*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

Electronically Filed
Supreme Court
SCWC-13-0003629
22-MAY-2018
08:20 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---
________________________________________________________________

KIMBERLY A. PASCO, Respondent/Petitioner-Appellant,

vs.

BOARD OF TRUSTEES OF THE EMPLOYEES’ RETIREMENT SYSTEM,

Petitioner/Respondent-Appellee.
________________________________________________________________

SCWC-13-0003629
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-13-0003629; CIV. NO. 12-1-3294)

MAY 22, 2018

McKENNA, POLLACK, AND WILSON, JJ.,

WITH NAKAYAMA, J., DISSENTING,
WITH WHOM RECKTENWALD, C.J., JOINS

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This case concerns whether an injury suffered by Kimberly

A. Pasco (“Pasco”) that arose while she worked as a Public

Health Educator IV for the Department of Health of the State of

Hawaiʻi (“DOH”) is a covered injury under Hawaiʻi Revised

Statutes (“HRS”) § 88-336 (Supp. 2007),1 which provides service-

connected disability retirement benefits under the Employees’

Retirement System’s (“ERS[’s]”) Hybrid Plan to Class H public

officers and employees, such as Pasco. At issue is whether the

Intermediate Court of Appeals (“ICA”) erred in ruling that

Pasco’s injury resulted from an “accident,” i.e., an unlooked

for mishap or untoward event which is not expected or designed2

“occurring while in the actual performance of duty at some

definite time and place.”

We hold that Pasco’s permanent incapacitating injuries to

her elbow, arm, and hand, which manifested on April 17, 2007

while Pasco was in the actual performance of duty as a public

health educator, were the result of an “accident occurring while

in the actual performance of duty at some definite time and

1
Service-connected disability retirement. (a) Upon
application of a class H member, or the person appointed by
the family court as guardian of an incapacitated member,
any class H member who has been permanently incapacitated
for duty as the natural and proximate result of an accident
occurring while in the actual performance of duty at some
definite time and place, or as the cumulative result of
some occupational hazard, through no wilful negligence on
the member’s part, may be retired by the board for service-
connected disability. . . .

HRS § 88-336.
2
See Lopez v. Bd. of Trs., Emps.’ Ret. Sys., 66 Haw. 127, 130, 657 P.2d
1040, 1043 (1983) (“An accident is an unlooked for mishap or untoward event
which is not expected or designed.” (citing Chun Wong Chu v. Yee Wo Chan, 26
Haw. 785 (1923))). “Accident” is similarly defined in Hawaiʻi Administrative
Rule (“HAR”) § 6-22-2 (1989) as follows: “‘Accident’ means an unlooked for
mishap or untoward event which is not expected or designed, occurring while
in the actual performance of duty at some definite time and place.”
2
place.” We therefore affirm the ICA’s July 14, 2016 Judgment on

Appeal, entered pursuant to its June 17, 2016 Memorandum

Opinion, which vacated the September 17, 2013 “Decision and

Order Affirming the Final Decision of Respondent-Appellee Board

of Trustees of the Employees’ Retirement System of the State of

Hawaii and Dismissing Petitioner-Appellant Kimberly Pasco’s

Appeal” and the September 17, 2013 “Final Judgment,” and we

remand this matter to the Circuit Court of the First Circuit

(“circuit court”) for further proceedings consistent with the

ICA’s Memorandum Opinion and this opinion.

II. Background

A. Factual Background

In 2006, Pasco worked for the DOH as a public health

educator who helped start a nutrition program on Kauaʻi, and

later expanded it to Maui and the Big Island. As she did not

have a permanent desk, Pasco typed voluminous program reports on

a laptop at vacant desk spaces in various DOH departments, as

well as the lunchroom and conference room, based on

availability. By March 2007, Pasco was provided an old metal

desk at the Kapaʻa Neighborhood Center, as well as a desktop

computer to supplement her laptop. Pasco typically typed two to

three hours a day at work, but those hours increased when

project deadlines neared. Specifically, as a program report for

3
a federally funded project was due in mid-April 2007, Pasco’s

typing increased in the weeks leading up to the deadline to the

point that she typed seven hours per day from April 12 to April

17 in an effort to timely complete the report.

According to an April 25, 2007 workers’ compensation report

completed by a supervisor, on April 17, 2007 at 4:15 p.m. during

Pasco’s workshift, she was injured when she used her computer

keyboard and mouse. That injury, as described by Pasco, was an

“instant” “severe throbbing, aching kind of pain,” that was

located in her right inner elbow and led down to her fourth and

fifth fingers, as well as an aching and burning sensation in her

fingers. Pasco’s right arm, wrist, and hand became so fatigued

and painful that she had difficulty using her right arm and hand

to do work, and she could not sleep.

