Skahan v. Stutts Construction Company.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
24-DEC-2020
11:28 AM
Dkt. 12 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---
________________________________________________________________

SCWC-XX-XXXXXXX

KENNETH M. SKAHAN,
Petitioner/Claimant-Appellant/Appellant,

vs.

STUTTS CONSTRUCTION COMPANY, INC.,
Respondent/Employer-Cross-Appellant/Appellee,
and

FIRST INSURANCE COMPANY OF HAWAII, LTD.,
Respondent/Insurance Carrier-Cross-Appellant/Appellee.

(CASE NO.: AB 2014-019 (WH); DCD NO.: 9-04-45072(M))

SCWC-XX-XXXXXXX

KENNETH M. SKAHAN,
Petitioner/Claimant-Appellant,

vs.

STUTTS CONSTRUCTION COMPANY, INC.,
Respondent/Employer-Appellee,

and
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

FIRST INSURANCE COMPANY OF HAWAII, LTD.,
Respondent/Insurance Carrier-Appellee.

(CASE NO.: AB 2014-041 (WH); DCD NO.: 9-13-45106(M))
_____________________________________

SCWC-XX-XXXXXXX

KENNETH M. SKAHAN,
Petitioner/Claimant-Appellant,

vs.

STUTTS CONSTRUCTION COMPANY, INC.,
Respondent/Employer-Appellee,

and

FIRST INSURANCE COMPANY OF HAWAII, LTD.,
Respondent/Insurance Carrier-Appellee.

(CASE NO.: AB 2015-374 (M); DCD NO.: 7-14-45105)
________________________________________________________________

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CAAP-XX-XXXXXXX; and CAAP-XX-XXXXXXX)

DECEMBER 24, 2020

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND
CIRCUIT JUDGE JOHNSON, IN PLACE OF POLLACK, J., RECUSED

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

These consolidated cases arise from pro se litigant Kenneth

Skahan’s (“Skahan”) claims for workers’ compensation benefits

against his former employer, Stutts Construction Company

(“Stutts”), and its insurance carrier, First Insurance Company

of Hawai‘i (collectively with Stutts, “Employer”).

2
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

On November 30, 2004, Skahan injured his back while working

for Stutts, and Stutts accepted workers’ compensation liability

for the injury. On June 12, 2012, after Skahan’s employment

with Stutts had ended, Skahan experienced mid and low back pain

while wading in the ocean. Skahan was subsequently diagnosed

with Diffuse Idiopathic Skeletal Hyperostosis (“DISH”)1 affecting

his thoracic spine, and he filed multiple claims for additional

workers’ compensation benefits against Employer.

The Labor and Industrial Relations Appeals Board (“LIRAB”)

issued three decisions. On June 17, 2016, LIRAB determined

Skahan’s DISH injury was compensable because it was causally

related to the November 30, 2004 work injury, but his low back

injury was not compensable because it was not causally related

to the November 30, 2004 work injury. On June 21, 2016, LIRAB

determined the dates for which Skahan was entitled to temporary

total disability (“TTD”) benefits. In a January 3, 2019

decision, LIRAB again stated that Skahan’s DISH injury was

related to his November 30, 2004 work injury.2

1 “DISH” is a condition involving the “bony hardening of ligaments in
areas where they attach to your spine” and may or may not cause symptoms.
Diffuse Idiopathic Skeletal Hyperostosis (DISH), Mayo Clinic,
https://perma.cc/ZUL6-UJFZ (last visited June 24, 2020).
2 As LIRAB’s January 3, 2019 decision reiterated its findings and
determinations from earlier decisions, this opinion does not further discuss
the January 3, 2019 decision.

3
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Skahan appealed all three LIRAB decisions. The

Intermediate Court of Appeals (“ICA”) consolidated and addressed

Skahan’s appeals of LIRAB’s June 21, 2016 and January 3, 2019

decisions in a summary disposition order (“SDO”), and it

addressed Skahan’s appeal of LIRAB’s June 17, 2016 decision in a

separate SDO. Ultimately, the ICA affirmed all three LIRAB

decisions. We accepted and have consolidated Skahan’s

applications for writ of certiorari from both SDOs, and we rule

as follows.

The ICA erred in holding that Employer rebutted the Hawai‘i

Revised Statutes (“HRS”) § 386-85 (2015) presumption that

Skahan’s low back claim was for a covered work injury. In

addition, LIRAB’s finding that Skahan’s injury was “permanent

and stationary and at maximum medical improvement” by April 19,

2013 is clearly erroneous, and LIRAB’s COL ending Skahan’s TTD

benefits on April 19, 2013 is also clearly erroneous as it is

not supported by the record. The additional issues raised by

Skahan on certiorari are without merit.3

3 With respect to LIRAB’s June 17, 2016 decision, those issues are:
(1) Did the ICA err by failing to apply the right/wrong
standard of review to LIRAB’s conclusions of law?
(2) Did the ICA err in determining that the issue of
whether his DISH injury was causally related to the
November 2004 work injury was moot?

