Ihara v. State ( 2024 )

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-MAY-2024
08:11 AM
Dkt. 67 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
DENNIS T. IHARA, Claimant-Appellee-Cross-Appellant/Appellant, v.
STATE OF HAWAIʻI, DEPARTMENT OF LAND AND NATURAL RESOURCES,
Employer-Appellant-Cross-Appellee/Appellee, and
STATE OF HAWAIʻI, DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT,
Adjuster-Appellant-Appellee.
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2008-266(S); (2-07-40277))
SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, J.)
Claimant-Appellee-Cross-Appellant/Appellant Dennis T.
Ihara (Ihara) appeals from the Labor and Industrial Relations
Appeals Board's (Board) August 21, 2019 "Order Adopting Proposed
Decision and Order" (Decision and Order).
The Board determined Ihara was entitled to vocational
rehabilitation services, and awarded him 1% permanent partial
disability (or PPD) of the entire person for hypertension and a
2% permanent partial disability of the entire person for a
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psychological injury suffered in the course of his employment
with Employer-Appellant-Cross-Appellee/Appellee State of Hawai‘i,
Department of Land and Natural Resources (DLNR). In his points
of error on appeal, Ihara challenges Findings of Fact (FOF) 11,
12, 14, and 17, and Conclusion of Law (COL) 1. 1
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve Ihara's
points of error as discussed below, and affirm.
(1) First, Ihara contends the Board "erred in FOF 11
that [he] has no ratable permanent impairment as a result of his
work injury." This finding states:
FOF 11: "The Board finds that Claimant has no
ratable permanent impairment as a
result of his work injury."
Hawai‘i Revised Statutes (HRS) chapter 386 does not
define "ratable permanent impairment." This court previously
1 In his points of error on appeal, Ihara also challenges FOF 4, 6, 8,
and 15.
FOF 4, 6, and 8 make credibility determinations, which we will not
disturb on appeal. See generally, Pave v. Prod. Processing, Inc., 152 Hawaiʻi
164, 172, 524 P.3d 355, 363 (App. 2022) (stating when reviewing FOF, this
court "cannot consider the weight of the evidence to ascertain whether it
weighs in favor of the administrative findings, or review the agency's
findings of fact by passing upon credibility of witnesses or conflicts in
testimony") (citation and internal quotation marks omitted).
Regarding FOF 15, Ihara presents no discussion, factual analysis, or
authority to support his challenge to this finding and, thus, we consider
this point of error waived. Hawai‘i Rules of Appellate Procedure
Rule 28(b)(4) and (b)(7).
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observed that the Board's finding of "no ratable permanent
impairment" was ambiguous in that it either meant Ihara
"suffered no impairment," or "that he had suffered some
impairment; but in an amount incapable of being measured."
Ihara v. State, Dep't of Land & Nat. Res., 136 Hawai‘i 372, 362
P.3d 805, No. CAAP-XX-XXXXXXX, 2015 WL 6739078 at *8 (App.
Oct. 30, 2015) (mem. op.) Because the Board entered the same
finding on remand, but also found Ihara was entitled to 2% PPD,
we construe FOF 11 as meaning Ihara suffered some impairment,
but in an amount the doctors could not rate under the American
Medical Association Guides.
As none of the doctors opined on a specific impairment
rating, FOF 11 is not clearly erroneous. See generally, Tauese
v. State, Dep't of Lab. & Indus. Rels., 113 Hawai‘i 1, 25, 147
P.3d 785, 809 (2006) (applying clearly erroneous standard of
review to FOF).
(2) Next, Ihara challenges FOF 12 and 14, which
state:
FOF 12: "The Board further finds, that Claimant
is able to resume regular duty work,
but his sole restriction is that it not
be with the co-workers he had at the
time of the February 1, 2007 work
injury."
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FOF 14: "The Board finds that Claimant's only
permanent impairment of a mental
function is his inability to work with
the co-workers he worked with at the
time of his February 1, 2007 work
injury, which also affects his
hypertension."
