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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
15-SEP-2025
12:35 PM
Dkt. 21 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---CARRIE N. NOBORIKAWA,
Petitioner/Claimant-Appellant-Appellant,
vs.
HOST INTERNATIONAL, INC.,
Respondent/Employer-Appellee-Appellee,
and
ACE INSURANCE CO., adjusted by Corvel Corporation,
Respondent/Insurance Carrier-Appellee-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. AB 2018-009)
SEPTEMBER 15, 2025
RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.
OPINION OF THE COURT BY EDDINS, J.
This case involves a workers’ compensation partial
permanent disability (PPD) award for a 2007 bilateral knee
injury.
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Carrie Noborikawa was an airport restaurant and bar manager
for Host International, Inc. In March 2007, Noborikawa injured
both knees at work while lifting a beer keg into a walk-in
refrigerator. Her right knee required surgery a few months
later. After finishing physical therapy, she experienced
recurring symptoms such as pain, swelling, buckling, and fluid
buildup in her right knee.
While her left knee had fewer symptoms, she experienced
pain and crunching in that knee. She took pain medication
daily, had difficulty sleeping, and couldn’t engage in many of
her hobbies, such as golfing, hiking, and volunteering at her
children’s school.
Noborikawa was unable to return full-time to her managerial
position. Host International eventually fired her in 2012 for
exceeding their leave policy. In 2013, she underwent two
different functional capacity evaluations. The evaluations
showed that she was only capable of sedentary work. After
completing vocational rehabilitation, she found employment in
January 2016 working as a medical coder and biller. Since then,
she has worked in that field.
Noborikawa filed for workers’ compensation. In 2010, 2013,
and 2016, Dr. James Langworthy evaluated Noborikawa to set
impairment ratings for both knees. (Dr. Langworthy’s impairment
rating was based on the AMA Guides to the Evaluation of
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Permanent Impairment and examined the knees’ ranges of motion.)
The doctor determined that her right knee was 5% impaired, and
that her left knee was 0% impaired. This permanent impairment
rating was part of the basis for her PPD award, or compensation
for the loss of physical functioning. See Ihara v. State of
Hawaiʻi, Dep’t of Land & Nat. Res., 141 Hawaiʻi 36, 42, 404 P.3d
302, 308 (2017).
Pursuant to a hearing, the Department of Labor and
Industrial Relations Disability Compensation Division (DCD)
awarded Noborikawa 7% PPD for the right knee and 0% for the left
knee. It ordered Host International to pay a total PPD award of
$13,668.48.
Noborikawa appealed to the Labor and Industrial Relations
Appeals Board (LIRAB). Because she was permanently disabled
from her job as a restaurant and bar manager and could only
handle sedentary work, Noborikawa argued she should have
received 20% for her right knee and 7% for her left knee. Host
International argued that Dr. Langworthy’s rating governed, and
that Noborikawa failed to meet her burden of proving entitlement
beyond the extra 2% the DCD added to Dr. Langworthy’s 5% right
knee rating.
The LIRAB majority awarded 8% PPD for Noborikawa’s right
knee, and 3% PPD for her left knee. It bumped Dr. Langworthy’s
rating by 3% in both knees.
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LIRAB’s chair dissented, concluding that he would have
awarded 20% PPD for the right knee and 5% PPD for the left knee.
The Intermediate Court of Appeals (ICA) affirmed LIRAB’s
majority decision and order.
We disagree.
First, LIRAB does not provide sufficient findings of fact,
analysis, or conclusions of law to show an appellate court how
it reached its PPD award determination. Kauai Springs, Inc. v.
Planning Comm’n of Cnty. of Kauaʻi, 133 Hawaiʻi 141, 164, 324
P.3d 951, 974 (2014). While this court defers to LIRAB’s
expertise in determining the degree of an injured worker’s PPD,
agencies must provide sufficient findings to “allow the
reviewing court to track the steps by which the agency reached
its decision.” See id.; Ihara, 141 Hawaiʻi at 47, 404 P.3d at
313.
The LIRAB Chair’s comparatively detailed dissent shows why
LIRAB’s decision is insufficient. See Kauai Springs, 133 Hawaiʻi
at 164, 324 P.3d at 974. We are persuaded by the dissent’s
reasoning, and award 20% for the right knee and 5% for the left
knee.
Second, the ICA did not err in holding that LIRAB
considered Noborikawa’s permanent disability from her Host
International job. Because an injured worker’s inability to
return to their pre-injury job is a discretionary factor, LIRAB
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did not err in not explicitly analyzing Noborikawa’s ability to
return to her Host International job. See Ihara, 141 Hawaiʻi at
47, 404 P.3d at 313. Thus, LIRAB’s reference to Noborikawa’s
inability to return to her prior job in its findings, but not in
its analysis, was proper. See id.
Last, we hold that LIRAB erroneously relied on Noborikawa’s
successful vocational rehabilitation and TTD benefits in
determining her PPD award. LIRAB improperly conflated wagebased TTD benefits with physical impairment-focused PPD awards.
Thus, we vacate the ICA’s judgment and vacate in part
LIRAB’s decision and order.
I.
Before her injury, Noborikawa had worked for Host
International at the Honolulu airport as a Stinger Ray’s Bar &
Grill manager for just over 13 years. Her duties included food
delivery, bussing tables, and assisting in the kitchen, bar, and
back of house. She also trained and supervised other Host
International staff.
