                                                     Electronically Filed
                                                     Supreme Court
                                                     SCWC-XX-XXXXXXX
                                                     06-FEB-2020
                                                     07:59 AM



          IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---
________________________________________________________________

                         DEBBIE S. QUEL,
           Petitioner/Petitioner-Appellant/Appellant,

                               vs.

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


                         SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-XX-XXXXXXX; CIVIL NO. 1CC151001308)

                        FEBRUARY 6, 2020

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

               OPINION OF THE COURT BY McKENNA, J.

                        I.   Introduction

     In 2008, Debbie Quel (“Quel”), an eighteen-year cafeteria

helper for the State of Hawaiʻi Department of Education (“DOE”),

applied for “service-connected disability retirement” benefits

pursuant to Hawaiʻi Revised Statutes (“HRS”) § 88-79(a) (Supp.

2007), which provides in relevant part that “any member who has
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been permanently incapacitated for duty . . . as the cumulative

result of some occupational hazard . . . may be retired by the

board for service-connected disability[.]”

      There was no dispute that Quel was a “member” “permanently

incapacitated for duty” “as the cumulative result of” her

working conditions.      Quel’s application for “service-connected

disability retirement” benefits was, however, denied by the

Board of Trustees of the Employees’ Retirement System of the

State of Hawaiʻi (“ERS Board”) on the grounds that the working

conditions that caused Quel’s permanent incapacity did not

constitute an “occupational hazard” as defined by Hawaiʻi law.

The Circuit Court of the First Circuit1 (“circuit court”) and the

Intermediate Court of Appeals (“ICA”) affirmed.

      The ERS Board concluded that although Quel’s permanent

incapacity was due to the cumulative effects of work-related

activities, she failed to meet her burden of establishing that

her incapacity resulted from an “occupational hazard.”             The ERS

Board based its decision on Quel’s failure to introduce evidence

that the “lifting requirements” of her job were “different in

character from those in the general run of occupations”

testified to by the ERS Medical Board’s (“Medical Board”)

physician chair and “that her work related problems were limited

to a relatively few number of occupations.”

1
      The Honorable Rhonda A. Nishimura presided.

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      On certiorari, Quel contends the ICA, circuit court, and

ERS Board erred in adopting the definition of “occupational

hazard” contained in Hawaiʻi Administrative Rules

(“HAR”) § 6-22-2 (effective 1989-2009), which defines the term

as “a danger or risk which is inherent in, and concomitant to, a

particular occupation or particular job, if [it is] not a risk

common to employment in general.”        Quel contends HAR § 6-22-2

contravenes HRS § 88-79(a), as HRS § 88-79(a) affords service-

connected disability retirement to members for permanent

incapacity due to “some occupational hazard.”          Quel also asserts

error in the ICA and circuit court’s affirmance of the ERS

Board’s conclusion that her permanent incapacity did not result

from an “occupational hazard.”

      We hold that HAR § 6-22-2 correctly defines an

“occupational hazard” as “a danger or risk which is inherent in,

and concomitant to, a particular occupation or particular job,

if [it is] not a risk common to employment in general[,]” as the

definition is based on our decisions in Lopez v. Bd. of Trs.,

Emps.’ Ret. Sys., 66 Haw. 127, 129, 657 P.2d 1040, 1042 (1983),

and Komatsu v. Bd. of Trs., Emps.’ Ret. Sys., 67 Haw. 485, 494,

693 P.2d 405, 411 (1984).      We further hold that the definition

of “occupational hazard” for purposes of service-connected

disability retirement benefits does not include a requirement

that permanent incapacity resulting from the cumulative effects

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of work-related activities be “limited to a relatively few

number of occupations.”      Finally, we also hold that the ERS

Board clearly erred in finding and concluding that Quel’s

permanent capacity did not result from “a danger or risk which

is inherent in, and concomitant to,” her “particular occupation

or particular job,” which was “not a risk common to employment

in general.”

