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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---

________________________________________________________________

SCWC-16-0000663

KENNETH M. SKAHAN,

Petitioner/Claimant-Appellant/Appellant,

vs.

STUTTS CONSTRUCTION COMPANY, INC.,

Respondent/Employer-Cross-Appellant/Appellee,

and

FIRST INSURANCE COMPANY OF HAWAII, LTD.,

Respondent/Insurance Carrier-Cross-Appellant/Appellee.

(CASE NO.: AB 2014-019 (WH); DCD NO.: 9-04-45072(M))

SCWC-16-0000664

KENNETH M. SKAHAN,

Petitioner/Claimant-Appellant,

vs.

STUTTS CONSTRUCTION COMPANY, INC.,

Respondent/Employer-Appellee,

and 

Electronically Filed

Supreme Court

SCWC-16-0000663

24-DEC-2020

11:29 AM

Dkt. 9 OP
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2

FIRST INSURANCE COMPANY OF HAWAII, LTD.,

Respondent/Insurance Carrier-Appellee.

(CASE NO.: AB 2014-041 (WH); DCD NO.: 9-13-45106(M))

_____________________________________

SCWC-19-0000077

KENNETH M. SKAHAN,

Petitioner/Claimant-Appellant,

vs.

STUTTS CONSTRUCTION COMPANY, INC.,

Respondent/Employer-Appellee,

and

FIRST INSURANCE COMPANY OF HAWAII, LTD.,

Respondent/Insurance Carrier-Appellee.

(CASE NO.: AB 2015-374 (M); DCD NO.: 7-14-45105)

________________________________________________________________

SCWC-19-0000077

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-16-0000663; CAAP-16-0000664; and CAAP-19-0000077)

DECEMBER 24, 2020

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND 

CIRCUIT JUDGE JOHNSON, IN PLACE OF POLLACK, J., RECUSED

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

These consolidated cases arise from pro se litigant Kenneth 

Skahan’s (“Skahan”) claims for workers’ compensation benefits 

against his former employer, Stutts Construction Company

(“Stutts”), and its insurance carrier, First Insurance Company 

of Hawai‘i (collectively with Stutts, “Employer”).
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On November 30, 2004, Skahan injured his back while working 

for Stutts, and Stutts accepted workers’ compensation liability 

for the injury. On June 12, 2012, after Skahan’s employment 

with Stutts had ended, Skahan experienced mid and low back pain 

while wading in the ocean. Skahan was subsequently diagnosed 

with Diffuse Idiopathic Skeletal Hyperostosis (“DISH”)1 affecting 

his thoracic spine, and he filed multiple claims for additional 

workers’ compensation benefits against Employer.

The Labor and Industrial Relations Appeals Board (“LIRAB”) 

issued three decisions. On June 17, 2016, LIRAB determined 

Skahan’s DISH injury was compensable because it was causally 

related to the November 30, 2004 work injury, but his low back 

injury was not compensable because it was not causally related 

to the November 30, 2004 work injury. On June 21, 2016, LIRAB 

determined the dates for which Skahan was entitled to temporary 

total disability (“TTD”) benefits. In a January 3, 2019

decision, LIRAB again stated that Skahan’s DISH injury was 

related to his November 30, 2004 work injury.2

1 “DISH” is a condition involving the “bony hardening of ligaments in 

areas where they attach to your spine” and may or may not cause symptoms. 

Diffuse Idiopathic Skeletal Hyperostosis (DISH), Mayo Clinic, 

https://perma.cc/ZUL6-UJFZ (last visited June 24, 2020).

2 As LIRAB’s January 3, 2019 decision reiterated its findings and 

determinations from earlier decisions, this opinion does not further discuss 

the January 3, 2019 decision.
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Skahan appealed all three LIRAB decisions. The 

Intermediate Court of Appeals (“ICA”) consolidated and addressed 

Skahan’s appeals of LIRAB’s June 21, 2016 and January 3, 2019 

decisions in a summary disposition order (“SDO”), and it

addressed Skahan’s appeal of LIRAB’s June 17, 2016 decision in a 

separate SDO. Ultimately, the ICA affirmed all three LIRAB 

decisions. We accepted and have consolidated Skahan’s

applications for writ of certiorari from both SDOs, and we rule 

as follows.

The ICA erred in holding that Employer rebutted the Hawai‘i 

Revised Statutes (“HRS”) § 386-85 (2015) presumption that 

Skahan’s low back claim was for a covered work injury. In 

addition, LIRAB’s finding that Skahan’s injury was “permanent 

and stationary and at maximum medical improvement” by April 19, 

2013 is clearly erroneous, and LIRAB’s COL ending Skahan’s TTD 

benefits on April 19, 2013 is also clearly erroneous as it is

not supported by the record. The additional issues raised by 

Skahan on certiorari are without merit.3 

3 With respect to LIRAB’s June 17, 2016 decision, those issues are:

(1) Did the ICA err by failing to apply the right/wrong 

standard of review to LIRAB’s conclusions of law?

(2) Did the ICA err in determining that the issue of 

whether his DISH injury was causally related to the 

November 2004 work injury was moot?