On March 9, 2007, Noborikawa lifted a beer keg from a
flatbed roller and placed it into a walk-in refrigerator. She
suffered a bilateral knee injury. Noborikawa explained that she
lifted the beer keg, turned, and felt her knee pop. She “shook
off the pain” and finished her busy day. When she got home, she
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saw black and blue rings around both knees and “it hurt like
crazy.”
Host International accepted liability for the injury
through its WC-1 Employer’s Report of Industrial Injury.
Starting in March 2007, family and sports medicine doctor
Dr. Blane Chong treated Noborikawa. He aspirated (removed
liquid from) both knees multiple times, injected both knees with
Supartz and Kenalog, prescribed pain medication, and referred
Noborikawa to physical therapy. She started physical therapy on
March 28, 2007.
In June 2007, orthopedic surgeon Dr. Calvin Oishi completed
surgery on her right knee.
On March 3, 2010, Dr. Chong assessed Noborikawa’s
functional capacity. He opined that Noborikawa could “never”
carry or lift more than ten pounds, nor squat, crawl, climb, or
reach above the shoulder. He added that she could only
“occasionally” bend or push and pull items while seated or
standing. The doctor qualified her for “sedentary work.”
In September 2013, CHART Rehabilitation determined that
Noborikawa was classified for “sedentary-light” work.
For workers’ compensation purposes, Dr. Langworthy examined
Noborikawa three times over six years to determine permanent
impairment ratings for both knees. In July 2010, Dr. Langworthy
determined that Noborikawa’s medical condition had stabilized,
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so he could assess her condition. Using the 5th Edition of the
AMA Guides to the Evaluation of Permanent Impairment (AMA
Guides), Dr. Langworthy determined Noborikawa had a 5% permanent
impairment of the right lower extremity, and no impairment of
the left lower extremity.
Three years later, Dr. Langworthy made the same
determination after a follow-up assessment. He noted that “her
symptoms are staying the same,” and that “there is no change in
the rating after today’s evaluation.” In 2016, Dr. Langworthy
found that Noborikawa’s “symptoms and exam findings [were] very
similar to what [he] had seen in the past.” He again reported
Noborikawa’s impairment as 5% for the right knee. He did not
report any left knee impairment.
Three months after her 2007 knee surgery, Noborikawa
returned to work on light duty (working about three days per
week, four hours per shift). Host International fired
Noborikawa in 2012 for exceeding their leave of absence policy.
A vocational rehabilitation program assessed Noborikawa’s
skill set and recommended that she train to work as a medical
coder and biller. She did. Noborikawa attended Hawaiʻi Medical
College and became a certified biller. She worked forty hours a
week as a medical biller for an urgent care center from January
6, 2016 until July 2018. She later went to work as an
independent contractor in that field.
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After a DCD claims hearing, in December 2017, the Director
of the Department of Labor and Industrial Relations found 7% PPD
of the “right leg” based on Dr. Langworthy’s report and
Noborikawa’s testimony. The Director found no permanent
disability of the “left leg” based on Dr. Langworthy’s report.
The Director ordered Host International to pay: (1) one $125.00
lump sum disfigurement payment for right knee hyperpigmented
scarring, (2) $180,714.48 for temporary total disability (TTD)
for select date ranges between June 2007 and January 2016, and
(3) $22,997.50 for temporary partial disability (TPD) for select
date ranges from September 2007 through February 2010. Host
International was also ordered to pay $13,668.48 for PPD of her
right leg ($540.83 weekly compensation for 25.27 weeks at 7%
PPD).
In January 2018, Noborikawa appealed to LIRAB. She
appealed the denial of PPD benefits for the left knee and the 7%
PPD award for the right knee. She did not appeal the other
payments.
In February 2019, LIRAB held an agency hearing. See Hawaiʻi
Administrative Rules (HAR) § 12-47-2 (per the LIRAB rules of
practice and procedure, “trial” means an “agency hearing” as
defined in Hawaiʻi Revised Statutes (HRS) § 91-1(6) (1993)).
Noborikawa was the only witness. Noborikawa testified regarding
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time after surgery, but continued to experience pain, throbbing,
swelling, and buckling in her right knee. Sometimes she used a
cane.
Noborikawa explained that she experiences stiffness and
achiness in her right knee. She sleeps with pillows under her
knees, a fan blowing on her knees, and experiences a pain level
of about three every morning until her knees “warm up.” She
can’t sit for extended periods, gets up at least once an hour,
must be careful how she positions her legs, and cannot sit in
chairs that lack support. In her new job as a medical coder,
she gets up more often to walk around than others. Towards the
end of the day, she related, her right knee is swollen and hot,
and looks like a mushroom.
Noborikawa testified that her left knee has slightly
different symptoms. She experiences less swelling, but notices
occasional crackling and crunching sounds. But if she “do[es]
something wrong,” her left knee swells. She described her
condition as a “precarious situation.”
Last, Noborikawa testified as to how her injury impacted
her home life. Noborikawa testified that she takes Advil for
pain almost daily, 300 milligrams of Lyrica (nerve pain
medication) in the evening, and 100 milligrams of Lyrica in the
afternoon as needed. She said she used to be able to leg press
235 pounds, but that she now can only leg press 37 pounds.
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Noborikawa also testified that she is no longer able to clean
her house in one session like she used to, but instead cleans in
segments over several days. Before her injury, she enjoyed
furniture reupholstering, golfing three to four times per week,
construction projects with her father, and volunteer work
teaching painting at a school. Now, she’s cautious about
participating in her hobbies to avoid her “body pay[ing] for it
later.”
In its decision and order, LIRAB awarded 8% PPD for
Noborikawa’s right knee, and 3% PPD for her left knee.
