NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JUN-2023
08:01 AM
Dkt. 50 SO
NO. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
CAAP-XX-XXXXXXX
AUGUSTINA J. DEAN, Claimant-Appellant-Appellant,
v.
STATE OF HAWAI‘I, DEPARTMENT OF EDUCATION,
Employer-Appellee-Appellee
and
STATE OF HAWAI‘I, DEPARTMENT OF EDUCATION,
WORKERS' COMPENSATION UNIT, Insurance Carrier-Appellee-Appellee
(CASE NO. AB 2022-043, DCD NO. 2-15-40652)
AND
CAAP-XX-XXXXXXX
AUGUSTINA J. DEAN, Claimant-Appellant-Appellant,
v.
STATE OF HAWAI‘I, DEPARTMENT OF EDUCATION,
Employer-Appellee-Appellee
and
STATE OF HAWAI‘I, DEPARTMENT OF EDUCATION,
WORKERS' COMPENSATION UNIT, Insurance Carrier-Appellee-Appellee
(CASE NO. AB 2022-044, DCD NO. 2-16-40013)
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.)
In this consolidated appeal,1 self-represented
Claimant-Appellant-Appellant Augustina J. Dean (Dean) appeals
from two July 5, 2022 Decisions and Orders (Dismissal Orders) by
the Labor and Industrial Relations Appeals Board (LIRAB),
dismissing Dean's appeal from two March 9, 2022 Decisions of the
Director of the Labor and Industrial Relations (Director) for
untimeliness.
Dean's Opening Brief does not comply with Hawai‘i Rules
of Appellate Procedure (HRAP) Rule 28. Dean's Opening Brief
does not have an argument section and presents argument
throughout the brief on issues that do not appear relevant to
the July 5, 2022 Dismissal Orders that are the subject of this
appeal. Despite Dean's non-compliance with the HRAP, we
endeavor to afford "litigants the opportunity to have their
cases heard on the merits, where possible." Marvin v. Pflueger,
127 Hawai‘i 490, 496, 280 P.3d 88, 94 (2012) (cleaned up). To
promote access to justice, we interpret pleadings prepared by
self-represented litigants liberally and attempt to afford them
appellate review even though they fail to comply with court
rules. See Erum v. Llego, 147 Hawai‘i 368, 380-81,
465 P.3d 815,
827-28 (2020). Accordingly, we address Dean's contentions to
the extent we can discern them.
On appeal, it appears that Dean contends that the
LIRAB was "required to exercise jurisdiction over the appeal[s]"
and that the LIRAB's "failure to review the director's
1 On May 5, 2023, this court filed an Order of Consolidation,
consolidating CAAP-22-446 and CAAP-22-445. Dean filed identical Opening
Briefs in both appeals. We refer to the identical Opening Briefs in the
singular.
2
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
decision[s] has deprived [Dean] of adequate relief and
entitlement to benefits."2
Upon careful review of the record and the briefs3
submitted by the parties, and having given due consideration to
the issue raised, we affirm.
June 30, 2014 injury
On April 8, 2016, the Director filed a Decision (April
8, 2016 Decision), denying Dean's October 30, 2015 workers'
compensation claim for a June 30, 2014 injury. Dean appealed to
the LIRAB.
On November 14, 2019, the LIRAB reversed the
Director's April 8, 2016 Decision because it found that Dean
"sustained a mental stress injury on June 30, 2014, arising out
of and in the course of employment."
Following a February 8, 2022 hearing on remand, the
Director entered the March 9, 2022 Decision directing Employer
to compensate Dean for the injury, setting forth the terms of
Dean's workers' compensation benefits.
September 2, 2015 injury
On December 14, 2018, the Director filed a Decision
directing Employer to compensate Dean for a September 2, 2015
injury, setting forth the terms of Dean's workers' compensation
2 While Dean raises three points of error in her Opening Brief,
none appears to pertain to the July 5, 2022 Dismissal Orders that are the
subject of this appeal; the points do not comply with HRAP Rule (b)(4)(ii)
and (iii), and are difficult to follow. We have identified and restated for
clarity the sole contention that appears pertinent to the LIRAB orders from
which Dean appeals.
3 Employer-Appellee-Appellee State of Hawai‘i, Department of
Education and Insurance Carrier-Appellee-Appellee State of Hawai‘i, Department
of Education, Workers' Compensation Unit (collectively, Appellees) filed an
answering brief that does not comply with HRAP Rule 28(b)(3), (7) and (c), as
there are no compliant record references. Appellees' brief does not address
the LIRAB's Dismissal Orders, and instead addresses the proceedings before
the Director that are not before this court.
3
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
benefits. In 2019, the Director filed Supplemental Decisions
regarding Dean's benefits.
On March 9, 2022, the Director entered a Decision
directing Employer to further compensate Dean for the injury,
setting forth the terms of Dean's workers' compensation
benefits, as well as an additional amount of "20% of $42,123.58
for failure to timely pay benefits . . . ."
