Pasco v. Board of Trustees of the Employees' Retirement System. , 420 P.3d 304 ( 2018 )

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-13-0003629
22-MAY-2018
08:20 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
________________________________________________________________
KIMBERLY A. PASCO, Respondent/Petitioner-Appellant,
vs.
BOARD OF TRUSTEES OF THE EMPLOYEES’ RETIREMENT SYSTEM,
Petitioner/Respondent-Appellee.
________________________________________________________________
SCWC-13-0003629
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-13-0003629; CIV. NO. 12-1-3294)
MAY 22, 2018
McKENNA, POLLACK, AND WILSON, JJ.,
WITH NAKAYAMA, J., DISSENTING,
WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This case concerns whether an injury suffered by Kimberly
A. Pasco (“Pasco”) that arose while she worked as a Public
Health Educator IV for the Department of Health of the State of
Hawaiʻi (“DOH”) is a covered injury under Hawaiʻi Revised
Statutes (“HRS”) § 88-336 (Supp. 2007),1 which provides service-
connected disability retirement benefits under the Employees’
Retirement System’s (“ERS[’s]”) Hybrid Plan to Class H public
officers and employees, such as Pasco. At issue is whether the
Intermediate Court of Appeals (“ICA”) erred in ruling that
Pasco’s injury resulted from an “accident,” i.e., an unlooked
for mishap or untoward event which is not expected or designed2
“occurring while in the actual performance of duty at some
definite time and place.”
We hold that Pasco’s permanent incapacitating injuries to
her elbow, arm, and hand, which manifested on April 17, 2007
while Pasco was in the actual performance of duty as a public
health educator, were the result of an “accident occurring while
in the actual performance of duty at some definite time and
1
Service-connected disability retirement. (a) Upon
application of a class H member, or the person appointed by
the family court as guardian of an incapacitated member,
any class H member who has been permanently incapacitated
for duty as the natural and proximate result of an accident
occurring while in the actual performance of duty at some
definite time and place, or as the cumulative result of
some occupational hazard, through no wilful negligence on
the member’s part, may be retired by the board for service-
connected disability. . . .
HRS § 88-336.
2
See Lopez v. Bd. of Trs., Emps.’ Ret. Sys., 66 Haw. 127, 130, 657 P.2d
1040, 1043 (1983) (“An accident is an unlooked for mishap or untoward event
which is not expected or designed.” (citing Chun Wong Chu v. Yee Wo Chan, 26
Haw. 785 (1923))). “Accident” is similarly defined in Hawaiʻi Administrative
Rule (“HAR”) § 6-22-2 (1989) as follows: “‘Accident’ means an unlooked for
mishap or untoward event which is not expected or designed, occurring while
in the actual performance of duty at some definite time and place.”
2
place.” We therefore affirm the ICA’s July 14, 2016 Judgment on
Appeal, entered pursuant to its June 17, 2016 Memorandum
Opinion, which vacated the September 17, 2013 “Decision and
Order Affirming the Final Decision of Respondent-Appellee Board
of Trustees of the Employees’ Retirement System of the State of
Hawaii and Dismissing Petitioner-Appellant Kimberly Pasco’s
Appeal” and the September 17, 2013 “Final Judgment,” and we
remand this matter to the Circuit Court of the First Circuit
(“circuit court”) for further proceedings consistent with the
ICA’s Memorandum Opinion and this opinion.
II. Background
A. Factual Background
In 2006, Pasco worked for the DOH as a public health
educator who helped start a nutrition program on Kauaʻi, and
later expanded it to Maui and the Big Island. As she did not
have a permanent desk, Pasco typed voluminous program reports on
a laptop at vacant desk spaces in various DOH departments, as
well as the lunchroom and conference room, based on
availability. By March 2007, Pasco was provided an old metal
desk at the Kapaʻa Neighborhood Center, as well as a desktop
computer to supplement her laptop. Pasco typically typed two to
three hours a day at work, but those hours increased when
project deadlines neared. Specifically, as a program report for
3
a federally funded project was due in mid-April 2007, Pasco’s
typing increased in the weeks leading up to the deadline to the
point that she typed seven hours per day from April 12 to April
17 in an effort to timely complete the report.
According to an April 25, 2007 workers’ compensation report
completed by a supervisor, on April 17, 2007 at 4:15 p.m. during
Pasco’s workshift, she was injured when she used her computer
keyboard and mouse. That injury, as described by Pasco, was an
“instant” “severe throbbing, aching kind of pain,” that was
located in her right inner elbow and led down to her fourth and
fifth fingers, as well as an aching and burning sensation in her
fingers. Pasco’s right arm, wrist, and hand became so fatigued
and painful that she had difficulty using her right arm and hand
to do work, and she could not sleep.