LIRAB made several findings. In 2010, Dr. Langworthy
evaluated Noborikawa’s right knee at 5% PPD and left knee at 0%
PPD, given her “minor complaints and normal examination of the
left knee.” The doctor’s 2013 evaluations referenced cortisone
injections to the right knee and occasional swelling and
buckling in the left knee, LIRAB found. During that
examination, Noborikawa described how the injury affected her
ability to perform her activities of daily living and that she
continued to experience knee pain, swelling, and catching. In
2013, LIRAB found, Noborikawa underwent a functional capacity
evaluation deeming her capable of sedentary work. She was
unable to return to her usual and customary job as a restaurant
and bar manager.
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Noborikawa completed vocational rehabilitation and attended
Hawaiʻi Medical College to train as a medical coder-biller. She
found work in January 2016 as a medical coder-biller.
Dr. Langworthy re-evaluated Noborikawa in September 2016.
He noted that Noborikawa reported no changes in her symptoms.
He again rated her right knee at 5% and provided no rating for
the left knee.
Next, LIRAB detailed Noborikawa’s testimony. She
“testified about her symptoms in her right and left knees.” For
her right knee, Noborikawa explained that she feels pain in the
morning and throughout the day, and that her knee gets swollen
and hot by the end of the day. She reported she cannot sit for
long, needs to get up every hour or so, and cannot tuck her legs
under chairs. She sleeps with four pillows between or under her
knees and slowly gets up from certain positions.
Regarding her left knee, Noborikawa testified that she
experienced weakness and achiness, and crunching or cracking
sounds. If she were to do something out of the ordinary, she
would feel a sharp pain that would take a couple of days to
resolve on its own. She testified that her left knee does not
swell up as much as the right knee, but it would “if she did
something wrong.”
LIRAB found that Noborikawa was unable to return to her
usual and customary job because of her work injury to both
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knees. After completing vocational rehabilitation, LIRAB noted
that Noborikawa attended classes to train as a medical coder or
biller, and found suitable employment in that field in January
2016. LIRAB found that Dr. Langworthy rated Noboroikawa’s right
lower extremity impairment as 5% and her left lower extremity as
0% based on the AMA Guides. LIRAB credited Noborikawa’s
testimony regarding recurrent symptoms in her right knee and
recurrent and intermittent symptoms in her left knee, and how
they impacted her daily home and work activities.
LIRAB said that it considered Dr. Langworthy’s impairment
ratings, Noborikawa’s inability to return to her usual and
customary job, the impact of the injury on Noborikawa’s work in
her new job, and her residual symptoms. It found that
Noborikawa argued she was 100% disabled from her usual and
customary job, but “presented no evidence to meet her burden of
proving [her] entitlement to an award of 20% PPD for the right
leg and 7% PPD for the left leg.” Thus, LIRAB concluded,
Noborikawa sustained 8% permanent impairment to the right lower
extremity and 3% permanent impairment to the left lower
extremity.
LIRAB Chair Danny Vasconcellos concurred with the majority
to reverse and modify the DCD Director’s December 2017 decision.
But he dissented as to the majority’s PPD percentage awards. He
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would’ve awarded 20% PPD for the right knee and 5% PPD for the
left knee.
The Chair stated that his assessment of Noborikawa’s
inability to perform her usual and customary job was informed by
(1) Dr. Blane Chong’s March 3, 2010 functional capacity
evaluation (FCE), (2) a September 20, 2013 CHART Rehabilitation
FCE qualifying Noborikawa for sedentary work, (3) Vocational
Rehabilitation Services’ placement of Noborikawa in sedentary
work as a medical biller and coder because of her inability to
function in her prior restaurant manager job, and (4)
Noborikawa’s testimony regarding how recurrent symptoms in her
right and left knees impact her daily home and work activities.
Thus, the Chair determined that “there is reliable, credible and
persuasive evidence to support my finding that [Noborikawa]
sustained permanent impairment of 20% of the right lower
extremity and 5% of the left lower extremity.”
The Chair first stated that Noborikawa’s “true total loss
of impairment” rating was based on Dr. Chong’s verification of
her inability to function as a restaurant and bar manager,
limiting Noborikawa to sedentary work. Second, vocational
rehabilitation records detail how Noborikawa underwent three
surgeries, then attended school for eventual placement as a
certified medical biller and coder. Third, he assessed Dr.
Langworthy’s impairment ratings, which were based exclusively on
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the AMA Guides. Last, he credited Noborikawa’s testimony
regarding limitations to both legs and the right leg injury’s
impact on her daily living and work life (including her
inability to work in six of eight FCE work categories). The
Chair concluded that in analyzing “other factors affecting a PPD
determination” beyond Dr. Langworthy’s impairment ratings,
Noborikawa presented substantial, credible, and persuasive
evidence for the Board to award 20% PPD for the right knee and
5% PPD for the left knee. See Ihara, 141 Hawaiʻi at 44, 404 P.3d
at 310.
Noborikawa appealed the majority’s 8% award for the right
knee and 3% for the left knee.
Before the ICA, Noborikawa argued that LIRAB failed to
consider her permanent disability preventing her from returning
to her former restaurant and bar manager duties. She claimed
that LIRAB failed to sufficiently explain the basis for its
awards of 8% and 3% “to a person who was 100% disabled from her
job,” and failed to make findings sufficient to allow the court
to understand how LIRAB reached its decision. Noborikawa also
maintained that LIRAB erroneously relied on her vocational
rehabilitation, re-employment as a coder, and her receipt of TTD
benefits to award her a lower PPD.
