*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---

________________________________________________________________

KIMBERLY A. PASCO, Respondent/Petitioner-Appellant,

vs.

BOARD OF TRUSTEES OF THE EMPLOYEES’ RETIREMENT SYSTEM, 

Petitioner/Respondent-Appellee.

________________________________________________________________

SCWC-13-0003629

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CAAP-13-0003629; CIV. NO. 12-1-3294)

MAY 22, 2018

McKENNA, POLLACK, AND WILSON, JJ., 

WITH NAKAYAMA, J., DISSENTING, 

WITH WHOM RECKTENWALD, C.J., JOINS

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

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 

Electronically Filed

Supreme Court

SCWC-13-0003629

22-MAY-2018

08:20 AM
2

Hawaiʻi (“DOH”) is a covered injury under Hawaiʻi Revised 

Statutes (“HRS”) § 88-336 (Supp. 2007),

1 which provides serviceconnected disability retirement benefits under the Employees’ 

Retirement System’s (“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 

Pasco’s 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 Pasco’s 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 

 

1 Service-connected disability retirement. (a) Upon 

application of a class H member, or the person appointed by 

the family court as guardian of an incapacitated 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 serviceconnected disability. . . .

HRS § 88-336.

2 See Lopez v. Bd. of Trs., Emps.’ Ret. Sys., 66 Haw. 127, 130, 657 P.2d 

1040, 1043 (1983) (“An accident is an unlooked for mishap or untoward event 

which is not expected or designed.” (citing Chun Wong Chu v. Yee Wo Chan, 26 

Haw. 785 (1923))). “Accident” is similarly defined in Hawaiʻi Administrative 

Rule (“HAR”) § 6-22-2 (1989) as follows: “‘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.”
3

place.” We therefore affirm the ICA’s 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 Pasco’s 

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 

ICA’s Memorandum Opinion and this opinion. 

II. Background

A. Factual Background

In 2006, Pasco worked for the DOH as a public health 

educator who helped start a nutrition program on Kauaʻi, 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 Kapaʻa 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 
4

a federally funded project was due in mid-April 2007, Pasco’s 

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 

Pasco’s 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. Pasco’s 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 
5

occupational therapists on Kauaʻi, Oʻahu, 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 Pasco’s 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. 
6

B. Pasco’s 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 Pasco’s 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 

employer’s 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 Kapaʻa Neighborhood Center while Pasco was “on duty”; the 

accident was not the result of Pasco’s 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 
7

Medical Board (“Medical Board”) concluded that Pasco’s 

incapacitating diagnosis was non-work-related myofascial pain 

syndrome of the arms, and not the medial epicondylitis that had 

been diagnosed by several of Pasco’s 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 Pasco’s 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 Pasco’s application 

based on the Medical Board’s 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. Singer’s diagnosis of non-work-
8

related myofascial pain syndrome was correct. Dr. Chinn also 

clarified that the Medical Board determined that Pasco’s 

condition was not the result of an “accident” only because it 

did not occur at any definite place and time, as the injury was 

described in the medical record as a “cumulative or repetitive 

injury.” 

The hearing officer issued a Recommended Decision dated 

April 23, 2012. As an initial matter, the hearing officer found 

that Pasco did not have pre-existing injuries to her elbow, arm, 

and hands prior to April 17, 2007, and that typing was part of 

Pasco’s normal and routine job duties. The hearing officer 

disagreed with the Medical Board and concluded that Pasco’s 

incapacitating diagnosis was not myofascial pain syndrome. 

Rather, the hearing officer found Pasco’s testimony credible 

when she testified “that the unnatural positioning of elbows . . 

. while typing for extended periods of time . . . result[ed] in 

elbow pain.” Further, as Pasco’s pain was specific and not 

diffused, and as several of Pasco’s treating physicians with 

various specializations from Kauaʻi, Honolulu, and Minnesota 

consistently diagnosed Pasco with medial epicondylitis, the 

hearing officer found Pasco initially had medial epicondylitis 

due to extensive typing, which led to complex regional pain 

syndrome, ultimately incapacitating her. Additionally, the 
9

hearing officer found that Pasco was not a malingerer as she 

diligently pursued many courses of treatment, including surgery

as a last resort. 

