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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-JAN-2022
07:46 AM
Dkt. 37 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
KATHLEEN K. OKA, Claimant-Appellant-Appellant
v.
CITY AND COUNTY OF HONOLULU, CITY CLERKS OFFICE,
Employer-Appellee, Self-Insured-Appellee,
and
CITY AND COUNTY OF HONOLULU, DEPARTMENT OF HUMAN
RESOURCES/ISWC, Adjuster-Appellee-Appellee
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2014-202; DCD NO. 2-03-13472)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and McCullen, JJ.)
In this worker's compensation case, Claimant/Appellant-
Appellant Kathleen K. Oka (Oka) appeals from the Decision and
Order of the Labor and Industrial Relations Appeals Board (Board)
entered on January 10, 2018, affirming the Decision and Order of
the Director of Labor and Industrial Relations (Director) entered
on July 3, 2014.1 In its July 3, 2014 decision, the Director
determined that due to a work injury, Oka was entitled to
additional temporary total disability benefits from October 22,
2010 until March 2, 2011, 28% permanent partial disability of the
whole person for her neck injury and 15% permanent partial
1
Members Melanie S. Matsui and Marie C.L. Laderta issued the Board's
Decision and Order, with a dissenting opinion by Chair D.J. Vasconcellos.
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disability of the whole person for psychological problems, for a
total of 43% permanent partial disability, and $1,000 for certain
disfigurement compensation benefits from Employer/Appellee-
Appellee City and County of Honolulu (City). Oka appealed and
the sole issue before the Board was the extent of Oka's permanent
partial disability or permanent total disability resulting from
the work injury.
On appeal, Oka's primary contention is that the Board
erred in determining she is not permanently totally disabled
(PTD) under the odd-lot doctrine. In connection with this point,
Oka also challenges the Board's Findings of Fact (FOFs) numbers
53, 54, 55, 56, and 57 as clearly erroneous.2
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant legal authorities, we conclude the Board
erred in finding Oka failed to make a prima facie showing that
she fell within the odd-lot category for PTD.
A direct appeal from a Board decision is reviewed
according to Hawaii Revised Statutes (HRS) § 91-14(g) (2012 and
Supp. 2019).3
2
In her concise statement of the points of error, Oka challenges ten
FOFs entered by the Board. However, in her opening brief, Oka does not argue
her points of error regarding FOFs nos. 24, 29, 42, 44, and 52, so they may be
deemed waived. See Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(7)
("Points not argued may be deemed waived.").
3
HRS § 91-14(g) provides:
(g) Upon review of the record, the court may affirm
the decision of the agency or remand the case with
instructions for further proceedings; or it may
reverse or modify the decision and order if the
substantial rights of the petitioners may have been
prejudiced because the administrative findings,
conclusions, decisions, or orders are:
(1) In violation of constitutional or
statutory provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(continued...)
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Appeals taken from findings of fact set forth in decisions
of the Board are reviewed under the clearly erroneous
standard. Thus, this court considers whether such a finding
is clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record. The clearly
erroneous standard requires this court to sustain the
Board's findings unless the court is left with a firm and
definite conviction that a mistake has been made.
A conclusion of law is not binding on an appellate court and
is freely reviewable for its correctness. Thus, this court
reviews conclusions of law de novo, under the right/wrong
standard.
Bumanglag v. Oahu Sugar Co., 78 Hawai#i 275, 279, 892 P.2d 468,
472 (1995) (brackets and ellipsis omitted) (quoting Tate v. GTE
Hawaiian Tel. Co., 77 Hawai#i 100, 102-03, 881 P.2d 1246, 1248-49
(1994)).
The Hawai#i Supreme Court has noted,
One of the more colorful, but apt, definitions of the
odd-lot doctrine comes from Judge Cardozo:
He [the plaintiff] was an unskilled or common laborer.
He coupled his request for employment with notice that
the labor must be light. The applicant imposing such
conditions is quickly put aside for more versatile
competitors. Business has little patience with the
suitor for ease and favor. He is the 'odd lot' man,
the 'nondescript in the labor market.' Work, if he
gets it, is likely to be casual and intermittent.
Rebuff, if suffered, might reasonably be ascribed to
the narrow opportunities that await the sick and the
halt.