With respect to LIRAB’s June 21, 2016 and January 3, 2019 decisions, 

those additional issues are:

(1) Was LIRAB required to explain how granting Employer’s 

motion for stay of payments would comply with HRS 

(continued . . .)
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We therefore vacate the ICA’s May 19, 2020 judgment on 

appeal affirming LIRAB’s June 17, 2016 decision and also vacate 

in part the ICA’s May 27, 2020 judgment on appeal affirming 

LIRAB’s June 21, 2016 and January 3, 2019 decisions and we 

remand to LIRAB for further proceedings consistent with this 

opinion. 

II. Background

A. Factual background

On November 30, 2004, Skahan injured his back while working 

for Stutts, and Employer accepted liability for the injury. 

Skahan was treated by doctor Lora Aller (“Dr. Aller”), who 

diagnosed him with a chest and thoracic spine strain and opined

that Skahan was temporarily disabled from working. Dr. Aller 

released Skahan to return to work on August 8, 2005. Employer 

ended Skahan’s TTD benefits on October 4, 2005, and Skahan 

requested a hearing with the Department of Labor and Industrial 

Relations Disability Compensation Division (“DCD”). On January 

6, 2006, DCD issued its decision determining that the 

termination of TTD was proper. DCD left the matters of 

(. . . continued)

§ 91-14(c)?

(2) Did the ICA fail to apply the proper standards of 

review to LIRAB’s COLs and application of HRS 

§ 386-3(a)?

(3) Did LIRAB err in concluding he was not permanently 

and totally disabled?
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permanent disability and disfigurement to be determined at a 

later date. Skahan did not appeal.

On June 12, 2012, Skahan experienced pain in his back while 

wading in the ocean. Skahan no longer worked for Stutts at the 

time of the injury. In a June 27, 2012 letter to First 

Insurance, Skahan stated that he had reinjured his back and

asked to change physicians because Dr. Aller had left the state. 

The letter claimed the “date of injury” was November 30, 2004, 

but it did not explain how Skahan had injured his back. Skahan 

asked First Insurance to “respond quickly as [he was] in a great 

deal of pain and [was] having difficulty breathing.” First 

Insurance did not respond.

On July 3, 2012, Skahan filed a claim for workers’ 

compensation against Employer listing the date of accident as 

November 30, 2004 and seeking to reopen his prior claim. In an 

August 16, 2012 letter to First Insurance, Skahan stated that 

this was “not a new injury,” but an aggravation of the November 

30, 2004 work injury. In a September 12, 2012 letter to DCD, 

Skahan further explained that he had been unable to see a doctor 

because they did not take workers’ compensation patients or 

would not see him without the insurer’s approval, First 

Insurance had not allowed him to change physicians, and he could 

not afford to see a physician without insurance. 
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Skahan was eventually treated by Dr. Capen and saw him on 

an almost monthly basis beginning on November 16, 2012. Dr. 

Capen’s November 16, 2012 initial physician’s report diagnosed 

Skahan with a thoracic spine strain. Dr. Capen’s December 28, 

2012 report described Skahan’s June 12, 2012 injury as an 

aggravation or recurrence of his November 30, 2004 injury. In 

an April 19, 2013 report, Dr. Capen concluded that Skahan was 

“never going back to doing heavy work.” Dr. Capen connected 

Skahan’s low back injury to the November 30, 2004 injury.

At Employer’s request, Skahan was also evaluated by doctor 

Lorne Direnfeld (“Dr. Direnfeld”). In his July 19, 2013 report, 

Dr. Direnfeld opined that Skahan suffered from DISH, the 

November 30, 2004 accident had caused his DISH to become 

symptomatic, and the June 12, 2012 injury “may represent a nonwork related symptomatic aggravation” of his DISH. Dr. 

Direnfeld disagreed with Dr. Capen’s opinion that Skahan’s low 

back injury was caused by the November 30, 2004 work accident, 

as no investigation of Skahan’s lumbar spine had been required 

in relation to the November 30, 2004 work accident and Skahan 

had suffered a low back injury before the November 30, 2004 work 

accident. Dr. Direnfeld noted that Skahan himself attributed 

his low back problems to a previous 1994 injury.
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B. Procedural background related to Skahan’s first application

for certiorari

1. DCD proceedings

On August 19, 2013, Skahan filed a claim for workers’ 

compensation against Employer describing his injury as an 

occupational disease affecting his low and mid back and “a 

preexisting [a]symptomatic condition which was first evident in 

2004,” and stating that the “date of accident” was April 7, 

2013.4 The claim also stated that Skahan had filed for DISH 

injury benefits, and that his DISH was causally related to the 

November 30, 2004 injury.

On January 10, 2014, DCD issued its decision denying 

Skahan’s August 19, 2013 claim. DCD found that Skahan was not 

employed by Stutts on April 7, 2013 and did not suffer injuries 

“arising out of and in the course of employment” under HRS 

§§ 386-3 (2015)5 and 386-85.6 Skahan appealed DCD’s decision to 

4 Although the August 19, 2013 claim listed the “date of accident” as 

April 7, 2013, Skahan’s opening brief and his first application referred to 

the June 12, 2012 injury.

