KIMBERLY PASCO v. BOARD OF TRUSTEES OF THE EMPLOYEES RETIREMENT SYSTEM

Reset A A Font size: Print

Supreme Court of Hawai‘i.

KIMBERLY A. PASCO, Respondent/Petitioner-Appellant, v. BOARD OF TRUSTEES OF THE EMPLOYEES' RETIREMENT SYSTEM, Petitioner/Respondent-Appellee.

SCWC-13-0003629

Decided: May 22, 2018

McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS Patricia Ohara and Brian P. Aburano for petitioner Edmund L. Lee for respondent

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 Hawai'i (“DOH”) is a covered injury under Hawai'i 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 designed 2 “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 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 Kaua'i, 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 Kapa'a 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 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 occupational therapists on Kaua'i, O'ahu, 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.

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 Kapa'a 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 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-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 Kaua'i, 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 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 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.

C. Circuit Court Proceedings

Pasco timely filed an appeal with the circuit court 3 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 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 Hawai'i 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 Hawai'i 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, “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 [Hawai'i 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 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 Hawai'i, Department of Education, 131 Hawai'i 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 Appeals, 114 Hawai'i 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 Hawai'i 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 Hawai'i 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 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 “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 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 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 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 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 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 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 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 analogous to the relevant facts in Panado, 134 Hawai'i 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 Hawai'i 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 Hawai'i at 8, 332 P.3d at 141. Thus, the issue before this court was whether the statute requires an employee to establish the exact moment she was injured.

We held that it does not. See 134 Hawai'i 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 Hawai'i 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 Hawai'i 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 Hawai'i 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 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 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 Hawai'i 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 retirement to Pasco and for proceedings consistent with the ICA's Memorandum Opinion and this opinion.

Sabrina S. McKenna

Richard W. Pollack

Michael D. Wilson

The Employees' Retirement System (ERS) provides service-connected disability retirement to members of the ERS if they can demonstrate that they were permanently incapacitated for duty due to an “accident occurring while in the actual performance of duty at some definite time and place.” See Hawai‘i Revised Statutes (HRS) § 88-336(a) (Supp. 2007).1 After examining the language of HRS § 88-336(a), the Majority holds that Kimberly A. Pasco (Pasco), an ERS member, suffered such an “accident” when she manifested pain on April 17, 2007 from injuries to her elbow, arm, and hand due to overtyping at work. Majority at 2.

I respectfully disagree. I believe that the carefully worded language of the statute, our case law, and the facts of this case indicate that Pasco's manifestation of pain was not an “accident” within the meaning of the disability retirement statute. This leads me to conclude that Pasco cannot meet the statutory requirements for service-connected disability retirement.

I. BACKGROUND

On April 13, 2009, Pasco, a public health educator employed by the State Department of Health (DOH), submitted an application for service-connected disability retirement. In her application, she claimed that during April 2007, she injured her elbow, arm, and hand due to “extensive and unreasonable amounts of typing up to 7 hours a day to meet project deadlines.” Similarly, Pasco also claimed that “materials to train DOH/[Department of Education] staff were carried inter-island and this contributed to extensive injury.” On December 29, 2009, the Board of Trustees of the Employees' Retirement System (ERS Board) preliminarily denied Pasco's application. The ERS Board received Pasco's statement of appeal on February 16, 2010, and a hearing officer was assigned to her case on March 2, 2010.

A hearing took place on September 12, 2011. At the hearing, Pasco testified that she was provided workers' compensation benefits for about a year after her injury in April 2007. Several subsequent findings of the hearing officer were either stipulated to or undisputed by both parties. First, the parties stipulated that Pasco was permanently incapacitated for further duty as a public health educator, and that her incapacitation was not the result of wilful negligence on her part. Second, the parties do not dispute the hearing officer's determination that Pasco had proven by a preponderance of the evidence that her permanent incapacitation was medial epicondylitis (an overuse injury) which led to complex regional pain syndrome (CRPS). Third, the parties do not dispute the hearing officer's conclusion that “it [was] credible that the unnatural positioning of elbows asserted by [Pasco] while typing for extended periods of time could result in elbow pain.”

