NOT FOR PUBLICATION
IN THE INTERMEDIATE COURT OF APPEALS
C. SANTOS, Claimant-Appellee, v.
KYO-YA INSURANCE COMPANY, LTD.
dba: SHERATON PRINCESS KAIULANI HOTEL and
ACCLAMATION INSURANCE MANAGEMENT SERVICES
Employer/Insurance Carrier-Appellant, and
SPECIAL COMPENSATION FUND, Appellee
FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2001-250 (2-98-12222))
After a sedulous review of the record and the briefs submitted by the parties, and giving careful consideration to the arguments advanced and the issues raised by the parties, we decide that the Employer's primary point of error on appeal -- that the Board erred as a matter of law by misapplying Hawaii Revised Statutes (HRS) § 386-33 (Supp. 2004), as interpreted in Flores v. City and County of Honolulu, 67 Haw. 663, 666-70, 701 P.2d 1282, 1285-87 (1985) -- is without merit. The Board did not err as a matter of law. Bumanglag v. Oahu Sugar Co., Ltd., 78 Hawai`i 275, 282, 892 P.2d 468, 475 (1995) ("HRS § 386-1 (1985) defines disability as a 'loss or impairment of a physical or mental function' . . . for purposes of rating a preexisting disability"). See also HRS § 386-1 (1993) (definition of "disability"). Quite simply, the Board did not credit the apportionment opinion of John Sterling Endicott, M.D., M.P.H. (Dr. Endicott), upon which all of the Employer's apportionment opinions were based: "We do not credit Dr. Endicott's apportionment opinion, because there is no basis to support his opinion." As the supreme court has held, "It is well established that courts decline to consider the weight of the evidence to ascertain whether it weighs in favor of the administrative findings, or to review the agency's findings of fact by passing upon the credibility of witnesses or conflicts in testimony, especially the findings of an expert agency dealing with a specialized field. Therefore, we will not pass upon the doctors' relative credibility." Igawa v. Koa House Rest., 97 Hawai`i 402, 409-10, 38 P.3d 570, 577-578 (2001) (footnote, citation and block quote format omitted)). Cf. In re Doe, 95 Hawai`i 183, 190, 20 P.3d 616, 623 (2001) ("'an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence; this is the province of the trier of fact'" (quoting State v. Jenkins, 93 Hawai`i 87, 101, 997 P.2d 13, 27 (2000)).
IT IS HEREBY ORDERED that the February 7, 2003 decision and order and the March 18, 2003 order of the Board are affirmed.
DATED: Honolulu, Hawai`i, January 26, 2005.
Frances E. H. Lum and
Brian G.S. Choy and Keith M. Yonamine
(Law Offices of Brian G.S. Choy), for
1. The Employer does
not specify or argue error with particular respect to the March 18,
that denied the Employer's February 26, 2003 motion for
reconsideration. Hence, we will not review
and thus affirm the March 18, 2003 order. See Hawai`i Rules of
Appellate Procedure (HRAP) Rule
28(b)(4) (2003); Wright v.
Chatman, 2 Haw. App. 74, 76-77, 625 P.2d 1060, 1062 (1981); HRAP
28(b)(7) (2003); Weinberg v.
Mauch, 78 Hawai`i 40, 49, 890 P.2d 277, 286 (1995); In re Waiola O
Molokai, Inc., 103 Hawai`i 401, 438 n.33, 83 P.3d 664, 701 n.33