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Robert L. Rodrigues Jr v. City and County of Honolulu

July 20, 2012

ROBERT L. RODRIGUES JR., CLAIMANT-APPELLANT,
v.
CITY AND COUNTY OF HONOLULU BOARD OF WATER SUPPLY, EMPLOYER-APPELLEE



APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2007-118 (2-01-08711))

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER (By: Foley, Presiding J., Leonard and Ginoza, JJ.)

Claimant-Appellant Robert L. Rodrigues Jr. (Rodrigues) appeals from a December 7, 2010, Decision and Order (order) by the Labor and Industrial Relations Appeals Board (LIRAB). LIRAB resolved Rodrigues's workers' compensation claim by ruling in favor of Employer-Appellee City and County of Honolulu Board of Water Supply (BWS).

On appeal, Rodrigues contends:

(1) LIRAB's determination of 4% permanent partial disability is reversible error;

(2) LIRAB incorrectly concluded that Rodrigues was not permanently totally disabled; and

(3) LIRAB erred in concluding that BWS satisfied the requirements of Hawaii Revised Statutes (HRS) § 386-52 (1993) and was entitled to credit for temporary total disability benefits "not payable when made."

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 by the parties, as well as the relevant statutory and case law, we conclude Rogrigues's appeal is without merit.

(1) Rodrigues contends LIRAB erred by finding that Rodrigues was not permanently totally disabled based on a report by Peter Diamond, M.D. (Dr. Diamond). In its order, LIRAB held that "[b]ased on the impairment rating of Dr. Diamond and the work restrictions Dr. Diamond recommended, which did not preclude [Rodrigues] from all work, [LIRAB] concludes that [Rodrigues] was not [permanently totally disabled] on a medical basis."

Rodrigues argues that the "impairment rating of

Dr. Diamond is without weight and/or even relevance[.]" Rodrigues argues further that LIRAB erred in relying on

Dr. Diamond's characterization of the injury, as other evidence contradicted Dr. Diamond's opinion. In doing so, Rodrigues presents no error of law, but instead argues that LIRAB's assessment of the evidence is erroneous. However, this court gives "deference to the LIRAB's assessment of the credibility of witnesses and the weight the LIRAB gives to the evidence." Moi v. State, Dept. of Public Safety, 118 Hawaii 239, 242, 188 P.3d 753, 756 (App. 2008). Furthermore,

[i]t is well established that courts decline to consider the weight of the evidence to ascertain whether it weighs in favor of the administrative findings, or to review the agency's findings of fact by passing upon the credibility of witnesses or conflicts in testimony, especially the findings of an expert agency dealing with a specialized field.

Nakamura v. State, 98 Hawaii 263, 268, 47 P.3d 730, 735 (2002) (quoting Igawa v. Koa House Restaurant, 97 Hawaii 402, 409-410, 38 P.3d 570, 577-578 (2001)). As such, this court gives proper deference to LIRAB's finding of fact based on the opinion of Dr. Diamond. Therefore, LIRAB did not err in ...


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