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NO. 29537
IN THE INTERMEDIATE C@URT OF APPEALS
OF THE STATE OF HAWAFI
CAROLINE ENOCENCIO, Claimant-Appellant,
v. is
STATE OF HAWAII, DEPARTMENT 0F HUMAN SERVlCES,
Employer»Appellee, Self-lnsured
APPEAL FROM THE LABOR AND INDUSTRIAL
RELATlONS APPEALS BOARD
(CASE NO. AB 2004~O62(H) (l~98-lO303})
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J , Foley and Leonard, JJ.)
Claimant-Appellant Caroline Enocencio (Enocencio)
appeals from the Decision and 0rder (D&O) filed on December 2,
2008 by the Labor and Industrial Relations Appeals Board (LIRAB).
LIRAB dismissed Enocencio's appeal to it as untimely.
On appeal, Enocencio argues that Hawaii Revised
Statutes (HRS) § 386s89(a) & (c) (1993) applies and excuses her
failure to meet the 20-day deadline for filing an appeal with
LIRAB under HRS § 386~87 (l993).1
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we resolve
Enocencio's points of error as follows:
(l) HRS § 386~89(a) is inapplicable because Enocencio
filed her Motion to Reopen work Injury Case (Motion to Reopen)
after the twenty-day filing window had expired. HRS § 386-89(a)
provides:
§386-89 Reopening of cases; continuing jurisdiction
of director. (a) In the absence of an appeal and within
twenty days after a copy of the decision has been sent to
1 We discern this argument from the "Statement of the Case" and
"Conclusion-»Relief Sought" sections of Enocencio's brief.
N(`)'l` F()IR PL?'BL~l`.(`TA"I`l()N IN WICST’S HAWVAI‘I RE'POR'I`S AN’I) PACU`*`IC I{EP()R'.F}?§I{
each party, the director of labor and industrial relations
may upon the director’s own motion or upon the application
of any party reopen a case to permit the introduction of
newly discovered evidence, and may render a revised
decision.
A motion to reopen filed within twenty days of an official
decision tolls the twenty-day filing deadline for appeals under
§ asc~a'.v. alvarez v. Lii>@rty' sense inc:., 35 sawai‘i 275, 2723-
79, 942 P.2d 539, 542-43 (l997). However, because Enocencio did
not file her Motion to Reopen within the twenty-day window, her
argument that her Motion to Reopen tolled the filing deadline
fails.
(2) Enocencio is not entitled to relief pursuant to
HRS § 386-89(c) because she does not present substantial evidence
of a change or mistake relating to her physical condition. HRS
§ 386-89(c) provides:
(c) On the application of any party in interest,
supported by a showing of substantial evidence, on the
ground of a change in or of a mistake in a determination of
fact related to the physical condition of the injured
employee, the director may, at any time prior to eight years
after date of the last payment of compensation, whether or
not a decision awarding compensation has been issued, or at
any time prior to eight years after the rejection of a
claim, review a compensation case and issue a decision which
may award, terminate, continue, reinstate, increase, or
decrease compensation.
Although Enocencio meets the timing requirements of HRS § 386-
89(c), she fails to meet her statutory burden of proof.
Enocencio argues that the exhibits attached to her Motion to
Reopen present "compelling and substantial medical evidence" of
her "current health and well-being." The exhibits include seven
x-rays allegedly of her neck, shoulder, and spine and two reports
explaining the findings and impressions of the x-rays. The
findings in the Final Report for "CR CERVlCAL SPlNE COMP"
indicate:
Findings: Five views of the cervical spine reveals moderate
degeneration of the C5-6 disc space with mild ventral and
posterior osteophyte formation. ln addition, there is
moderate right-sided joint of Luschka osteophyte best seen
in the frontal projection and mildly deforming the right
neuroforamina. The left neuroforamina is widely patent
without significant osteophyte formation. The remainder of
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the neuroforamina are well maintained. The base of the
odontoid is intact.
Although the disc spaces are well maintained, the C4
veite tai body is minimally anteriorly subluxed with respect
to C5. fha facet joints do not appear to be degenerated and
this likely represents sequela of early disc degeneration.
There is some minimal osteophyte arising off the superior
margin of C5 consistent with ventral disc protusion.
Enocencio did not explain these findings, and there was no
affidavit from a medical doctor explaining the findings submitted
in support of her Motion to Reopen. Enocencio merely stated in
her motion tiat this "new evidence [provides] . . . medical proof
that her condition has grown worse in [the] 5 year and 3 month
span which the {State of Hawaii, Department of Human Resources],
Employer-Appellee, had failed to process her claim."
Therefore,
IT IS HEREBY ORDERED that the Decision and Order filed
on December 2, 2008 by the Labor and Industrial Relations Appeals
Board is affirmed.
DATED¢ H@n@lulu, Hawai‘i, February 17, 2010.
On the briefs:
Caroline Enocencio, ' %:é ¢:,
Claimant-Appellant, pro se.
Chief Judge
James E. Halvorson and
Jeffrey A. Keating,
Deputy Attorneys General, _/,»
for Employer-Appellee. 2 £ 3
AssociatetJudge
;;/. ' .
ssociate J dge