Panado v. Board of Trustees Employees' Retirement System State of Hawaii .Â

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Electronically Filed
Supreme Court
SCWC-13-0000022
11-JUL-2014
07:45 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
EDEN L. PANADO, Petitioner/Appellant-Appellant,
vs.
BOARD OF TRUSTEES, EMPLOYEES’ RETIREMENT SYSTEM, STATE OF HAWAII,
Respondent/Appellee-Appellee.
SCWC-13-0000022
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000022; CIV. NO. 12-1-0151)
JULY 11, 2014
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., AND
CIRCUIT JUDGE CASTAGNETTI, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY RECKTENWALD, C.J.
The instant case arises from Eden Panado’s application
for service-connected disability retirement with the Board of
Trustees of the Employees’ Retirement System of the State of
Hawai#i. In her application, Panado alleged that she was
permanently incapacitated because of neck and back injuries she
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sustained while lifting boxes during an October 8-9, 2004 work
shift for the City & County of Honolulu’s Department of
Information Technology. The statute at issue in this case,
Hawai#i Revised Statutes (HRS) § 88-79, allows for service-
connected disability retirement benefits if a member of the ERS
can show that he or she was “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 . . . .”
The Board of Trustees denied Panado’s application.
Although the parties stipulated that Panado had suffered an
injury sometime during her October 8-9, 2004 work shift, and that
she was permanently incapacitated for work by the time of her
application, the Board of Trustees determined that (1) Panado’s
October 8-9, 2004 injury was not an “accident” under HRS § 88-79
because she had failed to show that the injury occurred at “some
definite time and place”; and (2) Panado’s permanent incapacity
was not the “natural and proximate result” of the October 8-9,
2004 incident.
Panado appealed to the Circuit Court of the First
Circuit (circuit court), which affirmed the Board of Trustees’
decision because Panado had failed to show that the incident
occurred at “some definite time and place.” The circuit court
did not address the other reason for the Board of Trustees’
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denial of Panado’s application, i.e., that she failed to prove
her incapacity was the natural and proximate result of the
alleged accident. A majority of the Intermediate Court of
Appeals (ICA) affirmed the decision.
In her Application for Writ of Certiorari, Panado
asserts that: (1) the ICA erred in affirming the circuit court’s
conclusion that Panado’s injuries during a single eight-hour work
shift did not occur at a “definite time and place” under HRS
§ 88-79[1] and Hawai#i Administrative Rule (HAR) § 6-22-8,[2] and
1
HRS § 88-79(a) (Supp. 2007) provides in relevant part that:
Upon application of a member, or the person appointed
by the family court as guardian of an incapacitated
member, any 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[.]
2
HAR § 6-22-8 (effective 2009-2014) provides that:
Upon completion of the examination of the member and
the reports submitted to it, the medical board shall
certify in writing to the board the following:
(1) In the case of an application for ordinary
disability or service-connected disability
retirement, whether or not the incapacity is:
(A) For the further performance of duty; or
(B) For gainful employment; and
(C) Likely to be permanent.
(2) In the case of an application for
service-connected disability retirement or for
accidental death benefits, whether or not the
incapacity or death is:
(A) The natural and proximate result of an
accident occurring while in the actual
performance of duty at some definite time
and place; or
(B) The cumulative result of some occupational
hazard (in the case of service-connected
(continued...)
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(2) the evidence in this case demonstrates a causal connection
between the October 8-9, 2004 incident and her permanent
incapacity.
We agree with Panado that the “definite time and place”
language in HRS § 88-79 does not preclude the recovery of
benefits despite her inability to pinpoint the precise moment of
injury when, as in the instant case, there is no dispute that
Panado was injured during her work shift. However, we remand the
case to the circuit court for it to determine the Board of
Trustees’ second ground for denying Panado’s application, namely,
that her permanent incapacity is not “the natural and proximate
result of the alleged incident.”
II. Background
A. Factual Background
The following factual background is taken from the
record on appeal.
On October 8-9, 2004, Panado was working as a Computer
Operator III with the City & County of Honolulu (City & County)
Department of Information Technology. During her work shift,
which ran from 11:30 p.m. on October 8 to 7:45 a.m. on October 9,
2
(...continued)
disability retirement) or the result of
some occupational hazard (in the case of
accidental death benefits); and
(C) Through no wilful negligence on the part
of the member.
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2004, she was assigned to print voter registration forms and had
to lift 10-15 boxes of paper. The following day, on October 10,
2004, Panado was admitted to the emergency room at Tripler
Hospital for treatment of neck and low back pain. From
October 9, 2004 to October 5, 2005, Panado was unable to return
to work.
On October 12, 2004, Panado applied for workers’
compensation and began to receive temporary total disability
benefits from the City & County. As a result, the City & County
required Panado to undergo several independent medical
evaluations (IME). Deborah Agles, M.D., performed an IME of
Panado on January 11, 2005, diagnosing her with lumbosacral and
cervical strains. Dr. Agles noted that, “[a]t present time, I
believe that the patient is unable to work, and should continue
on temporary total disability benefits.” Explaining that
Panado’s “prognosis is guarded because of the diffuse nature of
pain symptoms, . . . hyperreflexia[,][3]” and “subjective symptoms
which are not completely concordant with objective studies,” Dr.
Agles noted, however, that Panado “presented in an honest and
3
“Hyperreflexia” is defined as “exaggeration of the reflexes.” The
Sloane-Dorland Annotated Medical-Legal Dictionary 355 (1987).
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reliable manner; there were no overt pain behaviors, and no
evidence of malingering or secondary gain.[4]”
Dr. Agles submitted a supplemental report on June 14,
2005, after reviewing Panado’s medical records. Dr. Agles opined
that:
the patient’s current symptoms are not completely
attributable to the incident of 10/09/04. The
10/09/04 accident may have caused an exacerbation of
her low back condition, but her low back was already
symptomatic and receiving active medical care in close
proximity to the subject injury (four days prior).
The medical records do not support a pre-existing
cervical spine condition, although x-rays were
obtained of the neck in 1989, and there was a motor
vehicle accident in 1994, with intermittent symptoms
in the bilateral upper extremities.