The ICA affirmed LIRAB’s decision. It held that LIRAB
sufficiently explained its PPD award, and considered
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Noborikawa’s inability to return to work with Host
International. It also held that LIRAB did not erroneously
treat PPD benefits as TTD benefits, but rather “accurately
informed [Noborikawa] that she was not entitled to greater PPD
benefits solely due to her inability to return to work, and that
there were other benefits such as TTD for the inability to
return to work with [Host International].”
Noborikawa applied for cert. We accepted.
She argues that LIRAB (1) failed to consider her permanent
disability from her Host International bar manager job, (2)
failed to sufficiently explain how it reached its PPD award, and
(3) improperly used her successful vocational rehabilitation to
justify a “meager PPD award.”
We hold that LIRAB did not provide “reasonably clear”
findings of fact or conclusions of law to allow this court to
track how it reached its PPD award decision. We vacate the
ICA’s decision, affirm the LIRAB dissent’s traceable reasoning,
and award Noborikawa 20% PPD for the right knee and 5% PPD for
the left knee.
II.
A. LIRAB does not provide “reasonably clear” findings of fact
or conclusions of law to allow this court to track how it
reached its PPD award decision
We reverse the ICA’s decision that “LIRAB sufficiently
explained how it reached its PPD award.” The LIRAB majority’s
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“Findings of Fact, Analysis/Discussion, and Conclusions of Law”
do not clearly illustrate how it came to its PPD award decision.
Based on the record, we conclude that the LIRAB majority’s 8%
and 3% awards for the right and left knees were clearly
erroneous. See HRS § 91-14(g) (1993 & Supp. 2004). Because the
LIRAB dissent allows this court to track its reasoning and the
record supports its conclusion, we hold that Noborikawa is
entitled to 20% PPD for the right knee and 5% PPD for the left
knee.
Per HRS § 91-12 (1993), “[e]very decision and order adverse
to a party to the proceeding, rendered by an agency in a
contested case, shall be in writing or stated in the record and
shall be accompanied by separate findings of fact and
conclusions of law.” See Application of Hawaiʻi Elec. Light Co.,
Inc. (HELCO), 60 Haw. 625, 641-42, 594 P.2d 612, 623-24 (1979)
(quoting HRS § 91-12). The purpose of HRS § 91-12, is “to
assure reasoned decision making by the agency and enable
judicial review of agency decisions.” Id. at 641-42, 594 P.2d
at 623. “A court reviewing the decision of an agency should
ensure that the ‘agency . . . make its findings reasonably
clear. The parties and the court should not be left to
guess . . . the precise finding of the agency.’” Matter of
Hawaiʻi Elec. Light Co., Inc., 145 Hawaiʻi 1, 11, 445 P.3d 673,
683 (2019). Thus, “[a]n agency’s findings should be ‘sufficient
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to allow the reviewing court to track the steps by which the
agency reached its decision.’” Kauai Springs, 133 Hawaiʻi at
164, 324 P.3d at 974.
Court should not have to guess. “[Agency] findings ought
to set forth sufficient facts so that the reviewing court can
prudently discharge its duty and not experience a sense of
frustration through inability to get at the facts.” HELCO, 60
Haw. at 642, 594 P.2d at 623.
HELCO held that the Public Utility Commission’s decision
approving a rate schedule lacked a statement of supporting facts
or references to the record where such facts may be found. Id.
at 642, 594 P.2d at 623-24. This court held,
The agency is the fact finder, and the undigested
transcript [for example] is not a substitute for a set of
findings of fact. . . . Nor should a court be put in a
position wherein it is forced to ferret out the facts or
seek them through engaging in mathematical calculations of
a kind for which special training is required.
Id. (quoting American Can Co. v. Davis, 559 P.2d 898, 905 (Or.
Ct. App. 1977)) (emphasis added). Because appellate courts are
“not the fact finding body,” we declined to “fill the voids in
the Commission’s orders.” Id. at 643, 594 P.2d at 624.
Here, in contrast to the dissent’s opinion, LIRAB did not
specify which findings of fact led to its percentage award of 8%
for the right knee and 3% for the left knee. LIRAB generally
set forth information it considered in making its decision, such
as Dr. Langworthy’s reports and Noborikawa’s testimony. But it
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did not specify the information it relied on to increase the
award from 7% to 8% for the right knee and from 0% to 3% for the
left knee. It also failed to indicate what evidence it
discarded in denying Noborikawa’s request for 20% for the right
knee and 7% for the left knee.
LIRAB found that Noborikawa could not return to her usual
and customary job because of her work injury to both knees.
After completing vocational rehabilitation, Noborikawa attended
classes to train as a medical coder or biller, and found
suitable gainful employment in that field. LIRAB found that Dr.
Langworthy rated Noboroikawa’s right lower extremity impairment
as 5% and her left lower extremity as 0% based on the AMA
Guides. It credited Noborikawa’s testimony regarding recurrent
symptoms in her right knee and recurrent and intermittent
symptoms in her left knee, and how they impacted her daily life
activities.
LIRAB found that Noborikawa “suffered a loss of physical
function of both the right and left legs, as result of the workrelated bilateral knee injury.” FOF 8 reads:
8. In evaluating [Noborikawa’s] PPD for the right
and left lower extremities, the Board considered the
impairment ratings by Dr. Langworthy based on the AMA
Guides, [Noborikawa’s] post-injury inability to return to
her usual and customary job, the impact of the injury on
[her] work in her new job, and her residual symptoms.
