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Gour v. Honsador Lumber, LLC

Intermediate Court of Appeals of Hawai'i

July 11, 2014

MARTIN S. GOUR, Claimant-Appellant,
v.
HONSADOR LUMBER, LLC, Employer-Appellee, and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA/CHARTIS CLAIMS, INC., Adjusted by JOHN MULLEN AND COMPANY, INC., Insurance Carrier/Insurance Adjuster-Appellee

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD. CASE NO. AB 2011-443(WH)(9-11-00285).

On the briefs: Martin S. Gour, Claimint-Appellant, Pro se.

Robert C. Kessner, Sylvia K. Higashi, for Employer-Appellee and Insurance Carrier/Insurance Adjuster-Appellee.

NAKAMURA, CHIEF JUDGE, AND FOLEY AND FUJISE, JJ.

OPINION

Page 702

[134 Hawai'i 100] NAKAMURA, C.J.

Claimant-Appellant Martin S. Gour (Gour) sought to appeal a decision (Decision) of the Director of the Department of Labor and Industrial Relations (Director) to the Labor and Industrial Relations Appeals Board (LIRAB). The Director's Decision deferred determination of Gour's workers' compensation claim until he complied with an order to undergo an independent medical examination (IME), and it also imposed a no-show fee of up to $250 for his failure to appear for a scheduled IME. The LIRAB dismissed Gour's appeal without considering it on the merits because the LIRAB ruled that the Director's Decision was not an appealable decision.

As explained below, we conclude that Gour was entitled to appeal and obtain review of the Director's Decision. We therefore vacate the LIRAB's " Order Dismissing Appeal" and remand the case for a decision on the merits.

BACKGROUND

Gour was employed by Employer-Appellee Honsador Lumber, LLC (Honsador) as a truck driver. Gour claimed that on March 15, 2011, he left work due to stress and accompanying symptoms arising from alleged threats and verbal abuse directed at him by a co-worker. Gour filed a workers' compensation claim for mental stress injury, asserting that he suffered from headaches, bloody stools, and a sleep disorder as a result of being threatened at work. Gour subsequently resumed working as a truck driver, but with a new employer, after he was told by Honsador that he had walked off the job and therefore had resigned.

In response to Gour's claim for mental stress injury, Employer [1] notified Gour that it had scheduled an independent psychological examination for him with Joseph Rogers, Ph.D (Dr. Rogers).[2] When Gour did not appear for the scheduled examination, Honsador sought and obtained an order dated June 20, 2011, from the Director, compelling Gour to undergo an independent psychological examination. The Director's order required Gour " to submit [himself] for an evaluation and an interview by [Dr. Rogers]" on July 9 and July 12, 2011, at the office of Stephen Carter. The Director's order further provided:

If you refuse to submit to or [in] any way obstruct the ordered examinations, your right to claim compensation may, after a [134 Hawai'i 101]

Page 703

hearing by the Director, be suspended until such refusal or obstruction ceases, and no compensation may be payable for the period during which ...

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