5 HRS § 386-3(a) provides: 

If 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.

Accident arising out of and in the course of the employment 

includes the wilful act of a third person directed against 

an employee because of the employee’s employment.
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LIRAB.

2. LIRAB proceedings

On June 17, 2016, LIRAB issued its decision reversing in 

part DCD’s January 10, 2014 decision. LIRAB credited Dr. 

Direnfeld’s opinion that Skahan’s thoracic spine symptoms were 

due to DISH, his DISH became symptomatic as a result of the 

November 30, 2004 incident, and his DISH was attributable to his 

work for Stutts. While DCD had construed Skahan’s August 19, 

2013 claim as a claim for new injury, LIRAB found that Skahan’s

claim was actually a “claim for DISH that was causally related 

to the November 30, 2004 work accident,” and that his DISH claim 

should be decided under his November 30, 2004 injury claim. 

LIRAB concluded that Employer failed to rebut the presumption 

that Skahan’s DISH was a covered work injury. 

However, LIRAB also found that Employer had presented 

evidence from Dr. Direnfeld that Skahan’s low back injury was 

not related to the November 30, 2004 injury, and Dr. Capen did 

not provide an opinion connecting Skahan’s low back injury to 

the November 30, 2004 work injury. LIRAB determined that, 

therefore, Employer met its burdens of production and persuasion 

to show that Skahan’s low back condition was not causally 

(. . . continued)

6 HRS § 386-85 provides, in relevant part: “In any proceeding for the 

enforcement of a claim for compensation under this chapter it shall be 

presumed, in the absence of substantial evidence to the contrary: (1) That 

the claim is for a covered work injury[.]”
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related to the November 30, 2004 injury, and it denied his low 

back claim.

On July 11, 2016, Skahan filed a motion for reconsideration, 

which LIRAB also denied. Skahan appealed LIRAB’s June 17, 2016 

decision and order denying motion for reconsideration to the ICA.

3. ICA proceedings

Skahan raised various points of error challenging nearly 

all of LIRAB’s June 17, 2016 findings of fact (“FOFs”) and

conclusions of law (“COLs”). The relevant point of error is 

Skahan’s claim that Employer did not meet its burden of 

production regarding his low back condition because Dr. 

Direnfeld’s opinion did not address whether the November 30, 

2004 work injury could have aggravated or accelerated his 

condition.

On April 1, 2020, the ICA issued its SDO affirming LIRAB’s 

decision. Skahan v. Stutts Construction Co. (Skahan I), CAAP16-0000664 (App. April 1, 2020) (SDO). In relevant part, the 

ICA addressed Skahan’s argument that Employer failed to show his 

low back injury was not causally related to the November 30, 

2004 work injury. Skahan I, SDO at 5. The ICA noted that, 

under HRS § 386-85, there is a presumption that a claim is for a 

covered work injury, and it is the employer’s burden to 

introduce substantial evidence to rebut the presumption. Id.

(citing Panoke v. Reef Dev. of Hawaii, Inc., 136 Hawai‘i 448, 461, 
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363 P.3d 296, 309 (2015)). According to the ICA, Dr. 

Direnfeld’s July 19, 2013 report stated Skahan’s low back injury 

was unrelated to the November 30, 2004 injury. Skahan I, SDO at 

5-6. Furthermore, the ICA stated that “nothing in Dr. Capen’s 

reports produced in this record provide[d] any opinion or 

medical basis to relate Skahan’s lower back injury to the 

November 30, 2004 incident.” Skahan I, SDO at 6. The ICA held 

that LIRAB therefore did not err in concluding that Employer 

rebutted the HRS § 386-85 presumption. Skahan I, SDO at 7. 

4. Application for certiorari

In relevant part, Skahan maintains his low back injury was 

causally connected to his previous work-related injuries, and 

that LIRAB misapplied HRS §§ 386-3(a) and 386-85 by concluding 

that his “low back injury was not [a] work-related [injury.]”

C. Procedural background related to Skahan’s second 

application for certiorari

1. DCD proceedings

On July 2, 2013, Skahan filed a workers’ compensation claim 

for permanent total disability as a result of the November 30, 

2004 injury, as aggravated by the June 12, 2012 injury.

On January 15, 2014, DCD issued a supplemental decision on 

whether Skahan was entitled to vocational rehabilitation (“VR”)

services and whether he was temporarily disabled and the period 

of temporary disability. DCD found that Skahan’s November 30, 
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2004 work injury resulted in his DISH becoming symptomatic, and 

the June 12, 2012 injury was a non-work-related aggravation of 

his DISH condition. DCD did not credit Dr. Capen’s 

certification of disability beginning November 16, 2012. DCD

also concluded that Skahan was entitled to VR services and TTD 

benefits beginning August 8, 2013 through October 15, 2013. 

Skahan appealed DCD’s decision to LIRAB, and Employer filed a 

cross-appeal.

2. LIRAB proceedings

On June 21, 2016, LIRAB issued its decision affirming in 

part, reversing in part, and modifying DCD’s January 15, 2014 

supplemental decision. 