This was the first time Pasco had experienced pain in this

area of her body, despite extensively typing for three weeks

leading up to April 17, 2007, and carrying binders, training

materials, and a laptop when traveling interisland bi-weekly in

January 2007 to conduct training sessions. Also, prior to April

17, 2007, Pasco did not have any pre-existing injuries to her

hands, arms, or elbows.

Following April 17, 2007, Pasco began seeking medical

treatment for her injury from physicians and physical or

4
occupational therapists on Kauaʻi, Oʻahu, and the mainland, as

the pain would not cease. After briefly returning to work on

May 2, 2007, by May 14, 2007, Pasco reported that her left arm

began to bother her. She suspected it was because she used

voice-activated software to type at work following her injury;

however, the software made frequent errors and she used her left

hand to manually correct them.

Several of Pasco’s treating physicians diagnosed Pasco with

medial epicondylitis, also referred to as tendinitis along the

medial epicondyle. In a March 31, 2008 independent medical

evaluation, however, Dr. Daniel I. Singer concluded Pasco

suffered from non-work-related myofascial pain syndrome, which

is pain in the soft tissue that is unrelated to tendons or the

ulnar or median nerves.

When conservative treatment for medial epicondylitis proved

unsuccessful, Pasco underwent left ulnar nerve decompression

surgeries at the Mayo Clinic on August 27, 2008 and October 9,

2008. After her surgeries, Pasco began to experience a new type

of burning pain in her left arm, and was diagnosed with complex

regional pain syndrome, left upper extremity greater than right

upper extremity. Pasco continued to experience pain in her un-

operated right arm.

5
B. Pasco’s Application for Benefits

On April 13, 2009, Pasco submitted an application for

service-connected disability retirement. In describing her

April 17, 2007 accident, Pasco stated:

During April 2007 I was required to do extensive and

unreasonable amounts of typing up to 7 hrs a day to meet
project deadlines. A support staff including a clerk was
not given so I injured bi-lateral elbow, arm, hand. Also
materials to train DOH/DOE staff were carried inter-island
and this contributed to extensive injury.

In a statement attached to her application, her employer

described Pasco’s work conditions as: “New office for new

program. Clerk not yet hired, full computers not yet purchased.

Extensive typing on a laptop computer.” Additionally, the

employer’s account of the accident stated: “Extensive typing on

a laptop without assistance of a clerk typist put stress and

strain on right arm, wrist, and hand.” The employer also

indicated the accident occurred at 4:15 p.m. on April 17, 2007

at the Kapaʻa Neighborhood Center while Pasco was “on duty”; the

accident was not the result of Pasco’s own willful negligence;

Pasco appeared to have suffered a disability as the actual and

proximate result of the accident; and that because Pasco was

incapable of continued work in the position, her appointment was

not extended.

In its report to the Board of Trustees of the Employees’

Retirement System (“ERS Board”) dated August 19, 2009, the ERS

6
Medical Board (“Medical Board”) concluded that Pasco’s

incapacitating diagnosis was non-work-related myofascial pain

syndrome of the arms, and not the medial epicondylitis that had

been diagnosed by several of Pasco’s treating physicians. Thus,

although there was no dispute that Pasco was permanently

incapacitated for the further performance of duty through no

“wilful negligence on [her] part,” the Medical Board determined

that Pasco’s incapacity was not the result of an “accident,”

i.e., “an unlooked for mishap or an untoward event,” nor was it

the result of an “occupational hazard,” i.e., “the cumulative

result of a danger or risk inherent in and concomitant to [her]

occupation.” Accordingly, the Medical Board recommended to the

ERS Board that Pasco be denied service-connected disability

retirement.

By letter dated December 29, 2009, notice was issued to

Pasco that the ERS Board proposed to deny Pasco’s application

based on the Medical Board’s report. In a statement dated

February 16, 2010, Pasco, pro se, timely filed an appeal with

the ERS Board. A hearing officer was assigned on March 2, 2010,

and shortly thereafter, Pasco obtained counsel.

A contested case hearing was held on September 12, 2011. A

member of the Medical Board, Dr. Patricia Chinn, testified that

in her expert opinion, Dr. Singer’s diagnosis of non-work-

7
related myofascial pain syndrome was correct. Dr. Chinn also

clarified that the Medical Board determined that Pasco’s

condition was not the result of an “accident” only because it

did not occur at any definite place and time, as the injury was

described in the medical record as a “cumulative or repetitive

injury.”

The hearing officer issued a Recommended Decision dated

April 23, 2012. As an initial matter, the hearing officer found

that Pasco did not have pre-existing injuries to her elbow, arm,

and hands prior to April 17, 2007, and that typing was part of

Pasco’s normal and routine job duties. The hearing officer

disagreed with the Medical Board and concluded that Pasco’s

incapacitating diagnosis was not myofascial pain syndrome.