      Accordingly, we vacate the ICA’s July 6, 2018 judgment on

appeal and the circuit court’s April 13, 2016 (1) “Decision and

Order Affirming the Final Decision of the Appellee Board of

Trustees of the Employees’ Retirement System of the State of

Hawaii and Dismissing Appellant Debbie S. Quel’s Appeal” and

(2) final judgment.     We remand this case to the ERS Board for

further proceedings consistent with this opinion.

                             II.   Background

A.    Factual background

      Quel worked for the DOE at Waialua Elementary School,

Mililani High School, Haleiwa Elementary School, and Wahiawa

Elementary School, before transferring to Helemano Elementary

School (“Helemano”).

      At Helemano, Quel’s daily duties as a cafeteria helper

involved lifting heavy trap doors, putting things into the oven

for breakfast, scooping rice with her left hand for about 250

trays, pinching dough, peeling potatoes, cutting vegetables,

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opening numerous cans with an old-fashioned manual can opener,

carrying heavy boxes or cases of food products, and serving the

meals to the students.     She also helped cook rice in the oven.

Because Helemano did not have rice cookers, to cook the rice,

she would wash the rice in the morning, place the rice into six

or seven eight-inch pans, then lift and slide the pans over her

head into the oven, which was taller than Quel.           She also

emptied the vegetables and other food out of the pots used to

make stew.   During Quel’s testimony, she explained that Helemano

did not have the equipment common in other school cafeterias --

such as rice cookers, electric can openers, and machines for

cutting vegetables or bread -- which increased the repetitive

labor she had to do every day.       In the summer, Quel did

custodial-type work, such as buffing floors, shampooing the

carpet, moving furniture, and cleaning up.

      Quel’s last day of work for the DOE at Helemano was on

November 12, 2008.     The next day, she was seen by a physician,

who evaluated Quel’s swollen hands and painful shoulders

allegedly caused by repetitive motions and activities at work.

For the next few years, Quel was seen by various physicians for

these injuries.    She was diagnosed with various work-related

injuries to her hands, wrists, and shoulders, and underwent

multiple surgeries to her shoulders, wrists, fingers, and thumb.



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B.    Application for service-connected disability benefits

      On November 22, 2010, Quel applied for service-connected

disability retirement benefits with the ERS Board.            The Medical

Board issued a report to the ERS Board on August 22, 2012

(“Medical Board Report”), indicating it had reviewed Quel’s

application; her employment, personnel, workers’ compensation,

and medical records; and had interviewed Quel.2           The Medical

Board concluded that Quel was permanently incapacitated for

performing her job as a cafeteria helper.          The Medical Board

also opined, however, that Quel’s permanent incapacity was not

“the cumulative result of a danger or risk inherent in and

concomitant to” her occupation.

      On March 11, 2013, the ERS Board reviewed the Medical Board

Report and made a preliminary decision to deny Quel’s

application for service-connected disability retirement

benefits, and informed Quel of her appeal rights.            Quel filed an


2
      HRS § 88-79(d) (2012) provides:

            (d) The board may determine whether or not the disability
            is the result of an accident occurring while in the actual
            performance of duty at some definite time and place and
            that the disability was not the result of wilful negligence
            on the part of the member. The board may accept as
            conclusive:

                  (1) The certification made by the head of the agency
                  in which the member is employed; or
                  (2) A finding to this effect by the medical board.

      HAR Title 6, Chapter 22 governs procedures for certifications and
findings of the Medical Board relating to matters including service-connected
disability retirement benefits under HRS § 88-79. HAR § 6-22-1(2) (effective
1984-2009).

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appeal on April 29, 2013, and the matter was referred to the

Office of Administrative Hearings.        A hearing was conducted on

April 10, 2014; Quel and the physician chair of the Medical

Board appeared at the hearing, represented by counsel.            The

hearings officer received and reviewed evidence regarding Quel’s

employment and medical treatment.

