Suzuki v. American Healthways, Inc ( 2023 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
08-MAR-2023
08:26 AM
Dkt. 9 OPPC
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
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________________________________________________________________
LOLA L. SUZUKI,
Petitioner/Claimant-Appellant-Appellant,
vs.
AMERICAN HEALTHWAYS, INC.,
Respondent/Employer-Appellee-Appellee,
ST. PAUL TRAVELERS,
Respondent/Insurance Carrier-Appellee-Appellee,
and
LORNE K. DIRENFELD, M.D., GARY N. KUNIHIRO, ESQ.,
and SHAWN L.M. BENTON, ESQ., Respondents/Appellees-Appellees.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NOS. AB 2007-497(S) AND AB 2007-498(S);
DCD NOS. 2-06-14727 AND 2-07-04617)
MARCH 8, 2023
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
PER CURIAM
In this workers’ compensation case,
Petitioner/Claimant-Appellant-Appellant Lola L. Suzuki
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(Petitioner) asserts that the Intermediate Court of Appeals
(ICA) erred when it dismissed the appeal for lack of
jurisdiction. According to the ICA, the order appealed from
does not constitute an appealable final order.
However, Petitioner’s motion that requested leave to
appeal acknowledged that the order was not an appealable final
order, and instead sought an appeal under the preliminary ruling
language of Hawaiʻi Revised Statutes (HRS) § 91-14(a) (Supp.
2016).1 The Labor and Industrial Relations Appeals Board (LIRAB)
granted this request.
For the reasons discussed below, we hold that the ICA
erred when it dismissed this appeal for lack of jurisdiction.
We thus vacate the ICA’s November 3, 2022 dismissal order and
remand this appeal to the ICA for further consideration.
I.
Petitioner reported a work-related injury on
December 18, 2006, claiming that her injury occurred while
1 HRS § 91-14(a) states in pertinent part:
(a) Any person aggrieved by a final decision
and order in a contested case or by a preliminary
ruling of the nature that deferral of review pending
entry of a subsequent final decision would deprive
appellant of adequate relief is entitled to judicial
review thereof under this chapter; but nothing in
this section shall be deemed to prevent resort to
other means of review, redress, relief, or trial de
novo, including the right of trial by jury, provided
by law.
(Emphasis added.)
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employed as a registered nurse with her employer,
Respondent/Employer-Appellee-Appellee American Healthways Inc.
(Employer). The date of this injury was November 28, 2006.
Following a March 30, 2007 independent medical
examination (IME), Petitioner alleged her left forearm was
injured during this IME.
At a hearing held on September 6, 2007, in the
Disability Compensation Division of the Department of Labor and
Industrial Relations (DCD), Petitioner claimed she also
sustained a neck injury and sleep disorder due to the March 30,
2007 IME.
On October 24, 2007, the Director of the DCD
(Director) determined that Petitioner sustained compensable
work-related injuries, but denied Petitioner’s claim for
compensation relating to her alleged neck injury and sleep
disorder.
Petitioner appealed the Director’s decision to the
LIRAB. The consolidated cases consist of the Director’s
Decisions concerning the November 28, 2006 injury (2-06-14727)
and March 30, 2007 injury during the IME (2-07-04617).
Following years of further proceedings before the
LIRAB and DCD, on July 24, 2018, the LIRAB filed a Third Amended
Pretrial Order that specified six issues to be addressed, which
included: (1) Whether Petitioner sustained a personal injury
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involving her neck on March 30, 2007, arising out of and in the
course of employment; and (2) whether Petitioner sustained or
suffered a sleep disorder injury or condition on or about March
30, 2007, arising out of and in the course of employment.
On November 9, 2021, Petitioner was notified that she
was scheduled for two additional IMEs, each with a different
doctor.
On November 18, 2021, Employer and Respondent/
Insurance Carrier-Appellee-Appellee St. Paul Travelers
(Employer/Insurance Carrier) filed two second amended motions to
compel Petitioner’s attendance at these two IMEs.
On December 2, 2021, Petitioner filed a memo in
opposition to Employer/Insurance Carrier’s two second amended
motions to compel and a motion for partial summary judgment.
Petitioner’s opposition objected to having to undergo another
round of IMEs because good cause did not exist pursuant to
HRS § 386-79 (Supp. 2017).
On December 17, 2021, Employer/Insurance Carrier filed
a reply that asserted that these two IMEs “are proper and good
cause exists as provided in HRS § 386-79” because one IME was to
examine Petitioner’s “alleged neck pain for purposes of this
appeal” before the LIRAB, and the other IME was to examine
Petitioner’s “alleged sleep disorder for purposes of this
appeal” before the LIRAB. Employer/Insurance Carrier’s reply
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relied on HRS § 386-79(b), which states that an employer is
limited to one IME per case “unless good and valid reasons exist
with regard to the medical progress of employee’s treatment.”
On December 28, 2021, the LIRAB filed an order
granting Employer/Insurance Carrier’s two motions to compel and
denying Petitioner’s motion for partial summary judgment.
On January 6, 2022, Petitioner filed a request for
reconsideration or, alternatively, a request for “judicial
review.” Petitioner filed an addendum to this request on
January 7, 2022. In pertinent part, Petitioner acknowledged
that the December 28, 2021 order was not a final appealable
order, but sought judicial review under HRS § 91-14(a) because
“deferral of review pending entry of a subsequent final decision
would deprive [Petitioner] of adequate relief.”
On February 8, 2022, the LIRAB filed an order that
denied Petitioner’s request for reconsideration, but granted her
request for judicial review. This order said: “Claimant’s
pleading filed January 6, 2022 shall be considered an appeal of
the [LIRAB’s] December 28, 2021 order.”