Rather, the hearing officer found Pasco’s testimony credible

when she testified “that the unnatural positioning of elbows . .

. while typing for extended periods of time . . . result[ed] in

elbow pain.” Further, as Pasco’s pain was specific and not

diffused, and as several of Pasco’s treating physicians with

various specializations from Kauaʻi, Honolulu, and Minnesota

consistently diagnosed Pasco with medial epicondylitis, the

hearing officer found Pasco initially had medial epicondylitis

due to extensive typing, which led to complex regional pain

syndrome, ultimately incapacitating her. Additionally, the

8
hearing officer found that Pasco was not a malingerer as she

diligently pursued many courses of treatment, including surgery

as a last resort.

Nevertheless, the hearing officer concluded that the

“overuse of Petitioner’s arms over a period of time did not

constitute an ‘accident’ and there was no occupational hazard.”

The hearing officer opined that as the overuse of Pasco’s arms

took place over a period of time, it did not occur at a

“specific time and place” and thus did not constitute an

“accident.” Furthermore, in her opinion the hardships faced by

Pasco, such as lacking a permanent desk, typing long hours, or

transporting heavy materials were not hazards unique to Pasco’s

job, and therefore did not constitute an occupational hazard.

As to the issue of whether an “accident” occurred, the

hearing officer distinguished Pasco’s circumstances from those

in Myers v. Board of Trustees, Employees’ Retirement System, 68

Haw. 94, 704 P.2d 902 (1985), a case in which this court

affirmed the award of service-connected disability benefits to

an employee who hurt his back when lifting a coffee pot, by

noting that the employee in Myers suffered his injury from a

single lifting, and not from multiple liftings or overuse over a

period of time. The hearing officer also appeared to reject the

notion that any “accident” could occur due to overuse over a

9
period of time by noting that the Supreme Court had determined

in Lopez, 66 Haw. 127, 657 P.2d 1040, that “an accident did not

occur when [an] employee’s incapacitation was due to work

pressures and stresses over a period of time.”

Ultimately, the hearing officer recommended that the ERS

Board reject the Medical Board’s finding that Pasco’s

incapacitating diagnosis was myofascial pain syndrome, and

concluded instead that Pasco suffered from medial epicondylitis,

leading to complex regional pain syndrome. In all other

respects, the hearing officer recommended the findings and

certification of the Medical Board dated August 19, 2009 be

affirmed, and Pasco be denied service-connected disability

retirement benefits.

The ERS Board adopted the hearing officer’s Recommended

Decision as its Proposed Decision dated June 22, 2012. Upon

consideration of Pasco’s exceptions, the Medical Board’s

opposition to those exceptions, Pasco’s supplemental memorandum,

and the parties’ oral argument regarding the exceptions at a

hearing on November 13, 2012, the ERS Board issued its Final

Decision on December 19, 2012. The Final Decision affirmed the

Proposed Decision, adopted the Recommended Decision, and denied

Pasco’s application for service-connected disability retirement

benefits.

10
C. Circuit Court Proceedings

Pasco timely filed an appeal with the circuit court3 on

December 26, 2012. In her opening brief filed on April 12,

2013, Pasco’s points of error were solely based on whether the

ERS Board erred in denying Pasco service-connected disability

retirement benefits “on the basis that Petitioner had failed to

prove by the preponderance of the evidence that her permanent

incapacitation was the natural and proximate result of an

accident at some definite time and place.” Oral argument was

held on August 15, 2013.

On September 17, 2013, the circuit court issued its

“Decision and Order Affirming the Final Decision of Respondent-

Appellee Board of Trustees of the Employees’ Retirement System

of the State of Hawaii and Dismissing Petitioner-Appellant

Kimberly Pasco’s Appeal.” The circuit court concluded that

Pasco’s excessive keyboarding, whether over weeks or months,

does not describe or constitute an accident occurring while in

the actual performance of duty at some definite time and place

within the meaning of HRS § 88-336. Final Judgment was entered

on September 17, 2013.

D. ICA Proceedings

Pasco timely filed a notice of appeal on September 27,

2013. In its June 17, 2016 Memorandum Opinion, the ICA noted
3
The Honorable Rhonda A. Nishimura presiding.
11
that HRS § 88-336 uses analogous and identical language to that

used in HRS § 88-79,4 and that, as clarified by the Supreme Court

in Panado v. Board of Trustees, Employees’ Retirement System,

134 Hawaiʻi 1, 332 P.3d 144 (2014), the exact moment of injury

need not be identified to conclude that an “accident” occurred

for the purposes of HRS § 88-79. See Pasco v. Bd. of Trs. of

the Emps. Ret. Sys., No. CAAP-13-0003629, at 8–9 (App. June 17,

2016) (mem.).

