Oral argument Before the Hawaii Supreme Court
No. SCWC-11-0000556, Thursday, January 8, 2015, 10 a.m.
DAVID PANOKE, Petitioner/Claimant-Appellant, vs. REEF DEVELOPMENT, Respondent/Employer-Appellee, and SEABRIGHT INSURANCE, Respondent/Insurance Carrier-Appellee.
The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
Attorney for Petitioner:
Wayne H. Mukaida
Attorneys for Respondent:
Colette H. Gomoto
NOTE: Order accepting Application for Writ of Certiorari, filed 11/14/14.
COURT: MER, C.J.; PAN, SSM, RWP, & MDW, JJ.
Petitioner/Claimant-Appellant David Panoke (Panoke) applied for a writ of certiorari from the Intermediate Court of Appeals’ (ICA) July 31, 2014 judgment, entered pursuant to the ICA’s June 30, 2014 summary disposition order. The ICA affirmed the Labor and Industrial Relations Appeals Board’s (LIRAB) June 14, 2011 Decision and Order.
This case arises out of an accident that occurred while Panoke was working at a construction site for his employer, Reef Development (Reef). Following the accident, Panoke filed a worker’s compensation claim with Reef. Panoke injured his back in the accident, and Reef accepted liability for Panoke’s back injury. Panoke later also complained of pain in both shoulders, but Reef denied liability for Panoke’s shoulder injuries. Reef claimed that Panoke’s shoulder pain was the result of prior injuries and conditions, and not Panoke’s work-related accident.
The Disability Claims Division (DCD) found that Panoke’s shoulder injuries were a result of his work-related accident, and ordered Reef to pay Panoke temporary total disability (TTD) payments for both his shoulder and back injuries. Reef appealed the DCD’s decision to the LIRAB. The LIRAB reversed the DCD decision and found that Panoke’s shoulder injuries were not a result of Panoke’s work-related accident, based on the testimony of a physician who had examined Panoke at Reef’s request.
The ICA held that the LIRAB did not err in finding that Panoke’s shoulder injuries were not a result of his work-related accident because Reef had adduced substantial evidence at the LIRAB trial to overcome the presumption of coverage that is afforded to employees in worker’s compensation claims. The ICA also held that the LIRAB did not err in its determination of the periods for which Panoke was entitled to TTD benefits, and that the LIRAB did not err in declining to impose penalties against Reef for late payment of TTD benefits to Panoke.
On appeal to this court, Panoke argues that: (1) the ICA erred in failing to overrule the LIRAB’s finding that Panoke’s shoulder injuries were not caused by his work-related accident, because the testimony relied upon by the LIRAB was not substantial evidence; (2) the ICA erred in failing to grant Panoke further TTD benefits beyond the periods granted by the LIRAB; and (3) the ICA erred in affirming the LIRAB’s decision not to award penalties against Reef for late payment of TTD benefits.