Dr. Agles further opined that “the incident of 10/09/04
did cause an injury to the cervical spine” and that “[t]he low
back can be considered at pre-injury state[.]” Dr. Agles noted
that Panado’s records indicated she had longstanding
fibromyalgia, and that the “pain [Panado] experiences from
fibromyalgia is complicating her presentation; this diagnosis is
important, and was not discussed by the patient when a past
medical history was obtained.”
Panado returned to work on October 6, 2005. She was
assigned to light duty and not permitted to carry anything heavy.
4
“Secondary gain” is defined as “a secondary psychic or social
advantage derived from a symptom or illness[,]” such as when a physical
illness “might result in a pension for [an] individual[.]” The Sloane-Dorland
Annotated Medical-Legal Dictionary 305.
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On October 24, 2005, another IME was performed by
Donald K. Maruyama, M.D. Based on his examination of Panado and
review of her records, including Dr. Agles’ report, Dr. Maruyama
stated that:
Dr. Agles felt that [Panado] had reached her pre-
injury status with regard to her lower back and lower
extremity symptoms and her opinion was that her
ongoing symptomatology in her low back and lower
extremities was due to a pre-existing condition. I
generally tend to agree although there may be at least
mild permanent aggravation of her ongoing low back and
right lower extremity symptomatology, at least from
the subjective standpoint. Her cervical and right
upper extremity symptoms appear to be a direct result
of the October 9, 2004 incident although her chronic
fibromyalgia situation does contribute to her overall
musculoskeletal symptoms.
Dr. Maruyama also stated that “Panado has returned to
her usual and customary duties of Computer Operator III at the
City & County. A review of the position description reveals that
she can probably perform all of the duties as described.”
Panado was again off of work from January 26, 2006 to
March 5, 2006. On March 30, 2006, Panado was medically
disqualified from work by her primary treating physician, Diokson
Rena, M.D., because she was “unable to perform and tolerate [her
work] duty despite restrictions.”
B. Proceedings relating to Panado’s eligibility for benefits
On May 1, 2006, Panado filed an Application for
Disability Retirement with the ERS. In her application, she
stated that on October 9, 2004, as a “Computer Operator III,
Department of Information Technology, Operations Division,” she
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was “printing voters’ registration forms on 2 impact printers and
while lifting forms to load & unload between printers, felt pain
in lower back, upper back, shoulder, neck, & right arm. Next day
was more intense pain & barely able to move the following day.”
On July 12, 2007, Dr. Lichter, a former chair of the
ERS Medical Board, performed a medical records review for ERS.
Among the records reviewed were the independent medical
examinations by Dr. Agles and Dr. Maruyama, reports by her
treating physician Dr. Rena, and Panado’s military medical
records. Dr. Lichter’s report stated:
I strongly disagree with Dr. Maruyama’s [October 24,
2005] opinion that “there may be at least a mild
permanent aggravation of her ongoing low back and
right lower extremity symptomatology. . .” His
opinion is based only, as he stated, on a “subjective
standpoint.” This latter opinion indicates that
[Pando’s] self-serving reports are the primary basis
of his opinion which is essentially contrary to the
objective evidence.
The omission by [Panado] of any reference to her pre-
existing, properly diagnosed and repeatedly treated
illness leads the undersigned to believe that there is
a strong chance that [Panado’s] claim is not only
worthless but may be fraudulent.
Although Dr. Lichter already expressed an opinion, and
notably a very negative one, the Board of Trustees selected him
to perform another IME on Panado, which he did on October 24,
2007. In his accompanying report, Dr. Lichter concluded that
Panado’s incapacitation stemmed from “non-organic” causes and not
from the injuries she suffered from lifting the boxes. During
the physical examination of Panado, Dr. Lichter recognized the
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presence of several Waddell signs, which are a group of
inappropriate responses to physical examination that indicate
non-organic or psychological causes of pain.5 Performing a test
for “distraction,” in which a straight leg raise is performed
while the patient is lying flat, then, while distracting the
patient, another straight leg raise is done while the patient is
seated, Dr. Lichter reported that Panado showed a marked
difference in pain response to the two leg raises even though the
pain response should be consistent. Dr. Lichter also observed
the presence of other Waddell signs such as “over-reaction,”
“regional disturbances,” and simulation. Dr. Licther noted that
“[t]wo or more of these findings strongly suggest a psychological
basis for some or all of [Panado’s] complaints.”
Based on these tests and a review of Panado’s medical
records, Dr. Lichter diagnosed Panado as having (1) “Chronic neck
and back pain due to herniated nucleus pulposes at C 4-5 and L5-
S1, probably secondary to a motor vehicle accident in 1994”; and
(2) “Failure to cope with situational stress and mild permanent
residuals of #1.” Dr. Lichter also reiterated that Panado’s
failure to mention her preexisting fibromyalgia led him to
believe that her claim may be fraudulent.
5
See Gordon Waddell et al., Nonorganic Physical Signs in Low-Back
Pain, Spine March/April 1980, at 117-25.
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On November 12, 2007, the Medical Board issued its
report, which summarized the facts and pertinent medical records
regarding Panado, then stated its findings:
The findings of the undersigned [Medical] Board are
that [Panado] is permanently incapacitated for the
further performance of duty, but that such incapacity
is not the natural and proximate result[6] of an
accident that occurred while in the actual performance
of duty at a specific place and time, and not the
cumulative result of an occupational hazard as
explained above.
Based on these findings, the Medical Board recommended
that Panado be denied service-connected disability retirement.
Panado appealed the decision of the Medical Board to
the Board of Trustees. At the January 19, 2010 hearing on her
appeal, the parties stipulated to Panado being “physically or
mentally incapacitated with [regard to the] further performance
of duty as a Computer Operator III”; that “such incapacitation is
likely to be permanent”; and that “such incapacitation is not the
result of willful negligence on the part of Ms. Panado.” The
parties also stipulated that “on the date of the injury on
October 9, 2004, that [Panado was] working in [her] job as the
Computer [Operator III].”
Patricia L. Chinn, M.D., Medical Board Chairperson,
appeared for the Medical Board as an expert witness in medicine
and general surgery and testified that, in the Medical Board’s
6
HAR § 6-22-2 (effective 1984-2014) defines “Natural and proximate
result” as “the result that would naturally follow from the accident, unbroken
by any independent cause.”