Yarnell v. City Roofing Inc., 72 Haw. 272, 274-75, 813 P.2d 1386,
1388 (1991) (ellipsis omitted) (quoting Jordan v. Decorative Co.,
130 N.E. 634, 635–36 (N.Y. 1921)).
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(...continued)
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the
whole record; or
(6) Arbitrary, or capricious, or characterized
by abuse of discretion or clearly
unwarranted exercise of discretion.
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Under the odd-lot doctrine:
If 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.
Id. at 275, 813 P.2d at 1388 (citing 2 A. Larson, Workmen's
Compensation Law § 57.61(c) at 10–178). Moreover,
The item missing from claimant's list of considerations is
any evidence as to specific availability of employment. In
other words, there is a presumption that, if claimant
suffers physically, and bears the additional
characteristics, then he has proved the prima facie case.
The employer then has the burden to prove the existence of
regular suitable employment.
Id. (emphasis added). In short, a claimant asserting application
of the odd-lot doctrine has the initial burden of making a prima
facie case that the claimant falls into the odd-lot category; if
the claimant makes a prima facie case, the burden shifts to the
employer to establish the existence of regular suitable
employment for the claimant. Id. at 275-76, 813 P.2d at 1388-89.
Whether a claimant falls into the odd-lot category is a question
of fact. Id. at 276, 813 P.2d at 1389. Whether the employer
shows some kind of suitable work is regularly and continuously
available to the claimant is also a question of fact. Id.
In Atchley v. Bank of Hawai#i, the Hawai#i Supreme Court
affirmed the Board's finding that claimant was not permanently
and totally disabled either medically or on an odd-lot basis
where the claimant was "a highly educated, professional man with
marketable skills and an ability to engage in profitable
behavior." 80 Hawai#i 239, 245, 909 P.2d 567, 573 (1996). The
Claimant in Atchley received "the equivalent of a bachelor's
degree with graduate studies[,]" had extensive background in the
banking industry and was employed as an assistant branch manager
for Bank of Hawai#i when he was injured at work. Id. at 240, 909
P.2d at 568. The Board found that claimant demonstrated an
ability to work following his second surgery and did so as an
assistant branch manager for four hours a day from September 1989
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to May 1990 at which point Claimant voluntarily chose to stop
working. Id. at 244, 909 P.2d at 572. A medical report stated
that after soft tissue therapy, "Claimant improved considerably
as his subjective complaints lessened by 50 percent and lumbar
range of motion increased." Id. However, claimant considered
himself to be significantly physically impaired, stating that he
was unable to be active on a daily basis for more than one hour.
Id.
The supreme court noted that:
Claimant has significant transferable skills within the
banking and the financial community which can be utilized to
secure sedentary employment, and his situation is
dramatically different from the typical odd-lot claimant who
is elderly, performs manual labor, has little or no
education, limited language skills, and additionally may
suffer from some kind of mental disorder or incapacity. See,
Tsuchiyama v. Kahului Trucking and Storage, Inc., 2 Haw.
App. 659, 638 P.2d 1381 (1982).
Atchley, 80 Hawai#i at 245, 909 P.2d at 573.
In Tsuchiyama, this Court affirmed the Board's finding
that the claimant fell within the odd-lot category where the
claimant had a high school education, did not speak English well,
was employed as a mechanic for over 40 years, sustained a back
injury resulting in 16% to 25% permanent total disability of the
whole person when he was 62 years old, could not engage in any
activity which required lifting more than 20 pounds, suffered
pain on sitting which became severe after a relatively short time
and had pain in squatting, etc., and employers were reluctant, as
was testified, to employ persons with known back trouble. 2 Haw.
App. at 660-61, 638 P.2d at 1382-83.
In this case, the Board found that Oka failed to meet
her burden of making a prima facie showing that she fell within
the odd-lot category "based on the entire mix of evidence,
including [Oka's] impairment ratings, which supported the
[permanent partial disability] award made by the Director, in
combination with her age, mental capacity, work experience,
transferable skills, and education[.]" In this regard, the Board
clearly erred.