Specifically, in Panado, we rejected the ERS Board’s

argument that “the word ‘definite’ in ‘definite place and time’

requires a showing of the ‘specific time and place’ at which

[Panado’s] injury occurred.” 134 Hawaiʻi at 13, 332 P.3d at 156.

In Panado, the employee had satisfied the statutory requirement

that an accident had occurred “while in the actual performance

of duty at some definite time and place” by establishing that

she was injured some time during her October 8–9, 2004 work

shift. Id.

Based on Panado, the ICA concluded here that Pasco was able

to identify a “definite” time and place of her work-related

injury:

Pasco described her injury as resulting from extensive

keyboarding that was required at her job as the cause of
her disability. She could point to the period of time,

4
HRS § 88-79 is the service-connected disability retirement statute for
Class A and Class B members of the ERS, whereas HRS § 88-336 is the service-
connected disability retirement statute applicable to Class H members.
12
 “April 2007” when this activity intensified, leading up to
the point, on April 17, 2007, that the pain from her injury
was so severe that it caused her to seek medical attention.
Her employer, DOH, did not contest these assertions.

Pasco, mem. op. at 9. Accordingly, the ICA vacated the circuit

court’s September 17, 2013 “Decision and Order . . .” and “Final

Judgment,” and remanded the case to the circuit court with

directions to vacate the ERS Board’s denial of disability

retirement to Pasco and for further proceedings consistent with

its decision.

E. Issues on Certiorari

The ERS Board raises two questions on certiorari:

A. Did the First Circuit Court and ERS Board err in

concluding that Pasco’s overuse of her arms in typing and
transporting training materials over weeks and months did
not constitute an “accident occurring while in the actual
performance of duty at some definite time and place” within
the meaning of HRS § 88-336(a) and [Hawaiʻi Administrative
Rules (“HAR”)] § 6-22-2?

B. Was the First Circuit Court right or wrong in

determining that the ERS Board was not clearly erroneous in
finding that Pasco had failed to prove by a preponderance
of the evidence that her permanent incapacity was the
“natural and proximate result” of an accident as required
by HRS § 88-336(a)?

The ERS Board argues that it did not agree or stipulate

that Pasco was injured on April 17, 2007. Rather, the ERS Board

argues that Dr. Chinn and the Medical Board had agreed with Dr.

Singer that Pasco suffered from a pain syndrome not directly

related to work. As such, the ERS Board distinguishes Pasco’s

case from Panado because the parties in Panado had stipulated

that the applicant-employee had been injured during a specific

13
workshift.

The ERS Board also argues that because Pasco’s injury

“developed over weeks and months,” it was not the result of a

discrete event that occurred at a fixed time and place, which is

required under the statute. The ERS further argues that because

Pasco claims to have been injured while performing her regular

work duties, “[t]he only thing that was unexpected or unforeseen

was that Pasco began to have pain symptoms” while working, which

does not amount to an “accident” for service-related disability

retirement. The ERS Board also asserts that because the ERS

Board did not stipulate that Pasco’s permanent incapacity was

the natural and proximate result of her “claimed accident,” the

ICA erred in concluding otherwise.

Pasco asserts in her opposition brief that the ICA was

correct to apply Panado to Pasco’s case. Pasco also appears to

suggest that various workers’ compensation cases, such as Van

Ness v. State of Hawaiʻi, Department of Education, 131 Hawaiʻi

545, 319 P.3d 464 (2014), and Lawhead v. United Air Lines, 59

Haw. 551, 584 P.2d 119 (1978), are also applicable to her case.

III. Standards of Review

A. Interpretation of a Statute

Statutory interpretation is a question of law reviewable de

novo. See Citizens Against Reckless Dev. v. Zoning Bd. of

14
Appeals, 114 Hawaiʻi 184, 193, 159 P.3d 143, 152 (2007) (citation

omitted). When construing statutes, the court is governed by

the following rules:

First, the fundamental starting point for statutory

interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.

When there is ambiguity in a statute, the meaning of

the ambiguous words may be sought by examining the context,
with which the ambiguous words, phrases, and sentences may
be compared, in order to ascertain their true meaning.
Moreover, the courts may resort to extrinsic aids in
determining legislative intent, such as legislative
history, or the reason and spirit of the law.

114 Hawaiʻi at 193-94, 159 P.3d at 152-53 (citations omitted).

B. Administrative Agency Appeals

Ordinarily, deference will be given to decisions of

administrative agencies acting within the realm of their
expertise. The rule of judicial deference, however, does
not apply when the agency’s reading of the statute
contravenes the legislature’s manifest purpose.
Consequently, we have not hesitated to reject an incorrect
or unreasonable statutory construction advanced by the
agency entrusted with the statute’s implementation.

Coon v. City & Cnty. of Honolulu, 98 Hawaiʻi 233, 245, 47 P.3d

348, 360 (2002) (citations and brackets omitted).