      In her post-hearing brief, Quel noted that because the

Medical Board had conceded she was permanently incapacitated for

further performance of duty as a cafeteria worker, the only

issue was whether her repetitive use injuries were the result of

occupational hazards from working as a cafeteria helper.                Quel

asserted the Medical Board’s recommended denial of her service-

connected disability retirement benefits was based on an

erroneously narrow view of “occupational hazard” and not on the

causation of her injuries, which was left undisputed.            She

contended her medical records, as well as her testimony, clearly

indicated her injuries were a result of overuse, repetitive use,

or cumulative trauma while performing her job, entitling her to

service-connected disability retirement benefits.           Quel also

cited to Komatsu as supporting her position.

      In opposition, the Medical Board contended Quel’s permanent

incapacity was not the cumulative result of an occupational

hazard, citing to Lopez, Komatsu, and the definition of

“occupational hazard” in HAR § 6-22-2.         The Medical Board argued

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that repetitive use of hands and shoulders is common to various

other occupations, including administrative assistants,

custodians, musicians, and medical professionals, all who also

use their shoulders and hands at work.           It further argued that

Quel’s job description as a cafeteria helper did not list any

unusual occupational hazards, the use of Quel’s hands and

shoulders was not uncommon to employment in general, and none of

the actions in her job description were inherently dangerous.

The Medical Board requested the ERS Board affirm its preliminary

decision and deny Quel service-connected disability retirement

benefits.

      On July 23, 2014, the hearings officer issued a recommended

decision containing fifty-one findings of fact (“FOFs”) and

twenty-nine conclusions of law (“COLs”).           On August 28, 2014,

the ERS Board issued a proposed decision adopting relevant FOFs

and COLs in the hearings officer’s recommended decision in their

entirety.3    After arguments on Quel’s exceptions to the proposed

decision on May 13, 2015, on June 9, 2015, the ERS Board issued

its final decision affirming its proposed decision.

      In its FOFs, the ERS Board found in relevant part:

             46.   Repetitive use of the hands and arms is common to
             employment in general. . . .

3
      The ERS Board amended COL 1 to indicate that as a noncontributory plan
member, Quel’s application was actually brought under HRS § 88-285 (Supp.
2005), not HRS § 88-336 (Supp. 2007), which governs hybrid plan members. As
the ERS Board also noted, service-connected disability requirement benefits
under HRS § 88-285 are, in any event, adjudged under the requirements set
forth in HRS § 88-79.

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           47.   Other occupations besides cafeteria helper require
           repetitive use of a person's hands. This includes court
           reporters, clerical workers, people who stock shelves,
           people who pick strawberries, people who cut hair, dish
           washers, mail sorters, data entry workers, musicians,
           people who do sign language, and surgeons. . . .

      In its FOFs and COLs, the ERS Board found and concluded in

relevant part:

           16.   [] [The ERS Board] finds and concludes [Quel’s]
           incapacitation was due to the cumulative effects of work
           related activities.

           17.   That conclusion, however, does not end the analysis
           of [Quel’s] claim. [Quel’s] position appears to be . . .
           that work related incapacitating injuries due to repetitive
           work activities equate to an “occupational hazard." The
           [ERS Board] concludes, however, that such a position is
           not in accord with the law applicable to ERS service-
           connected disability benefits.

           18.   The definition of "occupational hazard" is a legal
           one that must follow the specific terms of the statutes and
           regulations applicable to the ERS.

                 . . . .

           22.   As the Lopez case explains, the mere fact that a
           medical condition is job related does not lead to the
           conclusion that the condition is the result of an
           occupational hazard.

                 An occupational hazard is a danger or risk which is
                 inherent in[] and concomitant to a particular
                 occupation. To be considered an occupational hazard,
                 the causative factors must be those which are not
                 ordinarily incident to employment in general
                 and must be different in character from those found
                 in the general run of occupations.

           66 Haw. at 129, 657 P.2d at 1042. [Emphasis omitted.]
           [Quel] failed to introduce evidence that the lifting
           requirements were "different in character" from those in
           the general run of occupations that were the subject of
           [the Medical Board physician chair’s] testimony.