FOF 12 and 14 are supported by the opinions of several
doctors. Dr. Ronald A. Morton indicated Ihara could return to
regular duty work. Dr. Ajit S. Arora opined Ihara's
hypertension was "never a labor disabling condition" and should
not prevent him from returning to his regular and customary
duties. Dr. Dennis B. Lind opined Ihara could obtain gainful
employment outside of the DLNR and that he could return to
regular duty work without functional limitations in any
department, except that he could not work with his former DLNR
co-workers. Dr. Jon Streltzer opined that Ihara could return to
work within the same capabilities, but in a different setting.
And Dr. Danilo E. Ponce confirmed Ihara's psychiatric disorder
was in remission, he reached medical stability, "his job itself
seemed to be the main source of his . . . injury claim," and he
had "no discernible, residual, permanent psychiatric impairment"
rating. (Emphasis omitted.)
Because the record supports these findings, they are
not clearly erroneous.
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(3) Finally, Ihara challenges FOF 17 and COL 1.
Limiting his argument to the 2% permanent partial disability
rating, Ihara asserts the Board's "conclusion suggests [he] was
able to recover 98% of his psychiatric functioning, however,
that conclusion is clearly erroneous as all parties agreed that
[he] was disqualified from his usual and customary work, or any
other work at the DLNR." Ihara further argues "consideration of
[his] ability to function away from the DLNR is erroneous."
FOF 17 and COL 1 state:
FOF 17: "The Board finds that Claimant has
sustained 1% PPD of the whole person as
a result of his February 1, 2007 work
injury for hypertension and 2% PPD of
the whole person as a result of his
February 1, 2007 work injury for his
psychiatric work injury."
COL 1: "The Board concludes that Claimant
sustained 1% PPD of the whole person
for hypertension and 2% PPD of the
whole person for his psychiatric work
injury as a result of the work injury
of February 1, 2007."
The purpose of a permanent partial disability award
"is to compensate a worker for the loss or impairment of a
physical or mental function." Ihara v. State, Dep't of Land &
Nat. Res., 141 Hawai‘i 36, 42, 404 P.3d 302, 308 (2017). It is
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not based on wages lost. Id. "For loss or impairment of
function that is not listed in the schedule, . . . the permanent
partial disability is rated as a percentage of the total loss or
impairment of a physical or mental function of the whole
person." Id. at 43, 404 P.3d at 309; HRS § 386-32(a) (2015).
Ultimately, it is the director of the Department of
Labor and Industrial Relations or the Board that decides a
permanent partial disability rating. 141 Hawai‘i at 43, 404 P.3d
at 309. The Board "generally places great weight upon a
physician's initial impairment rating, but it is not the only
component of the Board's assessment." Id. The Board also
considers other factors, "such as whether the complainant is
able to participate in the same types of hobbies and daily and
work activities as prior to the accident." Id. And the Board
may consider the inability to perform "usual and customary work
activities." Id. at 47, 404 P.3d at 313.
Here, the Board considered whether Ihara could
participate in the same daily and work activities as prior to
the accident. The Board considered Ihara's ability to function
at highly intelligent work, such as teaching and practicing law,
following the work injury. The Board credited Ihara's testimony
that "he was able to teach at Hawaii Pacific University, serve
on various non-profit boards, and performed legal work"
following his work injury. The Board thus considered Ihara's
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loss of function to be minimal, and his only restriction was to
not work with the DLNR co-workers there at the time of his
injury.
Ihara has not shown that the Board violated
constitutional or statutory provisions, exceeded its authority,
followed unlawful procedure, clearly erred, or abused its
discretion in arriving at a 2% permanent partial disability
rating of the whole person for his psychiatric work injury. See
HRS § 91-14(g) (Supp. 2019).
Based on the foregoing, we affirm the Board's
August 21, 2019 Decision and Order.
DATED: Honolulu, Hawai‘i, May 23, 2024.
On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Wayne H. Mukaida,
for Claimant-Appellee-Cross- /s/ Keith K. Hiraoka
Appellant/Appellant. Associate Judge
Shawn L.M. Benton, /s/ Sonja M.P. McCullen
for Employer-Appellant-Cross- Associate Judge
Appellee/Appellee and
Adjuster-Appellant-Appellee.
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