Nevertheless, the hearing officer concluded that the 

“overuse of Petitioner’s arms over a period of time did not 

constitute an ‘accident’ and there was no occupational hazard.” 

The hearing officer opined that as the overuse of Pasco’s arms 

took place over a period of time, it did not occur at a 

“specific time and place” and thus did not constitute an 

“accident.” Furthermore, in her opinion the hardships faced by 

Pasco, such as lacking a permanent desk, typing long hours, or 

transporting heavy materials were not hazards unique to Pasco’s 

job, and therefore did not constitute an occupational hazard. 

As to the issue of whether an “accident” occurred, the 

hearing officer distinguished Pasco’s circumstances from those 

in Myers v. Board of Trustees, Employees’ Retirement System, 68 

Haw. 94, 704 P.2d 902 (1985), a case in which this court 

affirmed the award of service-connected disability benefits to 

an employee who hurt his back when lifting a coffee pot, by 

noting that the employee in Myers suffered his injury from a 

single lifting, and not from multiple liftings or overuse over a 

period of time. The hearing officer also appeared to reject the 

notion that any “accident” could occur due to overuse over a 
10

period of time by noting that the Supreme Court had determined 

in Lopez, 66 Haw. 127, 657 P.2d 1040, that “an accident did not 

occur when [an] employee’s incapacitation was due to work 

pressures and stresses over a period of time.”

Ultimately, the hearing officer recommended that the ERS 

Board reject the Medical Board’s finding that Pasco’s 

incapacitating diagnosis was myofascial pain syndrome, and 

concluded instead that Pasco suffered from medial epicondylitis, 

leading to complex regional pain syndrome. In all other 

respects, the hearing officer recommended the findings and 

certification of the Medical Board dated August 19, 2009 be 

affirmed, and Pasco be denied service-connected disability 

retirement benefits. 

The ERS Board adopted the hearing officer’s Recommended 

Decision as its Proposed Decision dated June 22, 2012. Upon 

consideration of Pasco’s exceptions, the Medical Board’s

opposition to those exceptions, Pasco’s supplemental memorandum, 

and the parties’ oral argument regarding the exceptions at a 

hearing on November 13, 2012, the ERS Board issued its Final 

Decision on December 19, 2012. The Final Decision affirmed the 

Proposed Decision, adopted the Recommended Decision, and denied 

Pasco’s application for service-connected disability retirement 

benefits. 
11

C. Circuit Court Proceedings

Pasco timely filed an appeal with the circuit court3 on 

December 26, 2012. In her opening brief filed on April 12, 

2013, Pasco’s points of error were solely based on whether the 

ERS Board erred in denying Pasco service-connected disability 

retirement benefits “on the basis that Petitioner had failed to 

prove by the preponderance of the evidence that her permanent 

incapacitation was the natural and proximate result of an 

accident at some definite time and place.” Oral argument was 

held on August 15, 2013. 

On September 17, 2013, the circuit court issued its 

“Decision and Order Affirming the Final Decision of RespondentAppellee Board of Trustees of the Employees’ Retirement System 

of the State of Hawaii and Dismissing Petitioner-Appellant 

Kimberly Pasco’s Appeal.” The circuit court concluded that 

Pasco’s excessive keyboarding, whether over weeks or months, 

does not describe or constitute an accident occurring while in 

the actual performance of duty at some definite time and place 

within the meaning of HRS § 88-336. Final Judgment was entered

on September 17, 2013. 

D. ICA Proceedings

Pasco timely filed a notice of appeal on September 27, 

2013. In its June 17, 2016 Memorandum Opinion, the ICA noted 

 

3 The Honorable Rhonda A. Nishimura presiding.
12

that HRS § 88-336 uses analogous and identical language to that 

used in HRS § 88-79,4 and that, as clarified by the Supreme Court 

in Panado v. Board of Trustees, Employees’ Retirement System, 

134 Hawaiʻi 1, 332 P.3d 144 (2014), the exact moment of injury 

need not be identified to conclude that an “accident” occurred 

for the purposes of HRS § 88-79. See Pasco v. Bd. of Trs. of 

the Emps. Ret. Sys., No. CAAP-13-0003629, at 8–9 (App. June 17, 

2016) (mem.). 

Specifically, in Panado, we rejected the ERS Board’s 

argument that “the word ‘definite’ in ‘definite place and time’ 

requires a showing of the ‘specific time and place’ at which 

[Panado’s] injury occurred.” 134 Hawaiʻi at 13, 332 P.3d at 156. 

