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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0000022
                                                              11-JUL-2014
                                                              07:45 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


           EDEN L. PANADO, Petitioner/Appellant-Appellant,

                                    vs.

BOARD OF TRUSTEES, EMPLOYEES’ RETIREMENT SYSTEM, STATE OF HAWAII,
                  Respondent/Appellee-Appellee.


                             SCWC-13-0000022

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-13-0000022; CIV. NO. 12-1-0151)

                              JULY 11, 2014

   RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., AND
     CIRCUIT JUDGE CASTAGNETTI, ASSIGNED BY REASON OF VACANCY

              OPINION OF THE COURT BY RECKTENWALD, C.J.

            The instant case arises from Eden Panado’s application

for service-connected disability retirement with the Board of

Trustees of the Employees’ Retirement System of the State of

Hawai#i.   In her application, Panado alleged that she was

permanently incapacitated because of neck and back injuries she
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sustained while lifting boxes during an October 8-9, 2004 work

shift for the City & County of Honolulu’s Department of

Information Technology.      The statute at issue in this case,

Hawai#i Revised Statutes (HRS) § 88-79, allows for service-

connected disability retirement benefits if a member of the ERS

can show that he or she was “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 . . . .”

           The Board of Trustees denied Panado’s application.

Although the parties stipulated that Panado had suffered an

injury sometime during her October 8-9, 2004 work shift, and that

she was permanently incapacitated for work by the time of her

application, the Board of Trustees determined that (1) Panado’s

October 8-9, 2004 injury was not an “accident” under HRS § 88-79

because she had failed to show that the injury occurred at “some

definite time and place”; and (2) Panado’s permanent incapacity

was not the “natural and proximate result” of the October 8-9,

2004 incident.

           Panado appealed to the Circuit Court of the First

Circuit (circuit court), which affirmed the Board of Trustees’

decision because Panado had failed to show that the incident

occurred at “some definite time and place.”          The circuit court

did not address the other reason for the Board of Trustees’

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denial of Panado’s application, i.e., that she failed to prove

her incapacity was the natural and proximate result of the

alleged accident.    A majority of the Intermediate Court of

Appeals (ICA) affirmed the decision.

           In her Application for Writ of Certiorari, Panado

asserts that:    (1) the ICA erred in affirming the circuit court’s

conclusion that Panado’s injuries during a single eight-hour work

shift did not occur at a “definite time and place” under HRS

§ 88-79[1] and Hawai#i Administrative Rule (HAR) § 6-22-8,[2] and

     1
           HRS § 88-79(a) (Supp. 2007) provides in relevant part that:

           Upon application of a member, or the person appointed
           by the family court as guardian of an incapacitated
           member, any 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[.]
     2
           HAR § 6-22-8 (effective 2009-2014) provides that:

           Upon completion of the examination of the member and
           the reports submitted to it, the medical board shall
           certify in writing to the board the following:
           (1)   In the case of an application for ordinary
                 disability or service-connected disability
                 retirement, whether or not the incapacity is:
                 (A)   For the further performance of duty; or
                 (B)   For gainful employment; and
                 (C)   Likely to be permanent.
           (2)   In the case of an application for
                 service-connected disability retirement or for
                 accidental death benefits, whether or not the
                 incapacity or death is:
                 (A)   The natural and proximate result of an
                       accident occurring while in the actual
                       performance of duty at some definite time
                       and place; or
                 (B)   The cumulative result of some occupational
                       hazard (in the case of service-connected
                                                                (continued...)

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(2) the evidence in this case demonstrates a causal connection

between the October 8-9, 2004 incident and her permanent

incapacity.

             We agree with Panado that the “definite time and place”

language in HRS § 88-79 does not preclude the recovery of

benefits despite her inability to pinpoint the precise moment of

injury when, as in the instant case, there is no dispute that

Panado was injured during her work shift.           However, we remand the

case to the circuit court for it to determine the Board of

Trustees’ second ground for denying Panado’s application, namely,

that her permanent incapacity is not “the natural and proximate

result of the alleged incident.”

                               II.   Background

A.     Factual Background

             The following factual background is taken from the

record on appeal.

             On October 8-9, 2004, Panado was working as a Computer

Operator III with the City & County of Honolulu (City & County)

Department of Information Technology.           During her work shift,

which ran from 11:30 p.m. on October 8 to 7:45 a.m. on October 9,



       2
        (...continued)
                         disability retirement) or the result of
                         some occupational hazard (in the case of
                         accidental death benefits); and
                   (C)   Through no wilful negligence on the part
                         of the member.

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2004, she was assigned to print voter registration forms and had

to lift 10-15 boxes of paper.        The following day, on October 10,

2004, Panado was admitted to the emergency room at Tripler

Hospital for treatment of neck and low back pain.            From

October 9, 2004 to October 5, 2005, Panado was unable to return

to work.

            On October 12, 2004, Panado applied for workers’

compensation and began to receive temporary total disability

benefits from the City & County.        As a result, the City & County

required Panado to undergo several independent medical

evaluations (IME).      Deborah Agles, M.D., performed an IME of

Panado on January 11, 2005, diagnosing her with lumbosacral and

cervical strains.     Dr. Agles noted that, “[a]t present time, I

believe that the patient is unable to work, and should continue

on temporary total disability benefits.”          Explaining that

Panado’s “prognosis is guarded because of the diffuse nature of

pain symptoms, . . . hyperreflexia[,][3]” and “subjective symptoms

which are not completely concordant with objective studies,”                Dr.

Agles noted, however, that Panado “presented in an honest and




      3
            “Hyperreflexia” is defined as “exaggeration of the reflexes.”   The
Sloane-Dorland Annotated Medical-Legal Dictionary 355 (1987).

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reliable manner; there were no overt pain behaviors, and no

evidence of malingering or secondary gain.[4]”

           Dr. Agles submitted a supplemental report on June 14,

2005, after reviewing Panado’s medical records.           Dr. Agles opined

that:
           the patient’s current symptoms are not completely
           attributable to the incident of 10/09/04. The
           10/09/04 accident may have caused an exacerbation of
           her low back condition, but her low back was already
           symptomatic and receiving active medical care in close
           proximity to the subject injury (four days prior).
           The medical records do not support a pre-existing
           cervical spine condition, although x-rays were
           obtained of the neck in 1989, and there was a motor
           vehicle accident in 1994, with intermittent symptoms
           in the bilateral upper extremities.

