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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-FEB-2026
07:51 AM
Dkt. 52 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

ALLAN J. ZACHARY, Appellant-Appellant, v.
EMPLOYEES' RETIREMENT SYSTEM, STATE OF HAWAII,
Appellee-Appellee.

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

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, and Leonard and Wadsworth, JJ.)

In this secondary appeal, Appellant-Appellant Allan J.
Zachary (Zachary) appeals from the April 3, 2023 Final Judgment
entered in favor of Appellee-Appellee Employees' Retirement
System, State of Hawaii (ERS) in the Circuit Court of the Third
Circuit (Circuit Court).1/ Zachary also challenges the Circuit
Court's April 3, 2023 Findings of Fact, Conclusions of Law, and
Order (Order). The Order affirmed the March 10, 2022 Final
Decision of the Board of Trustees of the Employees' Retirement
System of the State of Hawaii (ERS Board or Board), which, among
other things, adopted the March 3, 2014 Recommended Decision of
an administrative hearings officer, including the findings of
fact and conclusions of law contained therein, with certain
modifications. The Recommended Decision, and thus the Final

1/
The Honorable Henry T. Nakamoto presided.
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Decision, concluded that Zachary was not entitled to service-
connected disability retirement benefits under Hawaii Revised
Statutes (HRS) § 88-336 (2012), quoted infra.
On appeal, Zachary contends that the Circuit Court:
(1) "misstated and relied on incomplete facts" in affirming the
ERS Board's determination that he failed to prove that at the
time of his application, he was incapacitated for the further
performance of duty (challenging the Circuit Court's conclusions
of law (COLs) 21 through 25); (2) "misstated the substantial
evidence" in affirming the ERS Board's determination that even if
Zachary's alleged problems with mental functioning were
considered, he failed to prove that at the time of his
application he was incapacitated for the further performance of
duty (challenging COLs 26 through 30); (3) "misstated the
substantial evidence" in affirming the ERS Board's determination
that Zachary failed to prove that at the time of his application,
any incapacity was likely to be permanent (challenging COLs 31
through 36); and (4) erred in concluding that ERS's "intentional
and unsupported delay of seven . . . years to process [Zachary's]
request for service connected disability" did not violate his due
process rights (challenging COLs 42 through 50).2/
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 120-21, 424 P.3d at 475-76 (quoting Paul's Elec.
Serv., Inc., 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
Zachary's contentions as follows, and affirm.

2/
Zachary's points of error have been restated and consolidated for
clarity.

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(1) and (2) It is undisputed that Zachary was employed
by the State Department of Human Services as a Social Worker IV,
was a member of ERS's hybrid plan (class H), and voluntarily
retired on July 31, 2008.3/ At the time of Zachary's July 30,
2008 application for service-connected disability retirement, HRS
§ 88-336 provided, in relevant part:

(a) Upon application of a class H member, . . . any class H
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; provided that:

. . . .

(4) The medical board 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.

Here, the ERS Board (through its adoption of the
Recommended Decision) determined in conclusions of law (Board
COLS) 8 and 9 as follows:

8. [Zachary] has failed to prove by a preponderance of
the evidence that due to the accidents of March 2, 2004, and
August 8, 2005, he was incapacitated for the further
performance of his duties as a Social Worker IV at the time
of his application.

9. This conclusion would remain the same even if
[Zachary's] alleged problems with mental functioning were
considered.

The Circuit Court, in reviewing these Board COLs on
primary appeal, concluded as follows:

22. The clearly erroneous standard of review applies
to [Board] COL 8 because it presents mixed questions of fact
and law, and the conclusion is dependant upon the facts and
the circumstances of this particular case.

23. The Court concludes that the ERS Board's
conclusion that [Zachary] failed to prove that at the time
of his application, he was incapacitated for the further

3/
Zachary has not challenged any findings of fact in the hearings
officer's Recommended Decision, which were adopted in the ERS Board's Final
Decision. These findings of fact (Board FOFs) 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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performance of duty ([Board] COL 8) is supported by
reliable, probative, and substantial evidence.

a. Dr. Chinn testified that the records relating to
the 2004 and 2005 accidents do not indicate that [Zachary]
is incapacitated for further performance of duty.

b. For both the 2004 and 2005 accidents, in
response to the question "10. Does the disability render the
employee incapable of continued employment in this present
grade, class or position?", [Zachary's] employer answered
"No."

c. Dr. Demeter's reports and Dr. Brewer['s] reports
do not indicate that [at] the time of his application,
[Zachary] was incapacitated for the further performance of
duty.

d. Dr. Chinn testified that [Zachary] is not
incapacitated.

