I.  One of the more significant differences between the claim philosophy of the current Board and past boards is that practice will now involve an ongoing and continuing respect for trial de novo and appellate jurisdiction as spelled out in Section 386-87, Hawaii Revised Statutes.  Please interpret this as a statement that the Board has wider, rather than narrower discretion on the setting of issues.  This single modification, albeit quite simple, should directly impact motions that are filed before the Board and litigation choices that are made.  Renewed respect for trial de novo will necessarily limit when and in what circumstances motions for summary judgment are granted, and the Board will carefully examine the appropriate legal criteria for the granting of such motions.  At the risk of providing an oversimplified example, it may well be that the determination of compensable sequelae of a work injury inherently includes a material issue of fact, and as such, may never be subject to summary disposition.  Please be reminded that the Board would only look to the Hawaii Rules of Civil Procedure for guidance, and said Rules are certainly not viewed as binding upon the Board.  For your information, the Board also views the single IME rule to be a product of Disability Compensation Division practices, such that review criteria differ when an IME is requested before the Board.  Renewed emphasis on the mandatory nature of trial de novo would also seem to bode poorly for persons seeking a stay of payments without being able to establish that a clear and unequivocal mistake has been made.  While the Board could continue to discuss concepts of "irreparable harm" and "standards of injunctive relief", it is comparatively easy to conclude that the movant on a Stay of Payments has usually already lost once and has an unusually heavy burden.

II. Several counsel have appeared before the Board and have been asked to identify the insurance carrier-party on appeal.  The Board considers it a priority to make its case captions more accurate, and it is, therefore, unsatisfactory to refer to a third-party administrator as "insurance carrier."  The Board, with the assistance of practitioners,  will prospectively attempt to amend case captions to assure that all parties genuinely in interest are appropriately identified.  Look for samples of the Board’s order effecting these changes soon.  Counsel are cautioned that often, insurance associations have been listed as insurance carriers.  For a variety of reasons, such a reference is inappropriate, improper and inaccurate.  In all these situations, the Board has two priorities: first, the Board will need your confirmation that the entity listed as the insurance carrier is also listed as the responsible carrier by the Department of Labor and Industrial Relations; secondly, the Insurance Carrier must be accurately named for accurate reference in both the current workers’ compensation appeal and any related litigation.  You may expect the Board to ask that the caption be amended to implement the requisite form of accuracy.  In no case should the parties take it upon themselves to change the Board's caption.  This may be accomplished only by an order from the Board.

III.  Current Board rules require parties who require a hearing to file an exhibit list and summary.  The list of documents assists the Board in understanding testimony presented by you.  If you are not going to be referring to any of the evidence that is already part of the administrative record when presenting direct testimony, exhibit lists are not required by the Board. (Let’s try and save some trees.)  In those circumstances, you will not be penalized for not filing an exhibit list.  If presentation of the case, however, requires reference to specific reports or pages of the record, that document or record should be submitted on the date of hearing for each Board member to review as part of a party's exhibit list and summary even if the document has previously been provided to the Board.  Only one copy will be kept for filing.