This was the first time Pasco had experienced pain in this
area of her body, despite extensively typing for three weeks
leading up to April 17, 2007, and carrying binders, training
materials, and a laptop when traveling interisland bi-weekly in
January 2007 to conduct training sessions. Also, prior to April
17, 2007, Pasco did not have any pre-existing injuries to her
hands, arms, or elbows.
Following April 17, 2007, Pasco began seeking medical
treatment for her injury from physicians and physical or
4
occupational therapists on Kauaʻi, Oʻahu, and the mainland, as
the pain would not cease. After briefly returning to work on
May 2, 2007, by May 14, 2007, Pasco reported that her left arm
began to bother her. She suspected it was because she used
voice-activated software to type at work following her injury;
however, the software made frequent errors and she used her left
hand to manually correct them.
Several of Pasco’s treating physicians diagnosed Pasco with
medial epicondylitis, also referred to as tendinitis along the
medial epicondyle. In a March 31, 2008 independent medical
evaluation, however, Dr. Daniel I. Singer concluded Pasco
suffered from non-work-related myofascial pain syndrome, which
is pain in the soft tissue that is unrelated to tendons or the
ulnar or median nerves.
When conservative treatment for medial epicondylitis proved
unsuccessful, Pasco underwent left ulnar nerve decompression
surgeries at the Mayo Clinic on August 27, 2008 and October 9,
2008. After her surgeries, Pasco began to experience a new type
of burning pain in her left arm, and was diagnosed with complex
regional pain syndrome, left upper extremity greater than right
upper extremity. Pasco continued to experience pain in her un-
operated right arm.
5
B. Pasco’s Application for Benefits
On April 13, 2009, Pasco submitted an application for
service-connected disability retirement. In describing her
April 17, 2007 accident, Pasco stated:
During April 2007 I was required to do extensive and
unreasonable amounts of typing up to 7 hrs a day to meet
project deadlines. A support staff including a clerk was
not given so I injured bi-lateral elbow, arm, hand. Also
materials to train DOH/DOE staff were carried inter-island
and this contributed to extensive injury.
In a statement attached to her application, her employer
described Pasco’s work conditions as: “New office for new
program. Clerk not yet hired, full computers not yet purchased.
Extensive typing on a laptop computer.” Additionally, the
employer’s account of the accident stated: “Extensive typing on
a laptop without assistance of a clerk typist put stress and
strain on right arm, wrist, and hand.” The employer also
indicated the accident occurred at 4:15 p.m. on April 17, 2007
at the Kapaʻa Neighborhood Center while Pasco was “on duty”; the
accident was not the result of Pasco’s own willful negligence;
Pasco appeared to have suffered a disability as the actual and
proximate result of the accident; and that because Pasco was
incapable of continued work in the position, her appointment was
not extended.
In its report to the Board of Trustees of the Employees’
Retirement System (“ERS Board”) dated August 19, 2009, the ERS
6
Medical Board (“Medical Board”) concluded that Pasco’s
incapacitating diagnosis was non-work-related myofascial pain
syndrome of the arms, and not the medial epicondylitis that had
been diagnosed by several of Pasco’s treating physicians. Thus,
although there was no dispute that Pasco was permanently
incapacitated for the further performance of duty through no
“wilful negligence on [her] part,” the Medical Board determined
that Pasco’s incapacity was not the result of an “accident,”
i.e., “an unlooked for mishap or an untoward event,” nor was it
the result of an “occupational hazard,” i.e., “the cumulative
result of a danger or risk inherent in and concomitant to [her]
occupation.” Accordingly, the Medical Board recommended to the
ERS Board that Pasco be denied service-connected disability
retirement.
By letter dated December 29, 2009, notice was issued to
Pasco that the ERS Board proposed to deny Pasco’s application
based on the Medical Board’s report. In a statement dated
February 16, 2010, Pasco, pro se, timely filed an appeal with
the ERS Board. A hearing officer was assigned on March 2, 2010,
and shortly thereafter, Pasco obtained counsel.
A contested case hearing was held on September 12, 2011. A
member of the Medical Board, Dr. Patricia Chinn, testified that
in her expert opinion, Dr. Singer’s diagnosis of non-work-
7
related myofascial pain syndrome was correct. Dr. Chinn also
clarified that the Medical Board determined that Pasco’s
condition was not the result of an “accident” only because it
did not occur at any definite place and time, as the injury was
described in the medical record as a “cumulative or repetitive
injury.”