           Dr. Agles further opined that “the incident of 10/09/04

did cause an injury to the cervical spine” and that “[t]he low

back can be considered at pre-injury state[.]”           Dr. Agles noted

that Panado’s records indicated she had longstanding

fibromyalgia, and that the “pain [Panado] experiences from

fibromyalgia is complicating her presentation; this diagnosis is

important, and was not discussed by the patient when a past

medical history was obtained.”

           Panado returned to work on October 6, 2005.              She was

assigned to light duty and not permitted to carry anything heavy.




      4
            “Secondary gain” is defined as “a secondary psychic or social
advantage derived from a symptom or illness[,]” such as when a physical
illness “might result in a pension for [an] individual[.]” The Sloane-Dorland
Annotated Medical-Legal Dictionary 305.

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             On October 24, 2005, another IME was performed by

Donald K. Maruyama, M.D.        Based on his examination of Panado and

review of her records, including Dr. Agles’ report, Dr. Maruyama

stated that:
             Dr. Agles felt that [Panado] had reached her pre-
             injury status with regard to her lower back and lower
             extremity symptoms and her opinion was that her
             ongoing symptomatology in her low back and lower
             extremities was due to a pre-existing condition. I
             generally tend to agree although there may be at least
             mild permanent aggravation of her ongoing low back and
             right lower extremity symptomatology, at least from
             the subjective standpoint. Her cervical and right
             upper extremity symptoms appear to be a direct result
             of the October 9, 2004 incident although her chronic
             fibromyalgia situation does contribute to her overall
             musculoskeletal symptoms.

             Dr. Maruyama also stated that “Panado has returned to

her usual and customary duties of Computer Operator III at the

City & County.      A review of the position description reveals that

she can probably perform all of the duties as described.”

             Panado was again off of work from January 26, 2006 to

March 5, 2006.      On March 30, 2006, Panado was medically

disqualified from work by her primary treating physician, Diokson

Rena, M.D., because she was “unable to perform and tolerate [her

work] duty despite restrictions.”

B.     Proceedings relating to Panado’s eligibility for benefits

             On May 1, 2006, Panado filed an Application for

Disability Retirement with the ERS.          In her application, she

stated that on October 9, 2004, as a “Computer Operator III,

Department of Information Technology, Operations Division,” she


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was “printing voters’ registration forms on 2 impact printers and

while lifting forms to load & unload between printers, felt pain

in lower back, upper back, shoulder, neck, & right arm.              Next day

was more intense pain & barely able to move the following day.”

           On July 12, 2007, Dr. Lichter, a former chair of the

ERS Medical Board, performed a medical records review for ERS.

Among the records reviewed were the independent medical

examinations by Dr. Agles and Dr. Maruyama, reports by her

treating physician Dr. Rena, and Panado’s military medical

records.   Dr. Lichter’s report stated:
           I strongly disagree with Dr. Maruyama’s [October 24,
           2005] opinion that “there may be at least a mild
           permanent aggravation of her ongoing low back and
           right lower extremity symptomatology. . .” His
           opinion is based only, as he stated, on a “subjective
           standpoint.” This latter opinion indicates that
           [Pando’s] self-serving reports are the primary basis
           of his opinion which is essentially contrary to the
           objective evidence.

           The omission by [Panado] of any reference to her pre-
           existing, properly diagnosed and repeatedly treated
           illness leads the undersigned to believe that there is
           a strong chance that [Panado’s] claim is not only
           worthless but may be fraudulent.

           Although Dr. Lichter already expressed an opinion, and

notably a very negative one, the Board of Trustees selected him

to perform another IME on Panado, which he did on October 24,

2007.   In his accompanying report, Dr. Lichter concluded that

Panado’s incapacitation stemmed from “non-organic” causes and not

from the injuries she suffered from lifting the boxes.              During

the physical examination of Panado, Dr. Lichter recognized the


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presence of several Waddell signs, which are a group of

inappropriate responses to physical examination that indicate

non-organic or psychological causes of pain.5          Performing a test

for “distraction,” in which a straight leg raise is performed

while the patient is lying flat, then, while distracting the

patient, another straight leg raise is done while the patient is

seated, Dr. Lichter reported that Panado showed a marked

difference in pain response to the two leg raises even though the

pain response should be consistent.         Dr. Lichter also observed

the presence of other Waddell signs such as “over-reaction,”

“regional disturbances,” and simulation.          Dr. Licther noted that

“[t]wo or more of these findings strongly suggest a psychological

basis for some or all of [Panado’s] complaints.”

            Based on these tests and a review of Panado’s medical

records, Dr. Lichter diagnosed Panado as having (1) “Chronic neck

and back pain due to herniated nucleus pulposes at C 4-5 and L5-

S1, probably secondary to a motor vehicle accident in 1994”; and

(2) “Failure to cope with situational stress and mild permanent

residuals of #1.”     Dr. Lichter also reiterated that Panado’s

failure to mention her preexisting fibromyalgia led him to

believe that her claim may be fraudulent.




      5
            See Gordon Waddell et al., Nonorganic Physical Signs in Low-Back
Pain, Spine March/April 1980, at 117-25.

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            On November 12, 2007, the Medical Board issued its

report, which summarized the facts and pertinent medical records

regarding Panado, then stated its findings:
            The findings of the undersigned [Medical] Board are
            that [Panado] is permanently incapacitated for the
            further performance of duty, but that such incapacity
            is not the natural and proximate result[6] of an
            accident that occurred while in the actual performance
            of duty at a specific place and time, and not the
            cumulative result of an occupational hazard as
            explained above.

            Based on these findings, the Medical Board recommended

that Panado be denied service-connected disability retirement.

            Panado appealed the decision of the Medical Board to

the Board of Trustees.      At the January 19, 2010 hearing on her

appeal, the parties stipulated to Panado being “physically or

mentally incapacitated with [regard to the] further performance

of duty as a Computer Operator III”; that “such incapacitation is

likely to be permanent”; and that “such incapacitation is not the

result of willful negligence on the part of Ms. Panado.”             The

parties also stipulated that “on the date of the injury on

October 9, 2004, that [Panado was] working in [her] job as the

Computer [Operator III].”