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Oka has a high school education, attended Cannon's
Business School for two years although she did not obtain a
degree, was employed by the City as a city council aide from 1975
for almost 30 years, and sustained neck and psychiatric injuries
that resulted in 43% permanent partial disability of the whole
person. The Board found that Oka was close to 49 years old at
the time of the work injury and close to 61 years old at the time
of trial, voluntarily retired from employment with the City on
December 31, 2009, participated in more than 30 vocational
rehabilitation (VR) meetings, and completed her VR plan with
counselor Faith Lebb (Lebb). Lebb stated in a final VR report on
September 30, 2010 that she found Oka "motivated and resilient"
during the VR process. At trial, Lebb testified she looked for
general clerical or customer service positions for Oka, that Oka
expressed interest in a variety of other potential occupations
"such as travel, travel agent, such as working in a physical
therapy place, [and] fingerprinting[,]" and that Lebb
investigated and explored all those potential occupations.
Furthermore, Oka testified that she made more than 100 contacts
with employers seeking employment by either mailing or calling
them, and submitted many applications for jobs, but did not
receive an offer to interview and was unable to find employment.
Oka further testified that she did not tell potential employers
about her limitations, was interested in being employed and was
motivated by "survival." The Board did not question the
credibility of the VR evidence or Oka's efforts in seeking
employment.
Oka testified at trial that as a result of her injury,
she has a constant "nagging pain that goes from [her] neck to
[her] fingers" on her right arm, that her fingers feel "numb and
tingly like when normally people's feet kind of fall asleep[,]"
which affects her ability to use her right hand. Oka also has
stiffness in her back and is not too mobile and cannot sit or
stand for very long. Oka further testified that she is unable to
grasp things with her right hand although she is right-handed,
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her small motor skills have been affected, and Oka is unable to
use chopsticks with her right hand, and learned to use her foot
or feet to pick things up because she is unable to do so with her
right hand. Oka testified, inter alia, she is unable to type or
cook with her right hand, on occasional days will skip washing
her hair if her arm is really bothering her, and her clothing has
no buttons or zippers because she is unable to manipulate those
things. Moreover, Oka testified that due to her medication, she
sleeps about two hours a night on average and might have another
hour or so during the day if she is lucky, and due to her lack of
sleep and the medication, Oka has a hard time following oral
instructions, loses the trail of information given, lacks
concentration, and "kind of drift[s] off and tune[s] out."
The Board credited the opinions and reports of Dr.
Izuta, Oka's treating physician, Dr. Lau, Dr. Ozoa, and Dr. Okawa
over that of Dr. Mitsunaga regarding Oka's ability to work. "An
appellate court will decline to consider the weight of the
evidence presented or to review the findings of fact by passing
upon the credibility of witnesses or conflicts in the testimony."
Application of Akina Bus Serv., Ltd., 9 Haw. App. 240, 244, 833
P.2d 93, 95 (1992) (citation omitted).
On August 31, 2009, Psychiatrist Dr. Frank Izuta (Dr.
Izuta) prepared an "Estimated Capacity & Limitation Form"
restricting Oka to a sedentary type job. On August 28, 2015, Dr.
Izuta prepared a Physicians Report which continued to restrict
Oka to a sedentary type job and opined that Oka could lift ten
pounds occasionally, five pounds frequently, sit 30 to 60 minutes
without breaks during a total work shift, stand 20 to 30 minutes
without breaks for no more than four hours a shift, walk 10 to 20
minutes without breaks for no more than three hours a shift,
occasionally bend and twist at the waist, frequently bend at the
knees, and rarely work above chest height.
The Board also found that Dr. Clifford Lau (Dr. Lau)
opined that Oka could work with restrictions or accommodations.
However, as Chair Vasconcellos noted in his dissent, Dr. Lau
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testified at trial that his assessment of Oka's employability was
based upon her physical musculoskeletal problems alone and was
not based on any of Oka's psychological assessments. At trial,
Dr. Lau testified that he never assessed Oka's employability
based on her two psychological disorders, her ability to
concentrate from a psychological perspective, her fatigue, her
ability to attend work on a day-to-day basis, and/or her
tolerance for frustration.
In her March 1, 2013 report, psychologist Dr. Judy
Okawa (Dr. Okawa) summarized the effect Oka's impairment would
have to her concentration and adaptation as follows:
64. Activities of Daily Living: Class 2: MILD IMPAIRMENT.
. . . [Ms. Oka's] ability to travel outside of her secure
home base has been affected since last August when she began
suffering multiple panic attacks with agoraphobia. Ms. Oka
began to be afraid of enclosed places or situations from
which she could not easily leave, such as being stuck in
traffic on the H-1, being in a crowd, flying in an airplane,
waiting in line, or getting stuck in an elevator. Without
proper treatment, these anxiety symptoms could grow worse.
