Frequently Asked Questions
General Information Regarding Workers’ Compensation Appeals at the Labor and Industrial Relations Appeals Board
The following provides general information about a workers’ compensation case that has been appealed from a decision of the Director of Labor and Industrial Relations (“Director”) to the Labor and Industrial Relations Appeals Board (“Board”). The following statements of general information are not rules or regulations and further do not supersede or supplement any state law or administrative rule or regulation. They are not a substitute for independent research, analysis of the law, or legal advice.
WHERE IS THE BOARD?
The Board is located at 830 Punchbowl Street, Room 404, Honolulu, Hawaii, 96813
WHAT ARE THE BOARD’S HOURS?
The Board’s regular business hours are from 7:45 a.m. to 4:30 p.m. The Board is closed on Saturdays, Sundays, State Holidays, and Furlough Days. (Click here for furlough calendar)
WHAT IS THE BOARD’S TELEPHONE NUMBER?
The Board’s telephone number is (808) 586-8600.
WHO MAKES UP THE BOARD?
The Board is a three-member board. 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 or an appointed hearings officer will hear the case and make a decision.
WHAT DOES THE BOARD DO?
The Board’s primary function is to decide appeals from decisions of the Director. In general, the Board also decides motions and conducts settlement and other conferences to assist with disposition of cases on appeal.
THE BOARD DOES NOT PROVIDE LEGAL ADVICE.
CAN I SUBMIT DOCUMENTS BY FAX OR E-MAIL?
The Board does not accept faxes or e-mails for filing. All documents to be filed must be mailed or hand delivered to the Board. The Board will not take action on faxes or e-mails.
IS A POSTMARK SUFFICIENT TO MEET DEADLINES?
No. Unless the Board specifically advises you that a postmark is sufficient, all deadlines mean that documents must be received and filed by, and at, the Board by the deadline.
MY CASE HAS BEEN APPEALED. WHAT HAPPENS NOW?
Once an appeal is taken, the Department of Labor and Industrial Relations (“Department”) sends your case file to the Board.
The Board will schedule an initial conference, settlement conference, and trial or hearing de novo to review and decide the appealed workers’ compensation case.
I RECEIVED A NOTICE OF INITIAL CONFERENCE, WHAT SHOULD I DO?
You should confirm that your name is correctly identified in the Board’s caption. If it is incorrect, write to the Board to inform them of your legal name.
You should file an Initial Conference Statement according to the Board’s Rules of Practice and Procedure no later than three business days before the scheduled initial conference. The Board’s Rules can be found at http://hawaii.gov/labor/legal/rule/12-47.pdf
WHERE CAN I GET A SAMPLE OF AN INITIAL CONFERENCE STATEMENT?
A sample of an Initial Conference Statement can be found here Form 1 - Initial Conference Statement
or by calling the Board.
WHAT IS THE INITIAL CONFERENCE?
The purpose of the initial conference is to identify the issues that both sides want the Board to decide and to answer any questions that anyone may have regarding the appeal. If you appealed the case, you must tell the Board what part of the Director’s decision you disagree with or why you are unhappy with the Director’s decision. 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 Department as part of the Board’s record on appeal. This means that the Board wants to know if you would agree that the information that was presented to the Department be made part of the Board’s file or records, and be considered by the Board in reaching its decision. This would include all the medical reports and letters sent to the Department, and other information about how your injury happened.
You will be given several important dates at the initial conference, including a settlement conference date, and the trial date.
You will also be given several important deadlines called “discovery deadlines”. They include an unnamed witness identification deadline, medical reports deadline, live witness identification deadline, and discovery cut-off deadline.
WHAT IS THE PRETRIAL ORDER?
A pretrial order with the issues, dates, and deadlines will be issued after the initial conference. This is an order of the Board and all parties must comply with this order. The pretrial order will also contain additional deadlines (such as for submitting exhibits) and orders regarding processing the case on appeal.
All parties are required to read and comply with the pretrial order, as well as all applicable laws and rules.