            Patricia L. Chinn, M.D., Medical Board Chairperson,

appeared for the Medical Board as an expert witness in medicine

and general surgery and testified that, in the Medical Board’s


      6
            HAR § 6-22-2 (effective 1984-2014) defines “Natural and proximate
result” as “the result that would naturally follow from the accident, unbroken
by any independent cause.”

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view, “accident” under HRS § 88-79 “needs to occur at a specific

date and time.    It’s not over a stretch of hours.         It is not

something that occurs and then developed symptoms the following

day.”   Dr. Chinn further explained:
           A:    [The] ERS definition of accident is pretty
                 clear. It’s got to occur at a specific date and
                 time and in general, there’s an immediate
                 complaint of pain or disability. When somebody
                 develops pain the following morning, that for
                 most physicians is related to an overuse, muscle
                 over use or a strain, muscle strain, which
                 generally is self resolving.

           Q:    What about gradual onset of pain while you’re
                 performing an activity?

           A:    That doesn’t follow the definition of an
                 accident. Generally it’s like immediate. I
                 don’t think you can record snapping my fingers,
                 but it’s an immediate occurrence and you are
                 aware that something happened at that time. And
                 you can, you know, as you –- I mean if I were to
                 get up and I were to lift multiple boxes and I
                 have neck problems and I have a disk, and I’ve
                 had problems with my neck and my back, I could
                 move multiple boxes and I might gradually
                 develop discomfort as my muscles tensed.

                 And maybe I’m a little bit out of joint and
                 maybe because I’m a little deconditioned, but
                 the fact that I might develop pain over a period
                 of time with an associated activity does not
                 constitute an accident. That’s clearly against
                 the definition of accident for the Medical Board
                 purposes.

           The Hearing Officer issued her Recommended Decision on

June 29, 2010, including the following Findings of Fact:
           3.    Petitioner described the October 9, 2004 alleged
                 accident in her Application as “[p]rinting
                 voters’ registration forms on 2 impact printers
                 and while lifting forms to load & unload between
                 printers, felt pain in lower back, upper back,
                 shoulder, neck & right arm. Next day was more
                 intense pain & barely able to move the following
                 day.”
                 . . .
           12.   Petitioner had fibromyalgia during all relevant
                 times in this case.

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           13.   The October 9, 2004 incident did cause injury to
                 Petitioner’s cervical spine.
           14.   Petitioner sustained a temporary aggravation of
                 her lower back condition on October 9, 2004, but
                 was back at pre-injury state by the October 24,
                 2005 date of Dr. Maruyama’s IME.
           15.   Notwithstanding Petitioner’s cervical and low
                 back problems, Petitioner had returned to work
                 and was able to perform all of the duties of her
                 full-time job by the October 24, 2005 date of
                 Dr. Maruyama’s IME.
           16.   Dr. Maruyama’s opinion that “there may be at
                 least a mild permanent aggravation of
                 Petitioner’s low back and right lower extremity
                 symptomatology” was based only on a subjective
                 standpoint (i.e., Petitioner’s self-serving
                 reports) and is contrary to the objective
                 evidence.
                 . . .
           20.   Petitioner is permanently incapacitated for the
                 further performance of duty as a Computer
                 Operator III.
           21.   The October 9, 2004 incident does not constitute
                 an accident for purposes of disability
                 retirement under Chapter 88, HRS.
           22.   Petitioner’s permanent incapacity is not the
                 natural and proximate result of the alleged
                 accident.

           The Hearing Officer also proposed the following

Conclusions of Law:
           2.    Petitioner has failed to prove by a
                 preponderance of the evidence that her
                 incapacity for further performance of duty was
                 (a) the natural and proximate result of an
                 accident which occured October 9, 2004 or (b)
                 the cumulative result of an occupational hazard,
                 as required by HRS § 88-285 and § 88-79.
           3.    Petitioner is not entitled to service-connected
                 disability retirement.

           Based on the above findings and conclusions, the

Hearing Officer recommended that the Board of Trustees deny

service-connected disability retirement benefits to Panado.             On

September 20, 2010, the Board of Trustees issued a Proposed

Decision that adopted the Hearing Officer’s Recommended Decision,

including the Hearing Officer’s findings of fact and conclusions

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of law.   The Board of Trustees’ December 16, 2011 Final Decision

affirmed its Proposed Decision and also adopted the Hearing

Officer’s Recommended Decision, findings of fact, and conclusions

of law.   Accordingly, the Board of Trustees denied Panado’s

application for service-connected disability retirement benefits.

            On January 17, 2012, Panado timely appealed the Final

Decision to the circuit court.        In her opening brief before the

circuit court, Panado challenged the Board of Trustees’

determination that (1) the October 8-9, 2004 incident was not an

“accident” and (2) the incapacity was not the natural and

proximate result of the October 8-9 incident.            Panado argued that

the facts of the instant case are “virtually identical” to Myers

v. Board of Trustees of Employees’ Retirement System, 68 Haw. 94,

95, 704 P.2d 902, 903 (1985).7        Thus, because the incident in

      7
             In Myers, a state employee was lifting an approximately thirty-
five pound coffee maker to prepare to conduct a training class when he heard a
snap in his back. 68 Haw. at 95, 704 P.2d at 903. He experienced sharp pains
across his lower back and buttocks and eventually became disabled. Id. The
Board of Trustees rejected his application for service-connected total
disability retirement. Id. at 95, 704 P.2d at 904. The circuit court
reversed the Board of Trustees’ decision and order. Id. In its appeal to
this court, the Board of Trustees argued that Myers’ incident was not an
“accident” within the meaning of HRS § 88-77, and the Board of Trustees was
not clearly erroneous in deciding that Meyers’ incapacitation was not the
natural and proximate result of the coffee maker incident. Id. at 95-96, 704
P.2d at 904.
             Because the facts were not in dispute, this court stated that
whether or not the incident was an “accident” was a question of law. Id. at
96, 704 P.2d at 904. The Myers court then defined “accident” as “an unlooked
for mishap or untoward event which is not expected or designed,”•id. (quoting
Lopez v. Bd. of Trs. of ERS, 66 Haw. 127, 130, 657 P.2d 1040, 1043 (1983)),
and concluded that “[s]ince the . . . incident was, beyond question, an
unlooked for mishap which was not expected or designed, it was an
‘accident[,]’” Myers, 68 Haw. at 96, 704 P.2d at 904.
             On the second issue, whether the accident was the proximate cause
of Myers’ incapacitation, this court stated that the “question of causal
                                                                 (continued...)