With respect to LIRAB’s June 21, 2016 and January 3, 2019 decisions,
those additional issues are:
(1) Was LIRAB required to explain how granting Employer’s
motion for stay of payments would comply with HRS
(continued . . .)

4
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

We therefore vacate the ICA’s May 19, 2020 judgment on

appeal affirming LIRAB’s June 17, 2016 decision and also vacate

in part the ICA’s May 27, 2020 judgment on appeal affirming

LIRAB’s June 21, 2016 and January 3, 2019 decisions and we

remand to LIRAB for further proceedings consistent with this

opinion.

II. Background

A. Factual background

On November 30, 2004, Skahan injured his back while working

for Stutts, and Employer accepted liability for the injury.

Skahan was treated by doctor Lora Aller (“Dr. Aller”), who

diagnosed him with a chest and thoracic spine strain and opined

that Skahan was temporarily disabled from working. Dr. Aller

released Skahan to return to work on August 8, 2005. Employer

ended Skahan’s TTD benefits on October 4, 2005, and Skahan

requested a hearing with the Department of Labor and Industrial

Relations Disability Compensation Division (“DCD”). On January

6, 2006, DCD issued its decision determining that the

termination of TTD was proper. DCD left the matters of

(. . . continued)
§ 91-14(c)?
(2) Did the ICA fail to apply the proper standards of
review to LIRAB’s COLs and application of HRS
§ 386-3(a)?
(3) Did LIRAB err in concluding he was not permanently
and totally disabled?

5
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

permanent disability and disfigurement to be determined at a

later date. Skahan did not appeal.

On June 12, 2012, Skahan experienced pain in his back while

wading in the ocean. Skahan no longer worked for Stutts at the

time of the injury. In a June 27, 2012 letter to First

Insurance, Skahan stated that he had reinjured his back and

asked to change physicians because Dr. Aller had left the state.

The letter claimed the “date of injury” was November 30, 2004,

but it did not explain how Skahan had injured his back. Skahan

asked First Insurance to “respond quickly as [he was] in a great

deal of pain and [was] having difficulty breathing.” First

Insurance did not respond.

On July 3, 2012, Skahan filed a claim for workers’

compensation against Employer listing the date of accident as

November 30, 2004 and seeking to reopen his prior claim. In an

August 16, 2012 letter to First Insurance, Skahan stated that

this was “not a new injury,” but an aggravation of the November

30, 2004 work injury. In a September 12, 2012 letter to DCD,

Skahan further explained that he had been unable to see a doctor

because they did not take workers’ compensation patients or

would not see him without the insurer’s approval, First

Insurance had not allowed him to change physicians, and he could

not afford to see a physician without insurance.

6
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Skahan was eventually treated by Dr. Capen and saw him on

an almost monthly basis beginning on November 16, 2012. Dr.

Capen’s November 16, 2012 initial physician’s report diagnosed

Skahan with a thoracic spine strain. Dr. Capen’s December 28,

2012 report described Skahan’s June 12, 2012 injury as an

aggravation or recurrence of his November 30, 2004 injury. In

an April 19, 2013 report, Dr. Capen concluded that Skahan was

“never going back to doing heavy work.” Dr. Capen connected

Skahan’s low back injury to the November 30, 2004 injury.

At Employer’s request, Skahan was also evaluated by doctor

Lorne Direnfeld (“Dr. Direnfeld”). In his July 19, 2013 report,

Dr. Direnfeld opined that Skahan suffered from DISH, the

November 30, 2004 accident had caused his DISH to become

symptomatic, and the June 12, 2012 injury “may represent a non-

work related symptomatic aggravation” of his DISH. Dr.

Direnfeld disagreed with Dr. Capen’s opinion that Skahan’s low

back injury was caused by the November 30, 2004 work accident,

as no investigation of Skahan’s lumbar spine had been required

in relation to the November 30, 2004 work accident and Skahan

had suffered a low back injury before the November 30, 2004 work

accident. Dr. Direnfeld noted that Skahan himself attributed

his low back problems to a previous 1994 injury.

7
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

B. Procedural background related to Skahan’s first application
for certiorari

1. DCD proceedings

On August 19, 2013, Skahan filed a claim for workers’

compensation against Employer describing his injury as an

occupational disease affecting his low and mid back and “a

preexisting [a]symptomatic condition which was first evident in

2004,” and stating that the “date of accident” was April 7,

2013.4 The claim also stated that Skahan had filed for DISH

injury benefits, and that his DISH was causally related to the

November 30, 2004 injury.

On January 10, 2014, DCD issued its decision denying

Skahan’s August 19, 2013 claim. DCD found that Skahan was not

employed by Stutts on April 7, 2013 and did not suffer injuries

“arising out of and in the course of employment” under HRS

§§ 386-3 (2015)5 and 386-85.6 Skahan appealed DCD’s decision to

4 Although the August 19, 2013 claim listed the “date of accident” as
April 7, 2013, Skahan’s opening brief and his first application referred to
the June 12, 2012 injury.
5 HRS § 386-3(a) provides:

If an employee suffers personal injury either by accident
arising out of and in the course of the employment or by
disease proximately caused by or resulting from the nature
of the employment, the employee’s employer or the special
compensation fund shall pay compensation to the employee or
the employee’s dependents as provided in this chapter.