           23.   The [ERS Board] does not interpret the concept of the
           general run of occupations to automatically include all
           occupations. [Emphasis omitted.] The Medical Board
           introduced evidence that [Quel’s] problems were similar to
           work related problems across a wide spectrum of
           occupations. . . . [Quel] had the burden to introduce
           evidence that her work related problems were limited to a


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           relatively few number of occupations, but she failed to do
           so.

(Emphases added.)

      Thus, the ERS Board concluded Quel’s permanent incapacity

did not qualify as an “occupational hazard” because she failed

to show that her work-related problems were “different in

character from those in the general run of occupations” and

“were limited to a relatively few number of occupations.”                On

this basis, the ERS Board ruled that Quel was not entitled to

service-connected disability retirement benefits.

C.    Appeal to the circuit court

      Quel filed a notice of appeal to the circuit court.               The

circuit court concluded Quel failed to carry her burden of

proving her permanent incapacity was the cumulative result of an

occupational hazard, affirmed the ERS Board, and filed its final

judgment on April 13, 2016.

D.    Appeal to the ICA

      Quel further appealed to the ICA.        In its May 18, 2018

summary disposition order (“SDO”), the ICA ruled the ERS Board

and the circuit court did not err in relying on the definition

of “occupational hazard” contained in HAR § 6-22-2.            Quel v. Bd.

of Trs., Emps.’ Ret. Sys., No. CAAP-XX-XXXXXXX, at 3 (App. May

18, 2018).   The ICA also concluded Quel failed to prove her work

conditions were “not ordinarily incident to employment in

general” and were “different in character from those found in
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the general run of occupations.”           Quel, SDO at 5.   The ICA

affirmed the circuit court’s final judgment.           Id.

D.    Certiorari application

      Quel’s certiorari application raises one question:

                  Whether or not cumulative trauma (i.e., excessive
            kitchen and cafeteria work of cutting, peeling, chopping,
            stirring, missing [sic], pinching, lifting and carrying
            resulting in [Quel’s] upper extremity injuries) is an
            “Occupational Hazard” entitling [Quel] to Service-Connected
            Disability Retirement benefits with the ERS.

                        III.   Standards of Review

A.    Interpretation of a statute

      Statutory interpretation is a question of law reviewable de

novo.   Citizens Against Reckless Dev. v. Zoning Bd. of Appeals,

114 Hawai‘i 184, 193, 159 P.3d 143, 152 (2007).           When

interpreting statutes, we look at the following:

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

114 Hawai‘i at 193-94, 159 P.3d at 152-53 (citation omitted).

B.    Administrative agency appeals

      An appellate court reviews administrative decisions by

applying the following standard:

                  Review of a decision made by the circuit court upon
            its review of an agency’s decision is a secondary appeal.
            The standard of review is one in which [the appellate]
            court must determine whether the circuit court was right or
            wrong in its decision, applying the standards set forth in
            HRS § 91-14(g) to the agency’s decision.



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Korean Buddhist Dae Won Sa Temple of Haw. v. Sullivan, 87 Hawai‘i

217, 229, 953 P.2d 1315, 1327 (1998) (alteration in original

omitted).4

                               IV.   Discussion

A.    The definition of “occupational hazard” in HAR § 6-22-2
      is consistent with our case law.

      Preliminarily, on certiorari, Quel repeats her contention

that the definition of “occupational hazard” in HAR § 6-22-2

contravenes HAR § 88-79(a).          She points out HRS § 88-79(a)

provides that “any member who has been permanently incapacitated

for duty . . . as the cumulative result of some occupational

hazard . . . may be retired by the board for service-connected

disability[.]”      She argues that HRS § 88-79(a) does not restrict

“some occupational hazard” to the definition in HAR § 6-22-2, “a

danger or risk which is inherent in, and concomitant to, a


4
      HRS § 91-14 (Supp. 2016), entitled “Judicial review of contested
cases,” provides in relevant part:

             (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 have been prejudiced because the
             administrative findings, conclusions, decisions, or orders
             are:
                   (1) In violation of constitutional or statutory
             provisions;
                   (2) In excess of the statutory authority or
             jurisdiction of the agency;
                   (3) Made upon unlawful procedure;
                   (4) Affected by other error of law;
                   (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.