In FOF 9, LIRAB found that while Noborikawa argued she was
“100% disabled from her usual and customary job,” she “presented
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no evidence to meet her burden of proving [her] entitlement to
an award of 20% PPD for the right leg and 7% PPD for the left
leg.” (emphasis added); see Skahan v. Stutts Constr. Co., Inc.,
148 Hawaiʻi 460, 468, 478 P.3d 285, 293 (2021).
LIRAB explained in its Analysis/Discussion:
In assessing [Noborikawa’s] impairment, the Board has
considered not only Dr. Langworthy’s impairment ratings,
but also [Noborikawa’s] testimony and documented reports
regarding her symptoms in the right and left lower
extremities, [her] ability to return to her bar and
restaurant manager job, the injury’s impact on the job she
has been rehabilitated into, and any other factors that
affect PPD assessment pursuant to Ihara.
Last, in its Conclusions of Law, LIRAB determined that
Noborikawa was entitled to 8% PPD for the right knee and 3% PPD
for the left knee. It presented no other conclusions of law.
LIRAB’s slim recitation of facts and general statement that
it reviewed the record, absent more detailed FOFs and COLs, is
insufficient for a reviewing court to determine how LIRAB came
to its PPD award. See Kauai Springs, 133 Hawaiʻi at 164, 324
P.3d at 974. LIRAB has discretion to determine the PPD award.
Ihara, 141 Hawaiʻi at 45, 404 P.3d at 311 (“Where a physician’s
estimate of the permanent impairment under the AMA Guides is
zero, [LIRAB] nonetheless has the discretion to find a
determinate degree of impairment using standards not encompassed
by the AMA Guides.”). But this discretion must be traceable.
See Kauai Springs, 133 Hawaiʻi at 164, 324 P.3d at 974. LIRAB’s
analysis essentially says that it has discretion to determine
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PPD awards, so, based on its review of the record, it exercised
that discretion and made a PPD award.
LIRAB’s conclusions of law do not apply law to facts, and
merely state a percentage award for each knee. LIRAB’s decision
and order thus asks us to make a major analytical leap from its
fact recitation to its seemingly untethered final award
percentages. See HELCO, 60 Haw. at 643, 594 P.2d at 624.
We hold that LIRAB’s conclusory decision is insufficient.
The LIRAB majority’s reasoning also includes discrepancies
that muddy our tracking of its factual and legal analysis. See
Kauai Springs, 133 Hawaiʻi at 164, 324 P.3d at 974. LIRAB
mentioned in FOFs 5 and 6 that it credited Noborikawa’s
testimony regarding recurrent symptoms in her right knee,
intermittent and recurrent symptoms in her left knee, and how
both knees “impacted her daily activities at home and at work.”
Indeed, Noborikawa testified during the LIRAB hearing to
symptoms that last all day at varying pain levels, and impact
her current work, home life, and hobbies. LIRAB also said in
FOF 8 that, among other evidence, it considered Noborikawa’s
“residual symptoms.”
But LIRAB then determined that Noborikawa “present[s] no
evidence” to meet her burden of proof in establishing 20% and 7%
entitlement for the right and left knees. (Emphasis added.)
Because LIRAB credited Noborikawa’s testimony about major
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lifestyle impacts, its subsequent determination that she offered
“no evidence” to support a 20% and 7% entitlement is clearly
erroneous. See Skahan, 148 Hawaiʻi at 468, 478 P.3d at 293
(finding of fact that there was “no evidence” employee’s back
injury was work-related clearly erroneous because doctor’s
report stated the back injury was related to the incident).
It is unclear to us why, if Noborikawa submitted “no
evidence” supporting a higher entitlement, LIRAB chose to award
1% more for the right knee and 3% more for the left knee than
DCD did. Further, in crediting Noborikawa’s testimony that she
can no longer leg press hundreds of pounds, experiences daily
pain, and is severely limited in participation in her hobbies,
LIRAB’s 8% and 3% award is clearly erroneous. See HRS § 91-14(g); Skahan, 148 Hawaiʻi at 468, 478 P.3d at 293.
Generally, reviewing courts defer to LIRAB’s expertise in
determining the degree of an injured worker’s permanent partial
disability. See Ihara, 141 Hawaiʻi at 47, 404 P.3d at 313
(citing In re Water Use Permit Applications, 94 Hawaiʻi 97, 119,
9 P.3d 409, 431 (2000)). This presumption of validity for
agency decisions, though, “‘presupposes that the agency has
grounded its decision in reasonably clear’ findings of fact and
conclusions of law.” Matter of Hawaiʻi Elec. Light Co., 145
Hawaiʻi at 11, 445 P.3d at 683 (citing In re Waiʻola O Molokaʻi,
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Inc., 103 Hawaiʻi 401, 432, 83 P.3d 664, 695 (2004)). Thus,
absent traceable findings and conclusions of law, we do not need
to defer to LIRAB’s decision. See id.
B. The LIRAB Chair’s dissent allows this court to track how he
reached his PPD award decision
The LIRAB Chair’s dissent, unlike the majority decision,
allows this court to trace the Chair’s reasoning. See Kauai
Springs, 133 Hawaiʻi at 164, 324 P.3d at 974. Thus, we are
persuaded by the Chair’s analysis and hold that Noborikawa is
entitled to 20% PPD for the right knee and 5% PPD for the left
knee.