IV. Discussion

A. The ERS Did Not Challenge the Nature of Pasco’s Injury

As a preliminary matter, with respect to the second issue

asserted by the ERS Board on certiorari, the hearing officer

15
specifically found that Pasco’s medial epicondylitis, which

initially manifested on April 17, 2007, was due to work-related

extensive typing.5 As the ERS Board adopted the hearing

officer’s recommended decision as its final decision, it, too,

agreed that Pasco’s injury was medial epicondylitis due to

extensive typing, eventually leading to complex regional pain

syndrome. Accordingly, any assertions by the ERS Board on this

appeal that Pasco’s injury was due to non-work-related

myofascial pain syndrome, or that her incapacity was not the

natural and proximate result of extensive typing, are contrary

to its Final Decision.

Therefore, the remaining questions are those contained in

the first issue on certiorari: whether Pasco suffered an

5
Neither of the parties contests the hearing officer’s findings, which
include: (1) Pasco did not have pre-existing injuries of her elbow, arm and
hands prior to the alleged accident of April 17, 2007; (2) Pasco’s testimony
was credible when she testified “that the unnatural positioning of elbows . .
. while typing for extended periods of time could result in elbow pain”; (3)
Pasco began to feel pain in her right arm, wrist, and hand on April 17, 2007
while typing at work; and (4) Pasco did initially have medial epicondylitis,
which eventually led to complex regional pain syndrome.

Although Pasco had asserted in her “Application for Disability

Retirement” that the carrying of training materials contributed to her
injury, the hearing officer did not specifically make such a finding; in
contrast, the hearing officer did specifically note that she found Pasco’s
testimony credible that extensive typing caused her elbow pain. Also,
nothing in the record indicates that Pasco engaged in extensive typing
outside of her position.

Given these findings by the hearing officer, the ERS Board’s assertion
that the hearing officer had found that “Pasco failed to prove by a
preponderance of the evidence that her permanent incapacity was ‘the natural
and proximate result’ of her claimed accident of April 17, 2007,” is plainly
incorrect.

16
“accident occurring while in the actual performance of duty at

some definite time and place.”

B. Pasco Qualifies for Service-Connected Disability Retirement

HRS § 88-336 provides in relevant part:

Service-connected disability retirement. (a) [A]ny class

H member who has been permanently incapacitated for duty as
the natural and proximate result of an accident occurring
while in the actual performance of duty at some definite
time and place . . . may be retired by the board for
service-connected disability. . . .

Thus, service-connected disability retirement is available to

Pasco if she has been permanently incapacitated for duty as “the

natural and proximate result of an accident occurring while in

the actual performance of duty at some definite time and place.”

1. Pasco’s injury resulted from an “accident.”

The first issue we must address is whether Pasco’s injury

was the result of an “accident.” “An accident is an unlooked

for mishap or untoward event which is not expected or designed.”

Lopez, 66 Haw. at 130, 657 P.2d at 1043 (citation omitted).

“Accident” is similarly defined in HAR § 6-22-2 as follows:

“‘Accident’ means an unlooked for mishap[6] or untoward event

which is not expected or designed, occurring while in the actual

performance of duty at some definite time and place.”

In denying Pasco’s application for service-connected

disability benefits by adopting the hearing officer’s

6
“Mishap” is defined as “[a] small accident or mistake, esp. when the
consequences are not severe; a relatively trivial instance of bad luck,
mischance.” Black’s Law Dictionary 1151 (10th ed. 2014).
17
recommendations, the ERS Board concluded that an “accident”

could not occur “over a period of time” because in Lopez, 66

Haw. 127, 657 P.2d 1040, this court concluded that “an accident

did not occur when [an] employee’s incapacitation was due to

work pressures and stresses over a period of time.” This

conclusion misinterprets Lopez.

Lopez must be viewed in light of Kikuta v. Board of

Trustees, Employees’ Retirement System, 66 Haw. 111, 657 P.2d

1030 (1983), as both cases were issued by this court on the same

day, and each addressed the meaning of “accident” in the

service-connected disability retirement context. Indeed, in

Myers, 68 Haw. 94, 704 P.2d 902, this court referred to both

Lopez and Kikuta to explain why an employee, who was injured

when lifting a coffee pot, suffered an “accident.” See 68 Haw.

at 97 & n.1, 704 P.2d at 904 & n.1.

