| |
Frequently Asked Questions
Your workers' compensation case has been appealed to the Labor and Industrial
Relations Appeals Board ("Board") from a decision of the Director of the Department of Labor and Industrial Relations ("Director"). The following provides you with some general information regarding the appeals process at the Board. This information does not supersede or supplement any state law or administrative rule or regulation. The following information should not be used by lawyers as a substitute for the lawyer's own research and analysis of the law, or by non-lawyers as a substitute for professional legal advice.
My case has been appealed to the Board. What happens now?
Your case will be reviewed or looked at by the Board. The Board is located at 830 Punchbowl Street, Room 404, Honolulu, Hawaii. The Board's hours are 7:45 a.m. to 4:30 p.m. The Board's telephone number is (808) 586-8600.
The Board is a three-member board. The law requires the chairperson of the Board to be a licensed attorney. Currently, all three Board members are licensed attorneys of the State of Hawaii. One of the Board members will be assigned to oversee or manage your case. If your case goes to trial, the Board will hear the case and make a decision.
Once an appeal is taken, the Department will send your case file to the Board. After receiving your case file, the Board will send you a notice to attend an initial conference. As stated in that notice, you should file your Initial Conference Statement. (A sample is attached.) Either a Board member or one of the Board's staff will conduct this conference.
What is the initial conference?
The purpose of this initial conference is to identify the issues that you want the Board to decide and to answer any questions that you may have regarding the appeal. If you appealed the case, you must tell the Board what part of the Director's decision you do not agree with or why you are unhappy with the decision that you got at the Director's level. The Board will not and cannot decide matters that were not considered or addressed by the Director. Also, be prepared to inform the Board of any potential or special concerns that the Board needs to be aware of while handling your case.
At the initial conference, you may be asked to stipulate the file from the Director as part of the Board's record on appeal. This means that the Board wants to know if you would stipulate or agree that all of the information that was presented at the Director's level be made part of the Board's file or records, and be considered by the Board in reaching its decision. (After this appeal was filed, your workers' compensation file was transferred to the Board from the Department of Labor and Industrial Relations. The file should contain all the medical reports and letters sent to the Department, and other information about the history of your injury.)
You will be given some important dates and deadlines at the initial conference. The trial date is the date of the trial in your case. The settlement conference date is the date of the conference that you must attend to discuss whether your case can be worked out or settled without having to go to trial. Generally, there are strengths and weaknesses in each case, regardless of which side you are on, and many times, it is in the best interest of both or all sides to settle the case without having to expend the time and expense of a trial. To make the settlement conference more meaningful and productive, the Board requests that the parties contact each other prior to the settlement conference to discuss settlement and identify or narrow their disputes before coming to the settlement conference.
The deadlines that you will be given are called "discovery deadlines". They include unnamed witness identification deadline, medical reports deadline, live witness identification deadline, and discovery cut-off deadline.
What is discovery? What do the different deadlines mean?
After the initial conference, the parties may proceed to the "discovery" or information gathering stage of the case. During this phase, you have the responsibility of gathering or discovering information to support your position on the issues on appeal. Because appeals to the Board are reviewed on a de novo (meaning "anew" or "afresh") basis, parties are allowed to present new evidence in addition to what was already presented at the Director's level.
You may submit medical reports or opinions by doctors, deposition transcripts, and any other non-medical documents or matters that you think will support your case and help the Board reach a just and fair decision. You may also use witnesses to support your case. There are deadlines for the submission of the different types of information or evidence that you want to use to support your case.
1. Unnamed witness identification deadline: You must file with the Board on or before this date a list of the names of doctors or other persons not previously identified in your Initial Conference Statement. For example: Kimo Pascua (my co-worker), or Dr. Mary Sato (my doctor).
2. Medical reports deadline: All medical reports and medical documents by doctors or other medical people that you want to include in the Board's file and be considered by the Board in your case must be filed with the Board by this date.
3. Live witness identification deadline: You must file with the Board on or before this date a list of the names of the person(s) listed in #1 above or in your Initial Conference Statement whom you plan to call to testify or speak in your favor at trial.
4. Discovery cut-off deadline: You must file all non-medical reports or documents by this date. Transcripts of depositions held before the discovery cut-off deadline may be filed after this deadline and still be considered timely.
You must send a copy of any report or document you file with the Board to the opposing party(ies) in the case. Information submitted after the deadlines may be excluded from the file and not be considered by the Board in reaching its decision.
Do I need an attorney?
There is no requirement that you hire an attorney to represent you in your workers' compensation case. However, many injured workers, and almost all insurance carriers, as well as, the State and County employers, are represented by attorneys. The proceedings before the Board are more formal than the proceedings at the Director's level. The Board has its own rules of practice and procedure. These rules are provided online or a hardcopy may be purchased for $2.00. The Board does not render legal advice to any of the parties.
What can I expect if my case goes to trial?
Trial will be held in the Board's hearings room in Honolulu by either the Board or an appointed hearings officer. The trial is where you are given the opportunity to present oral testimony or testimonial evidence to the Board either by you, or by your witnesses, or both. You may also present oral arguments to the Board at this time.
Before trial begins, the presiding officer will ask you if you would like to submit a post-trial position statement or, sometimes called the post-trial memorandum, after the hearing is completed. Parties use the position statement or memorandum to summarize the evidence and their arguments in writing following the trial. Generally, the Board gives the parties 30 days from the date of the trial to submit simultaneous post-trial statements or memoranda. You may ask for more or less time. You must send the opposing party(ies) a copy of the post-trial position statement or memorandum that you file with the Board.
The trial proceedings will be tape-recorded. Generally, the party who appealed the case goes first to present his or her case. Presenting your case may include testifying on your own behalf or calling your witnesses and asking them questions. Your job is to get your witnesses to give answers that would support or help your case. This is called "direct examination". The opposing party has the opportunity to also ask questions of your witnesses. This is called "cross-examination". You may also cross-examine the opposing party's witnesses, if the opposing party has witnesses testify. Once everyone is finished with the presentation of testimony, you have the opportunity to make oral arguments based on the evidence submitted during the discovery period and on the oral testimony. You may choose to save the arguments for your post-trial position statement or memorandum, if you choose to file one.
When the trial is completed, the record is closed. After the record is closed, the Board will not accept additional evidence.
The Board will make a decision on your case after considering the written evidence submitted during the discovery period, any testimony provided at trial, any oral arguments made at trial, any post-trial position statements or memoranda filed after the hearing, and the record at the Board. The Board's decision will be in writing and will be sent to you.
If a hearings officer is assigned to hear your case, the above procedure shall be followed except that the hearings officer shall issue a proposed decision. Should you disagree with the proposed decision, you may file written exceptions to the proposed decision. Should you also desire to present oral arguments to the Board on your exceptions, you may file a written request to the Board. The exceptions and request for oral argument, if any, must be filed with the Board within ten working days from the filing of the proposed decision. Any opposing party may file a responsive memorandum to the written exceptions within ten working days from the filing of the exceptions. The Board will consider the parties' respective memoranda and oral arguments, if any, and issue a final decision.
What if I don't agree with the Board's decision?
If you do not agree with the Board's decision, you may appeal the decision to the Hawaii Supreme Court. An appeal must be filed with the Board within thirty days of the filing of the Board's decision. An appeal to the Supreme Court is governed by the Court's Rules of Appellate Procedure and applicable case law.
|
|