WHAT ISSUES WILL THE BOARD DECIDE?
The Board will determine issues included in the decision of the Director that have been properly appealed. The Board will not make a Decision on issues not previously decided by the Director.
WHAT IS THE SETTLEMENT CONFERENCE?
The settlement conference date is the date when you attend a meeting 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 often it is in the best interest of everyone to settle the case without having to expend the time, risks, and costs of a trial. The Board expects the parties to contact each other prior to the settlement conference to discuss settlement and identify or narrow their disputes before coming to the settlement conference.
The parties may also request an early settlement conference, if the Board’s assistance could help with settlement of the case.
WHAT IS A MOTION?
A party requesting the Board’s intervention in a discovery or other pre-trial dispute, may file a written request to the Board. This is called a motion.
Motions must be submitted in writing, state the grounds for the request, and set forth what you want the Board to do.
The motion must be accompanied by a memorandum in support of the motion, and any other necessary documentation.
WHAT IS THE DIFFERENCE BETWEEN A HEARING MOTION AND A NON-HEARING MOTION?
All motions are generally considered non-hearing. That is, a hearing on the motion will not be held, and the Board will decide the motion on the written submissions. You must prepare, file, and serve on the other side a Notice of Non-Hearing Motion. A sample is found here. Form 2 - Notice of Non-Hearing Motion
The Board may request that a hearing be held, even if the motion is submitted on a non-hearing basis.
If you want to have a hearing on the motion where the parties can present oral arguments in addition to the written submissions, you must call the Board to obtain a hearing date and time, and prepare, file, and serve on the other side a Notice of Hearing. A sample is found here. Form 3 - Notice of Hearing
WHAT IS DISCOVERY? WHAT DO THE DIFFERENT DEADLINES MEAN?
After the initial conference, the parties may proceed to the “discovery” or the information gathering stage of the case. 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 to the Department.
You may submit medical reports or opinions by doctors, deposition transcripts, and also 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. Any document or writing sent to the Board must also be provided to all other parties.
• Unnamed witness identification deadline: On or before this date, you must file with the Board and identify doctors or other persons not previously specifically identified in your Initial Conference Statement. Form 4 - Unnamed Witness Identification
Example:
1. Kimo Pascua (my co-worker)
123 Aloha Lane
Honolulu, Hawaii 96813
2. Dr. Mary Smith (my doctor)
456 Mahalo Street
Honolulu, Hawaii 96813
• Medical reports deadline: On or before this date you must file with the Board all medical reports and medical records from health care providers that you want the Board to consider.
• Live witness identification deadline: On or before this date, you must file with the Board and identify the person(s) listed in your Unnamed Witness Identification or in your Initial Conference Statement who will testify or speak in your favor at trial. A person not identified in your Live Witness Identification may not be allowed to testify at trial. Form 5 - Live Witness Identification
• Discovery cut-off deadline: On or before this date, you must file with the Board all non-medical reports or documents.
CAN I REVIEW MY FILE?
Yes, you may review the file at the Board. The Board encourages you to review the file before trial to ensure that all documents you feel are necessary are included in the Board’s file by the appropriate deadlines.
If you wish to review your file at the Board, please call ahead of time to make arrangements. This will ensure that the Board has a place for you to review your file.
DO I NEED AN ATTORNEY?
There is no requirement that you hire an attorney to represent you in your workers’ compensation case. However, you are strongly encouraged to retain an attorney to represent you before the Board. Many injured workers, and almost all insurance carriers, as well as the State and County, are often represented by attorneys.
The proceedings before the Board are more formal than the proceedings at the Director’s level. The LAB Rules must be followed by all persons appearing before the Board. Not following the Rules can be harmful to your appeal.
The LAB Rules can be found at http://hawaii.gov/labor/legal/rule/12-47.pdf (see above link) or a hard copy may be purchased from the Board for $1.00, plus postage, if applicable.