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view, “accident” under HRS § 88-79 “needs to occur at a specific
date and time. It’s not over a stretch of hours. It is not
something that occurs and then developed symptoms the following
day.” Dr. Chinn further explained:
A: [The] ERS definition of accident is pretty
clear. It’s got to occur at a specific date and
time and in general, there’s an immediate
complaint of pain or disability. When somebody
develops pain the following morning, that for
most physicians is related to an overuse, muscle
over use or a strain, muscle strain, which
generally is self resolving.
Q: What about gradual onset of pain while you’re
performing an activity?
A: That doesn’t follow the definition of an
accident. Generally it’s like immediate. I
don’t think you can record snapping my fingers,
but it’s an immediate occurrence and you are
aware that something happened at that time. And
you can, you know, as you –- I mean if I were to
get up and I were to lift multiple boxes and I
have neck problems and I have a disk, and I’ve
had problems with my neck and my back, I could
move multiple boxes and I might gradually
develop discomfort as my muscles tensed.
And maybe I’m a little bit out of joint and
maybe because I’m a little deconditioned, but
the fact that I might develop pain over a period
of time with an associated activity does not
constitute an accident. That’s clearly against
the definition of accident for the Medical Board
purposes.
The Hearing Officer issued her Recommended Decision on
June 29, 2010, including the following Findings of Fact:
3. Petitioner described the October 9, 2004 alleged
accident in her Application as “[p]rinting
voters’ registration forms on 2 impact printers
and while lifting forms to load & unload between
printers, felt pain in lower back, upper back,
shoulder, neck & right arm. Next day was more
intense pain & barely able to move the following
day.”
. . .
12. Petitioner had fibromyalgia during all relevant
times in this case.
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13. The October 9, 2004 incident did cause injury to
Petitioner’s cervical spine.
14. Petitioner sustained a temporary aggravation of
her lower back condition on October 9, 2004, but
was back at pre-injury state by the October 24,
2005 date of Dr. Maruyama’s IME.
15. Notwithstanding Petitioner’s cervical and low
back problems, Petitioner had returned to work
and was able to perform all of the duties of her
full-time job by the October 24, 2005 date of
Dr. Maruyama’s IME.
16. Dr. Maruyama’s opinion that “there may be at
least a mild permanent aggravation of
Petitioner’s low back and right lower extremity
symptomatology” was based only on a subjective
standpoint (i.e., Petitioner’s self-serving
reports) and is contrary to the objective
evidence.
. . .
20. Petitioner is permanently incapacitated for the
further performance of duty as a Computer
Operator III.
21. The October 9, 2004 incident does not constitute
an accident for purposes of disability
retirement under Chapter 88, HRS.
22. Petitioner’s permanent incapacity is not the
natural and proximate result of the alleged
accident.
The Hearing Officer also proposed the following
Conclusions of Law:
2. Petitioner has failed to prove by a
preponderance of the evidence that her
incapacity for further performance of duty was
(a) the natural and proximate result of an
accident which occured October 9, 2004 or (b)
the cumulative result of an occupational hazard,
as required by HRS § 88-285 and § 88-79.
3. Petitioner is not entitled to service-connected
disability retirement.
Based on the above findings and conclusions, the
Hearing Officer recommended that the Board of Trustees deny
service-connected disability retirement benefits to Panado. On
September 20, 2010, the Board of Trustees issued a Proposed
Decision that adopted the Hearing Officer’s Recommended Decision,
including the Hearing Officer’s findings of fact and conclusions
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of law. The Board of Trustees’ December 16, 2011 Final Decision
affirmed its Proposed Decision and also adopted the Hearing
Officer’s Recommended Decision, findings of fact, and conclusions
of law. Accordingly, the Board of Trustees denied Panado’s
application for service-connected disability retirement benefits.
On January 17, 2012, Panado timely appealed the Final
Decision to the circuit court. In her opening brief before the
circuit court, Panado challenged the Board of Trustees’
determination that (1) the October 8-9, 2004 incident was not an
“accident” and (2) the incapacity was not the natural and
proximate result of the October 8-9 incident. Panado argued that
the facts of the instant case are “virtually identical” to Myers
v. Board of Trustees of Employees’ Retirement System, 68 Haw. 94,
95, 704 P.2d 902, 903 (1985).7 Thus, because the incident in
7
In Myers, a state employee was lifting an approximately thirty-
five pound coffee maker to prepare to conduct a training class when he heard a
snap in his back. 68 Haw. at 95, 704 P.2d at 903. He experienced sharp pains
across his lower back and buttocks and eventually became disabled. Id. The
Board of Trustees rejected his application for service-connected total
disability retirement. Id. at 95, 704 P.2d at 904. The circuit court
reversed the Board of Trustees’ decision and order. Id. In its appeal to
this court, the Board of Trustees argued that Myers’ incident was not an
“accident” within the meaning of HRS § 88-77, and the Board of Trustees was
not clearly erroneous in deciding that Meyers’ incapacitation was not the
natural and proximate result of the coffee maker incident. Id. at 95-96, 704
P.2d at 904.
Because the facts were not in dispute, this court stated that
whether or not the incident was an “accident” was a question of law. Id. at
96, 704 P.2d at 904. The Myers court then defined “accident” as “an unlooked
for mishap or untoward event which is not expected or designed,”•id. (quoting
Lopez v. Bd. of Trs. of ERS, 66 Haw. 127, 130, 657 P.2d 1040, 1043 (1983)),
and concluded that “[s]ince the . . . incident was, beyond question, an
unlooked for mishap which was not expected or designed, it was an
‘accident[,]’” Myers, 68 Haw. at 96, 704 P.2d at 904.
On the second issue, whether the accident was the proximate cause
of Myers’ incapacitation, this court stated that the “question of causal
(continued...)
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Myers was determined to be an accident, the incident in the
instant case should also be an accident. Panado next argued that
the medical opinions by Dr. Rena, Dr. Maruyama, and Dr. Agles
established “a causal connection between the October 9, 2004
accident and [Panado’s] incapacity.”
