EDEN L. PANADO, Appellant-Appellant,
BOARD OF TRUSTEES EMPLOYEES' RETIREMENT SYSTEM STATE OF HAWAI'I, Appellee-Appellee
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL No. 12-1-0151).
Philip W. Miyoshi (Miyoshi & Hironaka) for Appellant-Appellant.
Patricia Ohara Kyle K. Chang Deputy Attorneys General for Appellee-Appellee.
Foley and Fujise, JJ., with Nakamura, C.J., dissenting.
SUMMARY DISPOSITION ORDER
Appellant-Appellant Eden L. Panado (Panado) appeals from the November 9, 2012 "Decision And Order Affirming The Final Decision Of The Board Of Trustees Of The Employees' Retirement System Of The State Of Hawai'i" and the December 13, 2012 Final Judgment filed in the Circuit Court of the First Circuit (circuit court) in favor of Appellee-Appellee Board of Trustees Employees' Retirement System of the State of Hawai'i (ERS Board) .
On appeal, Panado contends the circuit court erred by concluding that an October 9, 2004 incident resulting in Panado's permanent incapacitation for employment did not occur "at a definite time and place" so as to qualify her for service-connected disability retirement benefits (ERS benefits) under Hawaii Revised Statutes (HRS) § 88-79 (2012 Repl.) and Hawaii Administrative Rules (HAR) § 6-22-8 (effective 2009-2013).
Panado carries the burden of proving she is eligible for ERS benefits under HRS § 88-79 and HAR § 6-22-8. HAR § 6-23-31 (effective 2009-2013) ("the party initiating the proceeding shall have the burden of proof, including the burden of producing evidence and the burden of persuasion.") "The degree or quantum of proof shall be a preponderance of the evidence." Id. ERS benefits are available, upon application, to an ERS 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[.]" HRS § 88-79(a). To determine whether or not an ERS member's application meets these criteria, the ERS Board "may accept as conclusive ... [a] finding to this effect by the medical board." HRS § 88-79(d)(2).
As defined under HRS Chapter 88, which governs pension and retirement systems, "[a]n accident is an unlooked for mishap or untoward event which is not expected or designed. Further, the retirement statute makes it clear that the member must have 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.'" Lopez v. Bd. of Trustees, Employees' Ret. Sys., State of Hawai'i, 66 Haw. 127, 130-31, 657 P.2d 1040, 1043 (1983) (citation omitted).
Panado contends the circuit court erred by finding the October 9, 2004 incident did not constitute an "accident" under HRS § 88-79 because it did not occur at a "definite time and place[.]" Panado specifies the circuit court's statement:
during the course of [Panado1s] shift, her job required her to either lift, push, pull, that type of activity with respect to these boxes. So during a period of time.
Now, whether or not this type of activity over a course of an eight-hour shift constitutes an accident at some definite time and place, the [circuit c]ourt will say that given its plain ordinary meaning, the answer is no.
Panado argues two points in support of her contention: (1) the October 9, 2004 incident presents facts "virtually identical" to those in a case in which the employee was awarded ERS benefits (Myers v. Bd. of Trustees of Employees' Ret. Sys., 68 Haw. 94, 704 P.2d 902 (1985)); and (2) the circuit court erred by too narrowly construing the meaning of "a definite time and place" under HRS § 88-79 and HAR § 6-22-8. Myers, 68 Haw. 94, 704 P.2d 902 (affirming the circuit court's reversal of ERS Board's decision to deny ERS benefits to a member).
We conclude that this case presents a different situation than that examined in Myers and the circuit court's construal of "a definite time and place" was not clearly erroneous. HRS § 88-79. Accordingly, we ...