Robertson v. The Board of Trustees of the Employees' Retirement System of the State of Hawai'i

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-JUN-2024
07:49 AM
Dkt. 52 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I
DEBRA A. ROBERTSON, Appellant-Appellant, v.
THE BOARD OF TRUSTEES OF THE EMPLOYEES' RETIREMENT SYSTEM
OF THE STATE OF HAWAI#I, Appellee-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC161002172)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)

In this secondary appeal, Appellant-Appellant Debra A.

Robertson (Robertson) appeals from the November 6, 2020 Final

Judgment (Judgment) entered by the Circuit Court of the First

Circuit (Circuit Court).1 Robertson also challenges the Circuit

Court's November 6, 2020 Decision and Order Affirming [Appellee-

Appellee] the Board of Trustees of the Employees' Retirement
System of the State of Hawaii's [(ERS Board's)] Final Decision

[(Final Decision)] Dated November 2, 2016 (Order Affirming ERS

Board).

Robertson's "points of error" are a combination of

statements/arguments and points of error.2 In her points of

1
The Honorable James H. Ashford presided.
2
Robertson is represented by experienced counsel, but nevertheless
fails to comply with Hawai#i Rules of Appellate Procedure (HRAP) Rule
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

error, Robertson contends that: (1) the Final Decision is freely

reviewable and wrong in conclusions of law (COLs) 2, 3, and 4;

(2) pre-existing conditions are not relevant to Robertson's claim

for service-connected disability retirement benefits; (3)

Robertson had a service-connected accident; (4) the Final

Decision was clearly erroneous; and (5) the Final Decision, which

denied Robertson service-connected disability retirement, was

arbitrary, capricious, or an abuse of discretion by the ERS

Board.3

2
(...continued)
28(b)(4). We review the merits of Robertson's appeal to the extent
discernible.
3
The challenged COLs in the Final Decision state:

2. The Hearing Officer also wrongly concluded, on
page 14 of the Recommended Decision, that "the February 2004
incident that caused or contributed to Petitioner's neck and
back symptoms was an unlooked for mishap or untoward event
which was not expected or designed and, as such, constituted
an 'accident' pursuant to ([Hawaii Revised Statutes)] ( HRS)
§ 88-79."
3. An "accident" under section 88-79 of the Hawaii
Revised Statutes ("HRS") and section 6-22-2 of the Hawaii
Administrative Rules [(HAR)], requires an evaluation of
whether an event that causes injury is not expected or
designed. The Hearing Officer erred in this case by
evaluating whether the outcome of the event (the claimed
injury) was not expected or designed instead of evaluating
whether the event that caused the claimed injury was not
expected or designed. Absent some unexpected and unintended
event, the occurrence of an injury as a result of an
employee's performance of regular work activities does not
make those activities an "accident" for disability
retirement purposes. Adopting the standard stated in the
Hearing Officer's conclusion would render the term
"accident" meaningless as no employee expects or intends to
be injured while at work or when performing activities at
work. Adopting the standard stated in the Hearing Officer's
conclusion would mean that an employee suffering a heart
attack while simply sitting at work had an "accident" for
disability retirement purposes. The Board believes that the
Hearing Officer's conclusions in this case are not a proper
construction or application of what constitutes an
"accident" under HRS § 88-79 and HAR § 6-22-2.
4. The February 2004 incident consisted of one
morning of lifting and moving boxes for eventual transfer to
(continued...)

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Robertson's points of error as follows:

The central issue in this appeal is whether the ERS

Board erred when it denied Robertson's application for service-

connected disability retirement benefits pursuant to HRS §§ 88-79

(Supp. 2023) and 88-285 (2012).4 HRS § 88-79 provides, in

pertinent part:
§ 88-79 Service-connected disability retirement. (a)
Under rules the board of trustees may adopt, upon
application of a member, or the person appointed by the
family court as guardian of an incapacitated member, any
member while employed in a position in which all
contributions required to be made to the employees'
retirement system by the employee or the employer, or both,
have been made, 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

3
(...continued)
storage. This activity, which was part of Petitioner's job,
had occurred annually for the previous six years. There is
nothing in the record to indicate that this activity, which
Petitioner asserts is the cause of her claimed injury, was
an unexpected or unintended event or occurrence. Therefore,
the Hearing Officer's conclusion that the February 2004
incident constituted an accident is not a proper
construction or application of what constitutes an
"accident" under HAR § 6-22-2 for the purposes of HRS §§ 88-
285 and 88-79.

4
HRS § 88-285 provides:

§ 88-285 Service-connected disability retirement. 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
percent of the member's average final compensation.

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

duty at the time of application and that the
member's incapacity is likely to be permanent.

Robertson worked as an audit clerk for the State. As

part of her job, prior to the incident at issue in this case, one

day a year for the prior six years, she was required to lift and

move boxes filled with invoices into the hallway for transfer to

storage. On the morning of February 3, 2004, Robertson and

others had been lifting and moving boxes for at least three

hours. At lunch time, her neck "just fell over", and she

experienced a lot of pain. Robertson saw a doctor the next day,
and completed an accident report the day after that. Robertson

had a prior history of back and cervical spine conditions and

injuries. It appears that Robertson was unable to return to her

position full-time subsequent to the February 2004 incident.

The ERS Medical Board (Medical Board) certified that

Robertson was incapacitated and that her incapacitation was

likely permanent, but found that her incapacity was not the

result of an "accident" occurring in the actual performance of

duties at some definite time and place or as a cumulative result

of an occupational hazard. Robertson's application for service-
connected disability retirement was denied. She petitioned for a

contested case hearing.

