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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-FEB-2026
07:57 AM
Dkt. 91 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

ROBERT G. GOMES, JR., Appellant-Appellant/Cross-Appellee, v.
EMPLOYEES' RETIREMENT SYSTEM, STATE OF HAWAII,
Appellee-Appellee/Cross-Appellant.

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)

In this secondary appeal, Appellant-Appellant/Cross-
Appellee Robert G. Gomes, Jr. (Gomes) appeals from the August 15,
2023 Final Judgment (Judgment) entered in favor of Appellee-
Appellee/Cross-Appellant Employees' Retirement System, State of
Hawaii (ERS) in the Circuit Court of the Third Circuit (Circuit
Court).1/ Gomes also challenges the Circuit Court's July 25, 2023
"Decision Affirming the Final Decision in the Matter of Robert G.
Gomes, Jr. Made by the Board of Trustees of the Employees'
Retirement System [(ERS Board or Board)], Dated September 30,
2022" (Decision). The Decision and Judgment affirmed the ERS
Board's September 30, 2022 Final Decision, which, in turn: (1)
adopted, with certain modifications, the July 7, 2021 Hearings
Officer's Findings of Fact, Conclusions of Law, and Recommended
Decision (Recommended Decision); (2) affirmed the Board's
November 12, 2021 Proposed Decision; and (3) concluded that Gomes

1/
The Honorable Henry T. Nakamoto presided.
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was not entitled to service-connected disability retirement
benefits under Hawaii Revised Statutes (HRS) §§ 88-79 and -285,
quoted infra.
ERS cross-appeals from the Judgment and Decision to the
extent they reflect the Circuit Court's ruling that the subject
injury occurred in the performance of duty (performance-of-duty
ruling).
On appeal, Gomes contends that the Circuit Court erred
in affirming the ERS Board's Final Decision based on the Circuit
Court's conclusions that: (1) "Gomes did not meet his burden
under HRS Sec. 91-14 to establish that the ERS Board acted as an
advocate throughout the appeals process and in rendering its
[Final] Decision"; and (2) "the substantial record established
that Gomes is not permanently incapacitated[, in that t]hree
independent evaluators opined that Gomes is not totally
incapacitated and that he could return to work without
restrictions."
On cross-appeal, ERS contends that the Circuit Court
erred in issuing the performance-of-duty ruling because it: (a)
constitutes an advisory opinion; and (b) is erroneous.
Our review of "decision[s] made by the circuit court
upon its review of an agency's decision is a secondary appeal."
Flores v. Bd. of Land & Nat. Res., 143 Hawai#i 114, 120, 424 P.3d
469, 475 (2018) (quoting Paul's Elec. Serv., Inc. v. Befitel, 104
Hawai#i 412, 416, 91 P.3d 494, 498 (2004)). We apply the
standards set forth in HRS § 91-14(g) (2012 & Supp. 2016) to
determine whether the Circuit Court's decision was right or
wrong. Id. at 120, 424 P.3d at 475 (quoting Paul's Elec. Serv.,
104 Hawai#i at 416, 91 P.3d at 498).
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve the
parties' contentions as follows, and affirm.
(1) We first address Gomes's contention, set out in his
second point of error, that the Circuit Court erred in concluding
that "the substantial record established that Gomes is not
permanently incapacitated."

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It is undisputed that: (a) Gomes was employed as a
Street Cleaning Supervisor with the County of Hawai#i, Department
of Public Works on June 11, 2015; (b) on June 24, 2015, he
reported a "stress" injury sustained from "[w]ork place violence"
that occurred on June 11, 2015 (June 2015 Incident); and (c) on
July 22, 2019, he filed an application for service-connected
disability retirement benefits (Application) with the ERS arising
from the June 2015 Incident.2/
HRS § 88-79 (Supp. 2018) provides, in relevant part:

(a) Under rules the board of trustees may adopt, upon
application of a 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 system for service-connected disability;
provided that:
. . . .

(4) The medical board or other entity designated by
the board of trustees certifies that the member
is incapacitated for the further performance of
duty at the time of application and that the
member's incapacity is likely to be permanent.

See also HRS § 88-285 (2012) ("A member who would be eligible to
receive a service-connected disability retirement allowance
pursuant to section 88-79 shall receive a maximum retirement
allowance of thirty-five per cent of the member's average final
compensation.").
Here, the ERS Board (through its adoption of the
hearings officer's conclusions of law) determined in conclusion
of law (Board COL) III.A., in relevant part:

Finally, three (3) independent evaluators [Dr. Dana
Zichittella, Dr. Jon Streltzer, and Dr. Joseph P. Rogers]
agreed that [Gomes's] adjustment disorder/mental stress was
in full remission well before his Application date and that
[Gomes] was fully capable of doing his job as a street
cleaning supervisor. The Medical Board's witness, Dr.
Gerald McKenna, agreed with the three (3) independent

2/
Gomes has not specifically challenged any findings of fact in the
Recommended Decision, which were adopted in the ERS Board's Final Decision.
These findings of fact are therefore binding on appeal. See Poe v. Haw. Labor
Rels. Bd., 97 Hawai#i 528, 536, 40 P.3d 930, 938 (2002) (an agency's
unchallenged findings are binding on appeal).

