NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 28803
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
Claimant-Appellant Cirilo R. Ragasa, Sr. (Ragasa) appeals the Labor and Industrial Relations Appeals Board's (Board) Decision and Order (Decision) in Case No. AB 2006-245 (2-00-18097), filed on October 2, 2007.
On appeal, Ragasa contends that Findings of Fact Nos. 8, 16, 17, 21, 22, and 23 are clearly erroneous. Ragasa also challenges the conclusion of law that holds he did not fall within the odd-lot category and is therefore not permanently and totally disabled.
Upon careful review of the record and the briefs submitted by the parties and the issues raised by the parties, we resolve Ragasa's points of error as follows:
We conclude that Findings of Fact Nos. 8, 16, 17, 21, 22, and 23 are not clearly erroneous. More specifically: the record does not reflect that any physician opined that Ragasa could not do any work; Rasaga's deposition clearly reflects that he told the vocational rehabilitation counselor that his knee hurt and he could not work; the record reflects that a vocational rehabilitation counselor identified actual, viable and suitable jobs available in the normal labor market, during the relevant period, taking into account Ragasa's limitations; Ragasa did not establish prima facie that he fell within the odd-lot category of PTD; and thus, Employer-Appellee Fred Lau Hawaiian Landscape Co., Inc. did not fail to rebut Ragasa's prima facie case that he fell within the odd-lot category.
The odd-lot doctrine holds "that where an employee receives a work-related permanent partial disability which combined with other factors such as age, education, experience, etc., renders him, in fact, unable to obtain employment, he is entitled to be treated as being permanently totally disabled." Tsuchiyama v. Kahului Trucking and Storage, Inc., 2 Haw. App. 659, 660-1, 638 P.2d 1381, 1382 (1982). (1) "It seems to be accepted that the employee has the burden of establishing prima facie that he falls within the odd-lot category." Id. at 661, 638 P.2d at 1382.
The uncontested evidence is that Ragasa could perform light work even with his knee pain. Ragasa presented no medical opinion regarding his ability to work. LIRAB credited a vocational rehabilitation counselor's (Kobayashi) testimony that his vocational rehabilitation was closed because Ragasa stated that he could not do any job even though it met his physical limitations and skills. Kobayashi's testimony that the labor market survey was positive was credited over the June 1, 2004 report by another vocational rehabilitation counselor (Inoue). Credibility of witnesses will not be disturbed on appeal. Tamashiro v. Control Specialist, Inc., 97 Hawai‘i 86, 92, 34 P.3d 16, 22 (2001).
Both Inoue and Kobayashi found multiple jobs in which employers stated that they would consider hiring Ragasa in 2005. Kobayashi concluded that these jobs were suitable and gainful employment in 2005. Kobayashi stated that she again found multiple jobs in which employers stated that they would consider hiring Ragasa in 2007. Kobayashi stated that these jobs were suitable and gainful employment in 2007. Ragasa refused to consider those jobs. Despite Ragasa's limited skills, limited education, and age, he failed to establish prima facie that he fell within the odd-lot category because he did not desire to return to work, which was available to him notwithstanding his limitations.
Therefore, the Board's determination that Ragasa did not make a prima facie showing of permanent total disability under the odd-lot doctrine is not clearly erroneous in light of the reliable, probative, and substantial evidence. Tsuchiyama v. Kahului Trucking and Storage, Inc., 2 Haw. App. 659, 661, 638 P.2d 1381, 1382 (1982).
For these reasons, we affirm the Board's October 2, 2007 Decision.
DATED: Honolulu, Hawai‘i, December 30, 2008.
On the briefs:
Stanford H. Masui1. Both Ragasa and Lau do not
dispute that Ragasa was permanently partially disabled, thus, Ragasa
has proven the first part of a prima facie case
under the odd-lot doctrine.