However, the hearing officer also concluded that even if Pasco's medial epicondylitis permanently incapacitated her, Pasco “would not be entitled to service-connected disability retirement because her incapacity was not the result of an ‘accident’ or ‘occupational hazard.’ ” Specifically, the hearing officer determined that “[o]veruse of [Pasco's] arm in typing long hours and transporting heavy materials does not constitute an unlooked for mishap or untoward event occurring at some definite time and place,” and therefore, “[t]here was no accident as defined under [Hawai‘i Administrative Rules (HAR) ] § 6-22-2[2 ] that resulted in [Pasco's] injury.” The hearing officer then recommended that the ERS Board deny service-connected retirement benefits to Pasco. The ERS Board adopted the hearing officer's recommended decision and rendered a final decision on December 19, 2012.

Pasco appealed the ERS Board's decision to the Circuit Court of the First Circuit (circuit court), where she argued that the ERS Board erred when it adopted the hearing officer's recommended findings of fact and conclusions of law determining that she failed to prove “that her permanent incapacitation was the natural and proximate result of an accident at some definite time and place under HRS Section 88-336.”3 In a written decision and order filed on September 17, 2013, the circuit court affirmed the ERS Board's decision, but on June 17, 2016, the Intermediate Court of Appeals (ICA) vacated the circuit court's decision.

II. DISCUSSION

As discussed above, several determinations made by the hearing officer are undisputed or stipulated to. For purposes of evaluating Pasco's claim under HRS § 88-336(a), it is undisputed that Pasco was permanently incapacitated for duty as a public health educator and that her permanent incapacity was not the result of wilful negligence on her part. Furthermore, it appears that the hearing officer also concluded that Pasco's overtyping at work was the actual and proximate cause of her incapacity.4

The remaining issue is whether Pasco “suffered an ‘accident occurring while in the actual performance of duty at some definite time and place.’ ” Majority at 16-17. This issue involves two different but interrelated inquiries. First, Pasco must prove that her injury was a result of an “accident” as we have previously construed that term under HRS § 88-336(a). Second, Pasco must also demonstrate that the accident occurred at a “definite time and place.”

On both of these inquiries, my conclusion differs from that of the Majority. I believe that the plain language of HRS § 88-336(a) and our precedent indicate that Pasco's injury was not an “accident,” because it was not an “unlooked for mishap or untoward event which is not expected or designed,” and did not occur at “some definite time and place.” Therefore, I conclude that Pasco is ineligible for service-connected disability retirement under HRS § 88-336(a).

A. Pasco's injury was not the result of “an unlooked for mishap or untoward event which is not expected or designed.”

On February 1, 1983, this court decided two cases involving whether a claimant suffered an “accident” within the meaning of the disability retirement statute.5 See Kikuta v. Bd. of Trs. of Emps.' Ret. Sys., 66 Haw. 111, 657 P.2d 1030 (1983); Lopez v. Bd. of Trs., Emps.' Ret. Sys., 66 Haw. 127, 657 P.2d 1040 (1983). In doing so, we applied the definition of “accident” from the workers' compensation context to the disability retirement statute, and defined “accident” as “an unlooked for and untoward event which is not expected or designed.” See Kikuta, 66 Haw. at 114, 657 P.2d at 1033; Lopez, 66 Haw. at 130, 657 P.2d at 1043.6

On the merits of the claimants' cases, this court then concluded that the claimant in Kikuta suffered an “accident” within the meaning of the disability retirement statute, while the claimant in Lopez did not. In Kikuta, the decedent was assaulted at work. 66 Haw. at 112, 657 P.2d at 1032. We concluded that the decedent was injured in an accident because the assault was “unexpected and without design on [the decedent's] part,” and reversed the ERS Board's decision to deny his beneficiaries disability retirement benefits. Id. at 114-17, 657 P.2d at 1033-35. On the other hand, in Lopez, this court determined that injuries resulting from “work pressures and stresses over a period time” were not unexpected or unforeseen. 66 Haw. at 131, 657 P.2d at 1043. Therefore, this court affirmed the ERS Board's determination that Lopez's mental illness did not constitute an “accident” and its decision denying him disability retirement. Id. at 130-31, 657 P.2d at 1043.