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Myers was determined to be an accident, the incident in the

instant case should also be an accident.          Panado next argued that

the medical opinions by Dr. Rena, Dr. Maruyama, and Dr. Agles

established “a causal connection between the October 9, 2004

accident and [Panado’s] incapacity.”

            In its answering brief, the Board of Trustees argued

that “[w]hether Ms. Panado was entitled to disability retirement

. . . is a mixed question of fact and law” subject to review

under the clearly erroneous standard, and not, as Panado

contended, a question of law.        The Board of Trustees also argued

that the clearly erroneous standard of review applied because the

Board disputed whether Panado’s incapacity was the natural and

proximate result of the accident, and whether Panado’s “permanent

incapacity was due to the natural worsening of her significant

preexisting low back problems,” rather than any accident on

October 8-9, 2004.      The Board of Trustees explained that Panado’s

case was distinguishable from Myers because Myers “could point to

a definite time and place when the accident occurred.”             (Emphasis

in the original).

            The Board of Trustees next contended that, “even if

this Court found the events of October 9th met the definition of

      7
        (...continued)
connection is . . . basically a matter of medical opinion.” Id. at 97, 704
P.2d at 905. Based upon its review of the record, including the opinions of
various doctors, this court concluded that the Board of Trustees clearly erred
in finding “no causal connection.” Id. Accordingly, the Myers court affirmed
the circuit court’s order.

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accident under HRS § 88-79, Ms. Panado would not be entitled to

receive service-connected disability retirement benefits since

her incapacity was not the ‘natural and proximate result’ of the

events of October 9th.”      The Board of Trustees explained that it

had found her permanent injuries were not caused by the events of

October 9th, but rather by preexisting degenerative medical

conditions and injuries.

           In her reply brief, Panado argued that the issue was a

question of law because there was no dispute between her and the

Board of Trustees that she was injured while working her shift.

The only question for the circuit court was whether the events

that occurred constitute an “accident.”         Panado contended that

the Board of Trustees read the phrase “definite time and place”

too narrowly in requiring her to “establish the exact moment” she

was injured.   (Emphasis in the original).        Panado also argued

that the medical opinions of Dr. Agles, Dr. Maruyama, and Dr.

Rena all show that the October 8-9 accident proximately caused

Panado’s incapacity.

           On September 14, 2012, the circuit court held a hearing

on Panado’s appeal.     Panado’s counsel stated, “we concede

essentially that we can’t probably pinpoint to the exact box that

she picked up [at which time the accident] may have occurred”;

however, because the parties agreed that Panado suffered an

injury during her work shift, the issue upon which the case

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hinged was a question of law, namely, whether HRS § 88-79

required a showing of the precise moment and place of injury to

constitute an “accident” or whether it was enough to show, as

Panado did, that she was injured during her work shift.              The

court stated:
            So let’s say assuming arguendo that it was around an
            eight-hour shift. And during the course of her 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 Court will say
            that given its plain ordinary meaning, the answer is
            no. And we only have the [Myers] case. But even the
            [Myers] case did not look at the accident definition,
            injecting at some definite time and place.

            The Court will interpret the definition as definite
            time and place which these facts do not apply. So
            it’s a conclusion.

            And in terms of mixed question of fact and law, I
            don’t think the facts are disputed as to what she was
            doing during the eight-hour period of time. What was
            in dispute was the description to the various doctors.
            But that –- the Court is going to set that aside for
            its analysis.

            So even assuming all of that took place, whether it’s
            one box, two boxes, several boxes, hour one, hour two,
            over the course of eight hours, the facts –- the facts
            and –- do not constitute an accident at some definite
            time and place with the emphasis on that.

            So the –- affirmed.   And the appeal is being
            dismissed.

            On November 9, 2012, the circuit court issued its

decision and order affirming the Board of Trustees’ final

decision.    The circuit court determined:
            5.    [Panado] described the “accident” as
                  “repetitively lifting & moving heavy boxes”
                  during the course of her shift; however,
                  [Panado] did not establish a specific time or

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                    event during the course of [Panado’s] eight-hour
                    shift when her claimed “accident” occurred.
                    . . .
             7.     Given the plain and ordinary meaning of “at some
                    definite time and place” in HRS § 88-79 and HAR
                    6-22-4, the Court concludes that repetitive
                    lifting and moving of heavy boxes during the
                    course of [Panado’s] eight hour shift does not
                    constitute an “accident” for purposes of
                    determining whether [Panado] is entitled to
                    service connected disability retirement benefits
                    under HRS §§ 88-285 and 88-79.
             8.     The Court finds that [the Board of Trustees] did
                    not commit any error in law or fact in its
                    determination that [Panado’s] incapacity is not
                    the result of an accident that occurred on
                    October 9, 2004.

             Based on these determinations, the circuit court

affirmed the Final Decision of the Board of Trustees.                  The

circuit court entered final judgment on December 13, 2012.

Panado timely appealed.

C.     ICA Appeal

             In her opening brief, Panado reiterated that the

October 8-9, 2004 incident was virtually identical to the facts

under Myers, in which this court held that Myers’ incapacity from

lifting the coffee maker was a compensable injury.              Panado next

argued that the circuit court “erred in too narrowly construing

‘definite time and place’” to preclude her claim because she

could not point to her exact moment of injury.8             Panado again

relied on Myers, observing that nothing in Myers required Panado

to “demonstrate her injury with such precision.”


      8
            Consistent with her counsel’s concession in oral argument in the
circuit court, Panado argued that she injured herself while lifting
“approximately 10-15 heavy boxes of Xerox paper,” rather than suggesting that
she was injured while lifting or dropping a particular box.

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            In its answering brief, the Board of Trustees contended

that the ICA should apply a more deferential, clearly erroneous

standard of review to the issue on appeal because it was a mixed

question of law and fact rather than a question of law.

Specifically, the Board of Trustees characterized the issue as a

mixed question of law and fact because the “legal conclusion that

[Panado’s] alleged October [8-]9 2004 incident occurred at a

‘definite time and place’ is dependent upon the particular facts

and circumstances surrounding her alleged injuries.”            The Board

of Trustees also argued that the ICA should give proper deference

to its interpretation of HRS § 88-79 because it is the agency

charged with administering the statute.         The Board of Trustees

then maintained that Myers was distinguishable from the instant

case because Myers could point to a specific time of injury, and

thus would satisfy the Board’s interpretation of HRS § 88-79’s

“definite time and place” as requiring proof of the exact moment

of injury.

