NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-MAY-2021
07:55 AM
Dkt. 68 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
ILUMINADA M. ISLAO, Claimant-Appellant,
v.
CASTLE AND COOKE RESORTS, LLC, Employer-Appellee, Self-Insured,
and
SEDGWICK CMS, Third-Party Administrator-Appellee
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(AB 2013-428 (DCD NO. 2-09-02436))
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Claimant-Appellant Iluminada M. Islao (Islao), self-
represented, appeals from an "Order Adopting Proposed Decision
and Order in Part, with Modifications" (Decision) issued by the
Labor and Industrial Relations Appeals Board (LIRAB) on February
8, 2017. In the Decision, the LIRAB rendered certain rulings
against Islao with regard to her claims for workers' compensation
benefits from Employer-Appellee Castle and Cooke Resorts, LLC
(Castle and Cooke), and Third-Party Administrator-Appellee
Sedgwick CMS (Sedgwick).
On appeal, Islao raises two points of error contending:
(1) the LIRAB erred in finding that she is not permanently
totally disabled (PTD) under the odd-lot doctrine; and (2) the
LIRAB should have sent the case back to the Director of the
Department of Labor and Industrial Relations, Disability
Compensation Division (Director) to determine if she should get
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
further vocational rehabilitation (VR) before deciding the odd-
lot issue.
We vacate the LIRAB's Decision with regard to its
apparent rejection of the odd-lot doctrine in this case without
making necessary findings.
I. Factual Background
On February 18, 2009, Islao sustained an injury to her
right wrist arising out of and during the course of her
employment as a Sales Associate for Castle and Cook. Islao was
twisting the crown of a pineapple during a customer demonstration
at the Dole Plantation in Wahiawâ, Hawai#i when she strained her
right wrist. Islao was diagnosed with a right wrist sprain. On
March 17, 2009, an MRI of Islao's right wrist revealed the
possibility of a scapholunate ligament tear or instability with
arthropathy in the scapholunate articulation, distal radial ulnar
joint effusion with mild heterogeneity of the triangular
fibrocartilage, and cystic appearing changes in the capitate
bone.
After further diagnoses by several doctors, in December
of 2010, Dr. James Langworthy (Dr. Langworthy) performed an
independent medical examination (IME). Dr. Langworthy determined
that Islao was at maximum medical improvement (MMI), stable,
ratable and rated Islao at 11% impairment of the right hand based
upon the AMA Guides to the Evaluation of Permanent Impairment,
5th Ed. He also concluded that she had no disfigurement.
On March 16, 2010, Physical Therapist Florian Flores
(Flores) performed a Functional Capacity Evaluation (FCE) on
Islao. Based upon the test results, Islao was found to be
capable of performing work at a physical demand level of
sedentary-light work level for an eight-hour day, which allows
for fifteen (15) pounds lifting and carrying capacity. However,
Flores indicated in the FCE Reliability Profile that the test
results were invalid, giving Islao a validity score of 50% due to
"very poor effort, or voluntary submaximal effort that is not
necessarily related to pain, impairment or disability." Flores
opined that the sedentary-light level designation was based upon
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inaccurate test results due to Islao's poor effort, and estimated
that she could likely work at the physical demand level of light
work, which reflects an ability to perform at a strength
classification level of up to twenty pounds.
Islao was referred for vocational rehabilitation (VR)
services with VR counselor Faith Lebb (Lebb) on March 24, 2011.
The VR file was opened with the initial evaluation report date of
April 20, 2011. The Initial Evaluation stated that Islao
graduated from high school in the Philippines and received a
diploma in 1978. English is her second language. Islao worked
as a Sales Associate with Castle and Cooke at the Dole
Plantation. Her job duties included stocking shelves with
merchandise, pineapple crowning, completing demonstrations for
tourists, operating the cash register, and accepting payments.
Lebb noted that Islao would likely not be able to return to her
position as a sales associate, as a sales associate position is
considered "very heavy duty" work because it requires lifting and
carrying more than seventy-five (75) pounds.
Due to Islao's light duty work restrictions, and
certifications or specific training required for jobs in positive
labor markets, the VR counselor recommended Islao obtain computer
skills training to broaden the labor markets in which she was
able to search for work, as most jobs meeting Islao's physical
restrictions require basic computer skills.
In VR, Islao sought employment in various fields
including general clerk and customer service. Islao completed
introductory computer classes to find work that would be
appropriate for her physical limitations. At the end of Islao's
VR, she remained unemployed. A VR determination dated September
7, 2012, stated that Islao successfully completed computer
training, had 120 days of placement services followed by 60 more
days of placement totaling 180 days, and thereafter had
marketable skills and the ability to job search on her own.
