Opinion
23976
December 24, 2002.
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB-98-554 (2-97-19903))
On the briefs:
Richard K. Griffith, for claimant-appellant.
Robert C. Kessner, Jennifer D.K. Yamashiro, Kessner Duca Umebayashi Bain Matsunaga, for Employer-Appellee, Self-Insured.
BURNS, C.J., LIM AND FOLEY, JJ.
ORDER DISMISSING APPEAL
In this workers' compensation case, Claimant Corazon Y. Sales (Sales) appeals the November 28, 2000 order of the Labor and Industrial Relations Appeals Board (the Board) that adopted the Board's November 9, 2000 proposed decision and order in favor of Employer-Appellee Kapiolani Medical Center (KMC) and Insurance Adjuster-Appellee John Mullen Co., Inc. (collectively, Appellees). The Board's decision and order reversed the October 8, 1998 decision of the Director of Labor and Industrial Relations (the Director) that approved the December 18, 1997 claim for compensation filed by Sales pursuant to Hawai`i Revised Statutes (HRS) § 386-3 (1993 Supp. 2001). According to the Director, Sales, a nurse aide, suffered a compensable stress injury on September 29, 1997, after she was disciplined by KMC "for failure to follow a superior's order in the specific manner directed" — more specifically, for failing, when asked, to help staff nurses transfer a heavy-set patient from a stretcher to a hospital bed. The Board reversed, concluding (1) that Sales did not suffer a stress injury because of the disciplinary action taken against her, and (2) that even if Sales did, her injury did not arise out of and in the course of her employment.
Hawai`i Revised Statutes (HRS) § 386-3 (1993 Supp. 2001) provides, in relevant part, that "[i]f an employee suffers personal injury either by accident arising out of and in the course of the employment or by disease proximately caused by or resulting from the nature of the employment, the employee's employer or the special compensation fund shall pay compensation to the employee or the employee's dependents as provided in this chapter."
On appeal, Sales contends the disciplinary action caused her stress injuries, and that her injuries were the result of being disciplined for performing a task within the course of her employment, albeit in an unauthorized manner. Appellees counter that Sales' failure to provide the transcript of the October 1, 1999 hearing before the Board renders the record on appeal inadequate for appellate review.
In this latter respect, Claimant-Appellant Corazon Y. Sales (Sales) relies primarily upon Mitchell v. State, Dep't. of Educ., 85 Haw. 250, 942 P.2d 514 (1997), in which the Hawai`i Supreme Court explained that "we must determine whether [the employee's] `misconduct' was outside or within the bounds of his [or her] employment duties. To put it another way, `a distinction must be made between (1) an unauthorized departure from the course of employment and (2) the performance of a duty in an unauthorized manner.'" Id. at 255, 942 P.2d at 519 (internal block quote format omitted; brackets in the original) (quoting Wharton v. Hawaiian Elec. Co., Inc., 80 Haw. 120, 123, 906 P.2d 127, 130 (1995). The supreme court concluded that Mitchell was entitled to workers' compensation benefits for a stress-related injury arising out of a disciplinary action taken against her at work, because "Mitchell's alleged use of corporal punishment constituted the performance of a duty in an unauthorized manner." Id. at 256, 942 P.2d at 520.
Employer-Appellee Kapiolani Medical Center and Insurance Adjuster-Appellee John Mullen Co., Inc. (collectively, Appellees) also argue, in the alternative, that the record does not support Sales' contentions that she suffered injury as a result of the disciplinary action, and that the alleged injury occurred within the course of her employment as a nurse aide. On the latter point, Appellees rely primarily upon Wharton, supra, in which the supreme court held that Wharton was not entitled to workers' compensation benefits for a stress-related injury arising out of a disciplinary action taken against him at work, because his misconduct — alteration of time cards — was an unauthorized departure from the course of his employment. Wharton, 80 Hawai`i at 125, 906 P.2d at 132.