Accident arising out of and in the course of the employment
includes the wilful act of a third person directed against
an employee because of the employee’s employment.

8
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

LIRAB.

2. LIRAB proceedings

On June 17, 2016, LIRAB issued its decision reversing in

part DCD’s January 10, 2014 decision. LIRAB credited Dr.

Direnfeld’s opinion that Skahan’s thoracic spine symptoms were

due to DISH, his DISH became symptomatic as a result of the

November 30, 2004 incident, and his DISH was attributable to his

work for Stutts. While DCD had construed Skahan’s August 19,

2013 claim as a claim for new injury, LIRAB found that Skahan’s

claim was actually a “claim for DISH that was causally related

to the November 30, 2004 work accident,” and that his DISH claim

should be decided under his November 30, 2004 injury claim.

LIRAB concluded that Employer failed to rebut the presumption

that Skahan’s DISH was a covered work injury.

However, LIRAB also found that Employer had presented

evidence from Dr. Direnfeld that Skahan’s low back injury was

not related to the November 30, 2004 injury, and Dr. Capen did

not provide an opinion connecting Skahan’s low back injury to

the November 30, 2004 work injury. LIRAB determined that,

therefore, Employer met its burdens of production and persuasion

to show that Skahan’s low back condition was not causally

(. . . continued)
6 HRS § 386-85 provides, in relevant part: “In any proceeding for the
enforcement of a claim for compensation under this chapter it shall be
presumed, in the absence of substantial evidence to the contrary: (1) That
the claim is for a covered work injury[.]”

9
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

related to the November 30, 2004 injury, and it denied his low

back claim.

On July 11, 2016, Skahan filed a motion for reconsideration,

which LIRAB also denied. Skahan appealed LIRAB’s June 17, 2016

decision and order denying motion for reconsideration to the ICA.

3. ICA proceedings

Skahan raised various points of error challenging nearly

all of LIRAB’s June 17, 2016 findings of fact (“FOFs”) and

conclusions of law (“COLs”). The relevant point of error is

Skahan’s claim that Employer did not meet its burden of

production regarding his low back condition because Dr.

Direnfeld’s opinion did not address whether the November 30,

2004 work injury could have aggravated or accelerated his

condition.

On April 1, 2020, the ICA issued its SDO affirming LIRAB’s

decision. Skahan v. Stutts Construction Co. (Skahan I), CAAP-

XX-XXXXXXX (App. April 1, 2020) (SDO). In relevant part, the

ICA addressed Skahan’s argument that Employer failed to show his

low back injury was not causally related to the November 30,

2004 work injury. Skahan I, SDO at 5. The ICA noted that,

under HRS § 386-85, there is a presumption that a claim is for a

covered work injury, and it is the employer’s burden to

introduce substantial evidence to rebut the presumption. Id.

(citing Panoke v. Reef Dev. of Hawaii, Inc., 136 Hawai‘i 448, 461,

10
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

363 P.3d 296, 309 (2015)). According to the ICA, Dr.

Direnfeld’s July 19, 2013 report stated Skahan’s low back injury

was unrelated to the November 30, 2004 injury. Skahan I, SDO at

5-6. Furthermore, the ICA stated that “nothing in Dr. Capen’s

reports produced in this record provide[d] any opinion or

medical basis to relate Skahan’s lower back injury to the

November 30, 2004 incident.” Skahan I, SDO at 6. The ICA held

that LIRAB therefore did not err in concluding that Employer

rebutted the HRS § 386-85 presumption. Skahan I, SDO at 7.

4. Application for certiorari

In relevant part, Skahan maintains his low back injury was

causally connected to his previous work-related injuries, and

that LIRAB misapplied HRS §§ 386-3(a) and 386-85 by concluding

that his “low back injury was not [a] work-related [injury.]”

C. Procedural background related to Skahan’s second
application for certiorari

1. DCD proceedings

On July 2, 2013, Skahan filed a workers’ compensation claim

for permanent total disability as a result of the November 30,

2004 injury, as aggravated by the June 12, 2012 injury.

On January 15, 2014, DCD issued a supplemental decision on

whether Skahan was entitled to vocational rehabilitation (“VR”)

services and whether he was temporarily disabled and the period

of temporary disability. DCD found that Skahan’s November 30,

11
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

2004 work injury resulted in his DISH becoming symptomatic, and

the June 12, 2012 injury was a non-work-related aggravation of

his DISH condition. DCD did not credit Dr. Capen’s

certification of disability beginning November 16, 2012. DCD

also concluded that Skahan was entitled to VR services and TTD

benefits beginning August 8, 2013 through October 15, 2013.

