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Arruda v. Willocks Construction Corp.

Intermediate Court of Appeals of Hawaii

November 15, 2013

DARRYL H. ARRUDA, Claimant-Appellant,
v.
WILLOCKS CONSTRUCTION CORP., and HAWAII EMPLOYERS' MUTUAL INSURANCE COMPANY, INC., Employer/Insurance Carrier-Appellee, and SPECIAL COMPENSATION FUND, Appellee

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2009-431(WH) (9-06-01590))

On the briefs:

Stanford H. Masui Erin B.J.H. Masui for Claimant-Appellant.

Robert E. McKee, Jr. for Employer/ Insurance Carrier-Appellee.

Frances E.H. Lum Nelson T. Higa Deputy Attorneys General for Appellee

Nakaraura, C.J., Foley and Fujise

MEMORANDUM OPINION

In this workers' compensation case, Claimant-Appellant Darryl H. Arruda (Arruda) appeals from the "Amended Decision and Order" of the Labor and Industrial Relations Appeals Board (Board) in Case No, AB 2009-431(WH) filed March 15, 2012.

On appeal, Arruda contends the Board erred when it concluded the prior administrative finding, which found Arruda not permanently disabled, was uncontested.[1]

I. BACKGROUND

Arruda sustained injuries to his low back from bouncing in the driver's seat while driving a service truck for Employer-Appellee Willocks Construction Corporation (Willocks[2]) on October 12, 2006 (October Injury). Arruda visited his treating physician, Kevin K. Kurohara, M.D. (Dr. Kurohara) later that day. Arruda had previously sustained work injuries to his low back in 1999 and 2005.

A. Director's Initial Decision

On October 9, 2007, the State of Hawai'i, Department of Labor and Industrial Relations Disability Compensation Division (Director) issued a "Decision and Order" finding Arruda sustained a compensable injury to the low back and psyche from the October Injury and was entitled to temporary total disability (TTD) benefits from October 15, 2006 through August 22, 2007. The Director also decided that further TTD benefits were contingent on disability certification and the matter of permanent disability from the October Injury, if any, was left to be determined later. Willocks appealed this decision.

While Willocks' appeal was pending, Peter E. Diamond, M.D. (Dr. Diamond) conducted an independent medical evaluation of Arruda's orthopedic and psychological injuries. Willocks withdrew its appeal and requested a hearing before the Director to resolve open issues, including the issue of permanent disability. The Director's "Notice of Hearing" listed permanent disability as a purpose for the hearing.

B. Director's Supplemental Decision

On June 19, 2009, the Director issued a supplemental decision (June Decision) finding in relevant part: (1) Arruda was not entitled to further TTD benefits and his entitlement to medical care ended July 31, 2008; (2) Willocks properly denied Dr. Kurohara's treatment plans; (3) the October Injury did not result in any permanent partial disability; and (4) Willocks was not liable for expenses Arruda incurred pursuing vocational rehabilitation services, "based on the opinion of Dr. Diamond that no permanent partial disability resulted from Tthe October injury!, and [Willocks'] statement that appropriate work was available for the claimant." (Emphasis added.)

On June 25, 2009, Willocks requested reconsideration of the June Decision. The Director issued an amended decision on July. 20, 2009 (July Decision) . The July Decision corrected two clerical errors but did not change the substance of the June Decision. Arruda then appealed the July Decision.

C. Appeals Board Decision

On November 9, 2009, after receiving initial conference statements from Arruda, Willocks, and the Special Compensation Fund, the Board determined the issues for trial as (1) whether Arruda's October Injury entitled him to medical care beyond July 31, 2008, medical care under Dr. Kurohara's treatment plans, TTD benefits beyond December 25, 2008, and/or vocational rehabilitation services; and (2) whether Willocks was entitled to a ...


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