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Francisco v. Marriott Hotel Services, Inc.

Intermediate Court of Appeals of Hawaii

May 30, 2013

LEONARDO L. FRANCISCO, Claimant-Appellant,
v.
MARRIOTT HOTEL SERVICES, INC. dba: WAIKOLOA BEACH MARRIOTT, Employer-Appellee, and MARRIOTT CLAIMS SERVICES, Insurance Carrier-Appellee and SPECIAL COMPENSATION FUND, Appellee

NOT FOR PUBLICATION IN WEST'S HA WAIT REPORTS AND PACIFIC REPORTER

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2009-500(WH) (9-06-0034 9)).

Alex M. Sonson for Claimant-Appellant.

Robert A. Chong J. Thomas Weber (Ayabe, Chong, Nishimoto, Sia & Nakamura) for Employer-Appellee and Insurance Carrier-Appellee.

Frances E.H. Lum Nelson T. Higa Staci I. Teruya Deputy Attorneys General State of Hawaii for Appellee-Appellee.

Nakamura, Chief Judge, and Foley and Reifurth, JJ.

SUMMARY DISPOSITION ORDER

In this workers compensation case, Claimant-Appellant Leonardo L. Francisco (Francisco) appeals from the "Decision and Order" filed on January 31, 2012, by the Labor and Industrial Relations Appeals Board (LIRAB) and the LIRAB's "Order Denying [Francisco's] Motion for Reconsideration" filed on March 15, 2012. The LIRAB determined in relevant part that Francisco was "not permanently and totally disabled, either on a medical basis or on an odd-lot basis, " and that he sustained an "8% permanent partial disability of the whole person" as a result of his work accident.

On appeal, Francisco argues that the LIRAB erred: (1) when if found in its Finding of Fact 36 that "[n]o physician has credibly verified that [Francisco] is unable to return to any gainful employment"; and (2) when it concluded in its Conclusion of Law 3 that "[Francisco] did not sustain permanent total disability as a result of the March 6, 2006 work injury" and that "[Francisco] is not permanently and totally disabled, either on a medical basis or on an odd-lot basis." Francisco alternatively argues that if he is not permanently totally disabled, then the LIRAB erred when it concluded in its Conclusion of Law 4 that "the extent of permanent partial disability as a result of the March 6, 2006 work injury is 8% permanent partial disability of the whole person for [Francisco's] low back condition." In his alternative argument, Francisco contends that his permanent partial disability should be rated at 23%, rather than 8%, of the whole person.

As explained below, we affirm the LIRAB's Decision and Order and its "Order Denying [Francisco's] Motion for Reconsideration."

I.

Francisco was employed by Marriott Hotel Services, Inc. dba: Waikoloa Beach Marriott (Marriott) as a steward. His job duties involved washing dishes, pots, and pans, and throwing away rubbish. On March 6, 2006, Francisco sustained a work injury to his low back while pushing a cart of trash up a concrete ramp. Francisco sought treatment from his physician, Dr. Patrick Siu, who diagnosed Francisco's condition as a low back strain and initially anticipated treatment for one to two months.

In a report dated July 18, 2006, Dr. Deborah A. Agles, an occupational medicine physician who conducted an independent medical examination of Francisco at Marriott's request, determined that Francisco could return to work full-time on a light-duty basis. Dr. Sui also determined that Francisco could return to full-time light-duty work as of July 31, 2006, with no lifting over twenty pounds and no prolonged standing. Marriott planned to have Francisco preform the light-duty tasks of folding napkins and polishing silverware, plates, bowls, and serving items. When Francisco returned to work, he was given the task of polishing platters and punchbowls that weighted less than twenty pounds and had been placed on a table. He was provided with a chair, so he could either sit or stand. After working less than two hours, Francisco complained of pain and was allowed to go home. He did not thereafter return to work. Miles Togikawa, Francisco's supervisor, testified that light-duty work would always have been available to Francisco if he had come back to work.

Francisco was sixty years old on the day he sustained his work injury. Francisco had immigrated to Hawai'i from the Philippines in 1984 and had only ...


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