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Irving v. Ocean House Builders

Intermediate Court of Appeals of Hawaii

October 30, 2015

ROBERT G. IRVING, Claimant-Appellant,
v.
OCEAN HOUSE BUILDERS dba NAN, INC., Employer-Appellee, and FIRST INSURANCE COMPANY OF HAWAII, LTD., Insurance Carrier-Appellee

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD. (CASE NO. AB 2011-321 (2-10-46885)).

On the briefs: Roy F. Epstein, for Claimant-Appellant.

Gary N. Kunihiro, Shawn L.M. Benton, Paul A. Brooke, (Leong Kunihiro Benton & Brooke). for Employer-Appellee and Insurance Carrier-Appellee.

NAKAMURA, C.J., FOLEY AND GINOZA, JJ.

OPINION

Page 332

[136 Hawai'i 484] FOLEY, J.

Claimant-Appellant Robert G. Irving (Irving) appeals from the July 17, 2014 " Order Denying Claimant's Motion to Modify the Decision and Order dated June 16, 2014 and Motion for Attorney's Fees" of the Labor and Industrial Relations Appeals Board (LIRAB).

On appeal, Irving contends the LIRAB erred in: (1) denying his June 26, 2014 " Motion to Modify the Decision and Order Dated June 16, 2014 and Motion for Attorney Fees" (Motion for Modification and Attorney Fees); (2) not designating Employer-Appellee Ocean House Builders, dba Nan, Inc., and Insurance Carrier-Appellee First Insurance Company of Hawaii, Ltd. (together, Employer) as cross-appellants; (3) not concluding that Irving was the prevailing party on Employer's cross-appeal; and (4) denying attorney fees to Irving pursuant to Hawaii Revised Statutes (HRS) § 386-93 (Supp. 2014).

I. BACKGROUND [1]

Irving was employed as a safety officer trainee for Nan, Inc. On October 25, 2010, Irving fell and sustained injuries to his left wrist in the form of a sprain, to his left elbow in the form of a lateral epicondylitis, and to his low back in the form of a strain. Employer denied liability for the injury.

On June 30, 2011, the Director of Labor and Industrial Relations (Director) found that the October 25, 2010 incident arose out of and in the course of Irving's employment. According to the Director, " the [October 25, 2010] accident resulted in a temporary aggravation of [Irving's] pre-existing low back condition which resolved by April 18, 2011." The Director found the accident resulted in injuries to Irving's left wrist and left elbow, injuries which resolved as of February 14, 2011. The Director awarded medical care, services, and supplies up to February 14, 2011 for the left wrist and left elbow, and up to April 18, 2011 for the low back.

On July 18, 2011, Irving appealed the Director's decision " solely as it relates to the issue of limitation of temporary total disability and/or treatment received after April 18, 2011 and that [Irving] had no permanent disability or disfigurement resulting from the [October 25, 2010] accident." The LIRAB scheduled an initial conference on October 14, 2011. At the conference, Employer raised the additional issue for appeal of whether Irving sustained a personal injury arising out of and in the course of employment on October 25, 2010.[2]

On June 16, 2014, the LIRAB issued its Decision and Order. The LIRAB clarified the issues on appeal:

a. Whether [Irving] sustained a personal injury involving his left wrist, left elbow, and low back on October 25, 2010, arising out of and in the course of employment.

Page 333

[136 Hawai'i 485] b. Whether Employer is liable for, and [Irving] is entitled to, medical care, services and supplies for his left wrist and left elbow after February 14, 2011 and for his low back after April 18, 2011.
c. Whether [Irving] sustained any permanent partial disability as a result of the work injury of October 25, 2010. If so, what is the extent of permanent partial disability.

The LIRAB concluded:

CONCLUSIONS OF LAW
1 ...............
Given the foregoing, the [LIRAB] concludes that [Irving] sustained a personal injury involving his left wrist, left elbow, and low back on October 25, 2010, ...

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