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Pasco v. Board of Trustees of Employees' Retirement System

Supreme Court of Hawaii

May 22, 2018

KIMBERLY A. PASCO, Respondent/Petitioner-Appellant,


          Patricia Ohara and Brian P. Aburano for petitioner.

          Edmund L. Lee for respondent.



          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 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 ...

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