            In her reply brief, Panado argued that the proper

standard of review is de novo because the determinative issue was

how to interpret HRS § 88-79’s “definite time and place”

language.    According to Panado, the parties agreed on the events

at issue, namely, that Panado was injured while working her shift

on October 8-9, 2004.     However, the issue the parties did not

agree on, and that the ICA must decide on appeal, is whether the

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events at issue constitute an “accident” that occurred at some

“definite time and place” under HRS § 88-79.

            On November 26, 2013, a majority of the ICA issued an

SDO that affirmed the circuit court’s November 9, 2012 decision

and order.    The majority held that (1) the instant case was

distinguishable from Myers and that (2) the circuit court’s

construal of “a definite time and place” was not clearly

erroneous.    Specifically, the majority concluded that Myers was

distinguishable because the facts in Myers were undisputed,

whereas in Panado’s case, there was a dispute about whether her

injury arose over the course of her eight-hour shift or at a

particular moment,9 and whether the injury was a permanent or

temporary aggravation of preexisting injuries.           The majority

emphasized that the facts in the instant case were disputed, and

rejected Panado’s contention that the material facts, i.e., that

the alleged accident occurred at her workplace during her eight-

hour work shift, were undisputed.          Accordingly, the majority

rejected Panado’s argument that it should apply a de novo

standard of review.

            The majority instead concluded that the issue under

review was more accurately characterized as a mixed question of

law and fact regarding “whether the circuit court erred by



      9
            However, as noted, supra note 8, Panado abandoned her argument
that she was injured when she dropped a particular box.

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narrowly construing the phrase ‘a definite time [and] place’ as

used in HRS § 88-79(a) and HAR § 6-22-2 to exclude the

‘repetitive lifting and moving of heavy boxes during the course

of [Panado’s eight-hour] shift[.]’”        (Citing Camara v. Agsalud,

67 Haw. 212, 216, 685 P.2d 794, 797 (1984)) (brackets in the

original).   Based on this conclusion, the majority applied a

clearly erroneous standard to the circuit court’s decision and

held that, “the circuit court’s construal of ‘a definite time and

place’ was not clearly erroneous.”        Accordingly, the ICA affirmed

the circuit court’s December 13, 2012 final judgment.

           In a dissenting opinion, Chief Judge Nakamura stated

that the circuit court erred, as a matter of law, in ruling that

“Panado’s description of how she was injured was insufficient to

satisfy the requirement of HRS § 88-79 that the work accident

occur ‘at some definite time and place.’”         According to Chief

Judge Nakamura, the standard of review should be de novo because

the case turned on a question of statutory interpretation, more

specifically, the meaning of “at some definite time and place.”

Chief Judge Nakamura concluded that the legislative intent for

the “at some definite time and place” language was to limit

qualifying accidents to those that are clearly work related.

Noting that it was undisputed that Panado injured herself as a

result of lifting boxes during her October 9, 2004 work shift,

Chief Judge Nakamura then concluded that “Panado’s inability to

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specifically attribute her injuries to a particular box lifted or

pinpoint the exact time during the eight-hour shift that she

sustained injuries did not detract from the fact that she clearly

suffered injuries as the result of a work-related accident.”

Thus, Panado’s description of her injuries was sufficient to meet

the “at some definite time and place” requirement.             For these

reasons, Chief Judge Nakamura would have vacated the circuit

court’s decision and order and remanded the case to the circuit

court to rule on the Board of Trustees’ alternative ground for

denying Panado’s application, i.e., that she failed to

demonstrate that her incapacitation was the natural and proximate

result of the October 9, 2004 incident.

             The ICA filed its judgment on January 3, 2014.            On

March 4, 2014, Panado timely filed the instant application for a

writ of certiorari.       The Board of Trustees filed a response on

March 19, 2014.

                        III.   Standards of Review

A.     Review of agency decisions

             Review of a decision made by the circuit court upon
             its review of an administrative decision is a
             secondary appeal. Ahn v. Liberty Mut. Fire Ins. Co.,
             126 Hawai#i 1, 9, 265 P.3d 470, 478 (2011) (citation
             omitted). The circuit court’s decision is reviewed de
             novo. Id. The agency’s decision is reviewed under
             the standards set forth in HRS § 91-14(g). Id. HRS
             § 91-14(g) (1993) provides:

             (g)   Upon review of the record the court may affirm
                   the decision of the agency or remand the case
                   with instructions for further proceedings; or it
                   may reverse or modify the decision and order if
                   the substantial rights of the petitioners may

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                   have been prejudiced because the administrative
                   findings, conclusions, decisions, or orders are:

                   (1)   In violation of constitutional or
                         statutory provisions; or
                   (2)   In excess of the statutory authority or
                         jurisdiction of the agency; or
                   (3)   Made upon unlawful procedure; or
                   (4)   Affected by other error of law; or
                   (5)   Clearly erroneous in view of the reliable,
                         probative, and substantial evidence on the
                         whole record; or
                   (6)   Arbitrary, or capricious, or characterized
                         by abuse of discretion or clearly
                         unwarranted exercise of discretion.

             Under HRS § 91-14(g), conclusions of law are
             reviewable under subsections (1), (2), and (4);
             questions regarding procedural defects under
             subsection (3); findings of fact under subsection (5);
             and an agency’s exercise of discretion under
             subsection (6).” Sierra Club v. Office of Planning,
             109 Hawai#i 411, 414, 126 P.3d 1098, 1101 (2006)
             (citation, internal quotation marks and brackets
             omitted).

Liberty Dialysis-Hawaii, LLC v. Rainbow Dialysis, LLC, 130

Hawai#i 95, 102-03, 306 P.3d 140, 147-48 (2013).

B.     Statutory interpretation

                   “‘Statutory interpretation is a question of law
             reviewable de novo.’”• Our construction of statutes is
             guided 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.




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First Ins. Co. of Hawaii v. A&B Props., 126 Hawai#i 406, 414, 271

P.3d 1165, 1173 (2012) (citations omitted) (quoting State v.

Wheeler, 121 Hawai#i 383, 390, 219 P.3d 1170, 1177 (2009)).

