Tam v. Permanente2/8/2001
's April 7, 1995 letter gave the purpose of the examination with Dr. Nicholson and the justification for the order. At the Disability Compensation Division hearing, Employer clarified that the purpose of the examination with Dr. Nicholson was to address the issue of permanent disability.
Although Employer's April 7, 1995 letter did not specifically state that the purpose of the examination was to obtain a permanent impairment rating so as to address the issue of permanent disability, we find that there were facts in the file on April 13, 1995 to support the issuance of the Director's Order. Furthermore, the examination of Claimant by Dr. Nicholson would not have been unreasonable or inappropriate, since Dr. Luke had been unable to complete his examination.
12. The Director's April 13, 1995 Order, requiring Claimant to appear for the examination with Dr. Nicholson on April 27, 1995, was valid and proper.
15. The Director properly suspended Claimant's benefits after April 26, 1995, until she complies with the Director's April 13, 1995 Order, because Claimant refused to submit to the examination with Dr. Nicholson ordered by the Director. Tam timely appealed the LIRAB's decision and order to this court.
II. STANDARD OF REVIEW
Appellate review of the LIRAB's decision is governed by § 91-14(g) (1993), which provides:
Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. HRS § 91-14(g). "Under HRS § 91-14(g), [conclusions of law (COLs)] are reviewable under subsections (1), (2), and (4); questions regarding procedural defects are reviewable under subsection (3)[.]" Potter v. Hawaii Newspaper Agency, 89 Hawaii 411, 422, 974 P.2d 51, 62 (1999) (quoting Korean Buddhist Dae Won Sa Temple v. Sullivan, 87 Hawaii 217, 229, 953 P.2d 1315, 1327 (1998) (quoting Konno v. County of Hawaii, 85 Hawaii 61, 77, 937 P.2d 397, 413 (1997) (quoting Bragg v. State Farm Mutual Auto Ins., 81 Hawaii 302, 305, 916 P.2d 1203, 1206 (1996)))).
A . . . is not binding on an appellate court and is freely reviewable for its correctness. Thus, the court reviews [COLs] de novo, under the right/wrong standard. Bumanglag v. Oahu Sugar Co., Ltd., 78 Hawaii 275, 279, 892 P.2d 468, 472 (1995) (quoting Tate v. GTE Hawaiian Tel. Co., 77 Hawaii 100, 102-03, 881 P.2d 1246, 1248-49 (1994) (brackets in original)). Kahana Sunset Owners Ass'n v. County of Maui, 86 Hawaii 66, 68-69, 947 P.2d 378, 380-81 (1997) (some brackets added and some in original). Flor v. Holguin, 94 Hawaii 70, 76, 9 P.3d 382, 388 (2000) (some brackets added and some in original).
III. DISCUSSION
As a threshold matter, Kaiser questions this court's jurisdiction over the present appeal, inasmuch as the LIRAB's order did not finally determine Tam's entitlement to benefits under the Workers' Compensation Law. The appeal of a decision or order of the LIRAB is governed by HRS § 91-14(a).
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