In Panado, the employee had satisfied the statutory requirement 

that an accident had occurred “while in the actual performance 

of duty at some definite time and place” by establishing that 

she was injured some time during her October 8–9, 2004 work 

shift. Id. 

Based on Panado, the ICA concluded here that Pasco was able 

to identify a “definite” time and place of her work-related 

injury: 

Pasco described her injury as resulting from extensive 

keyboarding that was required at her job as the cause of 

her disability. She could point to the period of time, 

 

4 HRS § 88-79 is the service-connected disability retirement statute for 

Class A and Class B members of the ERS, whereas HRS § 88-336 is the serviceconnected disability retirement statute applicable to Class H members.
13

“April 2007” when this activity intensified, leading up to 

the point, on April 17, 2007, that the pain from her injury 

was so severe that it caused her to seek medical attention. 

Her employer, DOH, did not contest these assertions.

Pasco, mem. op. at 9. Accordingly, the ICA vacated the circuit 

court’s September 17, 2013 “Decision and Order . . .” and “Final 

Judgment,” and remanded the case to the circuit court with 

directions to vacate the ERS Board’s denial of disability 

retirement to Pasco and for further proceedings consistent with 

its decision.

E. Issues on Certiorari

The ERS Board raises two questions on certiorari:

A. Did the First Circuit Court and ERS Board err in 

concluding that Pasco’s overuse of her arms in typing and 

transporting training materials over weeks and months did 

not constitute an “accident occurring while in the actual 

performance of duty at some definite time and place” within 

the meaning of HRS § 88-336(a) and [Hawaiʻi Administrative 

Rules (“HAR”)] § 6-22-2?

B. Was the First Circuit Court right or wrong in 

determining that the ERS Board was not clearly erroneous in 

finding that Pasco had failed to prove by a preponderance 

of the evidence that her permanent incapacity was the 

“natural and proximate result” of an accident as required 

by HRS § 88-336(a)?

The ERS Board argues that it did not agree or stipulate 

that Pasco was injured on April 17, 2007. Rather, the ERS Board 

argues that Dr. Chinn and the Medical Board had agreed with Dr. 

Singer that Pasco suffered from a pain syndrome not directly 

related to work. As such, the ERS Board distinguishes Pasco’s 

case from Panado because the parties in Panado had stipulated

that the applicant-employee had been injured during a specific 
14

workshift. 

The ERS Board also argues that because Pasco’s injury 

“developed over weeks and months,” it was not the result of a 

discrete event that occurred at a fixed time and place, which is 

required under the statute. The ERS further argues that because 

Pasco claims to have been injured while performing her regular 

work duties, “[t]he only thing that was unexpected or unforeseen 

was that Pasco began to have pain symptoms” while working, which 

does not amount to an “accident” for service-related disability 

retirement. The ERS Board also asserts that because the ERS 

Board did not stipulate that Pasco’s permanent incapacity was 

the natural and proximate result of her “claimed accident,” the 

ICA erred in concluding otherwise.

Pasco asserts in her opposition brief that the ICA was 

correct to apply Panado to Pasco’s case. Pasco also appears to 

suggest that various workers’ compensation cases, such as Van 

Ness v. State of Hawaiʻi, Department of Education, 131 Hawaiʻi 

545, 319 P.3d 464 (2014), and Lawhead v. United Air Lines, 59 

Haw. 551, 584 P.2d 119 (1978), are also applicable to her case. 

III. Standards of Review

A. Interpretation of a Statute

Statutory interpretation is a question of law reviewable de

novo. See Citizens Against Reckless Dev. v. Zoning Bd. of 
15

Appeals, 114 Hawaiʻi 184, 193, 159 P.3d 143, 152 (2007) (citation 

omitted). When construing statutes, the court is governed by 

the following rules:

First, the fundamental starting point for statutory 

interpretation is the language of the statute itself. 

Second, where the statutory language is plain and 

unambiguous, our sole duty is to give effect to its plain 

and obvious meaning. Third, implicit in the task of 

statutory construction is our foremost obligation to 

ascertain and give effect to the intention of the 

legislature, which is to be obtained primarily from the 

language contained in the statute itself. Fourth, when 

there is doubt, doubleness of meaning, or indistinctiveness 

or uncertainty of an expression used in a statute, an 

ambiguity exists.