C.     Interpretation of agency rules

             General principles of statutory construction apply in
             interpreting administrative rules. As in statutory
             construction, courts look first at an administrative
             rule’s language. If an administrative rule’s language
             is unambiguous, and its literal application is neither
             inconsistent with the policies of the statute the rule
             implements nor produces an absurd or unjust result,
             courts enforce the rule’s plain meaning. While an
             agency’s interpretation of its own rules is generally
             entitled to deference, this court does not defer to
             agency interpretations that are plainly erroneous or
             inconsistent with the underlying legislative purpose.

Liberty Dialysis-Hawaii, 130 Hawai#i at 103, 306 P.3d at 148

(internal quotation marks and citations omitted).

                              IV.   Discussion

             Under HRS § 88-79, a member of the ERS may qualify for

service-connected disability retirement benefits if that member

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[.]

(Emphasis added); see also HAR § 6-22-8.

             This court has defined “accident” as “an unlooked for

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

Lopez v. Bd. of Trs., Employees’ Ret. Sys., State of Hawaii, 66

Haw. 127, 130-31, 657 P.2d 1040, 1043 (1983).            Notably, unlike



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workers’ compensation claims, there is no presumption of

compensability for disability retirement benefits claims.               The

party initiating the ERS 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.”         HAR § 6-23-31 (effective 2009-

2014).

             Panado argues that (1) the “circuit court erred in too

narrowly construing ‘definite time and place’” under HRS § 88-79

when it “concluded that the injuries [Panado] suffered while

lifting boxes during her October 8-9, 2004 shift did not

constitute an ‘accident’ because [she] essentially could not

point to the exact moment during such shift that she was

injured”; and (2) her October 8-9, 2004 incident is an accident

under Myers because her case is factually analogous to Myers’.

She also argues that the “evidence in this case . . .

demonstrates a causal connection between the October 8-9, 2004

incident and her incapacity.”

A.     The ICA should have applied a de novo standard to the issue
       under review, namely, whether the statutory language of
       “definite time and place” requires a claimant to show the
       exact moment when an injury occurs

             The ICA majority and dissent disagreed regarding

(1) whether the issue under review was a question of law or a

mixed question of fact; and (2) the standard of review to be


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applied to the circuit court’s decision.         Accordingly, this court

will first address these issues.

           The ICA majority concluded the issue under review was a

mixed question of law and fact regarding “whether the circuit

court erred by narrowly construing the phrase ‘a definite time

[and] place’ as used in HRS § 88-79(a) and HAR § 6-22-2 to

exclude the ‘repetitive lifting and moving of heavy boxes during

the course of [Panado’s eight-hour] shift[.]’”           (Citing Camara v.

Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797 (1984)) (brackets in

the original).    Based on this conclusion, the ICA applied a

clearly erroneous standard to the circuit court’s decision and

held that, “the circuit court’s construal of ‘a definite time and

place’ was not clearly erroneous.”

           The ICA dissent, on the other hand, would have applied

a de novo standard of review since, in its view, the

interpretation of “at some definite time and place” was a

question of law.

           The ICA majority erred in reviewing the circuit court’s

decision under a clearly erroneous standard.          “Review of a

decision made by the circuit court upon its review of an

administrative decision is a secondary appeal.           The circuit

court’s decision is reviewed de novo.         The agency’s decision is

reviewed under the standards set forth in HRS § 91-14(g).”

Liberty Dialysis-Hawaii, 130 Hawai#i at 102, 306 P.3d at 147

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(citations omitted).      As the circuit court was acting as an

appellate court to the Board of Trustees’ decision, the ICA could

only apply the HRS § 91-14(g) standards to the Board of Trustees’

decision in order to determine de novo whether the circuit

court’s decision was incorrect.10        Instead, the ICA incorrectly

applied a clearly erroneous standard to the circuit court’s

decision.

            In addition, the ICA mischaracterized the Board of

Trustee’s determination upon which this case turns as a mixed

question of law and fact, to be reviewed under a clearly

erroneous standard, rather than a question of law, reviewable

under a de novo standard.11      As a result, the ICA rejected



      10
            Indeed, the circuit court noted that it was not making a mixed
determination of law and fact, pointing out that “[t]his is a very narrow
issue regarding the definition of ‘accident[,]’” and concluding as a matter of
law that Panado’s description of the October 8-9, 2004 incident did not
satisfy HRS § 88-79’s requirement that the accident occur at “some definite
time and place[,]”
      11
            The ICA appears to have drawn its understanding of mixed question
of law and fact from the Board of Trustees, which argued in its reply brief
that:
            [Panado] has submitted that the only issue presented
            on appeal is a question of law, specifically, whether
            her alleged October 9, 2004 incident occurred at a
            “definite time and place” for purposes of qualifying
            for service-connected disability retirement benefits.
            However, [Panado] is wrong, as this case involves
            mixed questions of fact and law. Only if facts are
            undisputed may a presented question be decided as a
            matter of law.
(Citations omitted).
            This misapprehends the concept of mixed question of law and fact,
which is simply an issue that must be determined by applying the law to the
facts of a case. See Price v. Zoning Bd. of Appeals of City & Cnty. of
Honolulu, 77 Hawai#i 168, 172, 883 P.2d 629, 633 (1994) (defining a mixed
question of law and fact as a “conclusion [that] is dependent upon the facts
and circumstances of the particular case”).

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Panado’s contention that the ICA “should apply a de novo standard

of review to the undisputed fact that the alleged accident

occurred at her workplace during her eight-hour work shift.”

           However, Panado was correct.        The issue upon which this

case turns is a question of law, namely, whether the Board of

Trustees correctly construed HRS § 88-79’s language of “some

definite time and place.”      More precisely, because the parties

agreed that Panado was injured during her work shift but that she

cannot point to a specific moment of injury, the case turns upon

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.         If “some definite time

and place” requires proving the precise moment of injury, then

Panado’s claim fails as a matter of law, whereas if “some

definite time and place” is construed broadly to simply require

proof an injury occurred during a specific period of work, then

Panado’s claim survives with respect to this issue.

           Accordingly, the ICA erred in concluding that the

circuit court’s decision should be reviewed under a clearly

erroneous standard and in characterizing the determinative issue

as a mixed question of law and fact.        Because the determinative

issue here is whether the statutory language of “definite time




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and place” requires a claimant to show the exact moment when an

injury occurs, the appropriate standard of review is de novo.