At the October 1, 1999 hearing, the Board heard testimony from three medical experts — independent psychological examiner Joseph P. Rogers, Ph.D (Dr. Rogers); independent medical examiner Mark Dillen Stitham, M.D. (Dr. Stitham); and Sales' psychiatrist, Shepard Ginandes, M.D. (Dr. Ginandes) — and from two witnesses who were present at the meeting in which Sales was disciplined — Sales' supervisor Julie Spafford (Spafford) and Sales' "witness" for the meeting, Elsie Takara (Takara). In concluding that Sales did not suffer a compensable injury, the Board considered and evaluated the hearing testimony of the foregoing witnesses, and in large part thereupon, made the following relevant findings of fact:
21. Although [Sales] denied refusing to help Nurse Yiu, based on the complaint from Nurse Yiu, and the credible testimony of [Spafford] and [Takara], and the medical opinions, we find that [Sales] ignored Nurse Yiu's orders and refused to assist with the patient transfer.
22. Dr. Rogers and Dr. Stitham prepared reports of their findings and opinions and provided live testimony at trial. Based on their opinions and testimony, we find that [Sales] experienced an occupational problem that was the focus of attention, but did not develop a diagnosable psychiatric disorder as a result of the events on September 29, 1997. . ..
. . . .
We also credit the opinions of Dr. Rogers and Dr. Stitham that [Sales] did not develop an adjustment disorder on September 29, 1997, because she did not meet the diagnostic criteria for this condition and because [Sales'] emotional reaction was a manifestation of and part of a pattern of behavior caused by her underlying personality disorder.
. . . .
24. At trial Dr. Ginandes testified that he believed [Sales'] version of the facts and rendered his diagnosis based on the history provided by [Sales]. . . .
. . . .
26. Based on [Sales'] employment history and pattern of past behavior, the credible testimony of the lay and expert witnesses, and [Sales'] obvious misperception of the events on September 29, 1997, we are unable to credit the opinions of Dr. Ginandes that [Sales] did not suffer from any underlying personality disorder or that she developed an adjustment disorder as a result of the events on September 29, 1997.
While detailed written reports from Dr. Rogers and Dr. Stitham were before the Board at the October 1, 1999 hearing, there is no written report from Dr. Ginandes in the record, other than his terse diagnosis of "309.26 ADJ DISORDER MIXED" and his recommendations for ongoing psychotherapy and medication. Similarly, only very brief written accounts of the subject incident and its disciplinary aftermath were before the Board at the hearing. In addition, Dr. Rogers made his initial written diagnosis contingent upon what it was Stafford told Sales during the disciplinary meeting — that she was suspended or that she was terminated. Only after resolving that fact question for himself, by reviewing recorded statements by Spafford and other percipient witnesses, was Dr. Rogers able to opine in a supplemental written report that Sales' condition was due to a preexisting personality disorder and not work-related. Hence, in summary, the testimonies of Dr. Rogers, Dr. Stitham, Dr. Ginandes, Spafford and Takara, at the hearing before the Board, were integral and crucial to the Board's decision and order.
According to Hawai`i Rules of Appellate Procedure (HRAP) Rule 10(a)(4) (2001), "[t]he record on appeal shall consist of. . . . the transcript of any proceedings prepared pursuant to the provisions of Rule 10(b)[.]" HRAP Rule 10(b)(1)(A) (2001) places on the appellant the affirmative burden of providing the transcript of the proceedings:
When an appellant desires to raise any point on appeal that requires consideration of the oral proceedings before the court or agency appealed from, the appellant shall file with the clerk of the court appealed from, within 10 days after filing the notice of appeal, a request or requests to prepare a reporter's transcript of such parts of the proceedings as the appellant deems necessary that are not already on file.
In addition, HRAP Rule 10(b)(3) (2001) provides:
If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion.