In a later case involving a claimant's application for disability retirement due to a back injury, this court also concluded that the claimant suffered an “accident” within the meaning of the disability retirement statute. Myers v. Bd. of Trs. of Emps.' Ret. Syst., 68 Haw. 94, 704 P.2d 902 (1985). In Myers, there was no dispute that the claimant was injured when he attempted to set down a “half-full one-hundred cup coffee maker weighing approximately thirty-five pounds.” 68 Haw. at 95, 704 P.2d at 903. “At that point, [the claimant] heard a snap in his back. He experienced sharp pains across his left lower back into the hollow of his buttocks, and shortly began experiencing a pulsating pain radiating down his right leg.” Id. On these facts, we affirmed the circuit court's decision reversing the ERS's denial of the claimant's application, because that “incident was, beyond question, an unlooked for mishap which was not expected or designed[.]” Id. at 96, 704 P.2d at 904.

These decisions demonstrate that an “unlooked for mishap or untoward event,” i.e., an accident, can include an injury sustained from an unexpected and unprovoked assault (Kikuta) or the lifting and carrying of a heavy item (Myers).7 In contrast, a claimant's incapacity resulting from stress or job pressures that developed over a long period of time cannot be an “accident” because “there [is] no unexpected event or unforeseen occurrence which result [s] in the ․ incapacity.” Lopez, 66 Haw. at 131, 657 P.2d at 1043.

The Majority believes that “[s]imilar to the injury in Kikuta, Pasco's pain, which manifested on April 17, 2007, was not ‘expected or designed.’ ” Majority at 20. Therefore, the Majority concludes that “the onset of Pasco's medial epicondylitis ․ was an unexpected event constituting an ‘accident.’ ” Majority at 24. However, as I read the record, it is far from clear that Pasco could not have expected that she would develop a severe elbow, arm, and hand injury from overtyping at work.

In fact, the record in this case contains multiple instances where Pasco herself reported that new work conditions put tremendous stress on her elbow, arm, and hand months before she manifested pain on April 17, 2007. First, while Pasco's application for disability retirement described her accident as occurring “[d]uring [the month of] April 2007 [when she] was required to do extensive and unreasonable amounts of typing up to 7 hours a day,” in Pasco's clinical documents, she reported experiencing elbow pain much earlier:

[Pasco] reports that [her elbow pain] essentially started at work back in December 2006 when she took on a new job piloting and designing a very expensive program for the islands of Hawaii in her field of nutrition. She was doing an extensive amount of typing and carrying materials from place to place and on December 6, 2006, she started having significant elbow pain on her right side.

Second, Pasco stated in a written “work description and account of injuries” report that her job responsibilities became considerably more difficult in February 2007, when she was required to plan nutrition projects for multiple islands. At that time, Pasco noted that she “attempted again to hire staff,” but no help was given. Pasco also stated that she did not have a permanent office, making it impossible to have an ergonomic setup.

Third, Pasco's employer stated that without a clerk, Pasco was forced to spend more time keyboarding, and that “working extensively on a laptop from Feb. - April 2007 due to her office not being operational put further strain and stress on her right arm, wrist, and hand.”

Fourth, Pasco further reported that in March 2007, her desk setup was “not ideal” because the L-shaped desk was uneven, and the right portion sat several inches lower than the rest of the desk. Therefore, Pasco stated that when she typed, her right elbow was on the lower part of the desk, while presumably her left elbow was elevated on the higher part of the desk.