First, the Chair more clearly delineated the evidence he
relied on in making his decision. He explained that he based
his 20% right knee and 7% left knee PPD awards on (1) Dr. Blane
Chong’s March 3, 2010 functional capacity evaluation (FCE), (2)
a September 20, 2013 CHART Rehabilitation FCE qualifying
Noborikawa for sedentary work, (3) Vocational Rehabilitation
Services’ placement of Noborikawa in sedentary work as a medical
biller and coder based on her inability to function in her prior
restaurant manager job, and (4) Noborikawa’s testimony regarding
how recurrent symptoms in her right and left knees impact her
daily home and work activities.
The LIRAB majority, on the other hand, was less equivocal.
In its findings, it referenced Dr. Langworthy’s three reports,
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and a September 20, 2013 functional capacity evaluation deeming
Noborikawa capable of sedentary work. While LIRAB stated in its
Analysis/Discussion section that it considered “not only Dr.
Langworthy’s impairment ratings, but also [Noborikawa’s]
testimony and documented reports regarding her symptoms in the
right and left lower extremities,” it did not specify whether it
relied on any reports beyond those discussed in its findings.
The majority’s analysis describes an evidentiary category
on the record (“documented reports regarding [Noborikawa’s]
symptoms”) but does not specify the specific type of reports it
relied on. For example, “documented reports regarding her
symptoms” could refer to a (non-medical professional) vocational
rehabilitation specialist’s documentation of Noborikawa’s selfreported condition. It could refer to sports and rehabilitation
specialist Dr. Blane Chong’s (1) functional assessments, (2)
ongoing treatment plans, or (3) full condition and pain reports.
Or it could also refer to occupational practitioner Dr. Vern
Sasaki’s 2009 Independent Medical Examiner PPD determination, or
CHART Rehabilitation’s September 30, 2013 functional capacity
assessment.
Here, because LIRAB’s FOFs and Discussion/Analysis only
reference Dr. Langworthy’s reports and the September 30, 2013
functional capacity evaluation, it is unclear which other
“documented reports regarding her symptoms,” if any, LIRAB
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relied on in making its decision. Omission of details about
these reports in the decision and order make it difficult to
determine whether LIRAB incorporated all reports by reference to
the record as a whole. If other reports were excluded, it is
unclear whether LIRAB did not credit the content of these
reports and thus did not include them, or did not find them
persuasive in its PPD determination. See HELCO, 60 Haw. at 642,
594 P.2d at 623-24 (holding reference to an “undigested
transcript” on the record was not a substitute for a set of
findings of fact). Thus, the reference to this category of
evidence without more specific findings or analytical
clarification makes it difficult to track LIRAB’s reasoning in
this case.
Second, the LIRAB Chair’s dissent more clearly explains the
effect of evidence in either raising or lowering the PPD award
percentage from the AMA rating. In contrast, the LIRAB majority
says that Noborikawa “suffered a loss of physical function of
both the right and left legs” because of her injury, but does
not specify the degree of loss of function, or whether it
considered that “loss” significant or minimal.
The Chair specifies in his findings of fact that because
Noborikawa’s testimony regarding recurrent symptoms in both
knees impact her daily home and work activities, Noborikawa
suffered “significant loss of physical function.” (Emphasis
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added.) In his “Analysis/Discussion,” he stated that he
“review[ed] and [credited Noborikawa’s] testimony regarding her
severe functional/physical limitations . . . together with the
significant impact of the bilateral knee injury on her basic
activities.” (Emphases added.) These adjectives inform this
court as to the impact of the evidence on the dissent’s
reasoning.
We do not require agencies to state whether each and every
piece of evidence helps or hurts a claimant or petitioner’s
cause. But merely listing facts without basic analysis of their
import on the agency’s conclusions leaves this court no way to
gauge whether the agency’s decision was properly based in
evidence on the record and the law. For example, LIRAB could
have indicated whether it thought Noborikawa’s testimony
indicated “mild” as opposed to “severe” impairment. Unlike the
dissent, though, LIRAB’s findings lack language indicating what
evidence weighed in favor of or supported its decision to award
a lower PPD percentage.
We hold that the dissent’s reasoning allows this court to
review its determination. We also hold that a 20% award for the
right knee and 8% award is supported by the record as
articulated by the dissent.
First, Noborikawa’s significant decrease in functioning is
supported by the record. Dr. Chong and CHART Rehabilitation’s
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functional capacity assessments rated her for sedentary work.
She was unable to return full-time to her former position as a
restaurant and bar manager. The vocational rehabilitation
program assessed her skill set and recommended that she train to
work as a medical coder and biller – a sedentary position.
Noborikawa’s “significant loss of physical functioning” is
also supported by her testimony at the LIRAB hearing credited by
both the majority and the dissent. The dissent credited “the
significant impact of the bilateral knee injury on
[Noborikawa’s] basic activities.” Noborikawa testified to
having to change how she cleans her home, lifts weights, and
engages in hobbies like golfing or volunteering at her
children’s school.
The dissent also credited Noborikawa’s testimony regarding
her “severe functional/physical limitations.” Noborikawa
testified to stiffness and achiness in her right knee, morning
pain in her knee, and swelling and warmth in the knees in the
evenings at the end of a day. She also testified that she is
unable to sit for an extended time, gets up to stand at least
once every hour, requires chairs with sufficient support, and
must be careful how she positions her legs. Her left knee, she
said, also makes occasional crackling and crunching sounds.
We hold that together, the impacts on Noborikawa’s physical
functionality and life activities, and her major decrease in
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workplace physical functioning support a 20% right knee and 5%
left knee PPD award.
