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Goers v. Dirty Dan's Hawaii2/5/2002
Merrill P. Goers, nka Merrill P. West (Appellant), appeals the June 20, 2000 decision and order of the Labor and Industrial Relations Appeals Board (the Board) that affirmed the October 4, 1996 decision of the Director of Labor and Industrial Relations (the Director). The Director's decision denied the workers' compensation claim filed by Appellant for injuries sustained in a motor vehicle accident fronting Dancers nightclub. We affirm because there is "reliable, probative, and substantial evidence on the whole record" that Appellant's injuries were incurred by Appellant's wilful intention to injure another.
I. BACKGROUND.
During the night of October 19, 1992, Appellant sustained multiple, serious injuries arising out of a motor vehicle accident fronting Dancers nightclub, where Appellant was employed as a doorman. Appellant was off duty at the time. An altercation involving Appellant, fellow doormen and several club patrons commenced in the club parking lot and continued onto Sand Island Road, where Appellant and one of the club patrons, Paul Cobb-Adams (Cobb-Adams), were struck by a tow truck.
Two years later, on October 19, 1994, Appellant filed a Form WC-5, an employee's claim for workers' compensation benefits. Employer Dirty Dan's of Hawaii, Inc. dba Dancers and insurance carrier First Insurance Company of Hawaii, Ltd. denied liability. A hearing was held on July 30, 1996 at the Department of Labor and Industrial Relations Disability Compensation Division (DLIR). In an October 4, 1996 decision, the DLIR Director found that, "pursuant to [Hawaii Revised Statutes (HRS) § 386-3 (1993)], this claim is not compensable as [Appellant] wilfully intended to injure another [(Cobb-Adams)] at the time he was injured in the motor vehicle accident." The Director reasoned, also, that "this claim is not compensable as [Appellant's] injury on October 19, 1992 did not occur in the course of his employment."
On October 21, 1996, Appellant filed a timely notice of appeal to the Board of the Director's denial of his claim. The Board held a hearing on January 8, 1998. The sole issue before the Board was "whether [Appellant] sustained a personal injury on or about October 19, 1992, arising out of and in the course of employment." In its June 20, 2000 decision and order, the Board affirmed the decision of the Director, finding, "based on the credible testimonies of [three] by-stander [(sic)] witnesses, that [Appellant's] injuries were incurred by his wilful intention to injure another[,]" and thereon concluding, " ursuant to [HRS § 386-3 (1993)], . . . that Claimant did not sustain a personal injury on October 19, 1992, arising out of and in the course of his employment."
On July 19, 2000, Appellant filed this timely appeal.
II. RELEVANT EVIDENCE.
A. Description of the Premises.
Dancers nightclub is a strip club, located in an industrial area at 205 Sand Island Access Road. The club features cocktails and adult entertainment from noon to 4:00 a.m. It is located on the ground floor of a warehouse building, next to a drive-in eatery. The club's interior is approximately forty feet by sixty feet. The club's parking lot is approximately 150 feet in length and runs along Sand Island Access Road, a two-way, four-lane road divided by a center median. There is no barrier or sidewalk separating the parking lot from the road, which is located approximately 20 feet from the entrance to the club. The club's patrons are "fairly rough or rugged" types, consisting primarily of construction workers, bikers and military personnel.
B. Appellant's Duties as a Doorman.
As a Dancers doorman, Appellant was resp
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