No. 27915 (Nov. 12, 2008)
Opinion [pdf]
OPINION OF THE COURT BY NAKAMURA, J.
In this workers' compensation case, Claimant-Appellant Darrell N. Kapuwai (Kapuwai) sustained a work-related injury to his right great toe, a body part covered by the schedule of awards for permanent partial disability (PPD) set forth in Hawaii Revised Statutes (HRS) § 386-32(a) (Supp. 2007). The injury affected Kapuwai's ability to walk and interfered with his daily living activities. The Labor and Industrial Relations Appeals Board (LIRAB) awarded PPD benefits to Kapuwai based on the impairment of his whole person; it did not determine what the PPD award would have been if based on the impairment of Kapuwai's great toe under the statutory schedule. We conclude that Kapuwai is entitled to a PPD award based on the impairment of his great toe if that exceeds an award based on the impairment of his whole person. We therefore vacate the LIRAB's decision and remand the case for a determination of a PPD award based on the impairment of Kapuwai's great toe as requested by Kapuwai.
Because we are remanding the case for further proceedings, we do not decide Kapuwai's claim that the LIRAB erred in denying his request to assess one-half of his attorney's fees and costs against his employer pursuant to HRS § 386-93(b) (Supp. 2007). That statute provides for the assessment of attorney's fees and costs against the employer, if the employer appeals to the LIRAB or the appellate court and "loses." However, we provide guidance on how to apply HRS § 386-93(b) to assist the LIRAB on remand.