The hearing officer issued a Recommended Decision dated
April 23, 2012. As an initial matter, the hearing officer found
that Pasco did not have pre-existing injuries to her elbow, arm,
and hands prior to April 17, 2007, and that typing was part of
Pasco’s normal and routine job duties. The hearing officer
disagreed with the Medical Board and concluded that Pasco’s
incapacitating diagnosis was not myofascial pain syndrome.
Rather, the hearing officer found Pasco’s testimony credible
when she testified “that the unnatural positioning of elbows . .
. while typing for extended periods of time . . . result[ed] in
elbow pain.” Further, as Pasco’s pain was specific and not
diffused, and as several of Pasco’s treating physicians with
various specializations from Kauaʻi, Honolulu, and Minnesota
consistently diagnosed Pasco with medial epicondylitis, the
hearing officer found Pasco initially had medial epicondylitis
due to extensive typing, which led to complex regional pain
syndrome, ultimately incapacitating her. Additionally, the
8
hearing officer found that Pasco was not a malingerer as she
diligently pursued many courses of treatment, including surgery
as a last resort.
Nevertheless, the hearing officer concluded that the
“overuse of Petitioner’s arms over a period of time did not
constitute an ‘accident’ and there was no occupational hazard.”
The hearing officer opined that as the overuse of Pasco’s arms
took place over a period of time, it did not occur at a
“specific time and place” and thus did not constitute an
“accident.” Furthermore, in her opinion the hardships faced by
Pasco, such as lacking a permanent desk, typing long hours, or
transporting heavy materials were not hazards unique to Pasco’s
job, and therefore did not constitute an occupational hazard.
As to the issue of whether an “accident” occurred, the
hearing officer distinguished Pasco’s circumstances from those
in Myers v. Board of Trustees, Employees’ Retirement System, 68
Haw. 94, 704 P.2d 902 (1985), a case in which this court
affirmed the award of service-connected disability benefits to
an employee who hurt his back when lifting a coffee pot, by
noting that the employee in Myers suffered his injury from a
single lifting, and not from multiple liftings or overuse over a
period of time. The hearing officer also appeared to reject the
notion that any “accident” could occur due to overuse over a
9
period of time by noting that the Supreme Court had determined
in Lopez, 66 Haw. 127, 657 P.2d 1040, that “an accident did not
occur when [an] employee’s incapacitation was due to work
pressures and stresses over a period of time.”
Ultimately, the hearing officer recommended that the ERS
Board reject the Medical Board’s finding that Pasco’s
incapacitating diagnosis was myofascial pain syndrome, and
concluded instead that Pasco suffered from medial epicondylitis,
leading to complex regional pain syndrome. In all other
respects, the hearing officer recommended the findings and
certification of the Medical Board dated August 19, 2009 be
affirmed, and Pasco be denied service-connected disability
retirement benefits.
The ERS Board adopted the hearing officer’s Recommended
Decision as its Proposed Decision dated June 22, 2012. Upon
consideration of Pasco’s exceptions, the Medical Board’s
opposition to those exceptions, Pasco’s supplemental memorandum,
and the parties’ oral argument regarding the exceptions at a
hearing on November 13, 2012, the ERS Board issued its Final
Decision on December 19, 2012. The Final Decision affirmed the
Proposed Decision, adopted the Recommended Decision, and denied
Pasco’s application for service-connected disability retirement
benefits.
10
C. Circuit Court Proceedings
Pasco timely filed an appeal with the circuit court3 on
December 26, 2012. In her opening brief filed on April 12,
2013, Pasco’s points of error were solely based on whether the
ERS Board erred in denying Pasco service-connected disability
retirement benefits “on the basis that Petitioner had failed to
prove by the preponderance of the evidence that her permanent
incapacitation was the natural and proximate result of an
accident at some definite time and place.” Oral argument was
held on August 15, 2013.
On September 17, 2013, the circuit court issued its
“Decision and Order Affirming the Final Decision of Respondent-
Appellee Board of Trustees of the Employees’ Retirement System
of the State of Hawaii and Dismissing Petitioner-Appellant
Kimberly Pasco’s Appeal.” The circuit court concluded that
Pasco’s excessive keyboarding, whether over weeks or months,
does not describe or constitute an accident occurring while in
the actual performance of duty at some definite time and place
within the meaning of HRS § 88-336. Final Judgment was entered
on September 17, 2013.
D. ICA Proceedings
Pasco timely filed a notice of appeal on September 27,
2013. In its June 17, 2016 Memorandum Opinion, the ICA noted
3
The Honorable Rhonda A. Nishimura presiding.
