No. SCWC-18-0000119, Thursday, August 29, 2024, 10:30 a.m.

DELBERT P. COSTA, JR., Petitioner/Claimant-Appellee-Appellant, vs. COUNTY OF HAWAIʿI, DEPARTMENT OF WATER SUPPLY, Respondent/Employer-Appellant-Self-Insured-Appellee, and COUNTY OF HAWAIʿI, HEALTH AND SAFETY DIVISION, Respondent/Adjuster-Appellant-Appellee.

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The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorneys for Petitioner/Claimant-Appellee-Appellant DELBERT P. COSTA, JR.:

     Herbert R. Takahashi and Rebecca L. Covert, of Takahashi and Covert

Attorneys for Respondent/Employer-Appellant-Self-Insured-Appellee COUNTY OF HAWAIʿI, DEPARTMENT OF WATER SUPPLY, and Respondent/Adjuster-Appellant-Appellee COUNTY OF HAWAIʿI, HEALTH AND SAFETY DIVISION:

     Gary N. Kunihiro, Shawn L. M. Benton and Christine J. Kim of Leong Kunihiro Benton & Brooke

NOTE:     Order accepting Application for Writ of Certiorari, filed 07/10/24 

COURT:    Recktenwald, C.J., McKenna, Eddins, Ginoza, Devens, JJ.

Brief Description:

This is a workers’ compensation case involving the imposition of a penalty under Hawai‘i Revised Statutes (HRS) § 386-92 for an employer’s alleged failure to pay temporary total disability (TTD) benefits. Delbert P. Costa Jr. suffered a work-related stress injury in May 2012 while employed as a waterworks helper for the County of Hawai‘i. In a June 2013 decision and order, the Director of the Department of Labor and Industrial Relations concluded that the County “shall pay for such medical care, services and supplies as the nature of the injury may require.” That same decision stated that “[t]he matters of average weekly wages, temporary disability, permanent disability and/or disfigurement, if any, shall be determined at a later date.”

In April 2014, the Director issued a supplemental decision, concluding that the County “shall pay to claimant weekly compensation . . . for total disability.” The Director also imposed a “20% penalty for late payment of temporary disability benefits” on the County under HRS § 386-92.

A majority of the Labor and Industrial Relations Appeals Board (LIRAB) reversed the Director’s decision to impose a penalty, over a dissenting Board member. The Intermediate Court of Appeals (ICA) affirmed the LIRAB majority’s decision.

In his certiorari application, Costa argues that the ICA erred because it did not properly apply the legislative intent of the penalty provision, which was to impose an enforcement remedy for late TTD payments. He also argues that this court’s decision in Panoke v. Reef Development of Hawai‘i, Inc., 136 Hawai‘i 448, 363 P.3d 296 (2015) mandates imposition of a penalty on the employer from the time of the first decision.

The County asserts that a plain reading of HRS § 386-92 shows that it should not be obligated to pay a penalty because it initially controverted its liability for Costa’s injury and because the Director’s June 2013 decision did not decide the issue of TTD.