24. The Court concludes that [Zachary] failed to
meet his burden of proving that at the time of his
application, he was incapacitated for the further
performance of duty.

a. Dr. Weigel did not provide any basis for his
opinion that [Zachary] is permanently incapacit[ated] from
performing his job. Dr. Weigel, as a chiropractor, is not
qualified to make a determination on incapacity. Dr. Chinn
testified that [Zachary] should have been evaluated by an
orthopedic physician or orthopedic surgeon for his lumbar
strain. Dr. Chinn testified that an orthopedist can help
determine whether someone is permanently incapacitated, and
a chiropractor cannot.

b. Dr. Demeter and Dr. Brewer both opined that
continuing care by Dr. Weigel is not indicated.

c. Dr. Weigel stated that he treated [Zachary] for
injuries relating to the 2003, 2004, and 2005 accidents.
Dr. Weigel's opinions may also be based on the 2003
accident, which is not part of [Zachary's] application.
[Zachary's] application does not list any neck injury.

d. [Zachary's] arguments about his job performance
are not supported by documentation from employment records
or medical records.

Dr. Chinn testified that [Zachary's] December 8, 2011
letter to the Board regarding his activities "would indicate
that he is not incapacitated; that he is able to perform his
physical requirements of his job description."

e. [Zachary's] ex-wife, Heather Gudmundson, who
testified about [Zachary's] physical and mental condition,
is not a medical professional.

25. The Court concludes that [Board] COL 8 is not
clearly erroneous. The ERS Board's conclusion that at the
time of his application, [Zachary] was not incapacitated for
further performance of duty is supported by reliable,
probative, and substantial evidence. The ERS Board
considered and weighed conflicting medical evidence but
ultimately concluded that the evidence was insufficient to

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prove that as of the time of his application, [Zachary] was
incapacitated for performance of duty. [Zachary] failed to
meet his burden of proving that at the time of his
application, he was incapacitated for the further
performance of duty.

. . . .

27. The clearly erroneous standard applies to
[Board] COL 9 because it presents mixed questions of fact
and law, and the conclusion is dependent upon the facts and
circumstances of this particular case.

28. The Court concludes that the ERS Board's
conclusion that even if [Zachary's] alleged problems with
mental functioning were considered, [Zachary] failed to
prove that at the time of his application, he was
incapacitated for the further performance of duty ([Board]
COL 9) is supported by reliable, probative, and substantial
evidence.

a. [Zachary's] medical records do not indicate that
he has suffered a head injury in the 2004 claimed accident
or that he had problems with mental functioning at the time
of his application. Dr. Chinn testified that if Appellant
had a mental condition that would have interfered with his
ability to function, the doctor would have made note of that
in their records; and that none of the examining doctors
made any comments about his mental incapacity.

b. The medical records and [Zachary's] testimony
reflect a 45-year history of alcohol use and abuse. A
social worker's note, dated 2/24/03, states that [Zachary's]
"emotional and physical well-being have been effected [sic]
by his service in Vietnam" and that he "continue [sic] to
use alcohol to avoid emotional issues related to his
service, or other significant experiences in his life."

c. [Zachary] admitted that he had an alcohol
problem. He said that when he retired, Dr. Morrison
identified the problem as excessive alcohol use. [Zachary]
testified that after he retired in 2008, his alcohol "habit"
got more intense and he was drinking six to ten drinks per
day.

d. Dr. Chinn testified that [Zachary] had "almost
45 years of ethanol abuse to the point where his liver
function tests were elevated." Dr. Chinn testified that if
there was a significant problem with [Zachary's] ability to
function mentally or physically, it would be related to
alcohol abuse. It was documented in his medical records
that he drank to fall asleep and that he self-medicates with
four to six beers per day. Dr. Chinn testified that that
would interfere with his ability to mentally and physically
function. As to [Zachary's] complaints of memory loss, Dr.
Chinn said: "When you have 45 years of alcohol use and
abuse, . . . it is very common to have mental changes as
well."

29. The Court concludes that [Zachary] failed to
meet his burden of proving that, even if his alleged
problems with mental functioning were considered, he was
incapacitated for the further performance of duty at the
time of his application.

