No. 30226, Wednesday, January 11, 2012, 10 a.m.

REGINALD BOTELHO, Claimant-Appellant vs. ATLAS RECYCLING CENTERS, LLC and HAWAII EMPLOYERS’ MUTUAL INSURANCE COMPANY, Employer/Insurance Carrier-Appellee and SPECIAL COMPENSATION FUND, Appellee.

Attorney(s) for Claimant-Appellant: Stanford H. Masui

Attorney(s) for Employer/Insurance Carrier-Appellee: Brian G.S. Choy and Keith M. Yonamine

COURT: Nakamura, C.J., Foley and Leonard, JJ.

SPECIAL NOTE: The above argument will take place in the Supreme Court courtroom on the Second Floor of Ali`iolani Hale, 417 South King Street, Honolulu, Hawai`i.

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Brief Description:

In this workers’ compensation case, the Director of the Department of Labor and Industrial Relations (Director) assessed attorney’s fees and costs against Employer-Appellee Atlas Recycling Centers, LLC and Insurance Carrier-Appellee Hawai`i Employers’ Mutual Insurance Company, Inc. (collectively, “Employer”) and in favor of Claimant-Appellant Reginald G. Botelho (Botelho), pursuant to Hawaii Revised Statutes (HRS) § 386-93(a). Employer appealed to the Labor and Industrial Relations Appeals Board (LIRAB). Finding the reasoning of the Intermediate Court of Appeal (ICA) in the ICA’s unpublished summary disposition order in Kelly v. Metal-Weld Specialties, Inc., Nos. 27127 and 27208 (Hawai`i App. September 30, 2008), to be persuasive, the  LIRAB construed HRS § 386-93(a) as only authorizing the assessment of costs, and not attorney’s fees. The LIRAB therefore issued a Decision and Order reversing the Director’s assessment of attorney’s fees against Employer.

Botelho appeals from the LIRAB’s Decision and Order. On appeal, Botelho argues that the LIRAB erred in construing HRS § 386-93(a) as only authorizing the assessment of costs, and not attorney’s fees.