In Lopez, an industrial safety engineer for the State

applied for service-connected disability retirement after he

became incapacitated from the further performance of his work

due to manic-depressive psychosis. See 66 Haw. at 128, 657 P.2d

at 1041. In concluding that the engineer’s job pressures and

stresses did not constitute an “accident,”7 this court noted:

“[T]here was no unexpected event or unforeseen occurrence which

7
The court also disagreed with the engineer’s argument that his job
pressures and stresses amounted to an occupational hazard. See Lopez, 66
Haw. at 129, 657 P.2d at 1042.
18
resulted in the appellant’s present incapacity. It is not

enough, under the retirement law, that work pressures and

stresses over a period of time were contributory causes of his

mental infirmity.” 66 Haw. at 131, 657 P.2d at 1043. The ERS

Board focused on this holding from Lopez and took it to mean

that the etiology of an “accident” could not develop over a

period of time. However, the Lopez court’s reasoning shows

that the court’s focus was on the fact that no “unexpected

event” or “unforeseen occurrence” had caused the employee’s

incapacitation. In Lopez, the claimed “accident” was the result

of general job stresses and pressures occurring over several

years, but there simply was no “mishap” or “event.”

In contrast, the manifestation of Pasco’s pain on April 17,

2007 was an “unlooked for mishap or untoward event which [was]

not expected or designed.” Whether an event is not expected or

designed is viewed from the perspective of the employee, as

illustrated by Kikuta, 66 Haw. 111, 657 P.2d 1030. In Kikuta,

the ERS Board had denied benefits to an employee who was on

working time when he was stabbed by his brother-in-law and

consequently died. The circuit court affirmed the decision. On

appeal to this court, the ERS Board argued the stabbing was not

an “accident,” as the employee should have anticipated the

attack because he was previously warned that his brother-in-law

19
was “out to get him.” 66 Haw. at 113, 657 P.2d at 1032. This

court reversed, first noting that the common and accepted

definition of “accident” is “an unexpected happening to which

the claimant did not culpably contribute.” 66 Haw. at 114, 657

P.2d at 1033 (emphasis added). This court went on to observe

that the “warning” had been given by the assailant’s sister five

months prior to the incident, that the employee and the

assailant had friendly interactions prior to and since that

time, and none of the witnesses on the date of the stabbing had

seen or heard anything to indicate the assailant “was looking

for trouble” when he first arrived at the employee’s workplace.

66 Haw. at 116, 657 P.2d at 1034. Further, there was nothing in

the record to indicate that the employee had provoked the

assailant. Thus, from the point of view of the employee, the

assault was unexpected, and therefore an “accident.” 66 Haw. at

117, 657 P.2d at 1034.

Similar to the injury in Kikuta, Pasco’s pain, which

manifested on April 17, 2007, was not “expected or designed.”

As in Kikuta, it was “an unexpected happening to which” Pasco

“did not culpably contribute.” The Dissent, however, suggests

that although the Board found that “Pasco had no pre-existing

injuries to her hands, wrists, and arms prior to April 17,

2007,” because Pasco’s sub-optimal work conditions existed since

20
Pasco began the job, “[her] deteriorating physical conditions

began far earlier than April 12, 2007” and therefore her “severe

elbow injury could not have been unexpected.” The record does

not demonstrate that Pasco should have expected the level of

pain she began experiencing on April 17, 2007, later diagnosed

as medial epicondylitis, that would require surgeries and later

lead to complex regional pain syndrome. In any event, the ERS

Board specifically found that Pasco did not have pre-existing

injuries to her elbow, arm, and hands prior to April 17, 2007.

Even if she did have a preexisting condition, however, pursuant

to Myers discussed below, an “accident” occurs when an unlooked

for mishap or unexpected event causes a preexisting condition to

become symptomatic. In addition, Myers also stands for the

proposition that an unexpected result of a routine performance

of duty, without any evidence of external force, or unusual

stress or strain, is an “unlooked for untoward event” that

constitutes an “accident.”

In this regard, the ERS Board appears to argue that the

manifestation of pain in the course of performing regular work

duties cannot constitute an “accident.” However, this court

already rejected such an argument in Myers, 68 Haw. 94, 704 P.2d

902. In Myers, a state employee who injured his back on July

25, 1977 when setting down a thirty-five-pound half-full coffee

21
pot as part of his normal and routine preparation for conducting

a management training class, and thereafter became disabled due

to back pain, was denied service-connected disability retirement

by the ERS Board. The circuit court later reversed the ERS

Board’s denial of benefits, and the ERS Board appealed,

contending that the incident involving the coffee pot was not an

“accident” within the meaning of the service-connected

disability retirement statute. 68 Haw. at 95, 704 P.2d at 904.

Specifically, the ERS Board argued that an unexpected result of

a routine performance of duty, without any evidence of external

force, or unusual stress or strain, did not amount to an

“unlooked for untoward event” and therefore did not constitute

an “accident.” See Myers, No. 10033, ERS Board’s Opening Br.,

at 13, 19 (filed Nov. 9, 1984).

In affirming the circuit court, this court rejected the ERS

Board’s argument, stating, “Since the July 25, 1977 incident

was, beyond question, an unlooked for mishap which was not

expected or designed, it was an ‘accident[.]’” Myers, 68 Haw.

at 96 & n.1, 704 P.2d at 904 & n.1 (emphasis added). The weight

of the coffee pot or the employee’s pre-existing

spondylolisthesis and degenerative disks did not affect this

court’s analysis as to whether an “accident” had occurred.