This seemingly imprecise science, though, leaves much to be
desired. While the LIRAB chair offered more focused, traceable
reasoning, he did not explain how he settled on a 20% right knee
award as opposed to 30% or even 40%. At oral argument, Host
International stated that LIRAB tends to place a “ceiling” on
PPD awards, not to exceed double the amount of the doctor’s AMA
rating. No. SCWC-XX-XXXXXXX, Tuesday, April 8, 2025, 9 a.m.,
Noborikawa v. Host International, YouTube, Oral Argument at
43:46-44:26, https://www.youtube.com/live/EnZhmji7N7E
[https://perma.cc/H5F4-ATQ2]. So while LIRAB has discretion in
awarding PPD, it seems to lack an articulated “formula” for
reaching its PPD decisions. We note that because LIRAB was not
a party to this appeal, it did not weigh in on its own PPD award
practices.
Untraceable or seemingly uncoordinated PPD awards create
unfair results. That’s troubling. Noborikawa argued that Dr.
Langworthy’s 2010 and 2016 ratings did not consider her 100%
disability from her “very physical job.”
A secretary with a similar knee injury who was able
to return to her original job at full duty might be
entitled to a 7% PPD. However, [Noborikawa] was previously
required to lift 125 pound beer kegs at work. . . . To say
that [Noborikawa], who dropped 6 work categories [from
“Very Heavy” to “Sedentary”] should be awarded the same 7%
PPD that is awarded to a secretary, who dropped no work
categories and who is able to resume full duty work at her
old job, would not be fair, just or appropriate.
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While inability to return to a prior position is a
discretionary factor, this sedentary-versus-active profession
example illustrates the problem with a blanket boost of a few
percentage points above a physician’s AMA Guide ratings. See
Ihara, 141 Hawaiʻi at 47, 404 P.3d at 313.
AMA ratings are only one of many factors LIRAB may
consider. According to HAR § 12-10-21(a), “Impairment rating
guides issued by the American Medical Association, American
Academy of Orthopedic Surgeons, and any other such guides which
the director deems appropriate and proper may be used as a
reference or guide in measuring a disability.” HAR § 12-10-21(a). Per Ihara, LIRAB may then add additional percentage
points to a physician’s estimate of the permanent impairment
depending on the magnitude of the impairment rating. Ihara, 141
Hawaiʻi at 43, 404 P.3d at 309. Ihara identified other factors
such as “skills, education, job history, adaptability, age, and
environment” that LIRAB may consider when an AMA Guide-based
assessment “do[es] not truly reflect a claimant’s loss.” See
id. at 44, 404 P.3d at 310.
Ihara observed that “[t]he LIRAB’s decisions show a marked
pattern in which the Board considers factors other than the
physician’s impairment rating, such as whether the complainant
is able to participate in the same types of hobbies and daily
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and work activities as prior to the accident.” Id. at 43, 404
P.3d at 309. Thus, “[w]here a physician’s estimate of the
permanent impairment under the AMA Guides is zero, [LIRAB]
nonetheless has the discretion to find a determinate degree of
impairment using standards not encompassed by the AMA Guides.”
Id. at 45, 404 P.3d 311.
Dr. Langworthy consulted Table 17-31 of the AMA Guides (5th
Edition) to reach his impairment determinations. Titled
“Arthritis Impairments Based on Roentgenographically Determined
Cartilage Intervals,” this table examines range of motion and
cartilage intervals to determine an impairment percentage. AMA
Guides at 544. Noborikawa pointed out, though, that range of
motion is only one aspect of impairment. As Ihara held, this is
why LIRAB has discretion to award PPD percentage points beyond a
physician’s informative, yet limited AMA rating. 141 Hawaiʻi at
45, 404 P.3d 311.
While we understand that workers’ compensation requires a
case-by-case inquiry, we encourage LIRAB to address whether its
PPD determination procedures cause disparate outcomes based on
profession. We suggest that to advance consistency and
fairness, LIRAB consider establishing concrete categories or
factors of review to determine the degree of an employee’s
partial permanent impairment.
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One option may be to analyze changes in physical
functioning through basic Activities of Daily Living (ADLs) and
Instrumental Activities of Daily Living (IADLs). See Ihara, 141
Hawaiʻi at 45, 404 P.3d 311 (daily activities are one factor
LIRAB may consider). According to Table 1-3 of the AMA Guides
(6th Edition), ADLs include bathing, bowel and bladder
management, dressing, eating, feeding, functional mobility,
personal device care, personal hygiene and grooming, sexual
activity, sleep/rest, and toilet hygiene. AMA Guides at 6-7.
IADLS include care of others and pets, child rearing,
communication device use, community mobility, financial
management, health management and maintenance, home
establishments and maintenance, meal preparation and cleanup,
safety procedures and emergency response, and shopping. Id.
While these categories are not explicitly work related,
examining pre- and post-injury changes in these “basic” and
instrumental physical functions is one concrete method of
assessing the degree of an employee’s physical impairment in all
areas of life.
Here, based on Noborikawa’s testimony, two of her ADLs
(functional mobility and sleep) and two of her IADLs (community
mobility and home establishment and maintenance) appear
impacted. An employee whose ADLs and IADLs are impacted in more
categories may receive a greater PPD award. Or an employee who
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is only impacted in one category may receive a lesser PPD award.
Thus, examining these specific categories may better focus the
LIRAB inquiry into an employee’s daily functioning.
We defer to LIRAB to standardize its PPD decisions. LIRAB,
in its expertise, may promulgate rules and evaluative categories
that impact a PPD award.