In its answering brief, the Board of Trustees argued
that “[w]hether Ms. Panado was entitled to disability retirement
. . . is a mixed question of fact and law” subject to review
under the clearly erroneous standard, and not, as Panado
contended, a question of law. The Board of Trustees also argued
that the clearly erroneous standard of review applied because the
Board disputed whether Panado’s incapacity was the natural and
proximate result of the accident, and whether Panado’s “permanent
incapacity was due to the natural worsening of her significant
preexisting low back problems,” rather than any accident on
October 8-9, 2004. The Board of Trustees explained that Panado’s
case was distinguishable from Myers because Myers “could point to
a definite time and place when the accident occurred.” (Emphasis
in the original).
The Board of Trustees next contended that, “even if
this Court found the events of October 9th met the definition of
7
(...continued)
connection is . . . basically a matter of medical opinion.” Id. at 97, 704
P.2d at 905. Based upon its review of the record, including the opinions of
various doctors, this court concluded that the Board of Trustees clearly erred
in finding “no causal connection.” Id. Accordingly, the Myers court affirmed
the circuit court’s order.
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accident under HRS § 88-79, Ms. Panado would not be entitled to
receive service-connected disability retirement benefits since
her incapacity was not the ‘natural and proximate result’ of the
events of October 9th.” The Board of Trustees explained that it
had found her permanent injuries were not caused by the events of
October 9th, but rather by preexisting degenerative medical
conditions and injuries.
In her reply brief, Panado argued that the issue was a
question of law because there was no dispute between her and the
Board of Trustees that she was injured while working her shift.
The only question for the circuit court was whether the events
that occurred constitute an “accident.” Panado contended that
the Board of Trustees read the phrase “definite time and place”
too narrowly in requiring her to “establish the exact moment” she
was injured. (Emphasis in the original). Panado also argued
that the medical opinions of Dr. Agles, Dr. Maruyama, and Dr.
Rena all show that the October 8-9 accident proximately caused
Panado’s incapacity.
On September 14, 2012, the circuit court held a hearing
on Panado’s appeal. Panado’s counsel stated, “we concede
essentially that we can’t probably pinpoint to the exact box that
she picked up [at which time the accident] may have occurred”;
however, because the parties agreed that Panado suffered an
injury during her work shift, the issue upon which the case
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hinged was a question of law, namely, whether HRS § 88-79
required a showing of the precise moment and place of injury to
constitute an “accident” or whether it was enough to show, as
Panado did, that she was injured during her work shift. The
court stated:
So let’s say assuming arguendo that it was around an
eight-hour shift. And during the course of her shift,
her job required her to either lift, push, pull, that
type of activity with respect to these boxes. So
during a period of time.
Now, whether or not this type of activity over a
course of an eight-hour shift constitutes an accident
at some definite time and place, the Court will say
that given its plain ordinary meaning, the answer is
no. And we only have the [Myers] case. But even the
[Myers] case did not look at the accident definition,
injecting at some definite time and place.
The Court will interpret the definition as definite
time and place which these facts do not apply. So
it’s a conclusion.
And in terms of mixed question of fact and law, I
don’t think the facts are disputed as to what she was
doing during the eight-hour period of time. What was
in dispute was the description to the various doctors.
But that –- the Court is going to set that aside for
its analysis.
So even assuming all of that took place, whether it’s
one box, two boxes, several boxes, hour one, hour two,
over the course of eight hours, the facts –- the facts
and –- do not constitute an accident at some definite
time and place with the emphasis on that.
So the –- affirmed. And the appeal is being
dismissed.
On November 9, 2012, the circuit court issued its
decision and order affirming the Board of Trustees’ final
decision. The circuit court determined:
5. [Panado] described the “accident” as
“repetitively lifting & moving heavy boxes”
during the course of her shift; however,
[Panado] did not establish a specific time or
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event during the course of [Panado’s] eight-hour
shift when her claimed “accident” occurred.
. . .
7. Given the plain and ordinary meaning of “at some
definite time and place” in HRS § 88-79 and HAR
6-22-4, the Court concludes that repetitive
lifting and moving of heavy boxes during the
course of [Panado’s] eight hour shift does not
constitute an “accident” for purposes of
determining whether [Panado] is entitled to
service connected disability retirement benefits
under HRS §§ 88-285 and 88-79.
8. The Court finds that [the Board of Trustees] did
not commit any error in law or fact in its
determination that [Panado’s] incapacity is not
the result of an accident that occurred on
October 9, 2004.
Based on these determinations, the circuit court
affirmed the Final Decision of the Board of Trustees. The
circuit court entered final judgment on December 13, 2012.
Panado timely appealed.
C. ICA Appeal
In her opening brief, Panado reiterated that the
October 8-9, 2004 incident was virtually identical to the facts
under Myers, in which this court held that Myers’ incapacity from
lifting the coffee maker was a compensable injury. Panado next
argued that the circuit court “erred in too narrowly construing
‘definite time and place’” to preclude her claim because she
could not point to her exact moment of injury.8 Panado again
relied on Myers, observing that nothing in Myers required Panado
to “demonstrate her injury with such precision.”
8
Consistent with her counsel’s concession in oral argument in the
circuit court, Panado argued that she injured herself while lifting
“approximately 10-15 heavy boxes of Xerox paper,” rather than suggesting that
she was injured while lifting or dropping a particular box.
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In its answering brief, the Board of Trustees contended
that the ICA should apply a more deferential, clearly erroneous
standard of review to the issue on appeal because it was a mixed
question of law and fact rather than a question of law.
Specifically, the Board of Trustees characterized the issue as a
mixed question of law and fact because the “legal conclusion that
[Panado’s] alleged October [8-]9 2004 incident occurred at a
‘definite time and place’ is dependent upon the particular facts
and circumstances surrounding her alleged injuries.” The Board
of Trustees also argued that the ICA should give proper deference
to its interpretation of HRS § 88-79 because it is the agency
charged with administering the statute. The Board of Trustees
then maintained that Myers was distinguishable from the instant
case because Myers could point to a specific time of injury, and
thus would satisfy the Board’s interpretation of HRS § 88-79’s
“definite time and place” as requiring proof of the exact moment
of injury.