B.
Petitioner’s notice of appeal was filed on February 9,
2022, and consists of (1) Petitioner’s January 6, 2022 request
for reconsideration or, in the alternative, for judicial review
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that was filed in the LIRAB, (2) the LIRAB’s December 28, 2021
order, and (3) the LIRAB’s February 8, 2022 order.
On November 3, 2022, the ICA filed an order dismissing
the appeal for lack of appellate jurisdiction because the
LIRAB’s December 28, 2021 order does not constitute a final
decision and order under HRS §§ 386-88 and 91-14(a). The ICA
explained:
Here, the [December 28, 2021] Order: directs
[Petitioner] to submit to medical examinations to
ascertain the extent of her purported neck injury,
declines to entertain her request for partial summary
judgment, and denies her request for sanctions. It
does not end the LIRAB proceedings, leaving nothing
further to be accomplished, nor does it finally
adjudicate any matter of medical and temporary
disability benefits.
On January 3, 2023, Petitioner timely2 filed an
application for writ of certiorari that asserts that the ICA had
jurisdiction under HRS § 91-14(a) to review the LIRAB’s December
28, 2021 IME order and the ICA’s decision is inconsistent with
Tam v. Kaiser Permanente, 94 Hawaiʻi 487, 17 P.3d 219 (2001).3
We agree.
2 Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 40.1(a)(1) (2022)
allows a party to file a certiorari application “within 30 days after the
filing of the [ICA’s] . . . dismissal order[.]” See HRS § 602-59(c) (Supp.
2017) (same). Petitioner timely requested a thirty-day extension of time to
file the certiorari application on November 7, 2022. See HRS § 602-59(c);
HRAP Rule 40.1(a)(3) (2022). January 2, 2023, was the New Year’s holiday.
See HRAP Rule 26(a) (2022) (instructing that holidays are excluded from the
computation of time).
3 A response to the application was not filed.
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II.
In Tam, the Director suspended the claimant’s workers’
compensation benefits because the claimant refused to appear for
an IME. 94 Hawaiʻi at 492-93, 17 P.3d at 224-25. The LIRAB
affirmed the Director’s decision. Id. at 493, 17 P.3d at 225.
In addressing the jurisdiction issue, this court said:
[A]lthough the LIRAB’s decision does not end
the proceedings in Tam’s case, it is clear that
“deferral of review pending entry of a subsequent
final decision would deprive appellant of adequate
relief.” In fact, no relief is or will be available
to Tam with respect to her challenge to the
present suspension of her workers’ compensation
benefits absent this court’s review. Of course, Tam
could comply with the Director’s order and thereby
have her benefits restored, but it is precisely the
validity of that order and her right to ignore it
that she asks this court to review in the present
appeal. Given the parties’ positions, and
particularly Tam’s claim that the order was unlawful,
the option of complying with the Director's order is
not “adequate relief.” Accordingly, pursuant to HRS
§ 91–14(a), we have jurisdiction over the present
appeal.
Id. at 494-95, 17 P.3d at 226-27.
Later, in Gour v. Honsador Lumber, LLC, 134 Hawaiʻi 99,
101, 332 P.3d 701, 703 (App. 2014), the Director deferred
determination of the claimant’s compensation claim until the
claimant complied with the ordered IME. On appeal to the LIRAB,
the LIRAB dismissed the appeal on the ground that there was no
appealable decision or final order because compensability
remained undetermined. Id. Contrary to the LIRAB’s decision,
the ICA relied on Tam to hold that the LIRAB had jurisdiction to
consider the merits of the claimant’s appeal, as follows:
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Based on Tam, we conclude that the LIRAB was
required to exercise jurisdiction over Gour’s appeal
because the LIRAB’s failure to review the Director's
Decision until the entry of a final decision on
Gour’s entitlement to benefits will deprive Gour of
adequate relief. Similar to the circumstances
in Tam, Gour wants to challenge the validity of the
Director’s order compelling him to undergo an
independent psychological examination in his appeal
to the LIRAB. No adequate relief with respect to
this challenge will be available to Gour if the LIRAB
refuses to consider his challenge on the merits until
he undergoes the psychological examination. As
in Tam, Gour could comply with the Director’s order
to undergo the psychological examination and thereby
end the deferral imposed on the determination of his
workers’ compensation claim. But this would require
Gour to submit to the very psychological examination
he claims is unjustified and was not ordered “in
accordance with the law[,]” and to comply with the
order of the Director for which he seeks review.
Id. at 103, 332 P.3d at 705.
Here, the ICA’s November 3, 2022 dismissal order
relied on the final order language of HRS § 91-14(a) and case
law applying that language. However, Petitioner’s request to
pursue judicial review, which the LIRAB granted, acknowledged
that the appeal would be from a preliminary ruling under HRS §
91-14(a), and not a final order.
An order compelling a claimant to undergo an IME is
sufficient to constitute the deprivation of adequate relief that
is required under the preliminary ruling language of HRS § 91-
14(a). See Tam, 94 Hawaiʻi at 494-95, 17 P.3d at 226-27; Gour,
134 Hawaiʻi at 103, 332 P.3d at 705. As such, the ICA should not
have dismissed this appeal for lack of jurisdiction.
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III.
Based on the above, the ICA’s November 3, 2022
dismissal order is vacated and this appeal is remanded to the
ICA for further consideration.
Lola L. Suzuki, /s/ Mark E. Recktenwald
Petitioner/Claimant-
Appellant-Appellant Pro se /s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Todd W. Eddins
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