LIRAB’s FOFs included the following. Skahan’s DISH was 

causally related to his November 30, 2004 injury, the June 12, 

2012 ocean injury aggravated Skahan’s DISH, and his benefits 

should be determined under the November 30, 2004 claim. There 

was no medical evidence to support a finding of TTD between June 

12, 2012 and November 15, 2012. Based on Dr. Capen’s reports, 

Skahan was temporarily and totally disabled from November 16, 

2012 through April 19, 2013, and Skahan’s condition was 

“permanent and stationary” by April 19, 2013. Based on Dr. 

Capen’s reports, Skahan was unable to return to carpentry work 

as a result of the November 30, 2004 work injury. Skahan selfreferred for VR on August 8, 2013. 
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LIRAB’s COLs included the following. The June 12, 2012 

injury was a direct and natural result of the November 30, 2004 

work injury and did not terminate Employer’s liability. Skahan 

was entitled to TTD benefits from November 16, 2012 to April 19, 

2013, while enrolled in VR from August 8, 2013 through October 

15, 2013, and for any periods thereafter while enrolled in VR.

LIRAB therefore affirmed in part, reversed in part, and 

modified DCD’s January 15, 2014 supplemental decision. Skahan 

appealed LIRAB’s June 21, 2016 decision to the ICA.

3. ICA proceedings

Skahan raised 46 points of error challenging most of the 

FOFs and COLs in LIRAB’s June 21, 2016 decision. The relevant 

point of error to this appeal was that Skahan should have been 

awarded TTD from June 12, 2012 to November 15, 2012, and TTD 

should not have been terminated on April 19, 2013.

On April 29, 2020, the ICA issued its SDO affirming LIRAB’s 

decisions. Skahan v. Stutts Construction Co. (Skahan II), CAAP16-0000663/CAAP-19-0000077 (App. April 29, 2020) (SDO). The ICA 

addressed Skahan’s challenge to LIRAB’s June 21, 2016 FOFs, 

including LIRAB’s finding that Skahan was entitled to TTD 

benefits from November 16, 2012 through April 19, 2013 and while 

enrolled in VR from August 8, 2013 through October 15, 2013.

After reviewing the record, the ICA was “not left with a 

definite or firm conviction that a mistake [had] been made.” 
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Skahan II, SDO at 11. The ICA also held that LIRAB’s COLs were 

supported by its FOFs and reflected an application of the 

correct rule of law. Skahan II, SDO at 12. The ICA affirmed 

LIRAB’s June 21, 2016 decision and January 3, 2019 decision. 

Skahan II, SDO at 14-15.

4. Application for certiorari

In relevant part, Skahan argues the ICA erred in affirming 

LIRAB’s termination of TTD benefits on April 19, 2013 and in 

denying TTD benefits from June 12, 2012 through November 15, 

2012. Skahan asserts the DCD director did not terminate his TTD 

benefits as required under HRS § 386-31(b), and that there was 

no legal ground to terminate TTD because he was not “able to 

resume work” as defined by HRS § 386-1.

III. Standard of Review

A. LIRAB decisions

“Appellate review of a LIRAB decision is governed by HRS 

§ 91-14(g)[.]” Igawa v. Koa House Rest., 97 Hawaiʻi 402, 405-06, 

38 P.3d 570, 573-74 (2001). “[I]t is well-established that 

appellate courts review [LIRAB’s] findings of fact under the 

clearly erroneous standard.” Davenport v. City and Cty. of 

Honolulu, 100 Hawai‘i 297, 305, 59 P.3d 932, 940 (App. 2001). 

“However, [LIRAB’s] conclusions of law cannot bind an appellate 

court and are ‘freely reviewable for [their] correctness. Thus, 

the court reviews [conclusions of law] de novo, under the 
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right/wrong standard.’” Id. (quoting Korsak v. Hawaii 

Permanente Medical Group, 94 Hawai‘i 297, 303, 12 P.3d 1238, 1244 

(2000)).

IV. Discussion

A. Employer did not rebut the presumption that Skahan’s low 

back injury was work-related

1. Employer did not meet its burden of production

Skahan argues LIRAB misapplied HRS § 386-85 in determining 

that his low back injury was not work related. HRS § 386-85(1) 

provides: “In any proceeding for the enforcement of a claim for 

compensation under this chapter it shall be presumed, in the 

absence of substantial evidence to the contrary . . . [t]hat the 

claim is for a covered work injury[.]” “The statute nowhere 

requires . . . some preliminary showing that the injury occurred 

‘in the course of employment’ before the presumption will be 

triggered.” Chung v. Animal Clinic, Inc., 63 Haw. 642, 650, 636 

P.2d 721, 727 (1981). “[T]o rebut the presumption, the employer 

has the burden of going forward with the evidence, which is the 

burden of production, as well as the burden of persuasion.” 

Panoke, 136 Hawai‘i at 461, 363 P.3d at 309. 

“The burden of production means that ‘the employer must 

initially introduce substantial evidence that, if true, could 

rebut the presumption that the injury is work-related.’” Id.