11
that HRS § 88-336 uses analogous and identical language to that
used in HRS § 88-79,4 and that, as clarified by the Supreme Court
in Panado v. Board of Trustees, Employees’ Retirement System,
134 Hawaiʻi 1, 332 P.3d 144 (2014), the exact moment of injury
need not be identified to conclude that an “accident” occurred
for the purposes of HRS § 88-79. See Pasco v. Bd. of Trs. of
the Emps. Ret. Sys., No. CAAP-13-0003629, at 8–9 (App. June 17,
2016) (mem.).
Specifically, in Panado, we rejected the ERS Board’s
argument that “the word ‘definite’ in ‘definite place and time’
requires a showing of the ‘specific time and place’ at which
[Panado’s] injury occurred.” 134 Hawaiʻi at 13, 332 P.3d at 156.
In Panado, the employee had satisfied the statutory requirement
that an accident had occurred “while in the actual performance
of duty at some definite time and place” by establishing that
she was injured some time during her October 8–9, 2004 work
shift. Id.
Based on Panado, the ICA concluded here that Pasco was able
to identify a “definite” time and place of her work-related
injury:
Pasco described her injury as resulting from extensive
keyboarding that was required at her job as the cause of
her disability. She could point to the period of time,
4
HRS § 88-79 is the service-connected disability retirement statute for
Class A and Class B members of the ERS, whereas HRS § 88-336 is the service-
connected disability retirement statute applicable to Class H members.
12
“April 2007” when this activity intensified, leading up to
the point, on April 17, 2007, that the pain from her injury
was so severe that it caused her to seek medical attention.
Her employer, DOH, did not contest these assertions.
Pasco, mem. op. at 9. Accordingly, the ICA vacated the circuit
court’s September 17, 2013 “Decision and Order . . .” and “Final
Judgment,” and remanded the case to the circuit court with
directions to vacate the ERS Board’s denial of disability
retirement to Pasco and for further proceedings consistent with
its decision.
E. Issues on Certiorari
The ERS Board raises two questions on certiorari:
A. Did the First Circuit Court and ERS Board err in
concluding that Pasco’s overuse of her arms in typing and
transporting training materials over weeks and months did
not constitute an “accident occurring while in the actual
performance of duty at some definite time and place” within
the meaning of HRS § 88-336(a) and [Hawaiʻi Administrative
Rules (“HAR”)] § 6-22-2?
B. Was the First Circuit Court right or wrong in
determining that the ERS Board was not clearly erroneous in
finding that Pasco had failed to prove by a preponderance
of the evidence that her permanent incapacity was the
“natural and proximate result” of an accident as required
by HRS § 88-336(a)?
The ERS Board argues that it did not agree or stipulate
that Pasco was injured on April 17, 2007. Rather, the ERS Board
argues that Dr. Chinn and the Medical Board had agreed with Dr.
Singer that Pasco suffered from a pain syndrome not directly
related to work. As such, the ERS Board distinguishes Pasco’s
case from Panado because the parties in Panado had stipulated
that the applicant-employee had been injured during a specific
13
workshift.
The ERS Board also argues that because Pasco’s injury
“developed over weeks and months,” it was not the result of a
discrete event that occurred at a fixed time and place, which is
required under the statute. The ERS further argues that because
Pasco claims to have been injured while performing her regular
work duties, “[t]he only thing that was unexpected or unforeseen
was that Pasco began to have pain symptoms” while working, which
does not amount to an “accident” for service-related disability
retirement. The ERS Board also asserts that because the ERS
Board did not stipulate that Pasco’s permanent incapacity was
the natural and proximate result of her “claimed accident,” the
ICA erred in concluding otherwise.
Pasco asserts in her opposition brief that the ICA was
correct to apply Panado to Pasco’s case. Pasco also appears to
suggest that various workers’ compensation cases, such as Van
Ness v. State of Hawaiʻi, Department of Education, 131 Hawaiʻi
545, 319 P.3d 464 (2014), and Lawhead v. United Air Lines, 59
Haw. 551, 584 P.2d 119 (1978), are also applicable to her case.
III. Standards of Review
A. Interpretation of a Statute
Statutory interpretation is a question of law reviewable de
novo. See Citizens Against Reckless Dev. v. Zoning Bd. of
14
Appeals, 114 Hawaiʻi 184, 193, 159 P.3d 143, 152 (2007) (citation
omitted). When construing statutes, the court is governed by
the following rules:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.
When there is ambiguity in a statute, the meaning of
the ambiguous words may be sought by examining the context,
with which the ambiguous words, phrases, and sentences may
be compared, in order to ascertain their true meaning.
Moreover, the courts may resort to extrinsic aids in
determining legislative intent, such as legislative
history, or the reason and spirit of the law.
114 Hawaiʻi at 193-94, 159 P.3d at 152-53 (citations omitted).
B. Administrative Agency Appeals
Ordinarily, deference will be given to decisions of
administrative agencies acting within the realm of their
expertise. The rule of judicial deference, however, does
not apply when the agency’s reading of the statute
contravenes the legislature’s manifest purpose.