On August 18, 2014, VR Counselor Priscilla Havre
(Havre) issued a report based on an independent review of Islao's
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VR records. Havre opined that Islao has the capacity to perform
full-time light work even with her injury to her right wrist.
II. Procedural Background
On June 27, 2013, the Director held a hearing to
determine: (1) whether Islao sustained any PPD or disfigurement
as a result of the industrial injury; and (2) if so, what was the
extent of the PPD and/or disfigurement.
The Director filed a Decision on July 19, 2013,
determining in pertinent part: (1) Claimant was not PTD;
(2) Claimant sustained 14% PPD of the right hand; (3) Employer
was entitled to a credit for advance PPD payments beginning
September 8, 2012; and (4) there was no disfigurement from this
injury. Islao appealed the Director's Decision to the LIRAB.
Pursuant to the LIRAB's Pretrial Order filed on
February 11, 2014, the four issues to be determined by the LIRAB
were:
(1) Whether Claimant is entitled to, and
Employer/Third-Party Administrator is liable for, temporary
total disability benefits after September 7, 2012, for the
work injury of February 18, 2009.
(2) Whether Claimant is permanently totally disabled due to
the February 18, 2009 work injury, and, if not, what is the
extent of permanent partial disability, if any, for
Claimant's February 18, 2009 right hand work injury.
(3) Whether Employer/Third-Party Administrator is authorized
to credit temporary total disability benefits paid beginning
September 8, 2012, against the award for permanent partial
disability benefits.
(4) What is the extent of disfigurement for Claimant's
February 18, 2009 right hand work injury?
Trial was held on October 24, 2014.
On August 18, 2016, LIRAB issued a "Proposed Decision
and Order" (Proposed Decision) in which the issue of the odd-lot
doctrine was addressed, inter alia, in Findings of Fact (FOF) 60,
73, and 98, as well as extensively analyzed in Conclusion of Law
(COL) 4. In FOFs 60, 73 and 98, the Proposed Decision states:
60. For various reasons, the Board finds evidence that
regular suitable employment existed for a person in [Islao's]
condition during her enrollment in the VR Plan.
. . .
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73. The Board finds that during the time period of
the VR plan that Employer has met its burden of proving that
regular suitable employment existed for a person in
Claimant's condition.
. . .
98. Given the entire mix of [Islao's] permanent
impairment, age, education, training and experience, mental
capacity, the Board finds that, given the aggregate of
evidence, [Islao] has proven, prima facie, that she falls
within the odd-lot category.
Further, in COL 4, the Proposed Decision determines that Islao
met her burden of proving that she suffered a work-related
permanent partial disability, Islao made a prima facie showing
that she falls in the odd-lot category, but that employer Castle
and Cooke "met its burden of proving that regular suitable
employment exists for [a] person in [Islao's] condition." Thus,
the Proposed Decision in COL 4 states: "Therefore, the Board
concludes that [Islao] is not medically PTD and not PTD under the
odd-lot doctrine as a result of the February 18, 2009 work
injury."
The parties were given the opportunity to submit
written exceptions to the Proposed Decision, and Islao submitted
a request for reconsideration and a request for further hearing,
which was treated as written exceptions. Castle and Cooke
submitted its opposition to Islao's request, and a further
hearing was held on Islao's written exceptions on October 19,
2016.
On February 8, 2017, the LIRAB issued its Decision,
which adopted the Proposed Decision only in part and with
modifications. The Decision did not adopt FOFs 60, 73, or 98
from the Proposed Decision. Further, the Decision states:
IT IS FURTHER ORDERED that the Board adopts Conclusion
of Law 4, but only to the extent it determined that Claimant
was not permanently and totally disabled as a result of the
February 18, 2009 work injury and the cases cited. The
Board does not adopt the analysis as stated in the Proposed
Decision and Order.
The Board adds the following into Conclusion of Law 4
of the [Proposed Decision], as related to the issue of PTD:
As acknowledged by Claimant, she is not totally
disabled and is able to work. Claimant is able to work
at the light duty level, but has only been seeking
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more restrictive sedentary jobs. Additionally she has
also imposed a further limitations based on her desire
for work that will not affect her Social Security
benefits.
(Emphases added).
III. Discussion
A. Odd-Lot Doctrine
Islao first contends that she is entitled to PTD
benefits under the odd-lot doctrine because: "she is 59 years old
and 10 months"; has "a limited education" and "limited job
experience"; her "[E]nglish speaking, writing and understanding
is not so good"; and she is disabled with work restrictions
including the inability to "carry or lift heavy objects."
Under the odd-lot doctrine, "where an employee receives
a work-related permanent partial disability which combined with
other factors such as age, education, experience, etc., renders
the person, in fact, unable to obtain employment, the person is
entitled to be treated as being permanently totally disabled."