(quoting Nakamura v. State, 98 Hawai‘i 263, 267, 47 P.3d 730, 734 
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(2002)). “‘[S]ubstantial evidence’ means ‘a high quantum of 

evidence which, at the minimum, must be relevant and credible 

evidence of a quality and quantity sufficient to justify a 

conclusion by a reasonable [person] that an injury or death is 

not work connected.’” 136 Hawai‘i at 462, 363 P.3d at 310 

(quoting Nakamura, 98 Hawai‘i at 267-68, 47 P.3d at 734-35). 

“In evaluating whether the burden of producing substantial 

evidence has been met, ‘the slightest aggravation or 

acceleration of an injury by the employment activity mandates 

compensation.’” 136 Hawai‘i at 461, 363 P.3d at 309 (quoting Van 

Ness v. State of Hawai‘i, Dept. of Educ., 131 Hawai‘i 545, 562, 

319 P.3d 464, 481 (2014)). 

The ICA held that Employer met its burdens of production 

and persuasion to show the low back injury was not causally 

related to the November 30, 2004 injury through: Dr. Direnfeld’s 

report noting that the medical records for the November 30, 2004 

injury did not reference a low back condition; Dr. Direnfeld’s 

opinion that the low back injury was not related to the November 

30, 2004 injury; evidence of Skahan’s 1990s low back injury

sustained under a different employer; and Dr. Capen’s lack of 

opinion that Skahan’s low back injury was related to the 

November 30, 2004 injury. Skahan I, SDO at 5-6. 

Dr. Direnfeld’s report is similar to the doctors’ reports 

in Panoke. Panoke initially claimed to have injured his back as 
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the result of a work injury. Panoke, 136 Hawai‘i at 450, 363 

P.3d at 298. The next month, Panoke also reported shoulder pain. 

136 Hawai‘i at 451, 363 P.3d at 299. Panoke had previously 

fractured both shoulders in a motor vehicle accident over a 

decade earlier. 136 Hawai‘i at 452, 363 P.3d at 300.

At trial before LIRAB, the employer presented doctors’ 

opinions that Panoke had not initially reported shoulder pain, 

his shoulder injury was not related to the work accident, and 

“more likely than not” the work accident did not cause or 

aggravate Panoke’s prior shoulder injury. 136 Hawai‘i at 453-54, 

363 P.3d at 301-02. Two doctors opined that Panoke would have 

likely experienced immediate pain if his shoulder injuries were 

related to the work injury. 136 Hawai‘i at 453, 455-56, 363 P.3d 

at 301, 303-04. One doctor also testified that Panoke’s 

shoulder injuries were inconsistent with the work accident. 136 

Hawai‘i at 463, 363 P.3d at 311. In contrast, Panoke’s treating 

physician opined that his shoulder injuries were related to the 

work accident and that he had “fully and totally recovered” from 

the motor vehicle accident. Id. LIRAB denied Panoke’s shoulder 

injury claim. 136 Hawai‘i at 458, 363 P.3d at 306. 

On certiorari, we held that the employer had not presented 

substantial evidence sufficient to overcome the presumption that 

Panoke’s shoulder injury was work-related. 136 Hawai‘i at 461, 
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363 P.3d at 309. We held that “generalized” testimony that 

there was no connection between an injury and work without 

further explanation does not rebut the presumption of coverage, 

and “the primary focus of the medical testimony should have been 

a discussion on whether the employment effort, whether great or 

little, in any way aggravated [the employee’s condition.]” 136 

Hawai‘i at 462, 363 P.3d at 310 (emphasis added). Regarding 

Panoke’s history of shoulder injuries, we stated that “evidence 

showing why Panoke’s [work] accident could not have aggravated

these conditions was necessary for the employer to adduce 

‘substantial evidence’ and overcome the presumption of coverage.” 

136 Hawai‘i at 463, 363 P.3d at 311 (emphases added).

We noted that the employer’s medical experts testified that 

the work accident could not have caused Panoke’s shoulder injury 

without adequately explaining whether the accident aggravated

his existing injury. 136 Hawai‘i at 463, 363 P.3d at 311. While 

two doctors opined that the work accident had probably not 

aggravated Panoke’s shoulder injury because he would have likely 

experienced immediate shoulder pain if it had, we noted “there 

is nothing in the record to explain why Panoke would have 

started experiencing serious shoulder pain approximately two 

weeks after the work accident if the work accident had not 

caused the injury or aggravated some pre-existing injury.” 136 

Hawai‘i at 463-64, 363 P.3d at 311-12. Therefore, the employer 
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did not adduce substantial evidence because its experts merely

“opine[d] generally that Panoke had an injury predating his 

employment[.]” 136 Hawai‘i at 464, 363 P.3d at 312. (internal 

brackets and quotation marks omitted).

In this case, Dr. Direnfeld’s report was even more 

generalized than the doctors’ reports in Panoke. Like the 

doctors in Panoke, Dr. Direnfeld did not focus on whether 

Skahan’s 1994 low back injury could have been aggravated or 

accelerated by the November 30, 2004 accident. Instead, Dr. 