           Reviewing HRS § 88-79 de novo, the statutory provision

does not require a claimant to establish the exact moment of

injury in order to recover service-connected disability

retirement benefits.     Based on the plain language and legislative

history of HRS § 88-79, Panado satisfied the provision’s

requirement of showing that an accident occurred “while in the

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

establishing that she was injured during her October 8-9, 2004

work shift.

           “[T]he fundamental starting point for statutory

interpretation is the language of the statute itself.”            First

Ins., 126 Hawai#i at 415, 271 P.3d at 1174 (quoting Wheeler, 121

Hawai#i at 390, 219 P.3d at 1177).        “[W]here the statutory

language is plain and unambiguous, our sole duty is to give

effect to its plain and obvious meaning.”         Id.    The Board of

Trustees maintains that the word “definite” in “definite place

and time” requires a showing of the “specific time and place” at

which her injury occurred.

           Contrary to the Board of Trustees’ contention, however,

the standard definition of “definite” does not require “definite

time and place” to mean the exact moment of injury.            See Olelo:

The Corp. for Cmty. Television v. Office of Info. Practices, 116

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Hawai#i 337, 349, 173 P.3d 484, 496 (2007) (concluding that in

the absence of a legislative definition of a term, courts can

look to legal and lay dictionaries for guidance as to the term’s

meaning).    “Definite” is commonly defined as, “clearly stated or

decided; not vague or doubtful.”        The New Oxford Dictionary 447

(2001).   Here, the parties stipulated to the fact that Panado was

injured during her work shift on October 8-9, 2004.            The time and

place of injury is neither vague nor doubtful in this case.

            The Board of Trustees also argues that interpreting HRS

§ 88-79 to permit recovery when Panado cannot point to the

specific moment of injury would render the “definite time and

place” language “superfluous, void, or insignificant.”            See

Beneficial Hawaii, Inc. v. Kida, 96 Hawai#i 289, 309, 30 P.3d

895, 915 (2001) (“[C]ourts are bound to give effect to all parts

of a statute, and that no clause, sentence, or word shall be

construed as superfluous, void, or insignificant.” (Citations

omitted)).   This contention is without merit.         Rejecting the

Board of Trustees’ overly narrow interpretation of “definite time

and place” does not mean jettisoning the “definite time and

place” requirement.     Instead, Panado satisfied the “some definite

time and place” requirement by establishing that she was injured

during her October 8-9, 2004 work shift.

            Accordingly, based on the commonly accepted meaning of

“definite,” a showing that the injury occurred during Panado’s

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October 8-9, 2004 work shift does satisfy HRS § 88-79’s “some

definite time and place” requirement.12

           Even assuming the statutory provision is ambiguous, the

legislative history does not indicate the legislature intended

“definite time and place” to restrict disability benefits to

those who could show the specific moment of injury.            First Ins.,

126 Hawai#i at 415, 271 P.3d at 1174 (“[w]hen a statute contains

an ambiguity . . . . courts may resort to extrinsic aids in

determining legislative intent, such as legislative history”)

(quoting Wheeler, 121 Hawai#i at 390, 219 P.3d at 1177).

           The “some definite time and place” language has been

part of the provision on accidental disability retirement

benefits ever since the territorial legislature first established

Hawaii’s employee retirement system in 1925.          See 1925 Haw. Sess.

Laws Act 55, § 6(5) at 59-60.       The first accidental disability

provision stated that:
           Upon application of a member, or of the head of his
           department, any member who has been totally and
           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, through no negligence on his part, shall be
           retired by the board of trustees, provided that the
           medical board shall certify that such member is
           mentally or physically incapacitated for the further
           performance of duty, that such incapacity is likely to
           be permanent, and that such member should be retired.



     12
            There could be a line-drawing issue in other cases regarding how
long a period of time must be before it no longer is “definite.” However, it
is unnecessary to decide the issue here because in the instant case there is
no dispute that the injury occurred during a specific and defined period of
work.

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Id.

              The 1925 Territorial Legislature’s Joint Committee on

Pensions issued a Special Committee Report that outlined the main

provisions of the proposed Bill regarding the territorial

government’s employee retirement system, including the accidental

disability provision quoted above.           H. Spec. Comm. Rep. No. 7 at

1 (1925).      The territorial legislature did not appear to address

the “some definite time and place” language. Instead, the

territorial legislature was concerned with whether an accident

occurred during work, not with whether the employee could

pinpoint the exact moment of injury.           For example, the report

explained that, “Disability benefits are paid upon permanent

disability as the result of an accident in the performance of

duty at any time or upon disability from any cause after the

employee has had ten or more years of service.”              Id. at 7.    The

report later discussed the disability benefits provision in more

detail, stating that, “The plan provides that a distinction shall

be made in the cases of permanent disability that occur as a

result of accidents in the performance of duty and those due to

ordinary causes for which the government is not directly

responsible.”       Id. at 27.    Likewise, the report noted that, “In

the case of total and permanent disability due to an accident in

the performance of duty the committee believed that a pension

should always be payable regardless of the age or length of

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service of the member.”      Id.   As the above examples show, every

reference to the provision on accidental disability benefits did

not indicate that “some definite time and place” or any other

part of the provision required a claimant to specify the exact

moment of injury.    The key question reiterated by the committee

at several points was whether the accident occurred “in the

performance of duty.”     The 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.

           The legislature’s subsequent expansion of coverage

under HRS § 88-79 also counsels against the restrictive

interpretation adopted by the circuit court.          In 1965, the

legislature amended the service-connected total disability

statute to include a second category of recovery for any member

of the retirement fund “who has been permanently incapacitated

. . . as the cumulative result of some occupational hazard[.]”

See 1965 Haw. Sess. Laws Act 225, § 1(a) at 355.           This court has

subsequently interpreted “occupational hazard” to permit a

claimant to recover when he or she has been exposed to a danger

accompanying a particular job “if it is not a risk common to

employment in general.”      See Komatsu v. Bd. of Trs., Employees’

Ret. Sys., 67 Haw. 485, 494, 693 P.2d 405, 412 (1984) (quoting

Lopez, 66 Haw. at 129, 657 P.2d at 1042).         Given the

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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.