Consequently, we have not hesitated to reject an incorrect
or unreasonable statutory construction advanced by the
agency entrusted with the statute’s implementation.
Coon v. City & Cnty. of Honolulu, 98 Hawaiʻi 233, 245, 47 P.3d
348, 360 (2002) (citations and brackets omitted).
IV. Discussion
A. The ERS Did Not Challenge the Nature of Pasco’s Injury
As a preliminary matter, with respect to the second issue
asserted by the ERS Board on certiorari, the hearing officer
15
specifically found that Pasco’s medial epicondylitis, which
initially manifested on April 17, 2007, was due to work-related
extensive typing.5 As the ERS Board adopted the hearing
officer’s recommended decision as its final decision, it, too,
agreed that Pasco’s injury was medial epicondylitis due to
extensive typing, eventually leading to complex regional pain
syndrome. Accordingly, any assertions by the ERS Board on this
appeal that Pasco’s injury was due to non-work-related
myofascial pain syndrome, or that her incapacity was not the
natural and proximate result of extensive typing, are contrary
to its Final Decision.
Therefore, the remaining questions are those contained in
the first issue on certiorari: whether Pasco suffered an
5
Neither of the parties contests the hearing officer’s findings, which
include: (1) Pasco did not have pre-existing injuries of her elbow, arm and
hands prior to the alleged accident of April 17, 2007; (2) Pasco’s testimony
was credible when she testified “that the unnatural positioning of elbows . .
. while typing for extended periods of time could result in elbow pain”; (3)
Pasco began to feel pain in her right arm, wrist, and hand on April 17, 2007
while typing at work; and (4) Pasco did initially have medial epicondylitis,
which eventually led to complex regional pain syndrome.
Although Pasco had asserted in her “Application for Disability
Retirement” that the carrying of training materials contributed to her
injury, the hearing officer did not specifically make such a finding; in
contrast, the hearing officer did specifically note that she found Pasco’s
testimony credible that extensive typing caused her elbow pain. Also,
nothing in the record indicates that Pasco engaged in extensive typing
outside of her position.
Given these findings by the hearing officer, the ERS Board’s assertion
that the hearing officer had found that “Pasco failed to prove by a
preponderance of the evidence that her permanent incapacity was ‘the natural
and proximate result’ of her claimed accident of April 17, 2007,” is plainly
incorrect.
16
“accident occurring while in the actual performance of duty at
some definite time and place.”
B. Pasco Qualifies for Service-Connected Disability Retirement
HRS § 88-336 provides in relevant part:
Service-connected disability retirement. (a) [A]ny class
H member who has been permanently incapacitated for duty as
the natural and proximate result of an accident occurring
while in the actual performance of duty at some definite
time and place . . . may be retired by the board for
service-connected disability. . . .
Thus, service-connected disability retirement is available to
Pasco if she has been permanently incapacitated for duty as “the
natural and proximate result of an accident occurring while in
the actual performance of duty at some definite time and place.”
1. Pasco’s injury resulted from an “accident.”
The first issue we must address is whether Pasco’s injury
was the result of an “accident.” “An accident is an unlooked
for mishap or untoward event which is not expected or designed.”
Lopez, 66 Haw. at 130, 657 P.2d at 1043 (citation omitted).
“Accident” is similarly defined in HAR § 6-22-2 as follows:
“‘Accident’ means an unlooked for mishap[6] or untoward event
which is not expected or designed, occurring while in the actual
performance of duty at some definite time and place.”
In denying Pasco’s application for service-connected
disability benefits by adopting the hearing officer’s
6
“Mishap” is defined as “[a] small accident or mistake, esp. when the
consequences are not severe; a relatively trivial instance of bad luck,
mischance.” Black’s Law Dictionary 1151 (10th ed. 2014).
17
recommendations, the ERS Board concluded that an “accident”
could not occur “over a period of time” because in Lopez, 66
Haw. 127, 657 P.2d 1040, this court concluded that “an accident
did not occur when [an] employee’s incapacitation was due to
work pressures and stresses over a period of time.” This
conclusion misinterprets Lopez.
Lopez must be viewed in light of Kikuta v. Board of
Trustees, Employees’ Retirement System, 66 Haw. 111, 657 P.2d
1030 (1983), as both cases were issued by this court on the same
day, and each addressed the meaning of “accident” in the
service-connected disability retirement context. Indeed, in
Myers, 68 Haw. 94, 704 P.2d 902, this court referred to both
Lopez and Kikuta to explain why an employee, who was injured
when lifting a coffee pot, suffered an “accident.” See 68 Haw.
at 97 & n.1, 704 P.2d at 904 & n.1.