After the contested case hearing, Hearings Officer

Craig H. Uyehara (Hearings Officer) recommended that the ERS

Board affirm the denial of Robertson's application. The Hearings

Officer, however, noted that the Medical Board provided no

support for the proposition that Robertson's injury was not the

result of an accident because nothing unusual occurred in the

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

course of her lifting and moving boxes on the date of the

February 2004 incident. The Hearings Officer concluded, inter

alia, that "the February 2004 incident which caused or aggravated

[Robertson's] preexisting injury constituted an unlooked for

mishap which, from [Robertson's] perspective, was neither

expected nor designed." The Hearings Officer similarly concluded

that "the February 2004 incident that caused or contributed to

[Robertson's] neck and back symptoms was an unlooked for mishap

or untoward event which was not expected or designed and, as
such, constituted an 'accident' pursuant to HRS § 88-79."

After further proceedings, the ERS Board issued the

Final Decision, finding and concluding that Robertson did not

carry her burden of proving she suffered an accident on February

3, 2004. The Final Decision, inter alia, concluded that the

Hearings Officer erred in determining that the February 2004

incident constituted an accident. The ERS Board explained its

reasoning as follows:
The Hearing Officer erred in this case by evaluating whether
the outcome of the event (the claimed injury) was not
expected or designed instead of evaluating whether the event
that caused the claimed injury was not expected or designed.
Absent some unexpected and unintended event, the occurrence
of an injury as a result of an employee's performance of
regular work activities does not make those activities an
"accident" for disability retirement purposes.
. . . .
There is nothing in the record to indicate that this
activity [the February 2004 incident, which the ERS Board
described as one morning of lifting and moving boxes, as
Robertson had done annually for six years as part of her
job], which [Robertson] asserts is the cause of her claimed
injury, was an unexpected or unintended event or occurrence.

(Format altered).

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

"An accident is an unlooked for mishap or untoward

event which is not expected or designed." Lopez v. Bd. of Trs.,

Emps.' Ret. Sys., 66 Haw. 127, 130, 657 P.2d 1040, 1043 (1983)

(citation omitted); see also HAR § 6-22-2 ("'Accident' means an

unlooked for mishap or untoward event which is not expected or

designed, occurring while in the actual performance of duty at

some definite time and place.").

As Robertson argues, the ERS Board erred in concluding

that the February 2004 incident was not an accident. The ERS
Board was wrong in concluding that an applicant for disability

retirement benefits must demonstrate that an unexpected and

unintended event caused the claimed injury and not an event such

as an injury stemming from the performance of regular job duties.

See, e.g., Pasco v. Bd. of Trs. Emps.' Ret. Sys., 142 Hawai#i

373, 381-82, 420 P.3d 304, 312-13 (2018) (Pasco's deteriorating

condition and pain was not expected or designed; it was an

accident); Myers v. Bd. of Trs. Emps.' Ret. Sys., 68 Haw. 94, 95-

96, 704 P.2d 902, 903-04 (1985) (rejecting ERS Board's argument

that unexpected result (severe back injury) from routine

performance of duty (lifting a coffee pot) did not constitute an

accident); Kikuta v. Bd. of Trs. Emps.' Ret. Sys., 66 Haw. 111,

114-17, 657 P.2d 1030, 1033-34 (1983) (from the point of view of

the employee, stabbing assault by brother-in-law was unexpected

notwithstanding warning from sister months earlier; it was an

accident).

The ERS Board essentially ignored the case law (and

cited no authority for its position) when it concluded that the

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

February 2004 incident was not an accident because the event –

i.e., the annual lifting and moving of boxes as part of her job –

was not unexpected. We conclude the ERS Board erred in denying

Robertson service-connected disability retirement benefits on

this basis.

However, as the ERS Board (erroneously) concluded that

the February 2004 incident was not an accident, it did not

address the issue of whether Robertson was permanently

incapacitated for duty as "the natural and proximate result" of
the accident. See HRS § 88-79(a). The Hearings Officer found to

the contrary, notwithstanding medical evidence presented by

Robertson, apparently based on Robertson's history of neck and

upper back pain, including a diagnosis of degenerative disc

disease. Robertson has argued at all levels of these proceedings

that the injuries she sustained in the February 2004 accident

caused her to be permanently incapacitated and that she is

entitled to be retired for service-connected disability as a

result.5 Nevertheless, as the ERS Board did not reach the issue,
we necessarily remand to allow the ERS Board to consider it in

the first instance.

For these reasons, we vacate the Circuit Court's

November 6, 2020 Judgment and November 6, 2020 Order Affirming

ERS Board, and we remand to the Circuit Court with directions to

vacate the ERS Board's November 2, 2016 Final Decision and remand

5
On this appeal, the ERS Board submits that Robertson "culpably
contributed" to her injuries, presumably suggesting the court should infer
that there was "wilful negligence" on Robertson's part in lifting and moving
boxes in light of her medical history. However, there were no such findings
by the Hearings Officer or the ERS Board. Therefore, such argument is without
merit.

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

this case to the ERS Board for further proceedings consistent

with this Summary Disposition Order.

DATED: Honolulu, Hawai#i, June 27, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Michael Jay Green,
Glenn H. Uesugi, /s/ Keith K. Hiraoka
for Appellant-Appellant. Associate Judge

Patricia Ohara, /s/ Sonja M.P. McCullen
Diane W. Wong, Associate Judge
Elmira K.L. Tsang,
Deputy Attorneys General,
for Appellee-Appellee.

8