Skahan appealed DCD’s decision to LIRAB, and Employer filed a

cross-appeal.

2. LIRAB proceedings

On June 21, 2016, LIRAB issued its decision affirming in

part, reversing in part, and modifying DCD’s January 15, 2014

supplemental decision.

LIRAB’s FOFs included the following. Skahan’s DISH was

causally related to his November 30, 2004 injury, the June 12,

2012 ocean injury aggravated Skahan’s DISH, and his benefits

should be determined under the November 30, 2004 claim. There

was no medical evidence to support a finding of TTD between June

12, 2012 and November 15, 2012. Based on Dr. Capen’s reports,

Skahan was temporarily and totally disabled from November 16,

2012 through April 19, 2013, and Skahan’s condition was

“permanent and stationary” by April 19, 2013. Based on Dr.

Capen’s reports, Skahan was unable to return to carpentry work

as a result of the November 30, 2004 work injury. Skahan self-

referred for VR on August 8, 2013.

12
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

LIRAB’s COLs included the following. The June 12, 2012

injury was a direct and natural result of the November 30, 2004

work injury and did not terminate Employer’s liability. Skahan

was entitled to TTD benefits from November 16, 2012 to April 19,

2013, while enrolled in VR from August 8, 2013 through October

15, 2013, and for any periods thereafter while enrolled in VR.

LIRAB therefore affirmed in part, reversed in part, and

modified DCD’s January 15, 2014 supplemental decision. Skahan

appealed LIRAB’s June 21, 2016 decision to the ICA.

3. ICA proceedings

Skahan raised 46 points of error challenging most of the

FOFs and COLs in LIRAB’s June 21, 2016 decision. The relevant

point of error to this appeal was that Skahan should have been

awarded TTD from June 12, 2012 to November 15, 2012, and TTD

should not have been terminated on April 19, 2013.

On April 29, 2020, the ICA issued its SDO affirming LIRAB’s

decisions. Skahan v. Stutts Construction Co. (Skahan II), CAAP-

XX-XXXXXXX/CAAP-XX-XXXXXXX (App. April 29, 2020) (SDO). The ICA

addressed Skahan’s challenge to LIRAB’s June 21, 2016 FOFs,

including LIRAB’s finding that Skahan was entitled to TTD

benefits from November 16, 2012 through April 19, 2013 and while

enrolled in VR from August 8, 2013 through October 15, 2013.

After reviewing the record, the ICA was “not left with a

definite or firm conviction that a mistake [had] been made.”

13
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Skahan II, SDO at 11. The ICA also held that LIRAB’s COLs were

supported by its FOFs and reflected an application of the

correct rule of law. Skahan II, SDO at 12. The ICA affirmed

LIRAB’s June 21, 2016 decision and January 3, 2019 decision.

Skahan II, SDO at 14-15.

4. Application for certiorari

In relevant part, Skahan argues the ICA erred in affirming

LIRAB’s termination of TTD benefits on April 19, 2013 and in

denying TTD benefits from June 12, 2012 through November 15,

2012. Skahan asserts the DCD director did not terminate his TTD

benefits as required under HRS § 386-31(b), and that there was

no legal ground to terminate TTD because he was not “able to

resume work” as defined by HRS § 386-1.

III. Standard of Review

A. LIRAB decisions

“Appellate review of a LIRAB decision is governed by HRS

§ 91-14(g)[.]” Igawa v. Koa House Rest., 97 Hawaiʻi 402, 405-06,

38 P.3d 570, 573-74 (2001). “[I]t is well-established that

appellate courts review [LIRAB’s] findings of fact under the

clearly erroneous standard.” Davenport v. City and Cty. of

Honolulu, 100 Hawai‘i 297, 305, 59 P.3d 932, 940 (App. 2001).

“However, [LIRAB’s] conclusions of law cannot bind an appellate

court and are ‘freely reviewable for [their] correctness. Thus,

the court reviews [conclusions of law] de novo, under the

14
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

right/wrong standard.’” Id. (quoting Korsak v. Hawaii

Permanente Medical Group, 94 Hawai‘i 297, 303, 12 P.3d 1238, 1244

(2000)).

IV. Discussion

A. Employer did not rebut the presumption that Skahan’s low
back injury was work-related

1. Employer did not meet its burden of production

Skahan argues LIRAB misapplied HRS § 386-85 in determining

that his low back injury was not work related. HRS § 386-85(1)

provides: “In any proceeding for the enforcement of a claim for

compensation under this chapter it shall be presumed, in the

absence of substantial evidence to the contrary . . . [t]hat the

claim is for a covered work injury[.]” “The statute nowhere

requires . . . some preliminary showing that the injury occurred

‘in the course of employment’ before the presumption will be

triggered.” Chung v. Animal Clinic, Inc., 63 Haw. 642, 650, 636

P.2d 721, 727 (1981). “[T]o rebut the presumption, the employer

has the burden of going forward with the evidence, which is the

burden of production, as well as the burden of persuasion.”

Panoke, 136 Hawai‘i at 461, 363 P.3d at 309.