In Lopez, an industrial safety engineer for the State
applied for service-connected disability retirement after he
became incapacitated from the further performance of his work
due to manic-depressive psychosis. See 66 Haw. at 128, 657 P.2d
at 1041. In concluding that the engineer’s job pressures and
stresses did not constitute an “accident,”7 this court noted:
“[T]here was no unexpected event or unforeseen occurrence which
7
The court also disagreed with the engineer’s argument that his job
pressures and stresses amounted to an occupational hazard. See Lopez, 66
Haw. at 129, 657 P.2d at 1042.
18
resulted in the appellant’s present incapacity. It is not
enough, under the retirement law, that work pressures and
stresses over a period of time were contributory causes of his
mental infirmity.” 66 Haw. at 131, 657 P.2d at 1043. The ERS
Board focused on this holding from Lopez and took it to mean
that the etiology of an “accident” could not develop over a
period of time. However, the Lopez court’s reasoning shows
that the court’s focus was on the fact that no “unexpected
event” or “unforeseen occurrence” had caused the employee’s
incapacitation. In Lopez, the claimed “accident” was the result
of general job stresses and pressures occurring over several
years, but there simply was no “mishap” or “event.”
In contrast, the manifestation of Pasco’s pain on April 17,
2007 was an “unlooked for mishap or untoward event which [was]
not expected or designed.” Whether an event is not expected or
designed is viewed from the perspective of the employee, as
illustrated by Kikuta, 66 Haw. 111, 657 P.2d 1030. In Kikuta,
the ERS Board had denied benefits to an employee who was on
working time when he was stabbed by his brother-in-law and
consequently died. The circuit court affirmed the decision. On
appeal to this court, the ERS Board argued the stabbing was not
an “accident,” as the employee should have anticipated the
attack because he was previously warned that his brother-in-law
19
was “out to get him.” 66 Haw. at 113, 657 P.2d at 1032. This
court reversed, first noting that the common and accepted
definition of “accident” is “an unexpected happening to which
the claimant did not culpably contribute.” 66 Haw. at 114, 657
P.2d at 1033 (emphasis added). This court went on to observe
that the “warning” had been given by the assailant’s sister five
months prior to the incident, that the employee and the
assailant had friendly interactions prior to and since that
time, and none of the witnesses on the date of the stabbing had
seen or heard anything to indicate the assailant “was looking
for trouble” when he first arrived at the employee’s workplace.
66 Haw. at 116, 657 P.2d at 1034. Further, there was nothing in
the record to indicate that the employee had provoked the
assailant. Thus, from the point of view of the employee, the
assault was unexpected, and therefore an “accident.” 66 Haw. at
117, 657 P.2d at 1034.
Similar to the injury in Kikuta, Pasco’s pain, which
manifested on April 17, 2007, was not “expected or designed.”
As in Kikuta, it was “an unexpected happening to which” Pasco
“did not culpably contribute.” The Dissent, however, suggests
that although the Board found that “Pasco had no pre-existing
injuries to her hands, wrists, and arms prior to April 17,
2007,” because Pasco’s sub-optimal work conditions existed since
20
Pasco began the job, “[her] deteriorating physical conditions
began far earlier than April 12, 2007” and therefore her “severe
elbow injury could not have been unexpected.” The record does
not demonstrate that Pasco should have expected the level of
pain she began experiencing on April 17, 2007, later diagnosed
as medial epicondylitis, that would require surgeries and later
lead to complex regional pain syndrome. In any event, the ERS
Board specifically found that Pasco did not have pre-existing
injuries to her elbow, arm, and hands prior to April 17, 2007.
Even if she did have a preexisting condition, however, pursuant
to Myers discussed below, an “accident” occurs when an unlooked
for mishap or unexpected event causes a preexisting condition to
become symptomatic. In addition, Myers also stands for the
proposition that an unexpected result of a routine performance
of duty, without any evidence of external force, or unusual
stress or strain, is an “unlooked for untoward event” that
constitutes an “accident.”
In this regard, the ERS Board appears to argue that the
manifestation of pain in the course of performing regular work
duties cannot constitute an “accident.” However, this court
already rejected such an argument in Myers, 68 Haw. 94, 704 P.2d
902. In Myers, a state employee who injured his back on July
25, 1977 when setting down a thirty-five-pound half-full coffee
21
pot as part of his normal and routine preparation for conducting
a management training class, and thereafter became disabled due
to back pain, was denied service-connected disability retirement
by the ERS Board. The circuit court later reversed the ERS
Board’s denial of benefits, and the ERS Board appealed,
contending that the incident involving the coffee pot was not an
“accident” within the meaning of the service-connected
disability retirement statute. 68 Haw. at 95, 704 P.2d at 904.