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 Hawaiʻi at 193-94, 159 P.3d at 152-53 (citations omitted).

B. Administrative Agency Appeals

Ordinarily, deference will be given to decisions of 

administrative agencies acting within the realm of their 

expertise. The rule of judicial deference, however, does 

not apply when the agency’s reading of the statute 

contravenes the legislature’s manifest purpose. 

Consequently, we have not hesitated to reject an incorrect 

or unreasonable statutory construction advanced by the 

agency entrusted with the statute’s implementation.

Coon v. City & Cnty. of Honolulu, 98 Hawaiʻi 233, 245, 47 P.3d 

348, 360 (2002) (citations and brackets omitted).

IV. Discussion

A. The ERS Did Not Challenge the Nature of Pasco’s Injury

As a preliminary matter, with respect to the second issue 

asserted by the ERS Board on certiorari, the hearing officer 
16

specifically found that Pasco’s medial epicondylitis, which 

initially manifested on April 17, 2007, was due to work-related 

extensive typing.5 As the ERS Board adopted the hearing 

officer’s recommended decision as its final decision, it, too, 

agreed that Pasco’s injury was medial epicondylitis due to 

extensive typing, eventually leading to complex regional pain 

syndrome. Accordingly, any assertions by the ERS Board on this 

appeal that Pasco’s injury was due to non-work-related 

myofascial pain syndrome, or that her incapacity was not the 

natural and proximate result of extensive typing, are contrary 

to its Final Decision.

Therefore, the remaining questions are those contained in 

the first issue on certiorari: whether Pasco suffered an 

 

5 Neither of the parties contests the hearing officer’s findings, which 

include: (1) Pasco did not have pre-existing injuries of her elbow, arm and 

hands prior to the alleged accident of April 17, 2007; (2) Pasco’s testimony 

was credible when she testified “that the unnatural positioning of elbows . . 

. while typing for extended periods of time could result in elbow pain”; (3) 

Pasco began to feel pain in her right arm, wrist, and hand on April 17, 2007 

while typing at work; and (4) Pasco did initially have medial epicondylitis, 

which eventually led to complex regional pain syndrome. 

Although Pasco had asserted in her “Application for Disability 

Retirement” that the carrying of training materials contributed to her 

injury, the hearing officer did not specifically make such a finding; in 

contrast, the hearing officer did specifically note that she found Pasco’s 

testimony credible that extensive typing caused her elbow pain. Also, 

nothing in the record indicates that Pasco engaged in extensive typing 

outside of her position.

Given these findings by the hearing officer, the ERS Board’s assertion 

that the hearing officer had found that “Pasco failed to prove by a 

preponderance of the evidence that her permanent incapacity was ‘the natural 

and proximate result’ of her claimed accident of April 17, 2007,” is plainly 

incorrect. 
17

“accident occurring while in the actual performance of duty at 

some definite time and place.” 

B. Pasco Qualifies for Service-Connected Disability Retirement 

HRS § 88-336 provides in relevant part: 

Service-connected disability retirement. (a) [A]ny 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 . . . may be retired by the board for 

service-connected disability. . . .

Thus, service-connected disability retirement is available to 

Pasco if she 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.” 

1. Pasco’s injury resulted from an “accident.”

The first issue we must address is whether Pasco’s injury 

was the result of an “accident.” “An accident is an unlooked 

for mishap or untoward event which is not expected or designed.” 

Lopez, 66 Haw. at 130, 657 P.2d at 1043 (citation omitted). 

“Accident” is similarly defined in HAR § 6-22-2 as follows:

“‘Accident’ means an unlooked for mishap[

6] or untoward event 

which is not expected or designed, occurring while in the actual 

performance of duty at some definite time and place.”

In denying Pasco’s application for service-connected 

disability benefits by adopting the hearing officer’s 

 

6 “Mishap” is defined as “[a] small accident or mistake, esp. when the 

consequences are not severe; a relatively trivial instance of bad luck, 

mischance.” Black’s Law Dictionary 1151 (10th ed. 2014).
18

recommendations, the ERS Board concluded that an “accident” 

could not occur “over a period of time” because in Lopez, 66 

Haw. 127, 657 P.2d 1040, this court concluded that “an accident 

did not occur when [an] employee’s incapacitation was due to 

work pressures and stresses over a period of time.” This 

conclusion misinterprets Lopez. 