. . . .
66. Concentration, Persistence, & Pace: Class 3: MODERATE
IMPAIRMENT. Ms. Oka becomes fatigued very easily and her
concentration is impaired. Her ability to maintain focused
attention is variable. Contributory factors include
depression, lack of energy, deep fatigue, severely disturbed
sleep, and the Oxycontin she takes regularly to manage her
pain. While Ms. Oka showed persistence in trying to
complete tasks over the limited time of an hour-and-a-half-
long evaluation session, it is not likely that she would be
able to persist consistently over a period of a number of
hours on a daily basis while dealing with chronic pain. It
is also unlikely that she would be able to perform at a
consistent pace without an unreasonable number of rest
periods, given her chronic pain condition and the fatigue
and anxiety that accompany it.
67. Adaptation: Class 3: MODERATE IMPAIRMENT. Along with
chronic pain and her dependence on Oxycontin, Ms. Oka's
symptoms of depression and anxiety (including panic attacks)
are likely to affect her attendance at work and her ability
to consistently make decisions easily and complete tasks
expeditiously. Test results reveal that she is likely not
able to cope well with stress and that she has a low
tolerance for frustration. Stress at the workplace will
exacerbate her anxiety, which will in turn exacerbate her
pain and make it difficult for her to concentrate. This is
unfortunate, because she strikes me as a conscientious,
dedicated person who would be an asset to an employer if she
were not suffering from chronic pain that occupied all her
energy.
(Emphases added).
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Based on this record, including the evidence of Oka’s
work with Lebb in VR and Oka's extensive efforts to contact and
apply with potential employers without receiving any interviews
or offers, the pain and physical limitations Oka testified she
was experiencing, her age, Dr. Okawa's opinions about the likely
impact her depression and anxiety would have on her attendance at
work, ability to complete tasks expeditiously, and low tolerance
for frustration, and Dr. Izuta's report regarding Oka's physical
limitations in motion and ability, Oka made a prima facie showing
that she fell within the odd-lot category. Moreover, unlike the
claimant in Atchley, Oka does not have a higher education degree
and her limited motion and ability, specifically in her right
hand, and psychological limitations in her ability to maintain
focused attention, negatively affect the transferable skills from
Oka's training and prior work experience as a city council aide.4
Therefore, based upon the reliable, probative, and substantial
evidence in the whole record, the Board clearly erred in
determining that Oka did not make a prima facie showing that she
falls within the odd-lot doctrine.
The Board did not make any findings of fact regarding
whether the City presented evidence of available work, and thus,
we remand for further proceedings. See Yarnell, 72 Haw. at 276,
813 P.2d at 1389 (holding whether the employer failed or
succeeded in its burden of proof that there was suitable
4
In its FOFs, the Board found:
2. As a council aide, [Oka] coordinated and directed
activities preparatory and incidental to the overall
functions of the city council. Her job duties included the
following: meeting and conferring with departmental
officials; preparing agendas for council meetings and
hearings; selecting, assembling, summarizing, and compiling
substantive information on agenda items for the council,
preparing minutes for all meetings, briefings, workshops,
and task forces; reviewing correspondence and referring
matters for follow up to appropriate council members; and
composing and finalizing reports.
3. In her job as a council aide, [Oka] operated a computer,
printer, copier/scanner, fax machine, recorder, and
transcription equipment.
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employment is a factual question and where there is no factual
finding on this portion of the odd-lot test to review, the case
should be remanded for further proceedings).
Therefore, IT IS HEREBY ORDERED that the Decision and
Order entered on January 10, 2018, by the Labor and Industrial
Relations Appeals Board, is vacated. The case is remanded to the
Board for a determination whether the City met its burden to show
suitable work is regularly and continuously available to Oka, and
ultimately, whether the odd-lot doctrine applies.
DATED: Honolulu, Hawai#i, January 14, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Lowell K.Y. Chun-Hoon,
Rosalyn G. Payen, /s/ Katherine G. Leonard
(King, Nakamura & Chun-Hoon) Associate Judge
for Claimant-Appellant-
Appellant /s/ Sonja M.P. McCullen
Associate Judge
Karen R. Tashima,
Deputy Corporation Counsel,
for Employer-Appellee, Self-
Insured-Appellee and Adjuster-
Appellee-Appellee
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