KIMBERLY A. PASCO, Respondent/Petitioner-Appellant,
BOARD OF TRUSTEES OF THE EMPLOYEES' RETIREMENT SYSTEM, Petitioner/Respondent-Appellee.
FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-13-0003629;
CIV. NO. 12-1-3294)
Patricia Ohara and Brian P. Aburano for petitioner.
L. Lee for respondent.
McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS.
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),  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"occurring while in the actual
performance of duty at some definite time and place."
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.
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.
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.
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.
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.
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.
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.
Pasco's Application for Benefits
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.
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.
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.
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.
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
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.
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.
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."
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
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.
Circuit Court Proceedings
timely filed an appeal with the circuit court 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 ...