420 P.3d 304 (Hawaii 2018), SCWC-13-0003629, Pasco v. Board of Trustees of Employees Retirement System
|Citation:||420 P.3d 304, 142 Hawaii 373|
|Opinion Judge:||McKENNA, J.|
|Party Name:||Kimberly A. PASCO, Respondent/Petitioner-Appellant, v. BOARD OF TRUSTEES OF THE EMPLOYEES RETIREMENT SYSTEM, Petitioner/Respondent-Appellee.|
|Attorney:||Robert H. Thomas (Edmund L. Lee, Jr. with him on the briefs) for respondent/petitioner-appellant. Brian P. Aburano (Patricia Ohara with him on the briefs) for petitioner/respondent-appellee.|
|Judge Panel:||McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS|
|Case Date:||May 22, 2018|
|Court:||Supreme Court of Hawai'i|
As Corrected MAY 29, 2018
As Corrected JUNE 4, 2018
As Corrected JUNE 15, 2018
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-13-0003629; CIV. NO. 12-1-3294)
Robert H. Thomas (Edmund L. Lee, Jr. with him on the briefs) for respondent/petitioner-appellant.
Brian P. Aburano (Patricia Ohara with him on the briefs) for petitioner/respondent-appellee.
McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
This case concerns whether an injury suffered by Kimberly A. Pasco ("Pasco") that arose while she worked as a Public Health Educator IV for the Department of Health of the State of Hawaii ("DOH") is a covered injury under Hawaii Revised Statutes ("HRS") § 88-336 (Supp. 2007),1 which provides service-connected disability retirement benefits under the Employees Retirement Systems ("ERS[s]") Hybrid Plan to Class H public officers and employees, such as Pasco. At issue is whether the Intermediate Court of Appeals ("ICA") erred in ruling that Pascos injury resulted from an "accident," i.e., an unlooked for mishap or untoward event which is not expected or designed2 "occurring while in the actual performance of duty at some definite time and place."
We hold that Pascos permanent incapacitating injuries to her elbow, arm, and hand, which manifested on April 17, 2007 while Pasco was in the actual performance of duty as a public health educator, were the result of an "accident occurring while in the actual performance of duty at some definite time and place." We therefore affirm the ICAs July 14, 2016 Judgment on Appeal, entered pursuant to its June 17, 2016 Memorandum Opinion, which vacated the September 17, 2013 "Decision and Order Affirming the Final Decision of Respondent-Appellee Board of Trustees of the Employees Retirement System of the State of Hawaii and Dismissing Petitioner-Appellant Kimberly Pascos Appeal" and the September 17, 2013 "Final Judgment," and we remand this matter to the Circuit Court of the First Circuit ("circuit court") for further proceedings consistent with the ICAs Memorandum Opinion and this opinion.
A. Factual Background
In 2006, Pasco worked for the DOH as a public health educator who helped start a nutrition program on Kauai, and later expanded it to Maui and the Big Island. As she
did not have a permanent desk, Pasco typed voluminous program reports on a laptop at vacant desk spaces in various DOH departments, as well as the lunchroom and conference room, based on availability. By March 2007, Pasco was provided an old metal desk at the Kapaa Neighborhood Center, as well as a desktop computer to supplement her laptop. Pasco typically typed two to three hours a day at work, but those hours increased when project deadlines neared. Specifically, as a program report for a federally funded project was due in mid-April 2007, Pascos typing increased in the weeks leading up to the deadline to the point that she typed seven hours per day from April 12 to April 17 in an effort to timely complete the report.
According to an April 25, 2007 workers compensation report completed by a supervisor, on April 17, 2007 at 4:15 p.m. during Pascos workshift, she was injured when she used her computer keyboard and mouse. That injury, as described by Pasco, was an "instant" "severe throbbing, aching kind of pain," that was located in her right inner elbow and led down to her fourth and fifth fingers, as well as an aching and burning sensation in her fingers. Pascos right arm, wrist, and hand became so fatigued and painful that she had difficulty using her right arm and hand to do work, and she could not sleep.
