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Steve Davis v. Jayar Construction

February 23, 2012

STEVE DAVIS,
CLAIMANT-APPELLANT,
v.
JAYAR CONSTRUCTION, INC.,
EMPLOYER-APPELLEE, AND JOHN MULLEN AND COMPANY, INC.,
INSURANCE ADJUSTER-APPELLEE.



APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2003-509 (2-02-11752))

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

(By: Nakamura, C.J., Foley and Ginoza, JJ.)

Claimant-Appellant Steve Davis (Davis) appeals from a November 12, 2009 order approving attorney's fees and costs and a February 2, 2010 order denying Davis's motion for reconsideration of the order approving attorney's fees and costs, both issued by the Labor and Industrial Relations Appeals Board (LIRAB). The LIRAB's orders approved fees and costs incurred by Davis's counsel, but did so as a lien against compensation payable by Employer-Appellee Jayar Construction, Inc., (Jayar), rather than as directly payable by Jayar.

On appeal, Davis's sole point of error is that the

LIRAB erred in not holding Jayar liable for the fees and costs on appeal "as the non-prevailing party." Jayar counters that the LIRAB correctly ruled because Jayar "prevailed on the crucial issue on appeal."

Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised, as well as the relevant statutory and case law, we resolve Davis's point of error as follows:

Davis contends that the costs of the appeal proceedings before the LIRAB should have been assessed against Jayar under Hawaii Revised Statute § 386-93(b) (2011), which states:

If an employer appeals a decision of the director or appellate board, the costs of the proceedings of the appellate board or the appellate court, together with reasonable attorney's fees, shall be assessed against the employer if the employer loses; provided that if an employer or an insurance carrier, other than the employer who appealed, is held liable for compensation, the costs of the proceedings of the appellate board or the appellate court, together with reasonable attorney's fees, shall be assessed against the party held liable for the compensation.

(Emphasis added). For fees and costs to be awarded against Jayar, the statute thus requires that an "employer appeals" and that the "employer loses."

In this case, there is no dispute that Jayar is the employer and that it appealed from the Decision issued by the Director of the Department of Labor and Industrial Relations (DLIR) on October 7, 2003. The question is whether Jayar lost its appeal before the LIRAB. Resolving this issue turns on whether Jayar prevailed "on the crucial issue." See Mitchell v. BWK Joint Venture, 57 Haw. 535, 551, 560 P.2d 1292, 1301 (1977); Yamada v. Royal Hawaiian Macadamia Nut Co., 5 Haw. App. 521, 524- 25, 704 P.2d 914, 916-17 (1985). The LIRAB correctly determined that Jayar did not lose its appeal.

Davis was involved in a work accident on August 23, 2002, wherein he fell from a machine and struck his head.

Subsequently, eight months later on April 23, 2003, he experienced an episode of left-sided numbness, headaches, loss of balance, and drifting to the left while walking, which has been described in the record as hemiparesis or a transient ischemic attack (TIA). The Director's Decision on October 7, 2003 concluded, in pertinent part, that:

Regarding claimant's 4/23/2003 hemiparesis and neurological work up, the Director determines that this condition is casually [sic] ...


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