Myers thus dispels the notion that an external force or unusual

22
strain is required to show that an “accident” befell an

employee; rather, an unexpected result of a routine performance

of duty may comprise an “accident.”8 In Myers, the “routine

performance of duty” was the employee’s routine preparation of

coffee for the training meetings he conducted; his “unlooked for

mishap” was the “sharp pains across his left lower back into the

hollow of his buttocks, and . . . pulsating pain radiating down

his right leg” that he experienced when setting down the coffee

pot. 68 Haw. at 95, 704 P.2d at 903.

Just as lifting the coffee pot was part of the employee’s

routine in Myers, here, typing was a normal and routine part of

Pasco’s job. Pasco also did not expect the onset of pain on

April 17, 2007 while she typed, just as the employee in Myers

did not expect to suffer severe back pain from lifting a coffee

pot when, prior to the accident, he could lift sixty-five-pound

bags of coral sand and ninety-five-pound bags of mortar mix

without discomfort of any kind. See Myers v. Bd. of Trs. of the

8
Indeed, after our decision in Myers, the ERS Board removed the sentence
underlined below from its September 26, 1983 definition of “accident” in
effect at the time of the case:

“Accident” means an unlooked for mishap or untoward event

which is not expected or designed, occurring while in the
actual performance of duty at some definite time and place.
It does not mean the unexpected result of routine
performance of duties unless it can be shown that such
unexpected result occurred because of some unusual strain
or exertion or some unusual condition in the employment.”

HAR § 6-22-2 (emphasis added). The second sentence of the definition was
removed effective February 9, 1989. See HAR § 6-22-2 (am. Feb. 9, 1989).
23
Emps.’ Ret. Sys., Civil No. 79302, Findings of Fact &

Conclusions of Law & Order, at 2 (filed May 17, 1984), aff’d, 68

Haw. 94, 704 P.2d 902.

Nevertheless, in this case, the ERS Board ruled that Myers

was distinguishable because the injury in Myers was caused by a

single lifting of a coffee pot, as opposed to multiple liftings.

To draw such an adverse conclusion from this distinction,

however, does not comport with this court’s rejection of the ERS

Board’s argument in Myers that there must be a showing of some

unusual strain or exertion for an “accident” to occur in the

routine performance of duty. In sum, routinely performed duties

are, by definition, performed regularly and repeatedly; and this

court recognized in Myers that an “accident” may occur in the

course of such regular and repeated performance of duties.

Thus, the onset of Pasco’s medial epicondylitis in the course of

her regular and repeated performance of her extensive typing

duties was an unexpected event constituting an “accident.”

2. Pasco’s “accident” occurred “while in the actual

performance of duty at some definite time and place.”

The second issue in determining Pasco’s eligibility for

service-connected disability retirement under HRS § 88-336 is

whether her injury occurred “while in the actual performance of

duty at some definite time and place.” In contrast with the

Dissent, we agree with the ICA that Pasco’s circumstances are

24
analogous to the relevant facts in Panado, 134 Hawaiʻi 1, 332

P.3d 144, where we held that an applicant had shown her injury

was the result of an “accident” occurring at “some definite time

and place” even though the employee could not identify the exact

moment of injury.

In Panado, Eden Panado (“Panado”), a computer operator with

the City and County of Honolulu, was assigned to print voter

registration forms during her October 8 to October 9, 2004 work

shift, and she was therefore required to lift between ten and

fifteen boxes of paper, and load and unload printers. During

the task, which Panado described as her alleged accident, Panado

felt pain in her lower back, upper back, shoulder, neck, and

right arm. She experienced pain the day after her shift, and on

October 10, she was admitted to a hospital emergency room,

treated for neck and low back pain, and was subsequently unable

to return to work. See 134 Hawaiʻi at 3–4, 332 P.3d at 146–47.

Panado’s application for service-connected disability benefits

was ultimately denied by the ERS Board.

On appeal, the parties stipulated that Panado was injured

during her October 8–9, 2004 workshift. However, Panado also

conceded that she could not “pinpoint to the exact box” that was

picked up when her injury occurred. 134 Hawaiʻi at 8, 332 P.3d

at 141. Thus, the issue before this court was whether the

25
statute requires an employee to establish the exact moment she

was injured.

We held that it does not. See 134 Hawaiʻi at 13, 332 P.3d

at 156. We noted that the plain language of the phrase,

“definite time and place,” does not mean the exact moment of

injury, but rather requires that the time and place of injury be

“clearly stated or decided; not vague or doubtful.” Id.