Direnfeld opined that the low back injury was not caused by or 

related to the November 30, 2004 accident without explaining how 

he reached this conclusion. Dr. Direnfeld’s report also stated 

that the medical record for the November 30, 2004 accident did 

not reference a low back injury, implying that Skahan would have 

reported low back pain if the November 30, 2004 accident had 

caused or aggravated his low back injury. However, unlike the 

doctors in Panoke, Dr. Direnfeld did not actually explain how 

the November 30, 2004 accident was inconsistent with a low back 

injury, or whether Skahan would have experienced immediate pain 

if the accident had aggravated his low back condition. Nor did 

Dr. Direnfeld’s report explain whether the November 30, 2004 

accident could have aggravated Skahan’s low back injury so as to 

make it more susceptible to reinjury. See Panoke, 136 Hawai‘i at 

463, 363 P.3d at 311. 
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Therefore, Employer did not meet its burden of production 

to show that Skahan’s low back injury was not causally related 

to the November 30, 2004 work injury.

2. LIRAB’s FOF 34 is clearly erroneous

We additionally note that LIRAB’s FOF 34, finding that 

“[o]n this record, Dr. Capen did not provide any opinions or 

medical basis to relate [Skahan’s] lumbar spine condition to the 

November 30, 2004 work injury,” is clearly erroneous. Dr. 

Direnfeld’s report referenced and responded to Dr. Capen’s 

opinion that Skahan’s low back injury was related to the 

November 30, 2004 incident. For instance, Dr. Direnfeld’s 

report stated that he disagreed with Dr. Capen’s opinion that 

Skahan’s lumbar disc protrusion was caused by the November 30, 

2004 work accident. Dr. Direnfeld’s report also noted that Dr. 

Capen opined in an April 19, 2013 report that Skahan’s injuries 

were “due to the thoracic spine injury and the L4-5 disc injury, 

both of which occurred in 2004.” (Emphasis added.) While Dr. 

Capen’s April 19, 2013 report was not included in the record for 

the CAAP-16-0000664 proceedings, it was part of the record in 

the related CAAP-16-0000663/CAAP-19-000077 proceedings.

Therefore, the record shows that Dr. Capen opined that

Skahan’s low back injury was related to the November 30, 2004 

injury. However, in FOF 35, LIRAB determined that Employer met 

its burden of persuasion because there was no evidence that 
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Skahan’s low back injury was related to the November 30, 2004 

work injury. While we need not reach whether Employer met its 

burden of persuasion because it did not meet its burden of 

production, we note that LIRAB did not properly weigh Employer’s 

evidence against all of Skahan’s evidence.

We therefore vacate the ICA’s May 19, 2020 judgment on 

appeal affirming LIRAB’s June 17, 2016 decision.7

B. Determination of TTD benefits

1. Termination of TTD on April 19, 2013

Skahan argues the ICA erred in affirming LIRAB’s 

termination of TTD benefits on April 19, 2013. Skahan asserts 

that the DCD director did not terminate his TTD benefits as 

required under HRS § 386-31(b) and that there was no medical 

opinion that he was able to resume work. 

HRS § 386-31 provides in part that TTD benefits “shall only 

be terminated upon order of the director or if the employee is 

able to resume work.” HRS § 386-1 defines “able to resume work” 

as meaning the worker has stabilized and “is capable of 

performing work in an occupation for which the worker has 

7 With respect to LIRAB’s June 17, 2016 decision, Skahan also argues that 

the ICA failed to apply the right/wrong standard of review to LIRAB’s COLs. 

However, it appears the ICA did apply the right/wrong standard of review.

Skahan relatedly argues that the ICA erred in determining that the 

issue of whether his DISH injury was causally related to the November 30, 

2004 work injury was moot because the right/wrong standard of review applied. 

However, “[m]ootness is an issue of subject matter jurisdiction,” not of the 

standard of review. State v. Nakanelua, 134 Hawai‘i 489, 501, 345 P.3d 155, 

167 (2015). Therefore, Skahan’s arguments are without merit. 
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received previous training or for which the worker has 

demonstrated aptitude.” (Emphases added.) “[I]f an employee is 

capable of performing work in an occupation for which the worker 

has received previous training or for which the worker has 

demonstrated aptitude, [they are] not totally disabled.” 

Tamashiro v. Control Specialist, Inc., 97 Hawai‘i 86, 92, 34 P.3d 

16, 22 (2001) (internal quotation marks omitted).

In its January 15, 2014 decision, DCD determined that 

Skahan was entitled to TTD benefits from August 8, 2013 through 

October 15, 2013 and while Skahan remained enrolled in VR. On 

appeal, LIRAB awarded additional TTD between November 16, 2012 

and April 19, 2013. Therefore, although Skahan argues the DCD 

director did not terminate his TTD benefits on April 19, 2013, 

DCD had not actually awarded TTD benefits between November 16, 

2012 and April 19, 2013 in the first place.

