Morgenstein v. All Star-Sab Joint Venture6/28/2001
Claimant-Appellant Richard M. Morgenstein, Sr. (Morgenstein) appeals the March 6, 2000 Amended Decision and Order (the Decision) of the Labor and Industrial Relations Appeals Board of the State of Hawaii (the Board). The Decision modified an August 12, 1997 decision of the Director of Labor and Industrial Relations (the DLIR). In pertinent part, the Decision increased Morgenstein's workers' compensation disfigurement award from $15,000 to $17,000
On appeal, Morgenstein contends that the Board erred in awarding him $17,000 for his disfigurements instead of the statutory maximum award of $30,000. In support of this contention, Morgenstein argues that (1) the Board utilized an erroneous proportionality standard in making the Decision, under which the statutory maximum award equals a total disfigurement of the whole body; (2) alternatively, the Board failed to utilize an articulable standard in making its disfigurement award; and (3) the photographs put in evidence before the Board depict disfigurements meriting, without more, an award of the statutory maximum compensation.
For the following reasons, we affirm the Decision.
I. Background.
On December 21, 1995, Morgenstein was employed as a journeyman plumber for Employer-Appellee All Star-SAB Joint Venture. In the course of his employment, he lost control of a company-owned vehicle. The vehicle overturned, resulting in various personal injuries.
Disfigurements resulting from the accident include (1) an abnormal gait; (2) a 6" x 5" heavily keloidal surgical scar at the dorsal, medial left foot; (3) a 3" x 1.5" scar at the lateral right ankle; (4) a 3.5" x 1" scar at the right knee; (5) a 1" scar at the right elbow; (6) a 7" x 5" skin graft at the left anterior thigh; and (7) a 5" x 2" skin graft at the left anterior thigh.
Morgenstein brought a workers' compensation claim to the DLIR, seeking compensation for, among other things, the scars and other disfiguring consequences. On August 12, 1997, the DLIR awarded Morgenstein, inter alia, $15,000 for the disfigurements resulting from his industrial injuries. Sixteen days later, Morgenstein appealed the DLIR's decision to the Board.
The Board issued a decision on February 4, 2000 that, among other things, increased the DLIR's disfigurement award from $15,000 to $17,000. On February 17, 2000, Morgenstein filed an application for modification of a part of the Board's February 4, 2000 decision not pertinent here. In response, the Board filed the March 6, 2000 Decision clarifying its entire February 4, 2000 decision, but leaving the $17,000 disfigurement award unchanged. In making the Decision, the Board found and concluded as follows:
Findings of Fact
1. On December 21, 1995, [Morgenstein], an employee of ALL STAR-SAB JOINT VENTURE, was injured in a motor vehicle accident.
2. [Morgenstein] was taken by ambulance to the emergency department of Kaiser Medical Center, Moanalua, and later seen by John Frauens, M.D. [(Dr. Frauens)], an orthopedic surgeon, who diagnosed severe soft tissue avulsion injuries of the left foot, and fractures of the second and third metatarsals of the left foot.
3. Dr. Frauens irrigated and debrided the lower extremities, and performed a split-thickness skin graft to the left foot.
4. On January 10, 1996, [Morgenstein] underwent a debridement of and skin graft to the left dorsal foot with John S. Imada, M.D., a plastic surgeon .
5. On December 4, 1996, [Morgenstein] was evaluated by Robert L. Smith, M.D. [(Dr. Smith)], an orthopedic surgeon, who documented the presence of a limp, and noted that [Morgenstein] did not r
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