Additionally, we observed that “[t]he legislative history does

not indicate the ‘some definite time and place’ language was

meant to restrict the award of accidental disability retirement

benefits to those claimants who could show an exact moment of

injury.” 134 Hawaiʻi at 13, 332 P.3d at 156. We held that

Panado satisfied the “some definite time and place” requirement

by establishing that she was injured during her workshift. Id.

Moreover, this court went on to observe that “there is no

indication the legislature intended to categorically exclude

coverage for accidents that do not result in immediate

symptoms.” 134 Hawaiʻi at 15, 332 P.3d at 158. We pointed out

that the legislature “was concerned with whether an accident

occurred during work, not with whether the employee could

pinpoint the exact moment of injury.” 134 Hawaiʻi at 14, 332

P.3d at 157 (emphasis added). Referring to the legislature’s

1965 expansion of coverage to allow recovery for members who are

26
permanently incapacitated as the cumulative result of an

occupational hazard, we also stated:

Given the legislature’s decision to expand coverage, it would

appear contrary to legislative policy to restrict coverage by
interpreting HRS § 88–79 to categorically preclude claims that do
not allege the exact moment of injury, even when it is undisputed
that the injury occurred in the performance of work.

Id. We also noted that “there is no indication the legislature

intended to categorically exclude coverage for accidents that do

not result in immediate symptoms.” Id.

To illustrate, we noted:

If in Myers, the employee had lifted the coffee maker

twice, but the onset of the same debilitating condition did
not occur until the next day, there is no rational
explanation why the employee should be denied retirement
benefits because he could not point to which one of the two
lifts caused the incapacity. So long as the claimant could
establish the incapacity was the proximate and natural
result of either of the two lifts, the claimant should be
able to qualify for disability retirement benefits under
HRS § 88–79. To deny benefits in this situation, either
because a claimant cannot point to which exact incident, or
because the onset of pain did not occur immediately, would
be “unjust and unreasonable in its consequences.”

Id.

The ICA correctly held that Panado informs the analysis of

Pasco’s case. Although Pasco’s injury has been characterized as

a “cumulative or repetitive stress” injury, as we stated in

Panado, the fact that Pasco’s “onset of pain did not occur

immediately” does not mean it was not “the natural and proximate

result of an accident occurring while in the actual performance

of duty at some definite time and place.” Although Pasco cannot

point to the exact keystroke that caused her to exceed her

27
physiological capacity, the injury occurred “while in the actual

performance of duty,” during her workshift. The “untoward

event” manifested as pain at a “definite time and place” on

April 17, 2007. Even if the pain had manifested the day after a

workshift, however, as discussed in Panado, that Pasco’s injury

manifested as arm pain at some time after the moment she

exceeded her physiological capacity to perform repetitive work

does not mean that her accident did not occur “while in the

actual performance of duty at some definite time and place.”

134 Hawaiʻi at 14-15, 332 P.3d at 157-58.

V. Conclusion

For the foregoing reasons, we affirm the Intermediate Court

of Appeals’ July 14, 2016 Judgment on Appeal, entered pursuant

to its June 17, 2016 Memorandum Opinion, which vacated the

September 17, 2013 “Decision and Order Affirming the Final

Decision of Respondent-Appellee Board of Trustees of the

Employees’ Retirement System of the State of Hawaii and

Dismissing Petitioner-Appellant Kimberly Pasco’s Appeal” and the

September 17, 2013 “Final Judgment,” and we remand the matter to

the Circuit Court of the First Circuit with directions to vacate

the ERS Board’s denial of service-connected disability

28
retirement to Pasco and for proceedings consistent with the ICA’s

Memorandum Opinion and this opinion.

Patricia Ohara and /s/ Sabrina S. McKenna

Brian P. Aburano
for petitioner /s/ Richard W. Pollack

Edmund L. Lee /s/ Michael D. Wilson

for respondent

29
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

Electronically Filed
Supreme Court
SCWC-13-0003629
22-MAY-2018
08:22 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

KIMBERLY A. PASCO,
Respondent/Petitioner-Appellant,

vs.

BOARD OF TRUSTEES OF THE EMPLOYEES’ RETIREMENT SYSTEM,

STATE OF HAWAI#I,
Petitioner/Respondent-Appellee.

SCWC-13-0003629

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-13-0003629; CIV. NO. 12-1-3294)

MAY 22, 2018

DISSENTING OPINION BY NAKAYAMA J.,

IN WHICH RECKTENWALD, C.J., JOINS

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

 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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

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
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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

3
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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

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.”

4
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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

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
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

‘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.

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
(continued...)

6
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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

5
(...continued)
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.

HRS § 88-77(a) (1976).

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

7
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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

8
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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

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.

9
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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.”

10
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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

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.

11
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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

12
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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

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

13
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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

14
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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

15
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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

16
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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

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 incapacity, 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.

17
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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

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 cannot 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.”).

18
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

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.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

19