ICA’s May 27, 2020 judgment on appeal
affirming LIRAB’s June 21, 2016 and January 3, 2019 decisions,
and we vacate the ICA’s May 19, 2020 judgment on appeal
affirming LIRAB’s June 17, 2016 decision. We remand to LIRAB
for further proceedings consistent with this opinion.
Kenneth M. Skahan, /s/ Mark E. Recktenwald
Pro se
/s/ Paula A. Nakayama
Beverly S.K. Tom and /s/ Sabrina S. McKenna
Gary N. Kunihiro,
for Respondents /s/ Michael D. Wilson
/s/ Ronald G. Johnson
11 With respect to LIRAB’s June 21, 2016 and January 3, 2019 decisions,
Skahan’s application additionally argues LIRAB was required to explain how
Employer’s motion for stay of payments complied with HRS § 91-14(c). However,
HRS § 91-14 applies to judicial courts, not LIRAB.
Skahan argues the ICA failed to apply the proper standard of review
because it determined that LIRAB’s challenged COLs were mixed questions of
law and fact. However, many of LIRAB’s COLs incorporated its FOFs and
actually presented mixed questions of law and fact.
Skahan also argues LIRAB erred in concluding he was not permanently and
totally disabled under the odd-lot doctrine. “Under the odd-lot doctrine, an
injured employee may be considered permanently and totally disabled if [they
are] unable to obtain employment because of work-related permanent partial
disability combined with such factors as age, education, and work experience.”
Bumanglag v. Oahu Sugar Co., 78 Hawai‘i 275, 281, 892 P.2d 468, 474 (1995).
LIRAB’s June 21, 2016 decision discussed Skahan’s age, the extent of his
impairment, and his eligibility for VR services in finding that he was not
permanently totally disabled under the odd lot doctrine. After reviewing the
record, LIRAB’s determination was not clearly erroneous.
Therefore, Skahan’s arguments are without merit.
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