Specifically, the ERS Board argued that an unexpected result of
a routine performance of duty, without any evidence of external
force, or unusual stress or strain, did not amount to an
“unlooked for untoward event” and therefore did not constitute
an “accident.” See Myers, No. 10033, ERS Board’s Opening Br.,
at 13, 19 (filed Nov. 9, 1984).
In affirming the circuit court, this court rejected the ERS
Board’s argument, stating, “Since the July 25, 1977 incident
was, beyond question, an unlooked for mishap which was not
expected or designed, it was an ‘accident[.]’” Myers, 68 Haw.
at 96 & n.1, 704 P.2d at 904 & n.1 (emphasis added). The weight
of the coffee pot or the employee’s pre-existing
spondylolisthesis and degenerative disks did not affect this
court’s analysis as to whether an “accident” had occurred.
Myers thus dispels the notion that an external force or unusual
22
strain is required to show that an “accident” befell an
employee; rather, an unexpected result of a routine performance
of duty may comprise an “accident.”8 In Myers, the “routine
performance of duty” was the employee’s routine preparation of
coffee for the training meetings he conducted; his “unlooked for
mishap” was the “sharp pains across his left lower back into the
hollow of his buttocks, and . . . pulsating pain radiating down
his right leg” that he experienced when setting down the coffee
pot. 68 Haw. at 95, 704 P.2d at 903.
Just as lifting the coffee pot was part of the employee’s
routine in Myers, here, typing was a normal and routine part of
Pasco’s job. Pasco also did not expect the onset of pain on
April 17, 2007 while she typed, just as the employee in Myers
did not expect to suffer severe back pain from lifting a coffee
pot when, prior to the accident, he could lift sixty-five-pound
bags of coral sand and ninety-five-pound bags of mortar mix
without discomfort of any kind. See Myers v. Bd. of Trs. of the
8
Indeed, after our decision in Myers, the ERS Board removed the sentence
underlined below from its September 26, 1983 definition of “accident” in
effect at the time of the case:
“Accident” means an unlooked for mishap or untoward event
which is not expected or designed, occurring while in the
actual performance of duty at some definite time and place.
It does not mean the unexpected result of routine
performance of duties unless it can be shown that such
unexpected result occurred because of some unusual strain
or exertion or some unusual condition in the employment.”
HAR § 6-22-2 (emphasis added). The second sentence of the definition was
removed effective February 9, 1989. See HAR § 6-22-2 (am. Feb. 9, 1989).
23
Emps.’ Ret. Sys., Civil No. 79302, Findings of Fact &
Conclusions of Law & Order, at 2 (filed May 17, 1984), aff’d, 68
Haw. 94, 704 P.2d 902.
Nevertheless, in this case, the ERS Board ruled that Myers
was distinguishable because the injury in Myers was caused by a
single lifting of a coffee pot, as opposed to multiple liftings.
To draw such an adverse conclusion from this distinction,
however, does not comport with this court’s rejection of the ERS
Board’s argument in Myers that there must be a showing of some
unusual strain or exertion for an “accident” to occur in the
routine performance of duty. In sum, routinely performed duties
are, by definition, performed regularly and repeatedly; and this
court recognized in Myers that an “accident” may occur in the
course of such regular and repeated performance of duties.
Thus, the onset of Pasco’s medial epicondylitis in the course of
her regular and repeated performance of her extensive typing
duties was an unexpected event constituting an “accident.”
2. Pasco’s “accident” occurred “while in the actual
performance of duty at some definite time and place.”
The second issue in determining Pasco’s eligibility for
service-connected disability retirement under HRS § 88-336 is
whether her injury occurred “while in the actual performance of
duty at some definite time and place.” In contrast with the
Dissent, we agree with the ICA that Pasco’s circumstances are
24
analogous to the relevant facts in Panado, 134 Hawaiʻi 1, 332
P.3d 144, where we held that an applicant had shown her injury
was the result of an “accident” occurring at “some definite time
and place” even though the employee could not identify the exact
moment of injury.
In Panado, Eden Panado (“Panado”), a computer operator with
the City and County of Honolulu, was assigned to print voter
registration forms during her October 8 to October 9, 2004 work
shift, and she was therefore required to lift between ten and
fifteen boxes of paper, and load and unload printers. During
the task, which Panado described as her alleged accident, Panado
felt pain in her lower back, upper back, shoulder, neck, and
right arm. She experienced pain the day after her shift, and on
October 10, she was admitted to a hospital emergency room,
treated for neck and low back pain, and was subsequently unable
to return to work. See 134 Hawaiʻi at 3–4, 332 P.3d at 146–47.