“The burden of production means that ‘the employer must

initially introduce substantial evidence that, if true, could

rebut the presumption that the injury is work-related.’” Id.

(quoting Nakamura v. State, 98 Hawai‘i 263, 267, 47 P.3d 730, 734

15
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

(2002)). “‘[S]ubstantial evidence’ means ‘a high quantum of

evidence which, at the minimum, must be relevant and credible

evidence of a quality and quantity sufficient to justify a

conclusion by a reasonable [person] that an injury or death is

not work connected.’” 136 Hawai‘i at 462, 363 P.3d at 310

(quoting Nakamura, 98 Hawai‘i at 267-68, 47 P.3d at 734-35).

“In evaluating whether the burden of producing substantial

evidence has been met, ‘the slightest aggravation or

acceleration of an injury by the employment activity mandates

compensation.’” 136 Hawai‘i at 461, 363 P.3d at 309 (quoting Van

Ness v. State of Hawai‘i, Dept. of Educ., 131 Hawai‘i 545, 562,

319 P.3d 464, 481 (2014)).

The ICA held that Employer met its burdens of production

and persuasion to show the low back injury was not causally

related to the November 30, 2004 injury through: Dr. Direnfeld’s

report noting that the medical records for the November 30, 2004

injury did not reference a low back condition; Dr. Direnfeld’s

opinion that the low back injury was not related to the November

30, 2004 injury; evidence of Skahan’s 1990s low back injury

sustained under a different employer; and Dr. Capen’s lack of

opinion that Skahan’s low back injury was related to the

November 30, 2004 injury. Skahan I, SDO at 5-6.

Dr. Direnfeld’s report is similar to the doctors’ reports

in Panoke. Panoke initially claimed to have injured his back as

16
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

the result of a work injury. Panoke, 136 Hawai‘i at 450, 363

P.3d at 298. The next month, Panoke also reported shoulder pain.

136 Hawai‘i at 451, 363 P.3d at 299. Panoke had previously

fractured both shoulders in a motor vehicle accident over a

decade earlier. 136 Hawai‘i at 452, 363 P.3d at 300.

At trial before LIRAB, the employer presented doctors’

opinions that Panoke had not initially reported shoulder pain,

his shoulder injury was not related to the work accident, and

“more likely than not” the work accident did not cause or

aggravate Panoke’s prior shoulder injury. 136 Hawai‘i at 453-54,

363 P.3d at 301-02. Two doctors opined that Panoke would have

likely experienced immediate pain if his shoulder injuries were

related to the work injury. 136 Hawai‘i at 453, 455-56, 363 P.3d

at 301, 303-04. One doctor also testified that Panoke’s

shoulder injuries were inconsistent with the work accident. 136

Hawai‘i at 463, 363 P.3d at 311. In contrast, Panoke’s treating

physician opined that his shoulder injuries were related to the

work accident and that he had “fully and totally recovered” from

the motor vehicle accident. Id. LIRAB denied Panoke’s shoulder

injury claim. 136 Hawai‘i at 458, 363 P.3d at 306.

On certiorari, we held that the employer had not presented

substantial evidence sufficient to overcome the presumption that

Panoke’s shoulder injury was work-related. 136 Hawai‘i at 461,

17
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

363 P.3d at 309. We held that “generalized” testimony that

there was no connection between an injury and work without

further explanation does not rebut the presumption of coverage,

and “the primary focus of the medical testimony should have been

a discussion on whether the employment effort, whether great or

little, in any way aggravated [the employee’s condition.]” 136

Hawai‘i at 462, 363 P.3d at 310 (emphasis added). Regarding

Panoke’s history of shoulder injuries, we stated that “evidence

showing why Panoke’s [work] accident could not have aggravated

these conditions was necessary for the employer to adduce

‘substantial evidence’ and overcome the presumption of coverage.”

136 Hawai‘i at 463, 363 P.3d at 311 (emphases added).

We noted that the employer’s medical experts testified that

the work accident could not have caused Panoke’s shoulder injury

without adequately explaining whether the accident aggravated

his existing injury. 136 Hawai‘i at 463, 363 P.3d at 311. While

two doctors opined that the work accident had probably not

aggravated Panoke’s shoulder injury because he would have likely

experienced immediate shoulder pain if it had, we noted “there

is nothing in the record to explain why Panoke would have

started experiencing serious shoulder pain approximately two

weeks after the work accident if the work accident had not

caused the injury or aggravated some pre-existing injury.” 136

Hawai‘i at 463-64, 363 P.3d at 311-12. Therefore, the employer

18
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

did not adduce substantial evidence because its experts merely

“opine[d] generally that Panoke had an injury predating his

employment[.]” 136 Hawai‘i at 464, 363 P.3d at 312. (internal

brackets and quotation marks omitted).

In this case, Dr. Direnfeld’s report was even more

generalized than the doctors’ reports in Panoke. Like the

doctors in Panoke, Dr. Direnfeld did not focus on whether

Skahan’s 1994 low back injury could have been aggravated or

accelerated by the November 30, 2004 accident. Instead, Dr.