If you wish to hire an attorney, click on the "Attorney Listing" page under LIRAB LINKS (blue menu block on the upper right hand corner of this page)i. This is a listing of attorneys who practice workers' compensation law in Hawaii and who have asked to be included in the listing. The list is informational only and is neither a referral nor an endorsement of counsel by Board.
THE PARTIES REACHED A STIPULATION OR SETTLEMENT, NOW WHAT?
After a settlement is reached, one party will prepare a stipulation or settlement agreement to document the agreement. After all parties have signed the written agreement, it must be submitted to the Board for approval.
The Board will review the written agreement. If it meets the Board’s approval, the Board will sign and file the written agreement, and return filed copies to the parties.
WHERE WILL THE TRIAL BE HELD?
If the case is not settled, trial will be held in Honolulu by either the Board or an appointed hearings officer.
DO I HAVE TO ATTEND THE TRIAL?
You and/or your legal representative are required to be at the trial in Honolulu.
IS THE TRIAL RECORDED?
An audio record of the trial proceedings will be digitally prepared.
CAN I TESTIFY AT THE TRIAL?
Presenting your case may include testifying on your own behalf or calling your witnesses and asking them questions. 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 any. Testimony provided at trial is given under oath.
Testimony from your witnesses should be obtained in question and answer fashion.
WHO GOES FIRST AT TRIAL?
Generally, the party who appealed the case goes first to present his or her case.
HOW MANY COPIES OF MY EXHIBITS SHOULD I BRING TO TRIAL?
The Board requests that two copies be provided to the Board at the time of a trial before the Board. The Board should already have received the original by the applicable filing deadline.
HOW SHOULD I ORGANIZE MY EXHIBITS?
The Board expects that exhibits be arranged in the order they are to be presented or referred to at the trial.
Claimants should mark their exhibits using letters of the alphabet (e.g., Exhibit “A”, Exhibit “B”, Exhibit “C”).
Employer should mark their exhibits using numbers (e.g., Exhibit “1”, “Exhibit “2”, Exhibit “3”).
WHEN IS THE RECORD CLOSED?
Unless otherwise directed by the Board, the record is closed when the trial is completed. After the record is closed, the Board will not accept additional evidence.
WHAT IS A POST-TRIAL BRIEF, POSITION STATEMENT, OR MEMORANDUM?
At the trial, the presiding officer may ask the parties to submit a post-trial brief, position statement or memorandum, and may ask the parties to agree on a due date. No new evidence is allowed as part of the post-trial brief, position statement or memorandum.
Generally, the Board gives the parties 30 days to submit simultaneous post-trial briefs, statements, or memoranda. You may ask for more or less time.
Parties use the briefs, position statements or memoranda to summarize the evidence and their arguments in writing. You may direct the Board’s attention to the admitted evidence you believe supports your position. You may also present arguments as to why such evidence supports your position, and why you should prevail on each issue on appeal.
You must send the opposing party(ies) a copy of the post-trial brief, position statement or memorandum that you file with the Board.
WHAT HAPPENS AFTER THE TRIAL?
The Board will make a decision on your case after considering the written evidence submitted during the discovery period, any testimony provided at trial, appropriate oral arguments made at trial, any written post-trial briefs, position statements or memoranda filed after the hearing, and the record at the Board.
The Board’s decision and order will be in writing and will be sent to you. It is your responsibility to regularly check your mailbox for the decision and order, as well as any written order or other communication from the Board or other parties in the appeal.
It is also your responsibility to keep the Board apprised of any changes in your address or telephone number.
Hearings officers who may be assigned to hear your case will issue a proposed decision. If you disagree with the proposed decision, you may file a written statement of exceptions saying why you disagree. If you want 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 after 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 its decision.
I DIDN’T KNOW ABOUT A PARTICULAR LAW OR RULE OR ORDER. AM I EXCUSED?
All parties are required to comply with the laws, rules, and orders of the Board. Ignorance of such laws, rules, and orders shall not be accepted as an excuse by the Board.
