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Smith v Kanemoto

Intermediate Court of Appeals of Hawaii

November 22, 2013

EDWARD SMITH, Claimant-Appellant,
v.
SUEJI KANEMOTO, and FIRST INSURANCE COMPANY OF HAWAII, LTD., Employer/Insurance Carrier-Appellees

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2008-423(M) (7-78-00428))

On the briefs:

Edward Smith Claimant-Appellant pro se.

Leighton K. Oshima Darlene Y.F. Itomura (Wong & Oshima) for Employer/Insurance Carrier-Appellees.

Foley, Presiding J., Fujise and Leonard, JJ.

SUMMARY DISPOSITION ORDER

Claimant-Appellant Edward A. Smith (Smith) appeals from a November 9, 2010 Decision and Order by the Labor and Industrial Relations Appeals Board (LIRAB) that resolved his workers' compensation claim in favor of his former employer, Employer-Appellee Sueji Kanemoto (Kanemoto) and Insurance Carrier-Appellee First Insurance Company of Hawai'i, Ltd. (First Insurance).

On appeal, [1] Smith appears to argue that: (1) injuries to his low back were wrongfully not attributed to his January 5, 1978 work accident and warrant reopening of his case under Hawaii Revised Statutes (HRS) § 386-89(c) (1993); (2) fraud perpetrated by various parties required LIRAB to reopen his workers' compensation case pursuant to HRS § 386-89(b) and to impose penalties under HRS § 386-98 (Supp. 2012); (3) the balance of the amount awarded to him in 1982, but not paid in full until ordered by the Director of Labor and Industrial Relations (Director) on November 14, 2001, should have been subject to a 20% penalty pursuant to HRS § 386-92 (Supp. 2012); and (4) he is owed additional compensation beyond the amount awarded in 1982.

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 Smith's appeal is without merit.

We review LIRAB's exercise of statutorily granted discretion to reopen a case and to impose penalties for untimely compensation payments pursuant to HRS §§ 386-92, 386-89, and 389-98 under the "deferential abuse of discretion standard . . . ." Paul's Elec. Serv., Inc. v. Befitel, 104 Hawai'i 412, 419-20, 91 P.3d 494, 501-02 (2004). "Abuse is apparent when the discretion exercised clearly exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of a party litigant." Brescia v. N. Shore Ohana, 115 Hawai'i 477, 492, 168 P.3d 929, 944 (2007) (internal quotation marks omitted).

HRS § 386-89 permits reopening of workers' compensation cases on grounds of fraud or substantial evidence of a change in or of a mistake in a determination of fact related to the work-related injury.[2] HRS §§ 386-89 (b) and (c) . Hawai'i workers' compensation rules further requires that requests for reopening claims under HRS § 386-89(c) "be accompanied by medical information or any other substantial evidence showing a change in or of a mistake in a determination of fact related to the physical condition of the injured employee." Hawaii Administrative Rules (HAR) § 12-10-30(d) (Eff: 12/17/82; am. 12/8/94) .

LIRAB concluded Smith failed to produce "substantial evidence" in support of his HRS § 386-89(c) claim. Smith contends, the Director's May 27, 1982 decision failed to take into account injuries to his spine, left heel, and right knee that he alleges were also sustained in the January 5, 1978 accident, and a right shoulder injury consequent to his initial work injury.

LIRAB and the Director previously denied Smith's request to reopen his case based on their finding that a medical examination of Smith on December 10, 1993, nearly five years after his 1978 work injury, did not constitute "substantial evidence" warranting reopening under HRS § 386-89(c). Subsequently, Smith submitted further medical information, but did not point to statements that would support a finding that his low back injuries represent a change in his physical condition consequent to the January 5, 1978 accident.

On August 8, 2008, the Director found "none of the materials submitted by [Smith] on 7/24/2008 substantiated [Smith's] claim for reopening under any reasonable ...


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