In her reply brief, Panado argued that the proper
standard of review is de novo because the determinative issue was
how to interpret HRS § 88-79’s “definite time and place”
language. According to Panado, the parties agreed on the events
at issue, namely, that Panado was injured while working her shift
on October 8-9, 2004. However, the issue the parties did not
agree on, and that the ICA must decide on appeal, is whether the
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events at issue constitute an “accident” that occurred at some
“definite time and place” under HRS § 88-79.
On November 26, 2013, a majority of the ICA issued an
SDO that affirmed the circuit court’s November 9, 2012 decision
and order. The majority held that (1) the instant case was
distinguishable from Myers and that (2) the circuit court’s
construal of “a definite time and place” was not clearly
erroneous. Specifically, the majority concluded that Myers was
distinguishable because the facts in Myers were undisputed,
whereas in Panado’s case, there was a dispute about whether her
injury arose over the course of her eight-hour shift or at a
particular moment,9 and whether the injury was a permanent or
temporary aggravation of preexisting injuries. The majority
emphasized that the facts in the instant case were disputed, and
rejected Panado’s contention that the material facts, i.e., that
the alleged accident occurred at her workplace during her eight-
hour work shift, were undisputed. Accordingly, the majority
rejected Panado’s argument that it should apply a de novo
standard of review.
The majority instead concluded that the issue under
review was more accurately characterized as a mixed question of
law and fact regarding “whether the circuit court erred by
9
However, as noted, supra note 8, Panado abandoned her argument
that she was injured when she dropped a particular box.
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narrowly construing the phrase ‘a definite time [and] place’ as
used in HRS § 88-79(a) and HAR § 6-22-2 to exclude the
‘repetitive lifting and moving of heavy boxes during the course
of [Panado’s eight-hour] shift[.]’” (Citing Camara v. Agsalud,
67 Haw. 212, 216, 685 P.2d 794, 797 (1984)) (brackets in the
original). Based on this conclusion, the majority applied a
clearly erroneous standard to the circuit court’s decision and
held that, “the circuit court’s construal of ‘a definite time and
place’ was not clearly erroneous.” Accordingly, the ICA affirmed
the circuit court’s December 13, 2012 final judgment.
In a dissenting opinion, Chief Judge Nakamura stated
that the circuit court erred, as a matter of law, in ruling that
“Panado’s description of how she was injured was insufficient to
satisfy the requirement of HRS § 88-79 that the work accident
occur ‘at some definite time and place.’” According to Chief
Judge Nakamura, the standard of review should be de novo because
the case turned on a question of statutory interpretation, more
specifically, the meaning of “at some definite time and place.”
Chief Judge Nakamura concluded that the legislative intent for
the “at some definite time and place” language was to limit
qualifying accidents to those that are clearly work related.
Noting that it was undisputed that Panado injured herself as a
result of lifting boxes during her October 9, 2004 work shift,
Chief Judge Nakamura then concluded that “Panado’s inability to
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specifically attribute her injuries to a particular box lifted or
pinpoint the exact time during the eight-hour shift that she
sustained injuries did not detract from the fact that she clearly
suffered injuries as the result of a work-related accident.”
Thus, Panado’s description of her injuries was sufficient to meet
the “at some definite time and place” requirement. For these
reasons, Chief Judge Nakamura would have vacated the circuit
court’s decision and order and remanded the case to the circuit
court to rule on the Board of Trustees’ alternative ground for
denying Panado’s application, i.e., that she failed to
demonstrate that her incapacitation was the natural and proximate
result of the October 9, 2004 incident.
The ICA filed its judgment on January 3, 2014. On
March 4, 2014, Panado timely filed the instant application for a
writ of certiorari. The Board of Trustees filed a response on
March 19, 2014.
III. Standards of Review
A. Review of agency decisions
Review of a decision made by the circuit court upon
its review of an administrative decision is a
secondary appeal. Ahn v. Liberty Mut. Fire Ins. Co.,
126 Hawai#i 1, 9, 265 P.3d 470, 478 (2011) (citation
omitted). The circuit court’s decision is reviewed de
novo. Id. The agency’s decision is reviewed under
the standards set forth in HRS § 91-14(g). Id. HRS
§ 91-14(g) (1993) provides:
(g) Upon review of the record the court may affirm
the decision of the agency or remand the case
with instructions for further proceedings; or it
may reverse or modify the decision and order if
the substantial rights of the petitioners may
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have been prejudiced because the administrative
findings, conclusions, decisions, or orders are:
(1) In violation of constitutional or
statutory provisions; or
(2) In excess of the statutory authority or
jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the
whole record; or
(6) Arbitrary, or capricious, or characterized
by abuse of discretion or clearly
unwarranted exercise of discretion.
Under HRS § 91-14(g), conclusions of law are
reviewable under subsections (1), (2), and (4);
questions regarding procedural defects under
subsection (3); findings of fact under subsection (5);
and an agency’s exercise of discretion under
subsection (6).” Sierra Club v. Office of Planning,
109 Hawai#i 411, 414, 126 P.3d 1098, 1101 (2006)
(citation, internal quotation marks and brackets
omitted).
Liberty Dialysis-Hawaii, LLC v. Rainbow Dialysis, LLC, 130
Hawai#i 95, 102-03, 306 P.3d 140, 147-48 (2013).
B. Statutory interpretation
“‘Statutory interpretation is a question of law
reviewable de novo.’”• Our construction of statutes is
guided 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.
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First Ins. Co. of Hawaii v. A&B Props., 126 Hawai#i 406, 414, 271
P.3d 1165, 1173 (2012) (citations omitted) (quoting State v.
Wheeler, 121 Hawai#i 383, 390, 219 P.3d 1170, 1177 (2009)).
C. Interpretation of agency rules
General principles of statutory construction apply in
interpreting administrative rules. As in statutory
construction, courts look first at an administrative
rule’s language. If an administrative rule’s language
is unambiguous, and its literal application is neither
inconsistent with the policies of the statute the rule
implements nor produces an absurd or unjust result,
courts enforce the rule’s plain meaning. While an
agency’s interpretation of its own rules is generally
entitled to deference, this court does not defer to
agency interpretations that are plainly erroneous or
inconsistent with the underlying legislative purpose.