Direnfeld opined that the low back injury was not caused by or

related to the November 30, 2004 accident without explaining how

he reached this conclusion. Dr. Direnfeld’s report also stated

that the medical record for the November 30, 2004 accident did

not reference a low back injury, implying that Skahan would have

reported low back pain if the November 30, 2004 accident had

caused or aggravated his low back injury. However, unlike the

doctors in Panoke, Dr. Direnfeld did not actually explain how

the November 30, 2004 accident was inconsistent with a low back

injury, or whether Skahan would have experienced immediate pain

if the accident had aggravated his low back condition. Nor did

Dr. Direnfeld’s report explain whether the November 30, 2004

accident could have aggravated Skahan’s low back injury so as to

make it more susceptible to reinjury. See Panoke, 136 Hawai‘i at

463, 363 P.3d at 311.

19
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Therefore, Employer did not meet its burden of production

to show that Skahan’s low back injury was not causally related

to the November 30, 2004 work injury.

2. LIRAB’s FOF 34 is clearly erroneous

We additionally note that LIRAB’s FOF 34, finding that

“[o]n this record, Dr. Capen did not provide any opinions or

medical basis to relate [Skahan’s] lumbar spine condition to the

November 30, 2004 work injury,” is clearly erroneous. Dr.

Direnfeld’s report referenced and responded to Dr. Capen’s

opinion that Skahan’s low back injury was related to the

November 30, 2004 incident. For instance, Dr. Direnfeld’s

report stated that he disagreed with Dr. Capen’s opinion that

Skahan’s lumbar disc protrusion was caused by the November 30,

2004 work accident. Dr. Direnfeld’s report also noted that Dr.

Capen opined in an April 19, 2013 report that Skahan’s injuries

were “due to the thoracic spine injury and the L4-5 disc injury,

both of which occurred in 2004.” (Emphasis added.) While Dr.

Capen’s April 19, 2013 report was not included in the record for

the CAAP-XX-XXXXXXX proceedings, it was part of the record in

the related CAAP-XX-XXXXXXX/CAAP-19-000077 proceedings.

Therefore, the record shows that Dr. Capen opined that

Skahan’s low back injury was related to the November 30, 2004

injury. However, in FOF 35, LIRAB determined that Employer met

its burden of persuasion because there was no evidence that

20
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Skahan’s low back injury was related to the November 30, 2004

work injury. While we need not reach whether Employer met its

burden of persuasion because it did not meet its burden of

production, we note that LIRAB did not properly weigh Employer’s

evidence against all of Skahan’s evidence.

We therefore vacate the ICA’s May 19, 2020 judgment on

appeal affirming LIRAB’s June 17, 2016 decision.7

B. Determination of TTD benefits

1. Termination of TTD on April 19, 2013

Skahan argues the ICA erred in affirming LIRAB’s

termination of TTD benefits on April 19, 2013. Skahan asserts

that the DCD director did not terminate his TTD benefits as

required under HRS § 386-31(b) and that there was no medical

opinion that he was able to resume work.

HRS § 386-31 provides in part that TTD benefits “shall only

be terminated upon order of the director or if the employee is

able to resume work.” HRS § 386-1 defines “able to resume work”

as meaning the worker has stabilized and “is capable of

performing work in an occupation for which the worker has

7 With respect to LIRAB’s June 17, 2016 decision, Skahan also argues that
the ICA failed to apply the right/wrong standard of review to LIRAB’s COLs.
However, it appears the ICA did apply the right/wrong standard of review.
Skahan relatedly argues that the ICA erred in determining that the
issue of whether his DISH injury was causally related to the November 30,
2004 work injury was moot because the right/wrong standard of review applied.
However, “[m]ootness is an issue of subject matter jurisdiction,” not of the
standard of review. State v. Nakanelua, 134 Hawai‘i 489, 501, 345 P.3d 155,
167 (2015). Therefore, Skahan’s arguments are without merit.

21
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

received previous training or for which the worker has

demonstrated aptitude.” (Emphases added.) “[I]f an employee is

capable of performing work in an occupation for which the worker

has received previous training or for which the worker has

demonstrated aptitude, [they are] not totally disabled.”

Tamashiro v. Control Specialist, Inc., 97 Hawai‘i 86, 92, 34 P.3d

16, 22 (2001) (internal quotation marks omitted).

In its January 15, 2014 decision, DCD determined that

Skahan was entitled to TTD benefits from August 8, 2013 through

October 15, 2013 and while Skahan remained enrolled in VR. On

appeal, LIRAB awarded additional TTD between November 16, 2012

and April 19, 2013. Therefore, although Skahan argues the DCD

director did not terminate his TTD benefits on April 19, 2013,

DCD had not actually awarded TTD benefits between November 16,

2012 and April 19, 2013 in the first place.