Panado’s application for service-connected disability benefits
was ultimately denied by the ERS Board.
On appeal, the parties stipulated that Panado was injured
during her October 8–9, 2004 workshift. However, Panado also
conceded that she could not “pinpoint to the exact box” that was
picked up when her injury occurred. 134 Hawaiʻi at 8, 332 P.3d
at 141. Thus, the issue before this court was whether the
25
statute requires an employee to establish the exact moment she
was injured.
We held that it does not. See 134 Hawaiʻi at 13, 332 P.3d
at 156. We noted that the plain language of the phrase,
“definite time and place,” does not mean the exact moment of
injury, but rather requires that the time and place of injury be
“clearly stated or decided; not vague or doubtful.” Id.
Additionally, we observed that “[t]he legislative history does
not indicate the ‘some definite time and place’ language was
meant to restrict the award of accidental disability retirement
benefits to those claimants who could show an exact moment of
injury.” 134 Hawaiʻi at 13, 332 P.3d at 156. We held that
Panado satisfied the “some definite time and place” requirement
by establishing that she was injured during her workshift. Id.
Moreover, this court went on to observe that “there is no
indication the legislature intended to categorically exclude
coverage for accidents that do not result in immediate
symptoms.” 134 Hawaiʻi at 15, 332 P.3d at 158. We pointed out
that the legislature “was concerned with whether an accident
occurred during work, not with whether the employee could
pinpoint the exact moment of injury.” 134 Hawaiʻi at 14, 332
P.3d at 157 (emphasis added). Referring to the legislature’s
1965 expansion of coverage to allow recovery for members who are
26
permanently incapacitated as the cumulative result of an
occupational hazard, we also stated:
Given the legislature’s decision to expand coverage, it would
appear contrary to legislative policy to restrict coverage by
interpreting HRS § 88–79 to categorically preclude claims that do
not allege the exact moment of injury, even when it is undisputed
that the injury occurred in the performance of work.
Id. We also noted that “there is no indication the legislature
intended to categorically exclude coverage for accidents that do
not result in immediate symptoms.” Id.
To illustrate, we noted:
If in Myers, the employee had lifted the coffee maker
twice, but the onset of the same debilitating condition did
not occur until the next day, there is no rational
explanation why the employee should be denied retirement
benefits because he could not point to which one of the two
lifts caused the incapacity. So long as the claimant could
establish the incapacity was the proximate and natural
result of either of the two lifts, the claimant should be
able to qualify for disability retirement benefits under
HRS § 88–79. To deny benefits in this situation, either
because a claimant cannot point to which exact incident, or
because the onset of pain did not occur immediately, would
be “unjust and unreasonable in its consequences.”
Id.
The ICA correctly held that Panado informs the analysis of
Pasco’s case. Although Pasco’s injury has been characterized as
a “cumulative or repetitive stress” injury, as we stated in
Panado, the fact that Pasco’s “onset of pain did not occur
immediately” does not mean it was not “the natural and proximate
result of an accident occurring while in the actual performance
of duty at some definite time and place.” Although Pasco cannot
point to the exact keystroke that caused her to exceed her
27
physiological capacity, the injury occurred “while in the actual
performance of duty,” during her workshift. The “untoward
event” manifested as pain at a “definite time and place” on
April 17, 2007. Even if the pain had manifested the day after a
workshift, however, as discussed in Panado, that Pasco’s injury
manifested as arm pain at some time after the moment she
exceeded her physiological capacity to perform repetitive work
does not mean that her accident did not occur “while in the
actual performance of duty at some definite time and place.”
134 Hawaiʻi at 14-15, 332 P.3d at 157-58.
V. Conclusion
For the foregoing reasons, we affirm the Intermediate Court
of Appeals’ July 14, 2016 Judgment on Appeal, entered pursuant
to its June 17, 2016 Memorandum Opinion, which vacated the
September 17, 2013 “Decision and Order Affirming the Final
Decision of Respondent-Appellee Board of Trustees of the
Employees’ Retirement System of the State of Hawaii and
Dismissing Petitioner-Appellant Kimberly Pasco’s Appeal” and the
September 17, 2013 “Final Judgment,” and we remand the matter to
the Circuit Court of the First Circuit with directions to vacate
the ERS Board’s denial of service-connected disability
28
retirement to Pasco and for proceedings consistent with the ICA’s
Memorandum Opinion and this opinion.
Patricia Ohara and /s/ Sabrina S. McKenna
Brian P. Aburano
for petitioner /s/ Richard W. Pollack
Edmund L. Lee /s/ Michael D. Wilson
for respondent
29