Thus, it is well settled that "'[t]he burden is upon appellant in an appeal to show error by reference to matters in the record, and he or she has the responsibility of providing an adequate transcript.'" Bettencourt v. Bettencourt, 80 Haw. 225, 230, 909 P.2d 553, 558 (1995) (brackets omitted) (quoting Union Bldg. Materials Corp. v. The Kakaako Corp., 5 Haw. App. 146, 151, 682 P.2d 82, 87 (1984)). See also State v. Hawaiian Dredging Co., 48 Haw. 152, 158, 397 P.2d 593, 598 (1964) ("It is elementary that an appellant must furnish to the appellate court a sufficient record to positively show the alleged error." (Citation omitted.)); Marn v. Reynolds, 44 Haw. 655, 663, 361 P.2d 383, 388 (1961) (transcript of proceedings must be provided to the appellate court unless "evidence is not necessary for the disposition of an appeal on it merits" (citation omitted)); Ling v. Yokoyama, 91 Haw. 131, 135, 980 P.2d 1005, 1009 (App. 1999); Costa v. Sunn, 5 Haw. App. 419, 430, 697 P.2d 43, 50 (1985).
Sales failed to include the transcript of the October 1, 1999 hearing in the record on appeal. Sales' January 26, 2001 designation of the record on appeal designated "the entire record and file pertaining to this matter, including, but not limited to, all notes, minutes, correspondence, pleadings, exhibits and further transcripts." (Emphasis supplied.) However, Sales failed to ensure that the record as constituted was adequate to carry her case on appeal. HRAP Rule 11(a) (2001) ("After the filing of the notice of appeal, the appellant . . . shall comply with the provisions of [HRAP] Rule 10(b) and shall take any other action necessary to enable the clerk of the court to assemble and transmit the record."). Despite the fact that the primary argument advanced by the Appellees in their June 12, 2001 answering brief concerned the absence of the transcript of proceedings, Sales did not file a reply brief, in which she might have addressed that argument. More important, Sales did not act to remedy the omission. See Bettencourt, 80 Hawai`i at 231, 909 P.2d at 559 ("it is counsel's responsibility to review the record once it is docketed and if anything material to counsel's client's case is omitted or misstated, to take steps to have the record corrected" (brackets, citation and internal quotation marks omitted) (referring to the then-applicable Hawai`i Rules of Civil Procedure Rule 75(d), the predecessor court rule to HRAP Rule 10(e)(2)); HRAP Rule 10(e)(2) (2001) ("If anything material to any party is omitted from the record by error or accident or is misstated therein, corrections or modifications may be as follows: (A) by stipulation of the parties; or (B) by the court or agency appealed from, either before or after the record is transmitted; or (C) by direction of the appellate court before which the case is pending, on proper suggestion or its own initiative." (Format modified.)).
As explained above, the record sans the transcript does not provide a sufficient basis upon which to review the Board's findings of fact and conclusions of law. See Zemis v. SCI Contractors, Inc., 80 Haw. 442, 445, 911 P.2d 77, 80 (1996) (applying the de novo standard of review to the Board's conclusions of law and the clearly erroneous standard to the Board's findings of fact, and in the latter instance, considering "whether . . . a finding is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record" (brackets, bold-face type, citation and internal block quote format omitted)); Bumanglag v. Oahu Sugar Co., Ltd., 78 Haw. 275, 279, 892 P.2d 468, 472 (1995). Hence, we must dismiss Sales' appeal. See Bettencourt, 80 Hawai`i at 231, 909 P.2d at 559; Marn, 44 Haw. at 664, 361 P.2d at 389. As we have stated,
the burden is on appellant to convince the appellate body that the presumptively correct action of the circuit court is incorrect. To that end, an appellant is required to file a notice of appeal, order the transcript of the proceedings below, and arrange for transmission of the record. The burden is upon appellant to comply with the rules. The only positive requirement placed on an appellee is to file an answering brief, except where appellee files a cross-appeal, or may wish to respond to an act by appellant. So great is the burden on appellant to overcome the presumption of correctness that appellee's failure to file an answering brief does not entitle appellant to the relief sought from the appellate court, even though the court may accept appellant's statement of facts as correct.
Costa, 5 Haw. App. at 430, 697 P.2d at 50-51 (internal citations omitted).
Therefore,
IT IS HEREBY ORDERED that Sales' appeal is dismissed.