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evaluators. . . .
Accordingly, the Hearings Officer finds and concludes
that [Gomes] has not established by a preponderance of the
evidence that he was incapacitated for the further
performance of duty as a street cleaning supervisor at the
time of application.

(Footnote omitted.) Additionally, the ERS Board addressed
Gomes's exceptions to the Board's Proposed Decision, including
his argument that the above Board COL was clearly erroneous. The
Board explained in detail why it credited the opinions of Drs.
Zichittella, Streltzer, and Rogers, and Medical Board member Dr.
McKenna, and why the opinion of Dr. Nino Murray, Gomes's
testifying expert and workers' compensation physician, "should be
given little, if any weight[.]"
The Circuit Court, in reviewing the Board's Final
Decision on primary appeal, concluded in part:

[T]he substantial record established that Gomes is not
permanently incapacitated. Three independent evaluators
opined that Gomes is not totally incapacitated and that he
could return to work without restrictions.

It is this conclusion that Gomes now challenges.
In this HRS § 91-14 secondary appeal, we review the ERS
Board's Final Decision to determine whether the Circuit Court was
right or wrong. See Flores, 143 Hawai#i at 120, 424 P.3d at 475.
The Final Decision made clear that the Medical Board and the ERS
Board concluded that Gomes failed to prove he was incapacitated
for the further performance of duty at the time of his
Application and did not reach other issues regarding permanence,
causation by accident, or negligence. Gomes challenges the
Circuit Court's conclusion regarding "permanent incapacity,"
which is a separate issue. Read liberally, however, Gomes's
arguments also appear to contest the ERS Board's conclusion that
he failed to prove incapacity for further duty. This conclusion
presents mixed issues of fact and law and, as such, is reviewed
under the clearly erroneous standard. See In re Water Use Permit
Applications, 94 Hawai#i 97, 119, 9 P.3d 409, 431 (2000).
Substantial evidence in the record supports the ERS
Board's conclusion that Gomes did not prove that he was
incapacitated for the further performance of duty at the time of

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his Application. As reflected in the Final Decision, three
independent evaluators – Drs. Zichittella, Streltzer, and Rogers
– evaluated Gomes in light of his claimed stress injury and
concluded Gomes was fully capable of returning to his position as
Street Cleaning Supervisor without any restrictions. The Medical
Board – consisting of practicing physicians Dr. Patricia L.
Chinn, Dr. Howman Lam, and Dr. McKenna – agreed and found that
Gomes was not incapacitated for the further performance of duty
at the time of his Application.
Gomes contends that the Circuit Court, in determining
he was not permanently incapacitated, erred by equating
"permanent incapacity" with "total incapacity." It is not clear
why the Circuit Court used the phrase "totally incapacitated,"
but any error in this regard was harmless. The ERS Board did not
rest its decision on the "permanence" issue (see supra), and the
three independent evaluators referenced in the Circuit Court's
Decision did not opine that Gomes could return to his position
without restrictions on the basis that he was not "totally
incapacitated." Rather, they concluded that Gomes's adjustment
disorder/mental stress was in remission and that Gomes was
capable of doing his job as a street cleaning supervisor.
Gomes argues that Dr. Murray's evaluation supports the
permanence of Gomes's injuries, and criticizes the ERS Board's
reliance on the evaluations of Drs. Zichittella, Streltzer, and
Rogers. However, "courts decline to consider the weight of the
evidence to ascertain whether it weighs in favor of the
administrative findings, or to review the agency's findings of
fact by passing upon the credibility of witnesses or conflicts in
testimony[.]" In re Hawaiian Elec. Co., 81 Hawai#i 459, 465, 918
P.2d 561, 567 (1996) (citing In re Hawaiian Elec. Light Co., 60
Haw. 625, 629, 594 P.2d 612, 617 (1979)).
Gomes also asserts that the ERS Board ignored that his
disability was caused by the June 2015 Incident and the County of
Hawaii's later actions "to force [him] out of his supervisor's
job." In fact, the Final Decision (through its adoption of the
hearings officer's conclusions of law) expressly acknowledged
this argument by Gomes. However, the ERS Board did not reach the