While the hearing officer determined that “Pasco had no pre-existing injuries to her hands, wrists, and arms prior to April 17, 2017, and was asymptomatic until that time,” as the Majority states, “[w]hether an event is not expected or designed is viewed from the perspective of the employee.” Majority at 19. Based on the numerous instances where Pasco indicated that she suffered arm and elbow strain in the months prior to manifesting extreme pain on April 17, 2007, and the several reports indicating that Pasco's sub-optimal work conditions existed as early as February 2007, I cannot conclude that Pasco proved that her injury was unexpected.8

Therefore, unlike the unforeseen or unexpected incidents that occurred in Kikuta and Myers, Pasco's injury was the culmination of repetitive stress, which may have began as early as December 2006. This indicates to me that Pasco's injury is more akin to the claimant's injury in Lopez. Under the disability retirement statute, it unfortunately “is not enough ․ that work pressures and stresses over a period of time” contributed to Pasco's injury. Lopez, 66 Haw. at 131, 657 P.2d at 1043. Those pressures and stresses are simply not “an unforeseen or unexpected event” that the disability retirement statute requires in order to receive benefits.

B. The injury did not occur at some definite time and place.

I therefore cannot agree with the Majority that Pasco proved that her injury was “not expected or designed” as required by HRS § 88-336(a). But even if I did agree, the record indicates that Pasco did not prove that her injury occurred at a definite time and place, which also makes her ineligible for disability retirement.

In order to be retired by the ERS Board for service-connected disability, a claimant must also prove that his or her accident occurred while in the actual performance of duty “at some definite time and place.” HRS § 88-336(a). Regarding this issue, I agree with the Majority that our decision in Panado v. Bd. of Trs., Emps.' Ret. Sys. informs our analysis. Majority at 27 (citing 134 Hawai‘i 1, 332 P.3d 144 (2014)).

The claimant in Panado was employed by the City and County of Honolulu, and during a single eight-hour work shift, was tasked with lifting ten to fifteen boxes of paper. Panado, 134 Hawai‘i at 3, 332 P.3d at 146. Although both parties stipulated that the claimant had suffered an injury sometime during that one work shift and was permanently incapacitated for work as a result of that injury, the ERS Board denied the claimant's application for disability retirement because “she had failed to show that the injury occurred at ‘some definite time and place.’ ” Id.

The issue in Panado was “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.”9 Id. at 12, 332 P.3d at 155. This court determined that all that the claimant must prove is that the time and place of injury be “clearly stated or decided; not vague or doubtful.” Id. at 13, 332 P.3d at 156 (citing The New Oxford Dictionary 447 (2001)). In Panado, while the claimant could not pinpoint the exact time that her injury occurred or the exact box that caused her injury, because it was undisputed that the lifting of ten to fifteen boxes during a single eight-hour work period caused her injury, we concluded that the time period was narrow enough to be “clearly stated or decided.” See id. Accordingly, we held that the claimant could not be denied service-connected disability retirement under the statute. Id. at 15, 332 P.3d at 158.

Here, while acknowledging that Pasco's injury was the result of “cumulative or repetitive stress,” the Majority asserts that her injury “manifested as pain at a ‘definite time and place’ on April 17, 2007.” Majority at 27-28. The Majority acknowledges that it may be difficult to actually determine when Pasco's injury, medial epicondylitis, actually occurred. Majority at 28. Nevertheless, the Majority states, “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.’ ” Majority at 28 (emphasis added) (citing Panado, 134 Hawai‘i at 14-15, 332 P.3d at 157-58).