Appeal to the LIRAB4
On March 30, 2022, Dean filed appeals from both of the
March 9, 2022 Decisions regarding her June 30, 2014 and
September 2, 2015 workers' compensation injuries.
On May 11, 2022, the LIRAB filed an Order to Show
Cause (OSC) in both appeals, explaining that Dean's appeals from
the March 9, 2022 Decisions were "untimely" and requesting that
Dean respond to the orders to explain why the appeals should not
be dismissed as untimely.5 The OSC set a hearing for June 30,
2022, at 9:00 a.m.
On May 26, 2022, Dean sent a letter to the LIRAB
explaining that she "did not receive" the March 9, 2022
Decisions "for over 3 weeks after the hearing[,]" and that the
4 Hawaii Revised Statutes (HRS) § 386-87, quoted infra, imposes a
twenty-day deadline to appeal a decision of the Director to the LIRAB.
5 The OSCs identically stated, among other things, that:
On March 9, 2022, the Director of Labor and
Industrial Relations issued a decision.
On March 30, 2022, [Dean] filed an appeal of the
Director's March 9, 2022 decision.
[Dean] and Employer shall respond to this Order to
Show Cause why this appeal, filed on March 30, 2022 should
not be dismissed as untimely.
You are hereby notified that a hearing on the Order
to Show Cause is set for June 30, 2022 at 9:00 a.m., Hawaii
Standard Time, or as soon thereafter as the parties may be
heard by the Board.
4
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
hearings officer advised her to send her appeal from the
March 9, 2022 Decisions "before the end of the month[,]" which
caused a "one day delay in submitting [the] appeal[s]."
On June 30, 2022, the record reflects that the LIRAB
conducted an OSC hearing with Dean and "Employer's counsel"
present. There is no transcript of the June 30, 2022 OSC
hearing. We infer that Dean and Employer's counsel were present
at the June 30, 2022 OSC hearing from the procedural history set
forth in the Dismissal Orders.
On July 5, 2022, the LIRAB filed identical Dismissal
Orders under both appeals,6 and made the following Findings of
Fact and Conclusions of Law (FOFs/COLs):
FINDINGS OF FACT
1. The Director's decision was dated and sent to the
parties on March 9, 2022.
2. The due date for filing a timely appeal in this
case was March 29, 2022.
3. [Dean]'s appeal of the decision was filed with the
Disability Compensation Division on March 30, 2022, one (1)
day after the due date for filing March 29, 2022.
CONCLUSIONS OF LAW
[Dean]'s appeal was filed beyond the mandatory
limitation period and is, thereby, dismissed as untimely.
"A decision of the director shall be final and conclusive
between the parties ... unless within twenty days after a
copy has been sent to each party, either party appeals
therefrom to the appellate board by filing a written notice
of appeal with the appellate board or the department."
Section 386-87(a), HRS.
The Hawaii Supreme Court has declared that the time
for filing a written notice of appeal is mandatory. Kissell
v. Labor and Industrial Relations Appeals Board, 57 Haw.
37, 38,
549 P.2d 470 (1976).[7]
6 The Dismissal Orders stated: "The sole issue determined in this
Decision and Order is the timeliness of [Dean]'s appeal pursuant to §386-
87(a), Hawaii Revised Statutes[.]" (Emphasis added).
7 In Kissell, the claimant appealed the trial court's judgment
affirming the LIRAB's dismissal of claimant's appeal. 57 Haw. at 37,
5
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
In the instant case the decision was sent to the
parties on March 9, 2022 and [Dean]'s appeal was filed on
March 30, 2022, one (1) day late. Accordingly, the
mandatory nature of §386-87(a), HRS, requires dismissal of
this appeal.
(Footnote added). The LIRAB dismissed Dean's appeal from the
March 9, 2022 Decisions, and Dean timely appealed from both
Dismissal Orders.
Dean does not challenge the LIRAB's FOFs/COLs beyond
her assertion that the LIRAB was "required to exercise
jurisdiction over the appeal" and that LIRAB's failure to
exercise jurisdiction over her appeals deprived her of "adequate
relief and entitlement to benefits."
HRS § 386-87 (2015), entitled, "Appeals to appellate
board," provides in pertinent part:
(a) A decision of the director shall be final and
conclusive between the parties, except as provided in
section 386-89, unless within twenty days after a copy has
been sent to each party, either party appeals therefrom to
the appellate board by filing a written notice of appeal
with the appellate board or the department. . . .
(Emphasis added). The time for filing a written notice of
appeal as provided in HRS § 386-87(a) is mandatory. See
Nickells v. Wal-Mart Stores, Inc., 98 Hawai‘i 508, 510, 51 P.3d
375, 377 (App. 2002) (citing Kissell,
57 Haw. at 38,
549 P.2d at
470) (affirming the LIRAB's dismissal of appellant's appeal from
the director's decision as "untimely" and "therefore barred by
HRS § 386-87(a)").
