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Potter v. Hawaii Newspaper Agency2/19/1999
claim for workers' compensation benefits on his behalf, and that they withdrew the claim for benefits filed by the HNA and requested that the case be closed. Accordingly, on November 24, 1993, the Director denied the "claim."
Thereafter, the HNA filed a request for reconsideration of the Director's decision and/or, in the alternative, a notice of appeal. When the request for reconsideration was denied, the appeal was forwarded to the LIRAB. In his pretrial statement, Potter requested that the Director's decision be affirmed and pointed out that he (1) was not an employee of the HNA, (2) had not been delivering newspapers at the time of the accident (and, presumably, was therefore not within the course and scope of his employment, even if he was somehow deemed to be an employee of the HNA), and (3) had not filed a claim for workers' compensation benefits. He attached a copy of the complaint in his lawsuit to his pretrial statement, showing that the HNA was a defendant in that action and had initiated the claim for workers' compensation benefits only after it had been filed. Potter also supported his position with records from a 1982 claim in which a twelve-year-old newspaper carrier, who was struck by a car while making his deliveries, sought workers' compensation benefits only to have the HNA deny that he was an employee.
The HNA, for its part, minced no words in making clear that it was seeking a defense in the tort lawsuit. In a letter to the Chairman of the LIRAB, its counsel stated:
"On behalf of our clients, we ask that the Appeals Board schedule an Initial Conference in this claim at the earliest possible time. . . . A third-party claim has been filed by Claimant-Appellee Potter against our clients and we believe it is imperative that the Department of Labor, through the Labor and Industrial Relations Appeals Board, act on this matter as soon as possible."
The parties stipulated (1) that the issue to be decided by the LIRAB was whether Potter was an employee of the HNA and (2) that, in the event the LIRAB were to determine that Potter was an HNA employee, his accident occurred within the course and scope of Potter's employment, for purposes of the application of HRS ch. 386.
On August 1, 1997, the LIRAB entered its decision and order, which vacated the Director's decision and included the following relevant findings of fact (FOFs) and Conclusions of law (COLs):
"FINDINGS OF FACT "1. HNA is in the business of selling and distributing newspapers. Claimant, a newspaper carrier, was a 14 year old minor on November 21, 1992. "2. Prior to November 21, 1992, Claimant, with the consent of his parents, signed on three occasions, the last being on November 11, 1992, a "Statement of Intention" form prepared by HNA. In the "Statement of Intention," Claimant and HNA agreed that the former would "operate own retail distribution and delivery business as an independent contractor" and distribute and deliver HNA's newspapers to customers on his route. "3. HNA referred to the newspaper carriers as "little merchants" and advised them and their parents that they are independent business persons and not employees of HNA. "4. As a newspaper carrier, Claimant purchased newspapers from HNA at a lower wholesale price and then sold and delivered them to their customers at a higher retail price. The difference was Claimant's income or "profit." HNA did not pay Claimant an hourly wage or monthly salary. "5. Shawn Toyozaki ("Toyozaki") was employed by HNA as a district manager for the Kahala/Kapahulu district. As a district manager, Toyozaki transported newspapers from HNA's facility to his district for distribution to the newspaper carriers. Upon receipt of the
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