In my view, this position improperly expands the rule we set in Panado. In Panado, we stated that “there [was] no indication the legislature intended to categorically exclude coverage for accidents that do not result in immediate symptoms.” Panado, 134 Hawai‘i at 15, 332 P.3d at 158. We also stated that even if a claimant's symptoms did not manifest until later, the claimant could still qualify for disability retirement if he or she “[could] point to the exact period of work during which an accident occurred, but [was] unsure of which exact act caused his or her incapacitation.” Id. However, we took care to note that a claimant must still point to a definite period of work (even if it need not be “the exact moment”) in which an injury occurred in order to satisfy the requirement that the accident be “clearly stated or decided.” 134 Hawai‘i at 13, 332 P.3d at 156 (concluding that the claimant satisfied the “definite time and place” requirement by establishing that she was injured during her October 8-9, 2014 work shift).

Here, Pasco has not established that her injury occurred at any similarly “clearly stated” time period. First, as previously noted in Section II.A, the record suggests that Pasco's elbow pain began as early as February 2007 or December 2006. Therefore, Pasco's medial epicondylitis could conceivably have occurred months before she manifested debilitating pain from that injury on April 17, 2007. This is a substantially longer period of time than in Panado, where the claimant manifested pain from her neck and back injuries a day after she lifted the heavy boxes. See 134 Hawai‘i 14-15, 332 P.3d at 157-58. In my view, this takes the timing of Pasco's “accident” outside the boundaries in which a reasonable person might consider a “definite” time period, and improperly expands who might be eligible to receive disability retirement benefits beyond what the Legislature intended. See id. at 13, 332 P.3d at 156.

Furthermore, Pasco's problem in establishing a “definite time and place” of injury is compounded by the type of injury she suffered. Pasco's injury occurred due to “cumulative or repetitive stress.” Majority at 27. This makes Pasco's injury distinguishable from the claimant's injury in Panado. In Panado, we concluded that the claimant there was entitled to disability retirement because it was undisputed that she had suffered a back injury by lifting, at most, ten to fifteen paper boxes. Id. at 3, 332 P.3d at 146. This also distinguishes Pasco's injury from the one in Myers, where the claimant there lifted a heavy coffee maker weighing approximately thirty-five pounds, and as he attempted to set it down, heard a “snap in his back.” Myers, 68 Haw. at 95, 704 P.2d at 903.

Here, the nature of Pasco's “cumulative stress” injury from overtyping makes determining when any “accident” might have occurred impossible. This is so because by its nature, a cumulative injury is not caused by a single action (or several actions, any one of which could have caused the injury), but is one in which multiple stresses over a period of time, together, caused the injury.10 Accordingly, notwithstanding the difficulty in placing when Pasco's injury actually occurred, her cumulative stress injury from the overuse of her arm and hand could not have occurred at any “definite time and place.” Cf. Lopez, 66 Haw. at 131, 657 P.2d at 1043 (“It is not enough, under the retirement law, that work pressures and stresses over a period time were contributory causes of [a permanent incapacity].”).

III. CONCLUSION

Pasco was overworked in her position as a public health educator in the months preceding her permanent incapacity. In December 2006, she took on new job responsibilities piloting and designing a nutrition program for multiple islands. In February 2007, she lost her clerk, was forced to take on more typing responsibilities, and was not given any assistance. In March 2007, she spent long hours typing on an uneven desk that forced one of her arms to be elevated over the other. Through no fault of her own, the injury she sustained, and the onset of pain that followed on April 17, 2007, permanently incapacitated her for duty as a public health educator. At that time, Pasco was entitled to, and received, workers' compensation benefits.

Unfortunately, even if a claimant becomes permanently incapacitated for duty through no fault of his or her own, qualifying for disability retirement under our statute requires more. The claimant must prove that his or her injury was a result of “an accident occurring while in the actual performance of duty at some definite time and place.”11 In my view, Pasco's manifestation of pain on April 17, 2007 is not such an accident. Consequently, Pasco has not demonstrated that she qualifies for service-connected disability retirement under HRS § 88-336.