As to LIRAB’s termination of TTD benefits, in its June 21, 

2016 decision LIRAB credited Dr. Capen’s October 18, 2013 report 

ostensibly stating that Skahan was totally disabled from work 

from November 16, 2012 and was “permanent and stationary and at 

maximum medical improvement” by April 19, 2013. Therefore, 

LIRAB concluded that Skahan “was entitled to TTD benefits from 

November 16, 2012 to April 19, 2013[.]” LIRAB did not award TTD 

between April 19, 2013 and August 8, 2013. However, LIRAB 

affirmed DCD’s award of TTD benefits “while [Skahan] was 
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enrolled in VR from August 8, 2013 through October 15, 2013, and 

for any periods thereafter while enrolled in VR.”

Contrary to LIRAB’s findings, Dr. Capen’s October 18, 2013 

report did not actually state that Skahan’s condition was

permanent, stationary, and at maximum medical improvement on 

April 19, 2013. Dr. Capen’s October 18, 2013 report actually 

stated, “I previously rated the patient as permanent and 

stationary and having reached Maximum Medical Improvement,” but 

it did not specify when he made this assessment. (Emphasis 

added.) Neither did Dr. Capen’s April 19, 2013 report state 

that Skahan was permanent and stationary and at maximum medical 

improvement. After reviewing the record, it appears that the 

first time Dr. Capen opined that Skahan was “permanent and 

stationary” was in an August 23, 2013 report.

Even assuming Dr. Capen determined that Skahan was at 

maximum medical improvement by April 19, 2013, his report from 

that date opined that Skahan was “never going back to doing 

heavy work.” While LIRAB found Skahan’s condition was permanent 

and stationary, it also found that he “was unable to return to 

his usual and customary work as a carpenter as a result of the 

November 30, 2004 work injury.” See HRS § 386-31; HRS § 386-1; 

Tamashiro, 97 Hawai‘i at 92, 34 P.3d at 22. This finding

suggests that Skahan was not actually “able to return to work” 

between April 19, 2013 and August 8, 2013. Furthermore, LIRAB
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did not explain why Skahan was entitled to TTD benefits as of 

August 8, 2013, but not during the almost three months between 

April 19, 2013 and August 8, 2013. 

Therefore, LIRAB’s finding that Skahan was “permanent and 

stationary and at maximum medical improvement” by April 19, 2013

is clearly erroneous, and LIRAB’s COL 3 stating that Skahan had 

“returned to pre-June 12, 2012 aggravation status by April 19, 

2013” and was therefore entitled to TTD benefits from November 

16, 2012 through April 19, 2013 and while he was enrolled in VR 

from August 8, 2013 through October 15, 2013 is not supported by 

the record.

2. TTD benefits from June 12, 2012 through November 15,

2012

Skahan asserts that LIRAB also erred in denying TTD 

benefits from June 12, 2012 through November 15, 2012. While 

Skahan’s application does not provide further argument, one of 

his opening briefs argued that nothing precluded awarding him 

TTD from June 12, 2012 to November 15, 2012 despite the lack of 

medical evidence, citing Panoke, 136 Hawai‘i 448, 363 P.3d 296.

In Panoke, the claimant promptly received medical treatment

for his work injuries. 136 Hawai‘i at 451, 363 P.3d at 299. 

LIRAB denied TTD benefits for certain periods based on the lack 

of a physician’s statement of certification that Panoke was 

temporarily and totally disabled, and it did not credit 
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physicians’ reports stating Panoke was significantly impaired 

because they did not state that the impairment was due to a work 

injury. 136 Hawai‘i at 464, 363 P.3d at 312. On certiorari, we 

held that “LIRAB may not deny a claimant benefits based on 

deficiencies in a physician’s certifications of disability.” 

136 Hawai‘i at 465, 363 P.3d at 313. While HRS § 386-96 (Supp. 

2005)8 required physicians to include the dates of disability in 

their reports, it did not provide that claimants’ benefits must 

be denied due to a physician’s non-compliance. 136 Hawai‘i at 

466, 363 P.3d at 314. We acknowledged that “nothing in [HRS § 

386-31(b)9] prescribes a particular method of proof” of TTD, and 

that “LIRAB must assess the quality of the evidence that is 

presented, to determine whether the necessary showing has been 

made.” Id.

The facts of this case differ from Panoke, where the 

claimant received prompt medical treatment and medical records 

existed for the disputed TTD period. 136 Hawai‘i at 451, 363 

8 HRS § 386-96(a)(2) required physicians treating injured employees to 

include in their reports the “dates of disability.” HRS § 386-96(b) 

provided: “ No claim under this chapter for medical treatment . . . shall be 

valid and enforceable unless the reports are made as provided in this 

section[.]” 

9 HRS § 386-31(b) provides in part: “The employer shall pay temporary 

total disability benefits promptly as they accrue to the person entitled 

thereto without waiting for a decision from the director, unless this right 

is controverted by the employer in the employer’s initial report of 

industrial injury.” HRS § 386-31(b) does not provide any particular method 

of proof of total temporary disability.
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P.3d at 299. Skahan did not receive medical care for the June 

12, 2012 injury until November 16, 2012. Additionally, while 

LIRAB’s COL 3 relied on the lack of medical certification of 

disability in denying TTD benefits in this case,10 LIRAB’s FOF 39 

specifically determined that there was “no medical evidence to 

support a finding of TTD” from June 12, 2012 to November 15, 

2012. LIRAB’s COL 3 also referenced the existence of medical 

records in awarding TTD from November 16, 2012 through April 19, 

2013. Therefore, it appears that LIRAB based its denial of TTD 

from June 12, 2012 to November 15, 2012 on the lack of any

medical evidence in the record, not just the lack of

certifications of disability. 