            In addition to the lack of support in the legislative

history, there are several other reasons for not adopting the

Board of Trustees’ narrow reading of HRS § 88-79’s “some definite

time and place” language.      One reason for rejecting the Board of

Trustees’ interpretation is it unreasonably excludes those

service-connected disabilities in which symptoms do not manifest

at the exact moment of the accident.        In fact, the Medical Board

appeared to read this exclusion into HRS § 88-79, by arguing that

the provision requires that an accident immediately manifest pain

to be recoverable.     The Medical Board determined Panado did not

suffer an “accident” because her pain symptoms manifested the

next day.   Dr. Chinn, a member of the Medical Board who also

testified on its behalf, stated that “[a]n accident . . . is not

something that occurs and then develop[s] symptoms the following

day.”   Dr. Chinn further testified that “when you have an

accident you have usually immediate symptoms” and that, the “ERS

definition of accident is pretty clear.         It’s got to occur at a

specific date and time and in general, there’s an immediate

complaint of pain or disability.”         Thus, when asked about whether

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Panado had suffered an accident, given that she experienced pain

the following day, Dr. Chinn stated, “No. Especially because her

pain was described as occurring the following day.”

            The Hearing Officer relied on Dr. Chinn’s testimony in

finding that Panado’s October 8-9 incident did not constitute an

accident.    In her Recommended Decision, the Hearing Officer

concluded that, “[t]he fact that [Panado] reported twice that she

was not injured until the next day is significant,” then quoted

Dr. Chinn’s testimony that, “generally when you have an accident

you have usually immediate symptoms.”         As discussed supra, the

Board of Trustees adopted the Hearing Officer’s Recommended

Decision.

            However, there is no indication the legislature

intended to categorically exclude coverage for accidents that do

not result in immediate symptoms.         Although Dr. Chinn testified

that the “ERS definition of accident is pretty clear” that there

must be “an immediate complaint of pain or disability[,]” the

plain language and legislative history of HRS § 88-79 do not

include such a requirement.

            The existence of accidents that do not result in

immediate symptoms calls into question the reasonableness of

denying benefits when the claimant can point to the exact period

of work during which an accident occurred, but is unsure of which

exact act caused his or her incapacitation.          Using a slight

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variation on the facts in Myers13 as an example:           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

§ 88-79.14   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.”         Korean Buddhist Dae Won Sa

Temple of Hawaii v. Sullivan, 87 Hawai#i 217, 229, 953 P.2d 1315,

1327 (1998).


      13
            Myers is not determinative of whether Panado’s incident is an
“accident” under HRS § 88-79. Although Myers and the instant case are
factually similar because both involved claimants who suffered injuries as a
result of lifting something, Myers is not dispositive because it is
distinguishable with regard to the key issue here, whether a claimant under
HRS § 88-79 must prove the specific moment of injury. Whereas Panado
“acknowledges that she is uncertain as to exactly when on October 8-9, 2004
her injury occurred,” Myers was able to point to the moment he injured
himself, when he lifted the coffee pot and heard a snap, see 68 Haw. at 95,
704 P.2d at 903. Thus, Myers did not provide guidance as to how to interpret
the “a definite time and place” requirement of HRS § 88-79. Accordingly,
Myers does not control the instant case.
      14
            In fact, the circuit court recognized that some injuries cannot be
pinpointed to a specific instance. At the September 14, 2012 hearing, the
Board of Trustees’ counsel argued that in Myers, “there [was] a physical
symptom that pinpoints, much like a car accident. If there is a time and
place where the accident occurs and an impact occurs, people can pretty much
pinpoint that.” However, the circuit court disagreed, pointing out that “soft
tissue and low impact” accidents may not develop symptoms until much later.

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           Accordingly, the Board of Trustees erred in concluding

that Panado did not suffer “an accident occurring while in the

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

           However, since the circuit court did not address the

Board of Trustees’ second ground for denying Panado’s

application, that “[Panado’s] permanent incapacity is not the

natural and proximate result of the alleged incident[,]” we

remand with regard to that issue.15




      15
            We also note two observations for the court on remand. First,
given that the Board of Trustees’ FOF 22 and COL 2 refer to the lack of an
accident, on remand, the court will have to determine whether our analysis
affects the validity of those holdings.
            Second, we disagree with the Board of Trustees’ conclusion that,
“[s]ince [Panado] had returned to work and was able to perform all of the
duties of her full-time job by the October 24, 2005 date of Dr. Maruyama’s
IME, [Panado’s] permanent incapacity cannot be said to naturally follow from
the alleged accident.” A claimant’s return to work does not, in and of
itself, prove a lack of causation between the accident and the later
incapacitation. See, e.g., Jewel Tea Co. v. Indus. Comm’n, 233 N.E.2d 557,
559 (Ill. 1968) (stating that “a claimant’s return to work after an accident
is not determinative of causation between the accident and subsequent
disability”); Walker v. United Parcel Serv., 865 P.2d 1113, 1116-17 (Mont.
1993) (“[workers’ compensation claimant’s] return to work is not relevant to
the causation issue.”). As a matter of common sense, “the fact that [a
claimant] returned to his [or her] regular job does not indicate that he [or
she] was completely well or that he [or she] was experiencing no pain.”
Walker, 865 P.2d at 1116-17. Moreover, from a policy perspective, a return to
work despite continuing pain or injury should not be held against an employee
in the determination of benefits. Doing so would disincentivize employees
from going back to work for fear that returning would disqualify them from
receiving benefits. On remand, the fact that Panado went back to work in the
time between her October 8-9, 2004 incident and her later permanent
incapacitation should not be construed as proof that the incapacitation did
not naturally and proximately result from the October 8-9, 2004 incident.

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                             V.   Conclusion

           For the foregoing reasons, the ICA’s judgment is

vacated, the circuit court’s judgment and “Decision And Order

Affirming The Final Decision of the Board Of Trustees Of The

Employees’ Retirement System Of The State Of Hawai#i are vacated.

The case is remanded to the circuit court for further proceedings

consistent with this opinion.

Philip W. Miyoshi                  /s/ Mark E. Recktenwald
for petitioner
                                   /s/ Paula A. Nakayama
Elmira K.L. Tsang
and Kyle K. Chang                  /s/ Sabrina S. McKenna
for respondent
                                   /s/ Richard W. Pollack

                                   /s/ Jeannette H. Castagnetti




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