Liberty Dialysis-Hawaii, 130 Hawai#i at 103, 306 P.3d at 148
(internal quotation marks and citations omitted).
IV. Discussion
Under HRS § 88-79, a member of the ERS may qualify for
service-connected disability retirement benefits if that member
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[.]
(Emphasis added); see also HAR § 6-22-8.
This court has defined “accident” as “an unlooked for
mishap or untoward event which is not expected or designed.”
Lopez v. Bd. of Trs., Employees’ Ret. Sys., State of Hawaii, 66
Haw. 127, 130-31, 657 P.2d 1040, 1043 (1983). Notably, unlike
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workers’ compensation claims, there is no presumption of
compensability for disability retirement benefits claims. The
party initiating the ERS proceeding “shall have the burden of
proof, including the burden of producing evidence and the burden
of persuasion. . . . The degree or quantum of proof shall be a
preponderance of the evidence.” HAR § 6-23-31 (effective 2009-
2014).
Panado argues that (1) the “circuit court erred in too
narrowly construing ‘definite time and place’” under HRS § 88-79
when it “concluded that the injuries [Panado] suffered while
lifting boxes during her October 8-9, 2004 shift did not
constitute an ‘accident’ because [she] essentially could not
point to the exact moment during such shift that she was
injured”; and (2) her October 8-9, 2004 incident is an accident
under Myers because her case is factually analogous to Myers’.
She also argues that the “evidence in this case . . .
demonstrates a causal connection between the October 8-9, 2004
incident and her incapacity.”
A. The ICA should have applied a de novo standard to the issue
under review, namely, whether the statutory language of
“definite time and place” requires a claimant to show the
exact moment when an injury occurs
The ICA majority and dissent disagreed regarding
(1) whether the issue under review was a question of law or a
mixed question of fact; and (2) the standard of review to be
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applied to the circuit court’s decision. Accordingly, this court
will first address these issues.
The ICA majority concluded the issue under review was a
mixed question of law and fact regarding “whether the circuit
court erred by narrowly construing the phrase ‘a definite time
[and] place’ as used in HRS § 88-79(a) and HAR § 6-22-2 to
exclude the ‘repetitive lifting and moving of heavy boxes during
the course of [Panado’s eight-hour] shift[.]’” (Citing Camara v.
Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797 (1984)) (brackets in
the original). Based on this conclusion, the ICA applied a
clearly erroneous standard to the circuit court’s decision and
held that, “the circuit court’s construal of ‘a definite time and
place’ was not clearly erroneous.”
The ICA dissent, on the other hand, would have applied
a de novo standard of review since, in its view, the
interpretation of “at some definite time and place” was a
question of law.
The ICA majority erred in reviewing the circuit court’s
decision under a clearly erroneous standard. “Review of a
decision made by the circuit court upon its review of an
administrative decision is a secondary appeal. The circuit
court’s decision is reviewed de novo. The agency’s decision is
reviewed under the standards set forth in HRS § 91-14(g).”
Liberty Dialysis-Hawaii, 130 Hawai#i at 102, 306 P.3d at 147
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(citations omitted). As the circuit court was acting as an
appellate court to the Board of Trustees’ decision, the ICA could
only apply the HRS § 91-14(g) standards to the Board of Trustees’
decision in order to determine de novo whether the circuit
court’s decision was incorrect.10 Instead, the ICA incorrectly
applied a clearly erroneous standard to the circuit court’s
decision.
In addition, the ICA mischaracterized the Board of
Trustee’s determination upon which this case turns as a mixed
question of law and fact, to be reviewed under a clearly
erroneous standard, rather than a question of law, reviewable
under a de novo standard.11 As a result, the ICA rejected
10
Indeed, the circuit court noted that it was not making a mixed
determination of law and fact, pointing out that “[t]his is a very narrow
issue regarding the definition of ‘accident[,]’” and concluding as a matter of
law that Panado’s description of the October 8-9, 2004 incident did not
satisfy HRS § 88-79’s requirement that the accident occur at “some definite
time and place[,]”
11
The ICA appears to have drawn its understanding of mixed question
of law and fact from the Board of Trustees, which argued in its reply brief
that:
[Panado] has submitted that the only issue presented
on appeal is a question of law, specifically, whether
her alleged October 9, 2004 incident occurred at a
“definite time and place” for purposes of qualifying
for service-connected disability retirement benefits.
However, [Panado] is wrong, as this case involves
mixed questions of fact and law. Only if facts are
undisputed may a presented question be decided as a
matter of law.
(Citations omitted).
This misapprehends the concept of mixed question of law and fact,
which is simply an issue that must be determined by applying the law to the
facts of a case. See Price v. Zoning Bd. of Appeals of City & Cnty. of
Honolulu, 77 Hawai#i 168, 172, 883 P.2d 629, 633 (1994) (defining a mixed
question of law and fact as a “conclusion [that] is dependent upon the facts
and circumstances of the particular case”).
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Panado’s contention that the ICA “should apply a de novo standard
of review to the undisputed fact that the alleged accident
occurred at her workplace during her eight-hour work shift.”
However, Panado was correct. The issue upon which this
case turns is a question of law, namely, whether the Board of
Trustees correctly construed HRS § 88-79’s language of “some
definite time and place.” More precisely, because the parties
agreed that Panado was injured during her work shift but that she
cannot point to a specific moment of injury, the case turns upon
whether the statutory language of “some definite time and place”
should be construed broadly to encompass an entire eight-hour
work period, or narrowly to require that the claimant pinpoint
the exact moment when an injury occurs. If “some definite time
and place” requires proving the precise moment of injury, then
Panado’s claim fails as a matter of law, whereas if “some
definite time and place” is construed broadly to simply require
proof an injury occurred during a specific period of work, then
Panado’s claim survives with respect to this issue.
Accordingly, the ICA erred in concluding that the
circuit court’s decision should be reviewed under a clearly
erroneous standard and in characterizing the determinative issue
as a mixed question of law and fact. Because the determinative
issue here is whether the statutory language of “definite time
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and place” requires a claimant to show the exact moment when an
injury occurs, the appropriate standard of review is de novo.