C. The ICA did not err in holding that LIRAB considered
Noborikawa’s permanent disability from her Host
International job
An injured worker’s inability to return to their pre-injury
job is a discretionary factor. See Ihara, 141 Hawaiʻi at 47, 404
P.3d at 313 (“[A] claimant’s inability to perform [their] usual
and customary work activities legitimately may be considered in
determining PPD awards.”) (emphasis added). As Cabatbat held,
LIRAB need not solely rely on a physician’s AMA Guide rating.
Cabatbat v. Cnty. of Hawaiʻi, Dept. of Water Supply, 103 Hawaiʻi
1, 8-10, 78 P.3d 756, 763-65 (2003). Thus, LIRAB may consider
inability to perform usual and customary work activities in
addition to a physician’s impairment evaluation. Ihara, 141
Hawaiʻi at 47, 404 P.3d at 313.
Noborikawa’s concern that LIRAB listed, but did not analyze
her post-injury inability to return to work at Host
International speaks more to the issue of whether or not LIRAB’s
reasoning sufficiently allows this court to assess how it
reached its decision, and whether on the record, LIRAB erred.
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Because this factor was discretionary, Noborikawa’s argument
lacks merit. See id.
D. LIRAB erroneously relied on vocational rehabilitation and
temporary total disability benefits to reduce Noborikawa’s
PPD award
We hold that LIRAB erroneously considered Noborikawa’s
successful vocational rehabilitation and TTD benefits in
determining her PPD award.
Noborikawa argues that LIRAB “egregiously held that
[vocational rehabilitation] serves to reduce PPD.” In its
Discussion/Analysis, LIRAB explained Noborikawa’s argument that
her PPD was too low considering her 100% disability from her
Host International job:
[Noborikawa] argues that she should get a larger PPD
award than a secretary (her example), who suffered the same
injury and had the same residual symptoms, because that
secretary is able to return to her usual and customary
sedentary job; whereas, [Noborikawa], who had a more
physically demanding job, is 100% disabled from her usual
and customary job. [Noborikawa] contends that it would be
unfair for her to receive a PPD award that is comparable to
that of the secretary whose injury did not impact her
ability to return to her pre-injury job.
LIRAB then held that this example lacks merit because each
case is different:
[Noborikawa’s] argument is without merit. One cannot
look only at the PPD award and conclude that the injured
employee was or was not unfairly compensated for [their]
injury. Each case is different and requires individual
analysis.
Last, LIRAB concluded that Noborikawa’s argument ignored
other workers’ compensation schemes that compensate workers for
their inability to return to their pre-injury jobs:
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[Noborikawa’s] position ignores the statutory scheme
in which injured employees who are not able to return to
their pre-injury job are entitled to additional or
different benefits, such as VR [vocational rehabilitation]
services and additional TTD benefits during VR, the purpose
of which is reduce or remove barriers to reemployment.
Noborikawa argued that LIRAB’s statement regarding the
statutory scheme awarding vocational rehabilitation and TTD
benefits improperly conflated PPD awards with TTD indemnity
benefits.
Host International argued that this excerpt does not
suggest LIRAB decreased its PPD award because Noborikawa
received TTD benefits. Rather, LIRAB was noting these
“additional or different benefits” in response to Noborikawa’s
position that her PPD award was unfair because she could not
return to her previous job.
We hold that LIRAB impermissibly relied on other non-PPD
workers’ compensation schemes to lower Noborikawa’s PPD award.
Total disability benefits are wage replacement benefits
intended to compensate an injured worker for loss of wageearning capacity. Ihara, 141 Hawaiʻi at 42, 46, 404 P.3d 308,
312. Partial permanent disability benefits, on the other hand,
compensate the worker for loss of bodily integrity, or the “loss
or impairment of a physical or mental function.” Id. at 42, 404
P.3d 308. “Unlike total disability, a PPD award is not based on
the amount of wages lost.” Id. Thus, “[a] PPD award is payable
to the worker even if the worker returns to work, and the amount
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of the award derives from the extent of a worker’s impairment
rather than [their] wage-earning capacity.” Id. Thus, that a
worker is compensated after their injury does not decrease the
total PPD award. See id.
LIRAB’s suggestion that Noborikawa’s TTD benefits should
impact her PPD award is improper. Because Noborikawa compared
her 100% disability from her prior active work with a secretary
able to return to a sedentary job, Noborikawa focused on loss of
physical function impacting her work, not her wages. LIRAB’s
subsequent conclusion that these wage discrepancies are
mitigated by TTD benefits and vocational rehabilitation services
suggest that LIRAB considers these schemes as justification for
lowering an employee’s physical function-based PPD. Thus, Host
International’s argument that LIRAB was just commenting on
“fairness” lacks merit.
We hold that receipt of TTD and vocational rehabilitation
benefits are not factors LIRAB should consider when determining
PPD awards. See Ihara, 141 Hawaiʻi at 42, 404 P.3d at 308.
III.
We vacate the ICA’s October 22, 2024 judgment and vacate in
part LIRAB’s February 19, 2020 decision and order. We hold that
Noborikawa is entitled to 20% PPD for the right lower extremity
and 5% PPD for the left lower extremity. The case is remanded
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to LIRAB solely for a determination of the amount of
compensation to be awarded consistent with this opinion.
Wayne H. Mukaida /s/ Mark E. Recktenwald for petitioner
/s/ Sabrina S. McKenna
Jacqueline W.S. Amai
for respondent /s/ Todd W. Eddins
/s/ Lisa M. Ginoza
/s/ Vladimir P. Devens
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