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Cole v. Alii Cove

Intermediate Court of Appeals of Hawai'i

July 31, 2014

DONALD W. COLE, Claimant-Appellee,
v.
AOAO ALII COVE, Employer-Appellant, and HAWAII EMPLOYERS' MUTUAL INSURANCE COMPANY, INC., Insurance Carrier-Appellant

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD. CASE NO. AB 2010-089(WH) (9-08-01173).

On the briefs: Robert E. McKee, Jr., for Employer-Appellant and Insurance Carrier-Appellant.

Timothy P. McNulty, for Claimant-Appellee.

FOLEY, PRESIDING J., FUJISE AND GINOZA, JJ.

OPINION

Page 706

[134 Hawai'i 104] FOLEY, J.

In this workers' compensation case, Employer-Appellant AOAO Alii Cove (Alii Cove) and Insurance Carrier-Appellant Hawaii Employers' Mutual Insurance Company (together, Appellants) appeal from the (1) March 19, 2013 " Decision and Order" (D& O), (2) May 13, 2013 " Order Denying Employer's Motion," which denied Appellants' " Motion for Reconsideration and to Reopen Decision and Order and Motion for Leave to Sign Appeal and Notice of Appeal" (Motion for Reconsideration), and (3) June 12, 2013 " Attorney's Fee Approval and Order," all issued by the Labor and Industrial Relations Appeals Board's (Board).

On appeal, Appellants contend the Board erred when it (1) concluded a missing signature on Appellants' notice of administrative appeal deprived it of subject matter jurisdiction and dismissed the administrative appeal, and (2) approved Claimant-Appellee Donald W. Cole's (Cole) request for attorney's fees.

I. BACKGROUND

On September 18, 2008, Cole sustained a work injury to his right ankle. On December 10, 2009, the Director of the Department of Labor and Industrial Relations Disability Compensation Division (Director) determined Cole was entitled to temporary total disability benefits (TTD) from November 1, 2008 through December 21, 2008. The Director also determined Cole did not sustain any temporary partial disability from the work injury and left the " matters of permanent disability and/or disfigurement," if any, to be determined at a later date.

Page 707

On February 26, 2010 the Director issued a Supplemental Decision ordering Alii Cove, under Hawaii Revised Statutes (HRS) § § 386-21 (Supp. 2008) and 386-26 (Supp. 2005), " to pay for Michael Dickens, N.D.'s [( Dr. Dickens )] treatment plan dated [December 18, 2009] for an orthopedic surgery evaluation referral to Charles A. Soma, M.D. [(Dr. Soma)]" (February Decision). Appellants [134 Hawai'i 105] appealed the February Decision to the Board on March 18, 2010. At Cole's request, the Board temporarily remanded the case to the Director to determine additional issues.

On October 7, 2011, the Director issued another Supplemental Decision determining: (1) Cole suffered a compensable injury to his low back in addition to his right ankle; (2) Alii Cove was liable for four treatment plans by Dr. Dickens (dated December 18, 2009, March 1, 2010, March 31, 2010, and November 22, 2010); (3) Alii Cove was liable for two treatment plans by Nathan Ehrlich, N.D. (Dr. Ehrlich) (dated January 14, 2011 and March 14, 2011); (4) Alii Cove was not liable for three other treatment plans (dated November 5, 2010, February 7, 2011, and May 6, 2011); (5) Cole's change in his attending physicians was approved; and (6) Alii Cove was liable for TTD for various time periods from November 2009 through March 2011, totaling just over 71 weeks and $49,614.85 (October Decision). On October 26, 2011, Appellants filed a notice of appeal with the Board from the October Decision. This notice is the root of the present controversy.

When filed, the four-page notice of appeal document was comprised of (1) a letter from and signed by Appellants' counsel, stating that Appellants' Appeal and Notice of Appeal was enclosed; (2) the Appeal and Notice of Appeal which notified the Board that Appellants were appealing the Director's October Decision but which was not signed; and (3) a Certificate of Service that was signed by Appellants' counsel. The omission appears to have gone unnoticed for over a year.

On November 4, 2011, Appellants filed a Motion For Stay of Payments ordered by the October Decision.[1] On November 9, 2011, the Board issued a Notice of Initial Conference for December 5, 2011, providing the " conference will be held to simplify the issues, establish deadlines, and discuss disposition of the administrative file, possible settlement, and any other matters which may aid in the orderly resolution of the appeal." Cole filed his Initial Conference Statement on November 21, 2011 and under the section titled Statement of the Issues, provided: " Deferred, as this is [Appellants'] appeal." On December 1, 2011, Appellants filed their Initial Conference Statement providing:

The nine issues that we will raise on our two appeals are:

From the Director's February 26, 2010 supplemental decision:

1) Whether [Cole] is entitled to, and [Alii Cove] liable for the December 18, 2009 treatment plan by [Dr. Dickens], for an orthopedic evaluation referral to [Dr. Soma].
From the Director's October 7, 2011 supplemental decision:
2) Whether [Cole] is entitled to, and [Alii Cove] liable for the December 18, 2009 treatment plan by [Dr. Dickens].
3) Whether [Cole] is entitled to, and [Alii Cove] liable for the March 1, 2010 treatment plan by [Dr. Dickens].
4) Whether [Cole] is entitled to, and [Alii Cove] liable for the March 31, 2010 treatment plan by [Dr. Dickens].
5) Whether [Cole] is entitled to, and [Alii Cove] liable for the November 22, 2010 treatment plan by [Dr. Dickens].
6) Whether [Cole] is entitled to, and [Alii Cove] liable for the January 14, 2011 treatment plan by [Dr. Ehrlich].
7) Whether [Cole] is entitled to, and [Alii Cove] liable for the March 14, 2011 treatment plan by [Dr. Ehrlich].
8) Whether [Cole] is entitled to, and [Alii Cove] liable for temporary total disability for the time periods beginning 10/15/2009 through 11/30/2009; 12/2/2009 through 1/31/2010; 2/2/2010 through 5/31/2010; 6/2/2010 through 7/31/2010; 8/2/2010 through 12/31/2010; and 3/2/2011 through 4/30/2011 for 71 and 2/7 weeks for a total of $49,614.85.
9) Whether the Director erred in finding [Cole's] low back condition compensable as a result of the September 18, 2008 work injury.

Page 708

[134 Hawai'i 106] On December 12, 2011 the Board issued its First Amended Pretrial Order, providing the nine issues raised by Appellants' Initial Conference Statement were to be determined ...


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