As to LIRAB’s termination of TTD benefits, in its June 21,

2016 decision LIRAB credited Dr. Capen’s October 18, 2013 report

ostensibly stating that Skahan was totally disabled from work

from November 16, 2012 and was “permanent and stationary and at

maximum medical improvement” by April 19, 2013. Therefore,

LIRAB concluded that Skahan “was entitled to TTD benefits from

November 16, 2012 to April 19, 2013[.]” LIRAB did not award TTD

between April 19, 2013 and August 8, 2013. However, LIRAB

affirmed DCD’s award of TTD benefits “while [Skahan] was

22
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

enrolled in VR from August 8, 2013 through October 15, 2013, and

for any periods thereafter while enrolled in VR.”

Contrary to LIRAB’s findings, Dr. Capen’s October 18, 2013

report did not actually state that Skahan’s condition was

permanent, stationary, and at maximum medical improvement on

April 19, 2013. Dr. Capen’s October 18, 2013 report actually

stated, “I previously rated the patient as permanent and

stationary and having reached Maximum Medical Improvement,” but

it did not specify when he made this assessment. (Emphasis

added.) Neither did Dr. Capen’s April 19, 2013 report state

that Skahan was permanent and stationary and at maximum medical

improvement. After reviewing the record, it appears that the

first time Dr. Capen opined that Skahan was “permanent and

stationary” was in an August 23, 2013 report.

Even assuming Dr. Capen determined that Skahan was at

maximum medical improvement by April 19, 2013, his report from

that date opined that Skahan was “never going back to doing

heavy work.” While LIRAB found Skahan’s condition was permanent

and stationary, it also found that he “was unable to return to

his usual and customary work as a carpenter as a result of the

November 30, 2004 work injury.” See HRS § 386-31; HRS § 386-1;

Tamashiro, 97 Hawai‘i at 92, 34 P.3d at 22. This finding

suggests that Skahan was not actually “able to return to work”

between April 19, 2013 and August 8, 2013. Furthermore, LIRAB

23
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

did not explain why Skahan was entitled to TTD benefits as of

August 8, 2013, but not during the almost three months between

April 19, 2013 and August 8, 2013.

Therefore, LIRAB’s finding that Skahan was “permanent and

stationary and at maximum medical improvement” by April 19, 2013

is clearly erroneous, and LIRAB’s COL 3 stating that Skahan had

“returned to pre-June 12, 2012 aggravation status by April 19,

2013” and was therefore entitled to TTD benefits from November

16, 2012 through April 19, 2013 and while he was enrolled in VR

from August 8, 2013 through October 15, 2013 is not supported by

the record.

2. TTD benefits from June 12, 2012 through November 15,
2012

Skahan asserts that LIRAB also erred in denying TTD

benefits from June 12, 2012 through November 15, 2012. While

Skahan’s application does not provide further argument, one of

his opening briefs argued that nothing precluded awarding him

TTD from June 12, 2012 to November 15, 2012 despite the lack of

medical evidence, citing Panoke, 136 Hawai‘i 448, 363 P.3d 296.

In Panoke, the claimant promptly received medical treatment

for his work injuries. 136 Hawai‘i at 451, 363 P.3d at 299.

LIRAB denied TTD benefits for certain periods based on the lack

of a physician’s statement of certification that Panoke was

temporarily and totally disabled, and it did not credit

24
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

physicians’ reports stating Panoke was significantly impaired

because they did not state that the impairment was due to a work

injury. 136 Hawai‘i at 464, 363 P.3d at 312. On certiorari, we

held that “LIRAB may not deny a claimant benefits based on

deficiencies in a physician’s certifications of disability.”

136 Hawai‘i at 465, 363 P.3d at 313. While HRS § 386-96 (Supp.

2005)8 required physicians to include the dates of disability in

their reports, it did not provide that claimants’ benefits must

be denied due to a physician’s non-compliance. 136 Hawai‘i at

466, 363 P.3d at 314. We acknowledged that “nothing in [HRS §

386-31(b)9] prescribes a particular method of proof” of TTD, and

that “LIRAB must assess the quality of the evidence that is

presented, to determine whether the necessary showing has been

made.” Id.

The facts of this case differ from Panoke, where the

claimant received prompt medical treatment and medical records

existed for the disputed TTD period. 136 Hawai‘i at 451, 363

8 HRS § 386-96(a)(2) required physicians treating injured employees to
include in their reports the “dates of disability.” HRS § 386-96(b)
provided: “ No claim under this chapter for medical treatment . . . shall be
valid and enforceable unless the reports are made as provided in this
section[.]”
9 HRS § 386-31(b) provides in part: “The employer shall pay temporary
total disability benefits promptly as they accrue to the person entitled
thereto without waiting for a decision from the director, unless this right
is controverted by the employer in the employer’s initial report of
industrial injury.” HRS § 386-31(b) does not provide any particular method
of proof of total temporary disability.

