Dabney v. Maui's Meat Fish and Liquor Co.12/2/2005
NOT FOR PUBLICATION
SUMMARY DISPOSITION ORDER
By: Lim, Acting C.J., Nakamura and Fujise, JJ.
In this workers' compensation case, Claimant-Appellant Steven F. Dabney (Dabney), pro se, appeals from the September 26, 2003, Decision and Order of the Labor and Industrial Relations Appeals Board (the Board) in favor of Employer-Appellee Maui's Meat Fish and Liquor Company, dba Cary & Eddie's Hideaway, and Insurance Carrier-Appellee Fireman's Fund Insurance Company (collectively referred to as "the Employer"). The Board affirmed the February 25, 2002, supplemental decision of the Director of Labor and Industrial Relations (the Director), which determined that Dabney did not sustain any permanent disability as a result of his October 4, 2000, work injury.
On appeal, Dabney, who was represented by counsel in the proceedings before the Board, argues that the Board erred in excluding Exhibit H, a March 30, 2002, letter written by Dabney's treating physician, Dr. Michael McDonald, that was submitted after the pretrial discovery deadline. Dr. McDonald's letter stated that Dabney's pre-existing back and neck conditions were "definitely worse" after the October 4, 2000, work accident.
In particular, Dabney claims that he was not informed by "either lawyer," which presumably includes Dabney's own lawyer, that the Exhibit H the Board was excluding was Dr. McDonald's letter, and, therefore, Dabney did not have the chance to object. Dabney contends that Dr. McDonald's letter was needed to fully state Dabney's case because it is the only document that gives a complete opinion of Dabney's condition before and after the accident. Dabney also implicitly attacks the Board's determination that he did not sustain a permanent disability as a result of the October 4, 2000, accident. Dabney argues that the medical evaluation of Dr. James A. Ferrier, on which the Board relied, was flawed; that Dabney was working five to six nights per week before the accident but can no longer work; and that he has been certified as disabled by a social security doctor. Dabney asks that Exhibit H be "admitted for consideration" and that he "be given a rating of range of motion according to the already submitted findings and the AMA guides to determine impairment."
At the outset, we note that Dabney did not include the transcripts of the trial before the Board or the hearings before the Director. Hawaii Rules of Appellate Procedure (HRAP) Rule 10(b)(1)(A) places on the appellant the affirmative burden of providing the transcript of the proceedings:
When an appellant desires to raise any point on appeal that requires consideration of the oral proceedings before the court or agency appealed from, the appellant shall file with the clerk of the court appealed from, within 10 days after filing the notice of appeal, a request or requests to prepare a reporter's transcript of such parts of the proceedings as the appellant deems necessary that are not already on file.
Thus, it is well settled that "' he burden is upon appellant in an appeal to show error by reference to matters in the record, and he or she has the responsibility of providing an adequate transcript.'" Bettencourt v. Bettencourt, 80 Hawaii 225, 230, 909 P.2d 553, 558 (1995) (brackets omitted) (quoting Union Bldg. Materials Corp. v. The Kakaako Corp., 5 Haw. App. 146, 151, 682 P.2d 82, 87 (1984)). See also Lepere v. United Public Workers, Local 646, AFL-CIO, 77 Hawaii 471, 474, 887 P.2d 1029, 1032 (1995) ("Lepere, as appellant, had a duty to include the relevant transcripts of proceedings as a part of the record on appeal." (Footnote omitted.)); State v. Hawaiian Dredging Co., 48 Haw. 152, 158, 3
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