NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-JUN-2023
07:52 AM
Dkt. 62 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
ROBSON R. PARO, Claimant-Appellant-Appellant,
v.
HAWAII HOME MANAGEMENT & CLEANING SERVICE LLC,
Employer-Appellee-Appellee,
and
FIRST INSURANCE COMPANY OF HAWAII, LTD.,
Insurance Carrier-Appellee-Appellee
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2021-130 and DCD NO. 2-20-45502)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)
Claimant-Appellant-Appellant Robson R. Paro appeals
from the Decision and Order filed by the Labor and Industrial
Relations Appeals Board (LIRAB) on October 20, 2021. For the
reasons explained below, we affirm.
Paro was employed by Employer-Appellee-Appellee Hawaii
Home Management & Cleaning Service LLC. He was injured while
working on July 14, 2020. He made a claim for workers
compensation benefits. The Department of Labor and Industrial
Relations (DLIR) Disability Compensation Division conducted a
hearing on April 27, 2021. The Director of the DLIR concluded
that Paro's injury was not compensable. The Director's Decision
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
was filed and mailed to Paro on August 6, 2021. The Decision
stated, in part:
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.
(Emphasis added.)
August 26, 2021 was the twentieth day after the
Decision was filed and mailed.1 Paro filed a notice of appeal on
August 27, 2021. LIRAB filed an order to show cause why the
appeal should not be dismissed as untimely. Paro filed a
response. Citing the Merriam-Webster dictionary, he stated that
the word "sent" is the past participle of "send," and that a past
participle "typically expresses completed action[.]" He claimed
to have received the Decision on August 9, 2021, which was when
the "sending" of the Decision was completed. Thus, he argued,
the director's Decision was "sent" on August 9, 2021, and his
August 27, 2021 notice of appeal was timely.
A hearing on the order to show cause was held on
October 14, 2021.2 LIRAB's Decision and Order was filed on
October 20, 2021. LIRAB found and concluded that "[t]he
Director's decision was dated and sent to the parties on
August 6, 2021" and Paro's notice of appeal was filed "on
August 27, 2021, one (1) day after the due date for filing of
August 26, 2021." LIRAB dismissed Paro's appeal.
This appeal followed.
"Appellate review of a LIRAB decision is governed by
the provisions of the Hawai#i Administrative Procedure Act
relating to judicial review of agency action." Ihara v. State
Dep't of Land & Nat. Res., 141 Hawai#i 36, 41, 404 P.3d 302, 307
(2017) (citations omitted). The Act provides, in relevant part:
1
Pursuant to Rule 201 of the Hawaii Rules of Evidence, we take
judicial notice that August 26, 2021 was a Thursday, and not a state holiday.
See Hawaii Revised Statutes § 8-1.
2
The record on appeal does not contain a transcript of the hearing.
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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;
(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.
HRS § 91-14(g) (Supp. 2019).
LIRAB's Decision and Order was based upon Hawaii
Revised Statutes (HRS) § 386-87(a) (2015). The statute provides,
in relevant part:
(a) A decision of the director shall be final and
conclusive between the parties, except as provided in
section 386-89, 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.
(Emphasis added.) The issue on appeal is: when is a decision of
the director "sent" for purposes of HRS § 386-87(a)?
"It is well-established that when a statute's language
is plain and unmistakable, the court is bound by the plain, clear
and unambiguous language of the statute." State v. Mortensen-
Young, 152 Hawai#i 385, 396, 526 P.3d 362, 373 (2023) (cleaned
up). Accordingly, we first examine the plain, clear, and
unambiguous meaning of the word "sent." According to the
Merriam-Webster dictionary, sent is the "past tense and past
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participle of SEND[.]"3 Synonyms for sent include transmitted
and dispatched.4 Antonyms for sent include received.5 Thus,
under the plain meaning of HRS § 386-87(a), the director's
decision is "sent to each party" when it is transmitted or
dispatched — mailed — by the DCD to each party, not when it is
actually received by any party.
Paro argues that because subsection (d) of HRS § 386-87
uses the word "mailing" to describe when various other deadlines
begin to run,6 the word "sent" in subsection (a) must mean
something other than "mailed." See Agustin v. Dan Ostrow Const.
Co., 64 Haw. 80, 83, 636 P.2d 1348, 1351 (1981) ("[D]ifferent
words in a statute are presumed to have different meanings.").
Paro's argument lacks merit. The director's decision is sent to
the parties under HRS § 386-87(a) when it is transmitted or
dispatched by the DCD, which could include — but is not limited
to — mailing by the DCD. But requiring that the decision
actually be received by any party to be considered sent by the
DCD contradicts the plain, clear, and unambiguous language of HRS
§ 386-87(a).
3
Sent, Merriam-Webster, https://www.merriam-webster.com/
dictionary/sent (last visited May 31, 2023).
4
Sent, Merriam-Webster, https://www.merriam-webster.com/
thesaurus/sent (last visited May 31, 2023).
5
Sent, Merriam-Webster, https://www.merriam-webster.com/
thesaurus/sent (last visited May 31, 2023).
6
HRS § 386-87(d) (2015) provides:
(d) In the absence of an appeal and within thirty
days after mailing of a certified copy of the appellate
board's decision or order, the appellate board may, upon the
application of the director or any other party, or upon its
own motion, reopen the matter and thereupon may take further
evidence or may modify its findings, conclusions or
decisions. The time to initiate judicial review shall run
from the date of mailing of the further decision if the
matter has been reopened. If the application for reopening
is denied, the time to initiate judicial review shall run
from the date of mailing of the denial decision.
(Emphasis added.)
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LIRAB's combined finding and conclusion that the
Director's Decision was sent to Paro on August 6, 2021, is
supported by substantial evidence in the record, is not clearly
erroneous, and reflects a correct application of HRS § 386-87(a).
LIRAB's combined finding and conclusion that Paro's notice of
appeal was filed "on August 27, 2021, one (1) day after the due
date for filing of August 26, 2021" is also supported by
substantial evidence in the record, is not clearly erroneous, and
reflects a correct application of HRS § 386-87(a). Accordingly,
LIRAB's Decision and Order filed on October 20, 2021, is
affirmed.
DATED: Honolulu, Hawai#i, June 7, 2023.
On the briefs:
/s/ Katherine G. Leonard
Leighton K. Lee, Presiding Judge
for Claimant-Appellant-
Appellant Robson R. Paro. /s/ Keith K. Hiraoka
Associate Judge
Gary N. Kunihiro,
Christine J. Kim, /s/ Clyde J. Wadsworth
Raquelle A. Pendleton, Associate Judge
for Employer-Appellee-
Appellee Hawaii Home
Management & Cleaning
Services LLC and First
Insurance Company
of Hawaii, Ltd., Insurance
Carrier-Appellee-Appellee.
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