Novak v. County of Hawai'i

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-DEC-2025
08:03 AM
Dkt. 71 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

LAYNE NOVAK, Claimant-Appellant-Appellant,
v.
COUNTY OF HAWAI‘I, INFORMATION TECHNOLOGY,
Employer-Appellee-Appellee
and
COUNTY OF HAWAI‘I, HEALTH AND SAFETY DIVISION,
Insurance Carrier-Appellee-Appellee

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO: AB 2023-051(H); DCD NO. 1-2023-210897)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Leonard and Guidry, JJ.)

In this secondary appeal, self-represented Claimant-
Appellant-Appellant Layne Novak (Novak) challenges the Labor and
Industrial Relations Appeals Board's (LIRAB) June 30, 2023
"Decision and Order" dismissing Novak's appeal for lack of
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

jurisdiction. We resolve Novak's appeal on this dispositive
point of error, 1 and vacate and remand.
As relevant to this appeal, Novak filed a claim for
injuries resulting from an October 12, 2022 incident. On
February 28, 2023, Employer-Appellee-Appellee County of Hawai‘i,
Department of Information Technology (Employer), notified Novak
of scheduled appointments with its chosen physician for a
medical examination. On March 15, 2023, Employer requested the
Department of Labor and Industrial Relations, Disability
Compensation Division (DLIR) to issue an order compelling Novak
to appear for the medical examination. On March 28, 2023, the
DLIR Director granted the request, pursuant to Hawaii Revised
Statutes (HRS) § 386-79, 2 in an order that stated, "This Order is
not appealable."

1 Novak asserted fourteen additional points of error (POEs), many
of which appear duplicative. POEs 3, 4, 6, 7, 9, and 10 all appear to be
variations of the contention that LIRAB should not have dismissed Novak's
appeal for lack of jurisdiction. POEs 2, 5, 8, 11, 12, 13, 14, and 15 go to
the merits of Novak's underlying worker compensation claim, which we need not
reach.

2 HRS § 386-79 (2015 & 2017 Supp.), entitled "Medical examination
by employer's physician," requires the employee to submit to an examination
by a physician designated by the employer, and provides that no compensation
shall be paid to an employee who refuses such examination, as follows:

(a) After an injury and during the period of disability, the
employee, whenever ordered by the director of labor and
industrial relations, shall submit to examination, at reasonable
times and places, by a duly qualified physician or surgeon
designated and paid by the employer. The employee shall have the
right to have a physician, surgeon, or chaperone designated and
paid by the employee present at the examination[.] . . .

If an employee refuses to submit to, or the employee or the
employee's designated chaperone in any way obstructs such
examination, the employee's right to claim compensation for the
work injury shall be suspended until the refusal or obstruction
ceases and no compensation shall be payable for the period during
which the refusal or obstruction continues.

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On April 4, 2023, Novak appealed to LIRAB, asserting
the language "This Order is not appealable" was unlawful. On
May 16, 2023, LIRAB ordered the parties to show cause as to why
the appeal "should not be dismissed for lack of jurisdiction,"
citing Hawai‘i Administrative Rules (HAR) § 12-10-75. 3 In its
June 30, 2023 "Decision and Order," LIRAB concluded that it had
"no jurisdiction" because "[u]nder § 12-10-75(c), HAR, the
Director's order compelling the injured employee to appear for a
medical examination is not appealable."
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, we resolve this
appeal as follows.
Novak raised this same jurisdictional challenge in
Novak v. Dep't of Info. Tech. (Novak I), No. CAAP-XX-XXXXXXX,
2025 WL 2674476, at *1 (Haw. App. Sep. 18, 2025), appealing a

3 HAR § 12-10-75 (eff. 1985, amended 1994), entitled "Medical
Examination Orders and Reports," provides that the DLIR Director may issue a
non-appealable medical examination order to the employee, as follows:

(a) Orders requiring the injured employee to appear for
examination by the physician of the employer's choosing may
be issued by the director.

. . . .

(c) The director, upon review of the case file and without
necessity of hearing, and upon finding that the examination
will assist in the expedient disposition of the case or in
determining the need for or sufficiency of medical care or
rehabilitation, shall issue a medical examination order.
The order shall not be appealable and will inform the
claimant that compensation may be suspended for failure to
submit to the examination without good cause. The injured
employee may be responsible for a reasonable no-show fee
not to exceed $250 charged by the physician.

(Emphasis added.)

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similar order by the DLIR Director to compel a medical
examination for Novak's workers compensation claim from an April
19, 2023 incident. As in Novak I, Novak again relies in part on
Gour v. Honsador Lumber, LLC, 134 Hawai‘i 99, 332 P.3d 701 (App.
2014). In Gour, the DLIR Director deferred determination of
compensability of an employee's claim until the employee
complied with DLIR's order to submit to medical examination.
134 Hawai‘i at 101, 332 P.3d at 703. The employee appealed to
LIRAB, but LIRAB dismissed the appeal because "there [was] no
appealable decision or final order because compensability
remain[ed] undetermined." Id. (brackets omitted). On secondary
appeal to this court, we vacated LIRAB's decision, holding that
"LIRAB was required to exercise jurisdiction over [the
employee]'s appeal because the LIRAB's failure to review the
Director's Decision until the entry of a final decision on [the
employee]'s entitlement to benefits w[ould] deprive [the
employee] of adequate relief." Id. at 103, 332 P.3d at 705.
Here, as in Gour, Novak challenges the Director's
order compelling medical examination. See 134 Hawai‘i at 100-01,
332 P.3d at 702-03. LIRAB dismissed Novak's appeal for lack of
jurisdiction, relying on HAR § 12-10-75's language that an order
compelling a medical examination is not appealable. HAR
§ 12-10-75 was in effect when Gour was decided. See HAR
§ 12-10-75; Gour, 134 Hawai‘i 99, 332 P.3d 701. HAR § 12-10-75
was promulgated to effectuate HRS § 386-79, but nothing in HRS
§ 386-79 indicates the Director's order compelling a medical
examination is not an appealable order.
Consistent with Novak I, 2025 WL 2674476, at *3, we
hold LIRAB has jurisdiction over Novak's appeal. See Gour, 134
Hawai‘i at 103, 332 P.3d at 705; see generally Suzuki v. Am.

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Healthways, Inc., 153 Hawai‘i 265, 533 P.3d 1212, 1215 (2023)
("An order compelling a claimant to undergo an IME [(independent
medical examination)] is sufficient to constitute the
deprivation of adequate relief that is required under the
preliminary ruling language of HRS § 91-14(a)." (citing Tam v.
Kaiser Permanente, 94 Hawai‘i 487, 494-95, 17 P.3d 219, 226-27
(2001); Gour, 134 Hawai‘i at 103, 332 P.3d at 705)).
For the foregoing reasons, we vacate LIRAB's June 30,
2023 "Decision and Order" and remand this case to LIRAB for
proceedings consistent with this Summary Disposition Order.
DATED: Honolulu, Hawai‘i, December 23, 2025.
On the briefs:
/s/ Karen T. Nakasone
Layne Novak
Chief Judge
Self-represented Claimant-
Appellant-Appellant.
/s/ Katherine G. Leonard
Associate Judge
Christine J. Kim,
Employer-Appellee-Appellee
/s/ Kimberly T. Guidry
County of Hawai‘i, Information Associate Judge
Technology, and
Insurance Carrier-Appellee-
Appellee County of Hawai‘i,
Health and Safety Division.

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