Reviewing HRS § 88-79 de novo, the statutory provision
does not require a claimant to establish the exact moment of
injury in order to recover service-connected disability
retirement benefits. Based on the plain language and legislative
history of HRS § 88-79, Panado satisfied the provision’s
requirement of showing that an accident occurred “while in the
actual performance of duty at some definite time and place” by
establishing that she was injured during her October 8-9, 2004
work shift.
“[T]he fundamental starting point for statutory
interpretation is the language of the statute itself.” First
Ins., 126 Hawai#i at 415, 271 P.3d at 1174 (quoting Wheeler, 121
Hawai#i at 390, 219 P.3d at 1177). “[W]here the statutory
language is plain and unambiguous, our sole duty is to give
effect to its plain and obvious meaning.” Id. The Board of
Trustees maintains that the word “definite” in “definite place
and time” requires a showing of the “specific time and place” at
which her injury occurred.
Contrary to the Board of Trustees’ contention, however,
the standard definition of “definite” does not require “definite
time and place” to mean the exact moment of injury. See Olelo:
The Corp. for Cmty. Television v. Office of Info. Practices, 116
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Hawai#i 337, 349, 173 P.3d 484, 496 (2007) (concluding that in
the absence of a legislative definition of a term, courts can
look to legal and lay dictionaries for guidance as to the term’s
meaning). “Definite” is commonly defined as, “clearly stated or
decided; not vague or doubtful.” The New Oxford Dictionary 447
(2001). Here, the parties stipulated to the fact that Panado was
injured during her work shift on October 8-9, 2004. The time and
place of injury is neither vague nor doubtful in this case.
The Board of Trustees also argues that interpreting HRS
§ 88-79 to permit recovery when Panado cannot point to the
specific moment of injury would render the “definite time and
place” language “superfluous, void, or insignificant.” See
Beneficial Hawaii, Inc. v. Kida, 96 Hawai#i 289, 309, 30 P.3d
895, 915 (2001) (“[C]ourts are bound to give effect to all parts
of a statute, and that no clause, sentence, or word shall be
construed as superfluous, void, or insignificant.” (Citations
omitted)). This contention is without merit. Rejecting the
Board of Trustees’ overly narrow interpretation of “definite time
and place” does not mean jettisoning the “definite time and
place” requirement. Instead, Panado satisfied the “some definite
time and place” requirement by establishing that she was injured
during her October 8-9, 2004 work shift.
Accordingly, based on the commonly accepted meaning of
“definite,” a showing that the injury occurred during Panado’s
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October 8-9, 2004 work shift does satisfy HRS § 88-79’s “some
definite time and place” requirement.12
Even assuming the statutory provision is ambiguous, the
legislative history does not indicate the legislature intended
“definite time and place” to restrict disability benefits to
those who could show the specific moment of injury. First Ins.,
126 Hawai#i at 415, 271 P.3d at 1174 (“[w]hen a statute contains
an ambiguity . . . . courts may resort to extrinsic aids in
determining legislative intent, such as legislative history”)
(quoting Wheeler, 121 Hawai#i at 390, 219 P.3d at 1177).
The “some definite time and place” language has been
part of the provision on accidental disability retirement
benefits ever since the territorial legislature first established
Hawaii’s employee retirement system in 1925. See 1925 Haw. Sess.
Laws Act 55, § 6(5) at 59-60. The first accidental disability
provision stated that:
Upon application of a member, or of the head of his
department, any member who has been totally and
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, through no negligence on his part, shall be
retired by the board of trustees, provided that the
medical board shall certify that such member is
mentally or physically incapacitated for the further
performance of duty, that such incapacity is likely to
be permanent, and that such member should be retired.
12
There could be a line-drawing issue in other cases regarding how
long a period of time must be before it no longer is “definite.” However, it
is unnecessary to decide the issue here because in the instant case there is
no dispute that the injury occurred during a specific and defined period of
work.
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Id.
The 1925 Territorial Legislature’s Joint Committee on
Pensions issued a Special Committee Report that outlined the main
provisions of the proposed Bill regarding the territorial
government’s employee retirement system, including the accidental
disability provision quoted above. H. Spec. Comm. Rep. No. 7 at
1 (1925). The territorial legislature did not appear to address
the “some definite time and place” language. Instead, the
territorial legislature was concerned with whether an accident
occurred during work, not with whether the employee could
pinpoint the exact moment of injury. For example, the report
explained that, “Disability benefits are paid upon permanent
disability as the result of an accident in the performance of
duty at any time or upon disability from any cause after the
employee has had ten or more years of service.” Id. at 7. The
report later discussed the disability benefits provision in more
detail, stating that, “The plan provides that a distinction shall
be made in the cases of permanent disability that occur as a
result of accidents in the performance of duty and those due to
ordinary causes for which the government is not directly
responsible.” Id. at 27. Likewise, the report noted that, “In
the case of total and permanent disability due to an accident in
the performance of duty the committee believed that a pension
should always be payable regardless of the age or length of
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service of the member.” Id. As the above examples show, every
reference to the provision on accidental disability benefits did
not indicate that “some definite time and place” or any other
part of the provision required a claimant to specify the exact
moment of injury. The key question reiterated by the committee
at several points was whether the accident occurred “in the
performance of duty.” The 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.
The legislature’s subsequent expansion of coverage
under HRS § 88-79 also counsels against the restrictive
interpretation adopted by the circuit court. In 1965, the
legislature amended the service-connected total disability
statute to include a second category of recovery for any member
of the retirement fund “who has been permanently incapacitated
. . . as the cumulative result of some occupational hazard[.]”
See 1965 Haw. Sess. Laws Act 225, § 1(a) at 355. This court has
subsequently interpreted “occupational hazard” to permit a
claimant to recover when he or she has been exposed to a danger
accompanying a particular job “if it is not a risk common to
employment in general.” See Komatsu v. Bd. of Trs., Employees’
Ret. Sys., 67 Haw. 485, 494, 693 P.2d 405, 412 (1984) (quoting
Lopez, 66 Haw. at 129, 657 P.2d at 1042). Given the
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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.