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a. [Zachary] did not present any medical testimony
or evidence that he suffered a head injury in the 2004
accident or that he had problems with mental functioning at
the time of his application.

b. [Zachary's] ex-wife Ms. Gudmundson, merely
testified about her observations as a lay person.

c. Dr. Weigel did not opine about any problems with
[Zachary's] mental capacity, and as a chiropractor, he is
not qualified to do so.

30. The Court concludes that [Board] COL 9 is not
clearly erroneous. The ERS Board's conclusion that even if
[Zachary's] alleged problems with mental functioning were
considered, [Zachary] failed to prove that at the time of
his application, he was incapacitated for the further
performance of duty, is supported by reliable, probative,
and substantial evidence. The ERS Board considered and
weighed conflicting medical evidence but ultimately
concluded that . . . even if [Zachary's] alleged problems
with mental functioning were considered, the evidence was
insufficient to prove that as of the time of his
application, [Zachary] was incapacitated for performance of
duty. [Zachary] failed to prove that at the time of his
application, he was incapacitated for the further
performance of duty.

(Case and record citations omitted; some brackets in original.)
Zachary challenges COLs 21 through 25, COLS 26 through
30, and the related determinations that he failed to prove that
at the time of his application, he was incapacitated for the
further performance of duty. By implication, Zachary also
challenges Board COLs 8 and 9.
We agree with the Circuit Court that the challenged
Board COLs present mixed issues of fact and law and, as such, are
reviewed under the clearly erroneous standard. Zachary presents
no specific argument as to why Board COL 8 or 9 is clearly
erroneous. Nor does he contest any of the supporting Board FOFs,
which are therefore binding on appeal. See supra note 3; Poe, 97
Hawai#i at 536, 40 P.3d at 938. He merely quotes testimony from
his chiropractor, Dr. Weigel, relating to his condition,
presumably to show some conflict with the evidence relied on by
the ERS Board. "[C]ourts 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 Hawaii Elec. Light

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Co., 60 Haw. 625, 629, 594 P.2d 612, 617 (1979)). Based on our
own review of the pertinent record, which the Circuit Court
summarized in its COLs 23, 24, 28, and 29, we conclude that
substantial evidence supported Board COLs 8 and 9 and they were
not clearly erroneous. The Circuit Court was not wrong in so
concluding.
(3) Zachary challenges COLs 31 through 36 and the
related determination that he failed to prove that at the time of
his application, any incapacity was likely to be permanent.
Because Board COLs 8 and 9 were not clearly erroneous (see
supra), the ERS Board did not err in determining that Zachary was
not entitled to service-connected disability retirement under HRS
§ 88-336. We therefore need not reach the issue of whether any
incapacity was likely to be permanent.
(4) Zachary contends that the Circuit Court erred in
concluding that delays by ERS in processing his application for
service-connected disability retirement did not violate his due
process rights.
"[W]hen a statute is silent as to an express time
frame, [the supreme] court has imported a 'reasonable time'
standard." Trivectra v. Ushijima, 112 Hawai#i 90, 108, 144 P.3d
1, 19 (2006) (citing Paul's Elec. Serv., Inc., 104 Hawai#i at
420, 91 P.3d at 502). In Trivectra, the court concluded that a
final agency order issued nine months after oral argument was not
unreasonable where "there [was] no indication . . ., in contrast
to Paul's Elec. Serv., that the delay was caused by an
unjustified agency decision to postpone resolution of the matter
or was so outside the bounds of the workings of a large and
complex bureaucracy as to be deemed unreasonable per se." Id. at
109, 144 P.3d at 20.
Here, Zachary argues that there were two periods of
unreasonable delay, as follows: (1) a roughly three-year, two-
month delay from July 30, 2008, when Zachary applied for
disability retirement, through October 17, 2011, when the ERS
submitted his application to the Medical Board (first delay); and
(2) a roughly four-year delay from October 12, 2015, when Zachary
asked to postpone the scheduled oral argument on his appeal

