Bocalbos v. Kapiolani Medical Center for Women and Children3/9/2000
d's second amended order and decision. On April 23, 1997, the Board entered its denial of her motion without any explanation.
Her appeal to the appellate courts followed.
II.
Judicial review of administrative agency decisions, in particular the decisions of the Board, is governed by HRS ยง 91-14 (1993). Bumanglag v. Oahu Sugar Co., 78 Hawai`i 275, 279, 892 P.2d 468, 472 (1995); Diaz v. Oahu Sugar Co., 77 Hawai`i 152, 154, 883 P.2d 73, 75 (1994); Tate v. GTE Hawaiian Tel. Co., 77 Hawai`i 100, 102, 881 P.2d 1246, 1248 (1994). See Sussel v. Civil Serv. Comm'n, 74 Haw. 599, 608-09, 851 P.2d 311, 316-17, reconsideration denied, 74 Haw. 650, 857 P.2d 600 (1993). Under HRS chapter 91,
appeals taken from findings set forth in decisions of the oard are reviewed under the "clearly erroneous" standard. Thus, this court considers whether such a finding is " learly erroneous in view of the reliable, probative, and substantial evidence on the whole record[.]" Id. Tate, 77 Hawai`i at 102-03, 881 P.2d 1248-49 (quoting Chung v. Animal Clinic, Inc., 63 Haw. 642, 651, 636 P.2d 721, 727 (1981)) (some brackets in original; footnote omitted; emphasis added).
"A finding of fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, 'the appellate court is left with the definite and firm conviction that a mistake has been made.'" Hirono v. Peabody, 81 Hawai`i 230, 232, 915 P.2d 704, 706 (1996). On the other hand, " conclusion of law . . . 'is not binding on an appellate court and is freely reviewable for its correctness.' State v. Furutani, 76 Hawai`i 172, 180, 873 P.2d 51, 59 (internal quotation marks and citation omitted). Thus, this court reviews [conclusions] de novo under the right/wrong standard." Tate, 77 Hawai`i at 103, 881 P.2d 1249 (citations omitted).
The supreme court has defined "substantial evidence" as "relevant and credible evidence of a quality and quantity to justify a reasonable [person] to reach a conclusion." Acoustic, Insulation & Drywall, Inc. v. Labor and Indus. Relations Appeal Bd., 51 Haw. 312, 316, 459 P.2d 541, 544 (1969).
III.
Bocalbos appears pro se and her points are somewhat imprecise. However, we discern from her briefs that she "seek reversal of the [Board's] order regarding medical care[,]" and more specifically, "that [she be] award the orthodontic and prosthodontic treatment need to recover from the compensable [TMJD] injury ." We address two of the errors she claims were made by the Board in its March 14, 1997 decision and order. That decision contains the most recent findings and conclusions denying Bocalbos orthodontic, orthopedic, and prosthodontic treatments.
IV.
As a preliminary matter, we examine Bocalbos's objections to finding 17 and conclusion 3 which determined that the retainer repaired by Roucis was not an appliance fabricated by Wong for her TMJD.
A.
Bocalbos maintains that finding 17 "led the [Board] to infer that had a medical diagnosis of pre-existing malocclusion." Finding 17 states:
17. [Bocalbos] also saw [Roucis], a dentist in Colorado, on March 3, 1989, to repair a retainer.
Following orthodontic treatment in 1978, [Bocalbos] had been placed on a retainer by [Kamisugi]. According to [Bocalbos], she wore this retainer for less than a year.
[Bocalbos] contends that [Wong] fashioned a lower arch retainer in 1988, to complement her upper splint so as to prevent her jaw from dropping at night and thereby prevent aggravation of her [TMJD] symptoms. [Bocalbos] contends
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Hawaii Personal Injury Attorneys
Personal Injury Lawyers
|