Therefore, I would reverse the ICA's July 14, 2016 Judgment on Appeal entered pursuant to its June 17, 2016 Memorandum Opinion, and affirm the circuit court's 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.” Accordingly, I respectfully dissent.

Paula A. Nakayama

FOOTNOTES

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 Hawai'i 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.”

3.   The Honorable Rhonda A. Nishimura presiding.

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.

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.

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).

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.

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).

1.   HRS § 88-336(a ) (Supp. 2007) provides in relevant part:(a) Upon application of a class H 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 of the member's part, may be retired by the board for service - connected disability[.]( Emphasis added. )

2.   HAR § 6-22-2 (effective 1989) defines “accident” as “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. ”

3.   Pasco did not argue on appeal that the ERS Board erred when it determined that she failed to prove that she suffered an “occupational hazard ” within the meaning of HRS § 88 -336.

4.   The ERS Board argues 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, 2017.” While the hearing officer concluded that “[t]here was no accident ․ that resulted in [Pasco's] permanent incapacity,” the hearing officer did find credible that Pasco's “typing for extended periods of time could result in elbow pain. ” This suggests that the hearing officer concluded that typing at work was the natural and proximate cause of her incapacity — CRPS.Even if it can be argued that the hearing officer never made an explicit finding that overtyping caused Pasco's CRPS, because Pasco did not suffer an “accident” within the meaning of HRS § 88-336(a), see infra, I need not reach the causation issue to affirm the decision of the circuit court.

5.   At that time, the applicable disability retirement statute was HRS § 88 - 77(a), which provided substantially similar language to the present HRS § 88-336. It read:[A]ny member who has been permanently incapacitated 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 his part, may be retired by the board of trustees for service -connected total disability.H R S § 88 - 77 ( a) ( 19 7 6).

6.   Similarly, the HAR later adopted this definition. See supra note 2.

7.   Notably, these cases do not explicitly engage in the second part of the analysis -- whether the accident took place at a “definite time and place” as HRS § 88 - 336 requires. But there was no reason for this court to engage in that particular analysis because the accidents that occurred in those cases clearly resulted from single acts.

8.   The Majority posits that just as the claimant 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,” here, Pasco could not have expected the onset of pain on April 17, 2007 while she typed. Majority at 23 (emphasis added).But as just discussed, the record demonstrates that in the weeks preceding the onset of pain on April 17, 2007, Pasco actually did experience significant discomfort while typing. This further distinguishes Pasco's alleged “accident” from the claimant's accident in Myers.

9.   As such, we did not address whether the accident was “ not expected or designed.” See HAR § 6-22-2.

10.   The Majority points out that in Panado, this court offered a slight variation on the facts in Myers and stated that even if the claimant in Myers had lifted the coffee maker twice and could not point to which one of the two lifts caused his in capacity, he should not be denied disability retirement if he could establish that it was either lift that caused the injury. Majority at 27 (citing Panado, 134 Hawai‘i at 15, 332 P.3d at 158).But as noted previously, the facts of this case present a significant deviation from the facts in Myers, involving weeks (and perhaps months) of overtyping at work. Therefore, denying disability retirement benefits in this particular situation would not, in my opinion, be “unjust and unreasonable in its consequences.” Contra Panado, 134 Hawai‘i at 15, 332 P.3d at 158.

11.   If the Legislature wishes to allow a claimant who suffers a “cumulative stress” injury over a long period of time to recover under the disability retirement statute, the Legislature may amend the statute and remove language such as “accident” or “some definite time and place.” However, as written, the plain language of the statute constrains my ability to interpret it in Pasco's favor. See State v. Dudoit, 90 Hawai‘i 262, 271, 978 P.2d 700, 709 (1999) (“We can not change the language of the statute, supply a want, or enlarge upon it in order to make it suit a certain state of facts. We do not legislate or make laws.”).

OPINION OF THE COURT BY McKENNA, J.

Copied to clipboard