Here, the record reflects that the Director mailed the
two March 9, 2022 Decisions on March 9, 2022 to Dean; and Dean
549 P.2d at 470. The Hawai‘i Supreme Court held that the time period to file
a written notice of appeal from the director's decision under HRS § 96-97,
the previous version of HRS § 386-87, was "mandatory." Id. The supreme
court affirmed the dismissal because the claimant's notice of appeal was "not
timely filed in accordance with the provision of [§] 97-96." Id. at 37,
549
P.2d at 471.
6
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
filed an appeal to the LIRAB by handwritten letter dated and
file-stamped March 30, 2022. See Hawai‘i Administrative Rules §
12-47-12 ("The file stamped date on the document shall be
regarded as the date of the filing."). The LIRAB found in its
FOFs/COLs that the "due date for filing a timely appeal" was
"March 29, 2022," and that Dean's "appeal of the decision was
filed with the Disability Compensation Division on March 30,
2022, one (1) day after the due date for filing March 29, 2022."
Due to the mandatory nature of HRS § 386-87(a), the LIRAB
dismissed Dean's appeal for untimeliness. Dean does not
challenge the LIRAB's FOFs/COLs, and they are binding. See
Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 125,
839 P.2d 10, 31 (1992) (citations omitted) (treating
unchallenged COLs as "binding"); Pave v. Prod. Processing, Inc.,
152 Hawai‘i 164, 173,
524 P.3d 355, 364 (App. 2022) (citation
omitted) ("[F]indings of fact by [the] LIRAB [that] are
unchallenged [are] binding on appeal."). In addition, without a
transcript of the June 30, 2022 hearing on the OSCs, we are
unable to assess the claims Dean raised in her May 26, 2022
letters that she sent to the LIRAB regarding why her appeal
should not be dismissed. See HRAP Rule 10(b)(1)(A) (requiring a
transcript request "[w]hen an appellant desires to raise any
point on appeal that requires consideration of the oral
proceedings before the court appealed from . . . .");
Bettencourt v. Bettencourt, 80 Hawai‘i 225, 230, 909 P.2d 553,
558 (1995) ("The 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."
(citations, internal brackets, and internal quotation marks
omitted)).
7
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Because Dean's appeal to the LIRAB was filed more than
twenty days from when she was sent the March 9, 2022 Decisions,
the LIRAB was required to dismiss it pursuant to HRS § 386-
87(a). See Nickells, 98 Hawai‘i at 510, 51 P.3d at 377 (citing
Kissel,
57 Haw. at 38,
549 P.2d at 470); Konohia v. Commodity
Forwarders, Inc., No. CAAP-XX-XXXXXXX,
2022 WL 1502566, at *1-2
(App. May 12, 2022) (SDO) (affirming the LIRAB's dismissal of
appellant's appeal from the director's decision when appellant
filed the appeal to the LIRAB one day past the mandatory
deadline under HRS § 386-87(a)). The LIRAB's COL in this regard
was correct.
Dean also appears to raise a number of arguments
regarding the March 9, 2022 Decisions, which are not reviewable
by this court. This court, by statute, may only review LIRAB's
Dismissal Orders. See HRS § 386-88 (2015) (providing that for
"appeals to the intermediate appellate court" of an "appellate
board" such as the LIRAB, "the court shall review the appellate
board's decision on matters of law only."); Kelly v. Metal-Weld
Specialties, Inc., Nos. 27127, 27208, 2008 WL 4409419, at *2 n.1
(App. Sept. 30, 2008) (SDO) ("We do not address [Appellant]'s
claims that the Director erred in its decisions because
[Appellant] is appealing to this court from the decisions and
orders of the LIRAB."). Dean appeals from the Dismissal Orders,
which solely addressed the timeliness of Dean's appeal to the
LIRAB, and our review is similarly limited. See Zhang v. State,
Dep't of Land & Nat. Res., No. SCWC-XX-XXXXXXX, 2016 WL 4182511,
at *12 (Haw. Aug. 8, 2016) (mem.) (declining to address
claimant's arguments for temporary total disability because "the
LIRAB made no determination on those issues" and the issues were
"not properly before" the supreme court (citations omitted)).
8
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
For the foregoing reasons, we affirm the July 5, 2022
Decisions and Orders, both filed by the Labor and Industrial
Relations Appeals Board.
DATED: Honolulu, Hawai‘i, June 30, 2023.
On the briefs:
/s/ Clyde J. Wadsworth
Augustina Dean,
Presiding Judge
Self-Represented Claimant-Appellant.
/s/ Karen T. Nakasone
Associate Judge
James E. Halvorson,
Deputy Attorney General,
/s/ Sonja M.P. McCullen
for Employer-Appellee.
Associate Judge
9