This was the first time Pasco had experienced pain in this area of her body, despite extensively typing for three weeks leading up to April 17, 2007, and carrying binders, training materials, and a laptop when traveling interisland bi-weekly in January 2007 to conduct training sessions. Also, prior to April 17, 2007, Pasco did not have any pre-existing injuries to her hands, arms, or elbows.
Following April 17, 2007, Pasco began seeking medical treatment for her injury from physicians and physical or occupational therapists on Kauai, Oahu, and the mainland, as the pain would not cease. After briefly returning to work on May 2, 2007, by May 14, 2007, Pasco reported that her left arm began to bother her. She suspected it was because she used voice-activated software to type at work following her injury; however, the software made frequent errors and she used her left hand to manually correct them.
Several of Pascos treating physicians diagnosed Pasco with medial epicondylitis, also referred to as tendinitis along the medial epicondyle. In a March 31, 2008 independent medical evaluation, however, Dr. Daniel I. Singer concluded Pasco suffered from non-work-related myofascial pain syndrome, which is pain in the soft tissue that is unrelated to tendons or the ulnar or median nerves.
When conservative treatment for medial epicondylitis proved unsuccessful, Pasco underwent left ulnar nerve decompression surgeries at the Mayo Clinic on August 27, 2008 and October 9, 2008. After her surgeries, Pasco began to experience a new type of burning pain in her left arm, and was diagnosed with complex regional pain syndrome, left upper extremity greater than right upper extremity. Pasco continued to experience pain in her unoperated right arm.
B. Pascos Application for Benefits
On April 13, 2009, Pasco submitted an application for service-connected disability retirement. In describing her April 17, 2007 accident, Pasco stated: During April 2007 I was required to do extensive and unreasonable amounts of typing up to 7 hrs a day to meet project deadlines. A support staff including a clerk was not given so I injured bi-lateral elbow, arm, hand. Also materials to train DOH/DOE staff were carried inter-island and this contributed to extensive injury.
In a statement attached to her application, her employer described Pascos work conditions as: "New office for new program. Clerk not yet hired, full computers not yet purchased. Extensive typing on a laptop computer." Additionally, the employers account of the accident stated: "Extensive typing on a laptop without assistance of a clerk typist put stress and strain on right arm, wrist, and hand." The employer also indicated the accident occurred at 4:15 p.m. on April 17, 2007 at the Kapaa Neighborhood Center while Pasco was "on duty"; the accident was not the result of Pascos own willful negligence; Pasco appeared to have suffered a disability
as the actual and proximate result of the accident; and that because Pasco was incapable of continued work in the position, her appointment was not extended.
In its report to the Board of Trustees of the Employees Retirement System ("ERS Board") dated August 19, 2009, the ERS Medical Board ("Medical Board") concluded that Pascos incapacitating diagnosis was non-work-related myofascial pain syndrome of the arms, and not the medial epicondylitis that had been diagnosed by several of Pascos treating physicians. Thus, although there was no dispute that Pasco was permanently incapacitated for the further performance of duty through no "wilful negligence on [her] part," the Medical Board determined that Pascos incapacity was not the result of an "accident," i.e., "an unlooked for mishap or an untoward event," nor was it the result of an "occupational hazard," i.e., "the cumulative result of a danger or risk inherent in and concomitant to [her] occupation." Accordingly, the Medical Board recommended to the ERS Board that Pasco be denied service-connected disability retirement.
By letter dated December 29, 2009, notice was issued to Pasco that the ERS Board proposed to deny Pascos application based on the Medical Boards report. In a statement dated February 16, 2010, Pasco, pro se, timely filed an appeal with the ERS Board. A hearing officer was assigned on March 2, 2010, and shortly thereafter, Pasco obtained counsel.
A contested case hearing was held on September 12, 2011. A member of the Medical Board, Dr. Patricia Chinn, testified that in her expert opinion, Dr. Singers diagnosis of non-work-related myofascial pain syndrome was correct. Dr. Chinn also clarified that the Medical Board determined that Pascos condition was not the result of an "accident" only because it did not occur at any...
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