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before the ERS Board, through October 21, 2019, when the ERS
wrote to Zachary and asked him whether he still wanted to pursue
his appeal (second delay).
Regarding the first delay, Zachary does not point to
where in the administrative record he raised this issue. Indeed,
it does not appear to have been raised before the hearings
officer or the ERS Board, and was thus not addressed in the Final
Decision.4/ Although an administrative agency generally lacks
power to pass upon the constitutionality of a statute, see HOH
Corp. v. Motor Vehicle Indus. Licensing Bd., 69 Haw. 135, 141,
736 P.2d 1271, 1275 (1987), here, Zachary is claiming that an
unexplained processing delay in submitting his application to the
Medical Board, i.e., the first delay, violated his due process
rights. This mixed issue of fact and law should have been raised
in the first instance before the ERS Board. See Perry v. Bd. of
Trs. of Emps. Ret. Sys., CAAP-XX-XXXXXXX, 2012 WL 1382476, at *11
(Haw App. Apr. 20, 2012) (SDO) (because appellant failed to raise
an alleged Contract Clause claim before the ERS, the circuit
court correctly found that he had waived that argument on appeal
(citing Waikiki Resort Hotel, Inc. v. City & Cnty. of Honolulu,
63 Haw. 222, 250, 624 P.2d 1353, 1372 (1981)); Sato v. Dep't of
Human Servs., No. CAAP-XX-XXXXXXX, 2019 WL 1872931, at *2 (Haw.
App. Apr. 26, 2019) (SDO) ("Waiver of an issue not raised at the
administrative level applies even to constitutional issues when
appellant is not challenging the constitutionality of a statute
or other rule." (citing Perry)); see also HOH Corp., 69 Haw. at
143, 736 P.2d at 1276 ("When determination of the constitutional
issue depends on factual determinations, they should be made
first by the administrative officials who are especially equipped
to inquire, in the first instance, into the facts." (quoting B.

4/
The Final Decision states in footnote 1: "During the oral
arguments on [Zachary's] Exceptions, [Zachary's] counsel alleged for the first
time that ERS took too long to schedule and hear the exceptions hearing,
claiming that [Zachary] had been prejudiced by unreasonable delay, justifying
reversal of the Proposed Decision . . . ." This describes Zachary's argument
regarding the alleged second delay, which the ERS Board addressed in detail in
the Final Decision. There is no indication in the record that Zachary raised
the alleged first delay prior to his primary appeal.

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Schwartz, Administrative Law § 8.37, at 519 (2d ed. 1984))).
In any event, Zachary has not shown that he suffered
any prejudice as a result of the first delay, particularly in
light of his own later actions to delay oral argument before the
ERS Board (see infra) and the Board's ultimate determination,
which we have affirmed, that he was not entitled to service-
connected disability retirement. See S. Foods Grp., L.P. v.
State, Dep't of Educ., 89 Hawai#i 443, 453, 974 P.2d 1033, 1043
(1999) (to reverse or modify an agency decision under HRS
§ 91–14(g), "the appellate court must conclude that an
appellant's substantial rights were prejudiced by the agency."
(citing In re Hawaiian Elec. Co., 81 Hawai#i at 465, 918 P.2d at
567)).
Regarding the second delay, the ERS Board determined
that: the oral argument originally scheduled for November 9,
2015 was cancelled at Zachary's request and continued at his
request until such time as he would let the Board know he was
available; Zachary cancelled the oral argument to obtain counsel,
who eventually filed a notice of appearance on July 2, 2021; the
ERS Board then scheduled and conducted the oral argument on
Zachary's exceptions on January 10, 2022; and there was no
unreasonable delay in scheduling the argument. The ERS Board
detailed the relevant communications between Zachary and the ERS
– none of which Zachary disputes – which support the Board's
determinations. See Poe, 97 Hawai#i at 536, 40 P.3d at 938.
In reviewing these communications and the ERS Board's
determinations, the Circuit Court concluded that "the second
delay was primarily at [Zachary's] request for [him] to obtain
counsel[,]" "[his] action and inaction essentially waived the
time of the second delay[,]" and there was no violation of
Zachary's due process rights. Based on our own review of the
pertinent record, we also conclude that there was no violation of
Zachary's due process rights in these circumstances. The Circuit
Court was not wrong.

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For the reasons discussed above, the Final Judgment
entered on April 3, 2023, in the Circuit Court of the Third
Circuit is affirmed.

DATED: Honolulu, Hawai#i, February 12, 2026.

On the briefs:
/s/ Karen T. Nakasone
Ted S. Hong Chief Judge
for Appellant-Appellant.

Patricia Ohara and /s/ Katherine G. Leonard
Diane W. Wong, Associate Judge
Deputy Attorneys General,
for Appellee-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge