NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-MAY-2022
07:47 AM
Dkt. 76 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JEREMY A.K. KONOHIA, Claimant-Appellant-Appellant,
v.
COMMODITY FORWARDERS, INC., Employer-Appellee-Appellee,
and
LIBERTY MUTUAL INSURANCE, Insurance Carrier-Appellee-Appellee,
and
SPECIAL COMPENSATION FUND, Respondent-Appellee-Appellee
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2020-161(M) AND DCD NO. 7-16-01602)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and McCullen, JJ.)
Self-represented Claimant-Appellant-Appellant
Jeremy A.K. Konohia appeals from the Decision and Order (D&O)
entered by the Hawai#i Labor and Industrial Relations Appeals
Board (LIRAB) on February 10, 2021. For the reasons explained
below, we affirm the LIRAB D&O.
On June 9, 2016, Konohia was injured while working for
Employer-Appellee-Appellee Commodity Forwarders, Inc. (together
with Insurance Carrier-Appellee-Appellee Liberty Mutual
Insurance, Employer). Konohia reported his injury to Employer,
and a claim for workers compensation benefits was initiated.
Konohia received treatment for his injury and payment of
temporary total disability (TTD) benefits.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
The Hawai#i Department of Labor and Industrial
Relations (DLIR) Disability Compensation Division (DCD) conducted
a hearing on August 26, 2020. On September 3, 2020, the DCD
issued a written decision, signed on behalf of the director of
labor (the Director's Decision). The Director's Decision stated:
APPEAL: This decision may be appealed by filing a written
notice of appeal with the Director of Labor and Industrial
Relations or the Director's county representative within
twenty days after a copy of this decision has been sent.
DLIR mailed the Director's Decision to Konohia on September 3,
2020.
By handwritten letter dated September 20, 2020, Konohia
appealed the Director's Decision.1 The envelope that contained
Konohia's appeal was postmarked September 21, 2020. The envelope
and letter both bear date stamps of September 24, 2020.
By letter dated September 25, 2020, DLIR informed
Konohia that it had received his appeal letter on September 24,
2020.
On November 24, 2020, LIRAB issued an order to show
cause why Konohia's appeal should not be dismissed as untimely.
Konohia and Employer were directed to respond. A hearing was set
for December 22, 2020. An amended order to show cause was
issued, resetting the hearing for January 7, 2021.
The record on appeal does not contain a written
response by Konohia to either of the orders to show cause, or a
transcript of the LIRAB hearing. LIRAB issued the D&O on
February 10, 2021. LIRAB found that Konohia's appeal was due on
September 23, 2020, but was filed with DLIR's Maui district
office on September 24, 2020. LIRAB concluded that the appeal
was untimely under Hawaii Revised Statutes (HRS) § 386-87(a), and
that the statutory deadline was mandatory, citing Kissell v. Lab.
1
We take judicial notice, pursuant to Rule 201 of the Hawai#i Rules
of Evidence, that September 20, 2020 was a Sunday.
2
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& Indus. Rels. Appeals Bd., 57 Haw. 37, 549 P.2d 470 (1976).
LIRAB dismissed Konohia's appeal. This appeal followed.2
It is well-established that appellate courts review LIRAB's
findings of fact under the clearly erroneous standard.
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 right/wrong standard.
Skahan v. Stutts Constr. Co., 148 Hawai#i 460, 466, 478 P.3d 285,
291 (2021) (cleaned up).
LIRAB found that "[t]he Director's [D]ecision was dated
and sent to the parties on September 3, 2020." That finding was
supported by substantial evidence and was not clearly erroneous.
LIRAB concluded that "[t]he due date for filing a
timely appeal in this case was September 23, 2020." That
conclusion was right under HRS § 386-87.3
LIRAB found that Konohia's appeal was "filed with
[DLIR's] Maui District Office on September 24, 2020[.]" That
finding was supported by substantial evidence and was not clearly
erroneous.
LIRAB concluded that "the time for filing a written
notice of appeal is mandatory." That conclusion was right.
Kissell, 57 Haw. 37, 549 P.2d 470; see also Nickells v. Wal-Mart
Stores, Inc., 98 Hawai#i 508, 51 P.3d 375 (App. 2002).
2
Konohia's opening brief does not comply with Rule 28 of the
Hawai#i Rules of Appellate Procedure. Nevertheless, the Hawai#i Supreme Court
instructs that to promote access to justice, pleadings prepared by self-
represented litigants should be interpreted liberally, and self-represented
litigants should not automatically be foreclosed from appellate review because
they fail to comply with court rules. Erum v. Llego, 147 Hawai#i 368, 380-81,
465 P.3d 815, 827-28 (2020).
3
HRS § 386-87 (2015) provides, in relevant part:
Appeals to appellate board. (a) A decision of the director
shall be final and conclusive between the parties, except as
provided in section 386-89 ["Reopening of cases"], unless
within twenty days after a copy has been sent to each party,
either party appeals therefrom to the appellate board by
filing a written notice of appeal with the appellate board
or the department.
(bold italics added).
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LIRAB found and concluded that the Director's Decision
"was sent to the parties on September 3, 2020 and Claimant's
appeal was filed on September 24, 2020. Claimant's appeal was
filed 1 day late. Accordingly, the mandatory nature of
§386-87(a), HRS, requires dismissal of this appeal." This
combined finding and conclusion was supported by LIRAB's findings
of fact and reflected an application of the correct rule of law.
See Hawai#i Administrative Rules § 12-47-12 ("The file stamped
date on the document shall be regarded as the date of filing.").
Accordingly, it will not be overturned. Est. of Klink ex rel.
Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504, 523 (2007).
For the foregoing reasons, the Decision and Order
entered by the Hawai#i Labor and Industrial Relations Appeals
Board on February 10, 2021, is affirmed.
DATED: Honolulu, Hawai#i, May 12, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Jeremy A.K. Konohia, Chief Judge
Self-represented Claimant-
Appellant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Kimberly T. Guidry,
Kaliko#onālani D. Fernandes, /s/ Sonja M.P. McCullen
Deputies Solicitor General, Associate Judge
for Respondent-Appellee-
Appellee Special Compensation
Fund.
Blaine W. Fujimoto,
Matthew K. Wong,
for Employer-Appellee-Appellee
Commodity Forwards, Inc. and
Insurance Carrier-Appellee-Appellee
Liberty Mutual Insurance.
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