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issue of causation because it concluded that Gomes failed to
prove that he was incapacitated for the further performance of
duty.
Based on our own review of the pertinent record, we
conclude that substantial evidence supported the ERS Board's
conclusion that Gomes did not prove that he was incapacitated for
the further performance of duty at the time of his Application.
This conclusion was not clearly erroneous. We further conclude
that the Circuit Court did not err to the extent it concluded
that substantial evidence supported the ERS Board's decision that
Gomes was not entitled to service-connected disability retirement
benefits under HRS §§ 88-79 and -285.
(2) In his first point of error, Gomes contends that
the ERS Board violated his due process rights when it "chose to
become a participating advocate and unnecessarily defamed a
health care professional and manipulated the substantial evidence
. . . ." In particular, Gomes argues that the ERS Board "crossed
into advocacy" and "demonstrated an unconstitutional bias" by
"delegitimizing" the testimony and opinions of Dr. Murray.
"In an adjudicatory proceeding before an administrative
agency, due process of law generally prohibits decisionmakers
from being biased, and more specifically, prohibits
decisionmakers from prejudging matters and the appearance of
having prejudged matters." Mauna Kea Anaina Hou v. Bd. of Land
and Nat. Res., 136 Hawai#i 376, 389, 363 P.3d 224, 237 (2015).
Like judges, however, administrative adjudicators are presumed to
be unbiased. See In re Conservation Dist. Use Application
HA-3568, 143 Hawai#i 379, 392, 431 P.3d 752, 765 (2018) (citing
Sifagaloa v. Bd. of Trs. of Emps.' Ret. Sys., 74 Haw. 181, 192,
840 P.2d 367, 372 (1992)). "[T]his presumption is rebutted only
by a showing of a disqualifying interest, either pecuniary or
institutional, or both." Id. (citing Sifagaloa, 74 Haw. at 192,
840 P.2d at 372). The test for impropriety is "whether a
reasonable person knowing all the facts would doubt the
impartiality of [the adjudicator], or whether the circumstances
would cause a reasonable person to question [the adjudicator's]
impartiality." Id.; see Sifagaloa, 74 Haw. at 190, 840 P.2d at

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371.
Here, Gomes quotes two passages from the Final Decision
– one that he characterizes as "intemperate and factually wrong"
and the other that he claims "crossed into advocacy." Having
reviewed the record, we do not agree with these
characterizations. In context, the cited passages are part of
the ERS Board's detailed explanation as to why it weighted the
opinions of Drs. Zichittella, Streltzer, Rogers, and McKenna over
that of Dr. Murray. No disqualifying interest of the Board was
shown, and the circumstances did not fairly give rise to an
appearance of impropriety and reasonably cast suspicion on the
Board's impartiality. See In re Conservation District Use
Application HA-3568, 143 Hawai#i at 392, 431 P.3d at 765. The
Circuit Court was not wrong in so concluding.
(3) In its cross-appeal, ERS contends that the Circuit
Court erred in ruling in part as follows:

[A]lthough the incident did not occur during work hours, at
the work premises, or while Gomes was on duty, the Court
finds that the injury occurred in the performance of duty.
While the incident happened at Gomes'[s] home, the accident
[that] prompted the incident occurred at work. Moreover,
[Gomes's coworker] was at Gomes'[s] home at the direction of
[Gomes's supervisor]. As the topic and discussion were
related to the accident that happened at work, the Court
finds, in considering the constellation of circumstances
surrounding the entirety of the event that resulted in the
injury, that the injury did occur in the performance of
duty.

ERS argues that this ruling constituted an advisory opinion
because once the court determined that Gomes failed to prove he
was permanently incapacitated for the further performance of
duty, the issue as to whether Gomes's injury occurred in the
performance of duty became moot. ERS further argues that, in any
event, the performance-of-duty ruling was erroneous.
This was not an advisory opinion on an abstract
proposition of law. While the ERS Board did not decide whether
Gomes's injury was caused by an accident, in its Final Decision,
the Board expressly "note[d]" that the June 2015 Incident "did
not occur 'while in the actual performance of duty' . . . ." On
primary appeal, Gomes contended that this conclusion was wrong,
and ERS argued the opposite.

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It is true that the Circuit Court, having decided that
substantial evidence supported the ERS Board's decision to deny
service-connected disability retirement benefits, need not have
reached the performance-of-duty issue. However, the Circuit
Court did not vacate the ERS Board's performance-of-duty
conclusion in the Final Decision. In these circumstances, the
Circuit Court's performance-of-duty ruling appears to be dictum.
ERS provides no authority requiring this court to selectively
vacate the court's ruling on that basis, particularly where ERS
has not argued or shown that the performance-of-duty ruling will
have any issue preclusive effect or other collateral consequences
for the parties. In these circumstances, we also decline to
reach ERS's argument that the performance-of-duty ruling, i.e.,
dictum, was erroneous.
For the reasons discussed above, the Final Judgment
entered on August 15, 2023, in the Circuit Court of the Third
Circuit is affirmed.

DATED: Honolulu, Hawai#i, February 26, 2026.

On the briefs:
/s/ Katherine G. Leonard
Ted H.S. Hong Presiding Judge
for Appellant-Appellant/
Cross-Appellee.
/s/ Keith K. Hiraoka
Randall S. Nishiyama and Associate Judge
Lori N. Tanigawa,
Deputy Attorneys General,
for Appellee-Appellee/ /s/ Clyde J. Wadsworth
Cross-Appellant. Associate Judge