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 Intermediate Court of Appeals of the State of Hawaii. An appeal must be filed with the Board within thirty days of the mailing of the Board’s decision. A sample notice of appeal may be found here. Form 6 - Notice of Appeal An appealing party may seek a waiver of court filing fees by filing a Motion to Proceed In Forma Pauperis Form 7 - Motion for Leave to Proceed In Forma Pauperis supported by an affidavit Form 8 - Affidavit - In Forma Pauperis.
HOW MUCH TIME SHOULD I PLAN ON FOR THE CONFERENCES AND TRIALS?
The Board schedules initial conferences in 15 or 30 minute intervals. Settlement and status conferences are scheduled in 45 minute intervals. However, the conferences could last shorter or longer than the time allotted.
The Board schedules trials for 3 hours. If you believe that your trial will take more than three hours, please bring that to the Board’s attention at the time of your initial conference. Your trial may need to be moved.
I NEED TO RESCHEDULE A CONFERENCE. WHAT DO I DO?
Contact the other side to explain why a continuance (postponement or rescheduling) is necessary. Ask if the other side will agree to a continuance. If all parties are in agreement to the continuance, call the Board. Inform the Board that the parties are in agreement, and request a new date and time for the conference. Call the other side to see if the new conference date/time is acceptable. If not, call the Board for a new date/time and call the other side to see if it is acceptable. Once an acceptable date/time is agreed upon, send a confirming letter to the Board with the old date/time and new date/time or complete a Stipulation to Continue Conference. Form 9 - Stipulation to Continue Conference Send the Stipulation to the other side for signature, and then send it to the Board for approval and filing.
I NEED TO RESCHEDULE A TRIAL. WHAT DO I DO?
First, see if the other side will agree. If so, then a Stipulation to Continue Trial must be prepared and filed. The Stipulation should state the reasons a continuance of the trial is necessary. The Board will consider the Stipulation and decide whether to grant the continuance.
If the other side does not agree, a Motion to Continue Trial may be filed. This motion must comply with the Board’s rules regarding motions.
IF MY TRIAL IS CONTINUED, WHEN WILL IT BE RESCHEDULED?
Although the Board cannot predict every contingency, please note that because of the Board’s heavy trial schedule, it is possible that your case will be rescheduled to a date about 14 months after the Board approves the continuance. For example, if the Board approves your request to continue a trial in January 2010, the trial could be rescheduled to March 2011.
Also, please note that although the Board makes every effort to have all trials proceed on the date noted in the pretrial order, it may need to be rescheduled in certain circumstances.
HOW SHOULD I DRESS FOR APPEARANCES AT THE BOARD?
Attorneys should dress in appropriate courtroom attire for trial. Other business attire is appropriate for conferences.
Business attire or Aloha wear is acceptable for non-attorney participants at trial and conferences.
Sweatshirts, sweat jackets, shorts, sweat pants, T-shirts, low-cut wear, mini skirts, etc. are not appropriate.
DO I HAVE TO GIVE THE OTHER SIDE INFORMATION?
A copy of all documents and things filed with the Board must be served on the other side. Prepare and file a Certificate of Service to certify that a copy of the document was properly served. Form 10 - Certificate of Service
WHAT IF I WANT TO HAVE A HEARING BEFORE THE DIRECTOR WHILE MY CASE IS ON APPEAL?
A case may be temporarily remanded to the Director for determination of issues not previously decided.
Contact the other side to explain why you want a temporary remand. Ask if the other side will agree to a temporary remand. If all parties are in agreement, complete a Stipulation for Temporary Remand. [LINK HERE – Form 11]. Send it to the other side for signature, and then send it to the Board for approval and filing. If the Stipulation is approved, the case will be sent to the Director for determination on the issues stated. The Board may choose to issue an order temporarily remanding the case to the Director instead of approving the stipulation.
If any party does not agree to a temporary remand, a non-hearing Motion for Temporary Remand may be filed. This motion must comply with the Board’s rules regarding motions.
WHAT IF I WANT TO WITHDRAW MY APPEAL? WHAT DO I HAVE TO DO?
Any withdrawal of appeal must be in writing. Form 12 - Withdrawal of Appeal