25
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

P.3d at 299. Skahan did not receive medical care for the June

12, 2012 injury until November 16, 2012. Additionally, while

LIRAB’s COL 3 relied on the lack of medical certification of

disability in denying TTD benefits in this case,10 LIRAB’s FOF 39

specifically determined that there was “no medical evidence to

support a finding of TTD” from June 12, 2012 to November 15,

2012. LIRAB’s COL 3 also referenced the existence of medical

records in awarding TTD from November 16, 2012 through April 19,

2013. Therefore, it appears that LIRAB based its denial of TTD

from June 12, 2012 to November 15, 2012 on the lack of any

medical evidence in the record, not just the lack of

certifications of disability.

10 LIRAB’s COL 3 read:

Claimant worked sporadically after being released to
work in 2005, but he stopped working altogether in 2009
after a heart attack and heart surgery in 2006. Claimant
did not seek medical treatment for the November 30, 2004
work injury between 2005 and June 2012.
There is no medical certification of disability
resulting from the November 30, 2004 work injury for the
period of June 12, 2012 to November 15, 2012.
Based on medical certification of disability from Dr.
Capen, the medical records documenting Claimant’s office
visits with Dr. Capen for the periods of November 16, 2012
through April 19, 2013, and the Board’s findings that
Claimant was stable and permanent and returned to pre-June
12, 2012 aggravation status by April 19, 2013, the Board
concludes that Claimant was entitled to TTD benefits from
November 16, 2012 to April 19, 2013, as a result of the
June 12, 2012 aggravation of his November 30, 2004 thoracic
spine injury.
Pursuant to HRS § 386-25, the Board further concludes
that Claimant is entitled to TTD benefits while he was
enrolled in VR from August 8, 2013 through October 15, 2013,
and for any periods thereafter while enrolled in VR.

(Emphasis added.)

26
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

However, we stated in Panoke that “nothing in [HRS § 386-

31(b)] prescribes a particular method of proof” of TTD. 136

Hawai‘i at 466, 363 P.3d at 314. It is not clear in this case

that LIRAB considered the non-medical evidence in the record in

declining to award TTD for this period. For instance, LIRAB’s

FOF 24 found that Skahan sent a June 27, 2012 letter to First

Insurance seeking medical treatment due to the reinjury of his

back, requesting a change of physician, and stating that he “was

in a great deal of pain and having difficulty breathing.”

LIRAB’s COLs did not discuss this finding.

We have stated that “LIRAB must assess the quality of the

evidence that is presented, to determine whether the necessary

showing [of TTD] has been made.” Id. Considering the broad

humanitarian purpose of our workers’ compensation statutes, this

assessment should include non-medical evidence. See DeFries v.

Ass’n of Owners, 999 Wilder, 57 Haw. 296, 303, 555 P.2d 855, 860

(1976). However, it is possible that even if LIRAB considered

the non-medical evidence, it would have nevertheless determined

that Skahan failed to make a necessary showing of TTD from June

12, 2012 through November 15, 2012. LIRAB should clarify its

determination of this issue on remand.

27
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

We therefore vacate in part the ICA’s May 27, 2020 judgment

on appeal affirming LIRAB’s June 21, 2016 and January 3, 2019

decisions.11

V. Conclusion

We vacate in part the ICA’s May 27, 2020 judgment on appeal

affirming LIRAB’s June 21, 2016 and January 3, 2019 decisions,

and we vacate the ICA’s May 19, 2020 judgment on appeal

affirming LIRAB’s June 17, 2016 decision. We remand to LIRAB

for further proceedings consistent with this opinion.

Kenneth M. Skahan, /s/ Mark E. Recktenwald
Pro se
/s/ Paula A. Nakayama

Beverly S.K. Tom and /s/ Sabrina S. McKenna
Gary N. Kunihiro,
for Respondents /s/ Michael D. Wilson

/s/ Ronald G. Johnson

11 With respect to LIRAB’s June 21, 2016 and January 3, 2019 decisions,
Skahan’s application additionally argues LIRAB was required to explain how
Employer’s motion for stay of payments complied with HRS § 91-14(c). However,
HRS § 91-14 applies to judicial courts, not LIRAB.
Skahan argues the ICA failed to apply the proper standard of review
because it determined that LIRAB’s challenged COLs were mixed questions of
law and fact. However, many of LIRAB’s COLs incorporated its FOFs and
actually presented mixed questions of law and fact.
Skahan also argues LIRAB erred in concluding he was not permanently and
totally disabled under the odd-lot doctrine. “Under the odd-lot doctrine, an
injured employee may be considered permanently and totally disabled if [they
are] unable to obtain employment because of work-related permanent partial
disability combined with such factors as age, education, and work experience.”
Bumanglag v. Oahu Sugar Co., 78 Hawai‘i 275, 281, 892 P.2d 468, 474 (1995).
LIRAB’s June 21, 2016 decision discussed Skahan’s age, the extent of his
impairment, and his eligibility for VR services in finding that he was not
permanently totally disabled under the odd lot doctrine. After reviewing the
record, LIRAB’s determination was not clearly erroneous.
Therefore, Skahan’s arguments are without merit.

28