Tsuchiyama v. Kahului Trucking & Storage Inc., 2 Haw. App. 659,
660–61, 638 P.2d 1381, 1382 (1982) (citation omitted). The
employee has the burden of establishing a prima facie case that
he or she falls within the odd-lot category. Id. at 661, 638
P.2d at 1382 (citation omitted); Yarnell v. City Roofing Inc.,
72 Haw. 272, 275, 813 P.2d 1386, 1388 (1991). Furthermore,
[i]f the evidence of degree of obvious physical impairment,
coupled with other facts such as claimant's mental capacity,
education, training, or age, places claimant prima facie in
the odd-lot category, the burden should be on the employer
to show that some kind of suitable work is regularly and
continuously available to the claimant.
Yarnell, 72 Haw. at 275, 813 P.2d at 1388 (citation omitted).
If the burden shifts to the employer to show that some
kind of suitable work is regularly and continuously available to
the claimant, whether the employer failed or succeeded in its
burden of proof is a factual question. Id. at 276, 813 P.2d at
1389. A finding by LIRAB on this issue is reviewed on appeal
under the clearly erroneous standard. See Atchley v. Bank of
Hawai#i, 80 Hawai#i 239, 245, 909 P.2d 567, 573 (1996) (noting it
is the duty of the LIRAB to make a finding whether a claimant is
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permanently and totally disabled either medically or on an odd-
lot basis, "and it should not be overturned unless such
determination was clearly erroneous in light of the evidence on
the whole record").
Here, because LIRAB only adopted the Proposed Decision
in part and with modifications, as noted above, there are no
findings by LIRAB in the final Decision whether Islao met her
prima facie burden of showing that she was in the odd-lot
category.
Further, even if we assume arguendo there was a finding
(or enough evidence in the record) that Islao met her prima facie
burden, such that the burden shifted to the employer, there is no
finding by LIRAB whether Castle and Cooke made a showing that
some kind of suitable work is regularly and continuously
available to Islao. In short, given that the Decision did not
incorporate or adopt the relevant findings in the Proposed
Decision, necessary findings by the LIRAB related to whether the
odd-lot doctrine applies in this case are not present in the
record.
In Yarnell, there was "nothing in the LIRAB decision
which indicate[d] that the [employer] either failed or succeeded
in its burden of proof that there was suitable employment[.]"
72 Haw. at 276, 813 P.2d at 1389. On appeal, this court made a
finding, based on the record, that the employer failed to prove
the availability of steady work, but the Hawai#i Supreme Court
held that:
the ICA exceeded its scope of review on this portion of the
odd-lot test, by making its own determination. The standard
of review for the ICA, on a factual finding, was the clearly
erroneous standard. Since there was no factual finding on
this portion of the odd-lot test to review, the case should
have been [remanded] for further proceedings.
Id.; see also Lardizabal v. No Ka Oi Producers, Inc.,
No. CAAP–13–0005885, 2016 WL 6781371, at *4 (App. Nov. 16, 2016)
(remanding the case where the LIRAB, in addressing the odd-lot
doctrine, had not made a factual finding whether the employer
failed or succeeded in its burden of proof that there was
suitable employment).
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Given the record, and the lack of necessary findings by
the LIRAB, we will remand for further proceedings on the odd-lot
doctrine.
B. VR Closure
In Islao's second issue on appeal, she asserts that the
LIRAB should have adjudicated the issue of VR closure prior to
the determination of whether she is PTD under the odd-lot
doctrine. Islao does not point to where in the record she raised
this issue and it appears to be raised for the first time in this
appeal and is waived.
The Decision adopted FOF 68 of the Proposed Decision,
which found that the issue of the VR closure was not before the
LIRAB, that the Director had not determined the issue of VR
closure, and thus the Director had jurisdiction over the issue.
Given that Islao did not seek to have the odd-lot
ruling stayed until the VR closure issue was addressed by the
Director, her second point of error is waived.
IV. Conclusion
Based on the above, the "Order Adopting Proposed
Decision and Order in Part, with Modifications" filed by the
LIRAB on February 8, 2017, is vacated with regard to the issue of
the odd-lot doctrine. This case is remanded to the LIRAB for
further proceedings consistent with this Memorandum Opinion and
to make necessary findings related to the odd-lot doctrine.
DATED: Honolulu, Hawai#i, May 21, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Iluminada M. Islao,
Claimant-Appellant. /s/ Katherine G. Leonard
Associate Judge
Samantha M.Y. Chan,
Kenneth T. Goya /s/ Keith K. Hiraoka
Steven L. Goto, Associate Judge
for Employer-Appellee and
Third-Party Administrator-
Appellee.
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