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particular occupation or particular job, if [it is] not a risk

common to employment in general.”           Quel therefore contends the

ICA, circuit court, and ERS Board erred in applying the

HAR § 6-22-2 definition of “occupational hazard” to her case.

      Quel’s contention is without merit, as the definition of

“occupational hazard” in HAR § 6-22-2 is derived from our

decisions in Lopez and Komatsu.

      In Lopez, we held that an “occupational hazard” for

service-connected disability retirement purposes “is a danger or

risk which is inherent in, and concomitant to a particular

occupation,” and that the disability’s “causative factors must

be those which are not ordinarily incident to employment in

general and must be different in character from those found in

the general run of occupations.”           66 Haw. at 129, 657 P.2d at

1042.   In that case, a state employee contended the stress and

pressures from his job contributed to a mental health-related

disability and that he should be eligible for service-connected

disability retirement benefits.        66 Haw. at 128, 657 P.2d at

1041.   We adopted the definition above and ruled that the

pressures and stress in the employee’s job were not

exceptionally different from those found by other employees in

other occupations.      66 Haw. at 130, 657 P.2d at 1042.

      The next year, we decided Komatsu, which addressed a city

employee’s service-connected disability retirement claim for an

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obstructive respiratory defect caused by exposure to mold and

fungi from a defective workplace air conditioning system, which

permanently incapacitated him for further performance of duty.

67 Haw. at 488, 494, 693 P.2d at 407, 411.          We examined the

employee’s specific work environment in addressing whether the

work environment constituted an occupational hazard, not whether

the exposure to the contaminants that caused the employee’s

disability was an occupational hazard to office workers in

general.   67 Haw. at 494, 693 P.2d at 411-12.         We stated:

                 Where, as in this case, the employee was exposed to
           mold or fungi in his particular work environment over a
           lengthy period and the causal nexus between the exposure
           and his disability is undisputed, entitlement to service-
           connected disability retirement benefits is clear. For a
           danger that accompanies a particular job is an
           “occupational hazard” if it is not a risk common to
           employment in general. And since the peril of noxious
           organisms emitting from faulty air-conditioning systems is
           hardly incident to employment generally, we are led to the
           ineluctable conclusion that the intermediate court erred in
           holding Komatsu's disability was not the cumulative result
           of an “occupational hazard.”

Id. (internal citation and footnote omitted).          Therefore,

in Komatsu, we ruled that where a causal nexus between a

work condition and a disability is undisputed, entitlement

to service-connected disability retirement benefits is

clear, and a danger that accompanies a particular job is an

“occupational hazard” if it is not a risk common to

employment in general.

      Thus, the definition of “occupational hazard” in

HAR § 6-22-2 is an amalgam of our definitions of the term in


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Lopez and Komatsu.     Quel’s contention that the ICA, circuit

court, and ERS Board erred in applying the HAR § 6-22-2

definition of “occupational hazard” to her case is therefore

without merit.

B.    An occupational hazard does not require a risk be “limited
      to a relatively few number of occupations.”

      Although the definition of “occupational hazard” quoted by

the ERS Board is correct, in denying service-connected

disability retirement benefits to Quel, the ERS Board added a

requirement to the definition that does not exist in the law.

In FOF 47, the ERS Board found that other occupations besides

cafeteria helpers require repetitive use of a person's hands,

including “court reporters, clerical workers, people who stock

shelves, people who pick strawberries, people who cut hair, dish

washers, mail sorters, data entry workers, musicians, people who

do sign language, and surgeons.”          Based on this finding, the ERS

Board concluded in COL 23 that Quel’s permanent incapacity did

not qualify as an “occupational hazard” because she failed to

show her work-related problems “were limited to a relatively few

number of occupations.”