In addition to the lack of support in the legislative
history, there are several other reasons for not adopting the
Board of Trustees’ narrow reading of HRS § 88-79’s “some definite
time and place” language. One reason for rejecting the Board of
Trustees’ interpretation is it unreasonably excludes those
service-connected disabilities in which symptoms do not manifest
at the exact moment of the accident. In fact, the Medical Board
appeared to read this exclusion into HRS § 88-79, by arguing that
the provision requires that an accident immediately manifest pain
to be recoverable. The Medical Board determined Panado did not
suffer an “accident” because her pain symptoms manifested the
next day. Dr. Chinn, a member of the Medical Board who also
testified on its behalf, stated that “[a]n accident . . . is not
something that occurs and then develop[s] symptoms the following
day.” Dr. Chinn further testified that “when you have an
accident you have usually immediate symptoms” and that, the “ERS
definition of accident is pretty clear. It’s got to occur at a
specific date and time and in general, there’s an immediate
complaint of pain or disability.” Thus, when asked about whether
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Panado had suffered an accident, given that she experienced pain
the following day, Dr. Chinn stated, “No. Especially because her
pain was described as occurring the following day.”
The Hearing Officer relied on Dr. Chinn’s testimony in
finding that Panado’s October 8-9 incident did not constitute an
accident. In her Recommended Decision, the Hearing Officer
concluded that, “[t]he fact that [Panado] reported twice that she
was not injured until the next day is significant,” then quoted
Dr. Chinn’s testimony that, “generally when you have an accident
you have usually immediate symptoms.” As discussed supra, the
Board of Trustees adopted the Hearing Officer’s Recommended
Decision.
However, there is no indication the legislature
intended to categorically exclude coverage for accidents that do
not result in immediate symptoms. Although Dr. Chinn testified
that the “ERS definition of accident is pretty clear” that there
must be “an immediate complaint of pain or disability[,]” the
plain language and legislative history of HRS § 88-79 do not
include such a requirement.
The existence of accidents that do not result in
immediate symptoms calls into question the reasonableness of
denying benefits when the claimant can point to the exact period
of work during which an accident occurred, but is unsure of which
exact act caused his or her incapacitation. Using a slight
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variation on the facts in Myers13 as an example: 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
§ 88-79.14 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.” Korean Buddhist Dae Won Sa
Temple of Hawaii v. Sullivan, 87 Hawai#i 217, 229, 953 P.2d 1315,
1327 (1998).
13
Myers is not determinative of whether Panado’s incident is an
“accident” under HRS § 88-79. Although Myers and the instant case are
factually similar because both involved claimants who suffered injuries as a
result of lifting something, Myers is not dispositive because it is
distinguishable with regard to the key issue here, whether a claimant under
HRS § 88-79 must prove the specific moment of injury. Whereas Panado
“acknowledges that she is uncertain as to exactly when on October 8-9, 2004
her injury occurred,” Myers was able to point to the moment he injured
himself, when he lifted the coffee pot and heard a snap, see 68 Haw. at 95,
704 P.2d at 903. Thus, Myers did not provide guidance as to how to interpret
the “a definite time and place” requirement of HRS § 88-79. Accordingly,
Myers does not control the instant case.
14
In fact, the circuit court recognized that some injuries cannot be
pinpointed to a specific instance. At the September 14, 2012 hearing, the
Board of Trustees’ counsel argued that in Myers, “there [was] a physical
symptom that pinpoints, much like a car accident. If there is a time and
place where the accident occurs and an impact occurs, people can pretty much
pinpoint that.” However, the circuit court disagreed, pointing out that “soft
tissue and low impact” accidents may not develop symptoms until much later.
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Accordingly, the Board of Trustees erred in concluding
that Panado did not suffer “an accident occurring while in the
actual performance of duty at some definite time and place.”
However, since the circuit court did not address the
Board of Trustees’ second ground for denying Panado’s
application, that “[Panado’s] permanent incapacity is not the
natural and proximate result of the alleged incident[,]” we
remand with regard to that issue.15
15
We also note two observations for the court on remand. First,
given that the Board of Trustees’ FOF 22 and COL 2 refer to the lack of an
accident, on remand, the court will have to determine whether our analysis
affects the validity of those holdings.
Second, we disagree with the Board of Trustees’ conclusion that,
“[s]ince [Panado] had returned to work and was able to perform all of the
duties of her full-time job by the October 24, 2005 date of Dr. Maruyama’s
IME, [Panado’s] permanent incapacity cannot be said to naturally follow from
the alleged accident.” A claimant’s return to work does not, in and of
itself, prove a lack of causation between the accident and the later
incapacitation. See, e.g., Jewel Tea Co. v. Indus. Comm’n, 233 N.E.2d 557,
559 (Ill. 1968) (stating that “a claimant’s return to work after an accident
is not determinative of causation between the accident and subsequent
disability”); Walker v. United Parcel Serv., 865 P.2d 1113, 1116-17 (Mont.
1993) (“[workers’ compensation claimant’s] return to work is not relevant to
the causation issue.”). As a matter of common sense, “the fact that [a
claimant] returned to his [or her] regular job does not indicate that he [or
she] was completely well or that he [or she] was experiencing no pain.”
Walker, 865 P.2d at 1116-17. Moreover, from a policy perspective, a return to
work despite continuing pain or injury should not be held against an employee
in the determination of benefits. Doing so would disincentivize employees
from going back to work for fear that returning would disqualify them from
receiving benefits. On remand, the fact that Panado went back to work in the
time between her October 8-9, 2004 incident and her later permanent
incapacitation should not be construed as proof that the incapacitation did
not naturally and proximately result from the October 8-9, 2004 incident.
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*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
V. Conclusion
For the foregoing reasons, the ICA’s judgment is
vacated, the circuit court’s judgment and “Decision And Order
Affirming The Final Decision of the Board Of Trustees Of The
Employees’ Retirement System Of The State Of Hawai#i are vacated.
The case is remanded to the circuit court for further proceedings
consistent with this opinion.
Philip W. Miyoshi /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Elmira K.L. Tsang
and Kyle K. Chang /s/ Sabrina S. McKenna
for respondent
/s/ Richard W. Pollack
/s/ Jeannette H. Castagnetti
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