10 LIRAB’s COL 3 read:

Claimant worked sporadically after being released to 

work in 2005, but he stopped working altogether in 2009 

after a heart attack and heart surgery in 2006. Claimant 

did not seek medical treatment for the November 30, 2004 

work injury between 2005 and June 2012. 

There is no medical certification of disability 

resulting from the November 30, 2004 work injury for the 

period of June 12, 2012 to November 15, 2012.

Based on medical certification of disability from Dr. 

Capen, the medical records documenting Claimant’s office 

visits with Dr. Capen for the periods of November 16, 2012 

through April 19, 2013, and the Board’s findings that 

Claimant was stable and permanent and returned to pre-June 

12, 2012 aggravation status by April 19, 2013, the Board 

concludes that Claimant was entitled to TTD benefits from 

November 16, 2012 to April 19, 2013, as a result of the 

June 12, 2012 aggravation of his November 30, 2004 thoracic 

spine injury.

Pursuant to HRS § 386-25, the Board further concludes 

that Claimant is entitled to TTD benefits while he was 

enrolled in VR from August 8, 2013 through October 15, 2013, 

and for any periods thereafter while enrolled in VR.

(Emphasis added.)
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However, we stated in Panoke that “nothing in [HRS § 386-

31(b)] prescribes a particular method of proof” of TTD. 136 

Hawai‘i at 466, 363 P.3d at 314. It is not clear in this case 

that LIRAB considered the non-medical evidence in the record in 

declining to award TTD for this period. For instance, LIRAB’s 

FOF 24 found that Skahan sent a June 27, 2012 letter to First 

Insurance seeking medical treatment due to the reinjury of his 

back, requesting a change of physician, and stating that he “was 

in a great deal of pain and having difficulty breathing.” 

LIRAB’s COLs did not discuss this finding. 

We have stated that “LIRAB must assess the quality of the 

evidence that is presented, to determine whether the necessary 

showing [of TTD] has been made.” Id. Considering the broad 

humanitarian purpose of our workers’ compensation statutes, this 

assessment should include non-medical evidence. See DeFries v. 

Ass’n of Owners, 999 Wilder, 57 Haw. 296, 303, 555 P.2d 855, 860 

(1976). However, it is possible that even if LIRAB considered 

the non-medical evidence, it would have nevertheless determined 

that Skahan failed to make a necessary showing of TTD from June 

12, 2012 through November 15, 2012. LIRAB should clarify its 

determination of this issue on remand.
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We therefore vacate in part the ICA’s May 27, 2020 judgment 

on appeal affirming LIRAB’s June 21, 2016 and January 3, 2019 

decisions.11

V. Conclusion

We vacate in part the ICA’s May 27, 2020 judgment on appeal 

affirming LIRAB’s June 21, 2016 and January 3, 2019 decisions, 

and we vacate the ICA’s May 19, 2020 judgment on appeal 

affirming LIRAB’s June 17, 2016 decision. We remand to LIRAB 

for further proceedings consistent with this opinion.

Kenneth M. Skahan, /s/ Mark E. Recktenwald

Pro se

/s/ Paula A. Nakayama

Beverly S.K. Tom and /s/ Sabrina S. McKenna 

Gary N. Kunihiro,

for Respondents /s/ Michael D. Wilson

/s/ Ronald G. Johnson

11 With respect to LIRAB’s June 21, 2016 and January 3, 2019 decisions, 

Skahan’s application additionally argues LIRAB was required to explain how 

Employer’s motion for stay of payments complied with HRS § 91-14(c). However, 

HRS § 91-14 applies to judicial courts, not LIRAB.

Skahan argues the ICA failed to apply the proper standard of review 

because it determined that LIRAB’s challenged COLs were mixed questions of 

law and fact. However, many of LIRAB’s COLs incorporated its FOFs and 

actually presented mixed questions of law and fact.

Skahan also argues LIRAB erred in concluding he was not permanently and 

totally disabled under the odd-lot doctrine. “Under the odd-lot doctrine, an 

injured employee may be considered permanently and totally disabled if [they

are] unable to obtain employment because of work-related permanent partial 

disability combined with such factors as age, education, and work experience.” 

Bumanglag v. Oahu Sugar Co., 78 Hawai‘i 275, 281, 892 P.2d 468, 474 (1995). 

LIRAB’s June 21, 2016 decision discussed Skahan’s age, the extent of his 

impairment, and his eligibility for VR services in finding that he was not 

permanently totally disabled under the odd lot doctrine. After reviewing the 

record, LIRAB’s determination was not clearly erroneous.

Therefore, Skahan’s arguments are without merit.