      Lopez, Komatsu, and HAR § 6-22-2 do not include a

requirement that permanent incapacity resulting from the

cumulative effects of work-related activities be “limited to a

relatively few number of occupations.”         Rather, an “occupational


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hazard” is “a danger or risk which is inherent in, and

concomitant to, a particular occupation or particular job, if

[it is] not a risk common to employment in general.”

      By defining an occupational hazard to exclude risks common

to employment in general, we only excluded “work pressures and

frustrations, in and of themselves, [from] constitut[ing] an

occupational hazard.”5      Lopez, 66 Haw. at 129, 657 P.2d at 1042.

We did not impose an additional requirement that an employee

prove their work-related problems “were limited to a relatively

few number of occupations.”       In fact, in Komatsu, we rejected a

requirement that an employee submit data comparing their

employment to other industries, and noted “the imposition of

similar requisites in other situations would render

‘occupational hazard’ well-nigh meaningless . . . .             We neither

intended nor envisioned that Lopez would be so inhibitive.”

Komatsu, 67 Haw. at 494, 693 P.2d at 411.

      Even if all of the occupations listed by the ERS Board in

FOF 47 were considered, the “danger or risk inherent in, and

concomitant to” Quel’s “particular occupation or particular job,”

was “not a risk common to employment in general.”            In this

regard, the ERS Board also concluded in COL 22 that Quel failed

to introduce evidence that “the lifting requirements” of her job


5
      However, in Lopez, we noted that “[i]n the workers' compensation
context, however, the appellant's mental infirmity would probably have been
compensable.” 66 Haw. at 130 n.1, 130, 657 P.2d at 1042 n.1.

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were "different in character" from those in the occupations

listed in FOF 47.     Even assuming the ERS Board meant to include

“repetitive use of hands” in COL 22 as not being “different in

character,” the ERS Board had also noted that Quel’s job duties

included placing rice into six or seven eight-inch pans and

lifting them into and lowering them from an oven taller than

her, emptying food out of stew pots, pinching dough, scooping

rice with her left hand for about 250 trays, peeling potatoes,

cutting vegetables, and opening numerous cans with an old-

fashioned manual can opener instead of an electric can opener.

      The cumulative, repetitive work performed by Quel,

especially without the proper equipment, which led to the

serious injuries to her hands, wrists, and shoulders, requiring

multiple surgeries to her shoulders, wrists, fingers, and thumb,

and resulting in her permanent incapacity for duty, is not “a

risk common to employment in general.”          As in Komatsu, a

determination of whether an “occupational hazard” exists

requires an analysis of whether a specific work environment

created the occupational hazard.           The nature of Quel’s

occupation or job, as well as the lack of proper equipment at

her job site, both contributed to her injuries.

      Thus, the “danger or risk” “inherent in, and concomitant to”

Quel’s “particular occupation” as a cafeteria helper, or to her

“particular job” at Helemano, was “not a risk common to

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employment in general.”      We therefore also hold the ERS Board

erred in concluding Quel’s permanent incapacity did not result

from “a danger or risk which is inherent in, and concomitant

to,” her “particular occupation or job,” which was “not a risk

common to employment in general.”

                             V.   Conclusion

      Based on the reasons above, we vacate the ICA’s July 6,

2018 judgment on appeal and the circuit court’s April 13, 2016

(1) “Decision and Order Affirming the Final Decision of the

Appellee Board of Trustees of the Employees’ Retirement System

of the State of Hawaii and Dismissing Appellant Debbie S. Quel’s

Appeal” and (2) final judgment.       We remand this case to the ERS

Board for further proceedings consistent with this opinion.


Dan S. Ikehara,                    /s/ Mark E. Recktenwald
for petitioner
                                   /s/ Paula A. Nakayama
Elmira K.L. Tsang,
(Jodi L.K. Yi                      /s/ Sabrina S. McKenna
with her on the briefs)
for respondent                     /s/ Richard W. Pollack

                                   /s/ Michael D. Wilson




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