 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Tam v. Permanente2/8/2001
The claimant-appellant Colleen D. Tam appeals from the decision and order of the State of Hawaii Labor and Industrial Relations Appeals Board (LIRAB), filed on September 3, 1999, affirming the September 19, 1995 decision of the director of labor and industrial relations ("the Director") suspending Tam's workers' compensation benefits until she complies with the Director's order to submit to a medical examination requested by the employer-appellee Kaiser Permanente. On appeal, Tam argues that the LIRAB erred in: (1) affirming the validity of the Director's "medical examination order" because (a) Kaiser failed to comply with the statutory and regulatory requirements for requesting an independent medical examination embodied in Hawaii Revised Statutes (HRS) § 386-79 (1993 & Supp. 1999) and Hawaii Administrative Rules (HAR) Rule 12-10-75 and (b) the record before the Director did not warrant the issuance of a medical examination order; (2) ruling that the June 29, 1995 amendment to HRS § 386-79, see supra note 1, did not affect the enforceability of the Director's order; (3) affirming the Director's decision to suspend Tam's benefits, inasmuch as the medical examination order was constitutionally defective and, therefore, unenforceable, in that HAR § 12-10-75(c), see supra note 2, precluded her from contesting the validity of the medical examination order before she was required to submit to the examination in violation of her right to due process of law; and (4) denying her request for a subpoena, inasmuch as the fact of an ex parte communication from the Director to Kaiser entitled her to investigate the possibility of other communications of the same sort.
We hold: (1) that the LIRAB's finding that Kaiser sufficiently complied with the requirements of HAR § 12-10-75(b) is consistent with the language of the regulation and is entitled to our deference as the agency's interpretation of its own rule, see Camara v. Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797 (1984); (2) that, although the LIRAB did not expressly find that the medical examination ordered by the Director "would assist in an expedient disposition of the case," such a finding is implied in its conclusion that the facts in the file on April 13, 1995 supported the issuance of the medical examination order "to obtain a permanent rating so as to address the issue of permanent disability" and that Tam failed to carry her burden of convincingly demonstrating that the Director's order violated HAR § 12-10-75(c), see In Re Gray Line Hawaii, Ltd., 93 Hawaii 45, 53, 995 P.2d 776, 784 (2000) ("a presumption of validity is accorded to decisions of administrative bodies acting within their sphere of expertise and one seeking to upset the order bears the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences" (quoting In Re Application of Puhi Sewer & Water Co., Inc., 83 Hawaii 132, 137, 925 P.2d 302, 307 (1996)) (citation and internal quotation signals omitted); (3) that the order to undergo a medical examination did not deprive Tam of any property interest in worker's compensation benefits protected by the right to due process, see Findley v. Workers' Compensation Appeal Board, 707 A.2d 1220, 1223 (Pa. Commw. Ct. 1998), and that the agency hearing conducted prior to the suspension of her benefits afforded her procedural safeguards adequate to satisfy the requisites of constitutional due process, cf. Sauceda v. Department of Labor & Industries of the State of Washington, 917 F.2d 1216, 1219 (9th Cir. 1990); Carr v. SAIF Corp., 670 P.2d 1037, 1046 (Or. Ct. App. 1983); (4) that Tam's assertion of possible undisclosed ex parte communications between Kaiser and the agency is speculative and th
Page 1 2 3 4 5 6 7 8 Hawaii Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|