Lopez must be viewed in light of Kikuta v. Board of 

Trustees, Employees’ Retirement System, 66 Haw. 111, 657 P.2d 

1030 (1983), as both cases were issued by this court on the same 

day, and each addressed the meaning of “accident” in the 

service-connected disability retirement context. Indeed, in 

Myers, 68 Haw. 94, 704 P.2d 902, this court referred to both 

Lopez and Kikuta to explain why an employee, who was injured 

when lifting a coffee pot, suffered an “accident.” See 68 Haw. 

at 97 & n.1, 704 P.2d at 904 & n.1. 

In Lopez, an industrial safety engineer for the State 

applied for service-connected disability retirement after he 

became incapacitated from the further performance of his work 

due to manic-depressive psychosis. See 66 Haw. at 128, 657 P.2d 

at 1041. In concluding that the engineer’s job pressures and 

stresses did not constitute an “accident,”7 this court noted: 

“[T]here was no unexpected event or unforeseen occurrence which 

 

7 The court also disagreed with the engineer’s argument that his job 

pressures and stresses amounted to an occupational hazard. See Lopez, 66 

Haw. at 129, 657 P.2d at 1042.
19

resulted in the appellant’s present incapacity. It is not 

enough, under the retirement law, that work pressures and 

stresses over a period of time were contributory causes of his 

mental infirmity.” 66 Haw. at 131, 657 P.2d at 1043. The ERS 

Board focused on this holding from Lopez and took it to mean 

that the etiology of an “accident” could not develop over a 

period of time. However, the Lopez court’s reasoning shows 

that the court’s focus was on the fact that no “unexpected 

event” or “unforeseen occurrence” had caused the employee’s 

incapacitation. In Lopez, the claimed “accident” was the result 

of general job stresses and pressures occurring over several 

years, but there simply was no “mishap” or “event.” 

In contrast, the manifestation of Pasco’s pain on April 17, 

2007 was an “unlooked for mishap or untoward event which [was] 

not expected or designed.” Whether an event is not expected or 

designed is viewed from the perspective of the employee, as 

illustrated by Kikuta, 66 Haw. 111, 657 P.2d 1030. In Kikuta, 

the ERS Board had denied benefits to an employee who was on 

working time when he was stabbed by his brother-in-law and 

consequently died. The circuit court affirmed the decision. On 

appeal to this court, the ERS Board argued the stabbing was not 

an “accident,” as the employee should have anticipated the 

attack because he was previously warned that his brother-in-law 
20

was “out to get him.” 66 Haw. at 113, 657 P.2d at 1032. This 

court reversed, first noting that the common and accepted 

definition of “accident” is “an unexpected happening to which 

the claimant did not culpably contribute.” 66 Haw. at 114, 657 

P.2d at 1033 (emphasis added). This court went on to observe 

that the “warning” had been given by the assailant’s sister five 

months prior to the incident, that the employee and the 

assailant had friendly interactions prior to and since that 

time, and none of the witnesses on the date of the stabbing had 

seen or heard anything to indicate the assailant “was looking 

for trouble” when he first arrived at the employee’s workplace. 

66 Haw. at 116, 657 P.2d at 1034. Further, there was nothing in 

the record to indicate that the employee had provoked the 

assailant. Thus, from the point of view of the employee, the 

assault was unexpected, and therefore an “accident.” 66 Haw. at 

117, 657 P.2d at 1034.

Similar to the injury in Kikuta, Pasco’s pain, which 

manifested on April 17, 2007, was not “expected or designed.”

As in Kikuta, it was “an unexpected happening to which” Pasco 

“did not culpably contribute.” The Dissent, however, suggests 

that although the Board found that “Pasco had no pre-existing 

injuries to her hands, wrists, and arms prior to April 17, 

2007,” because Pasco’s sub-optimal work conditions existed since 
21

Pasco began the job, “[her] deteriorating physical conditions 

began far earlier than April 12, 2007” and therefore her “severe 

elbow injury could not have been unexpected.” The record does 

not demonstrate that Pasco should have expected the level of 

pain she began experiencing on April 17, 2007, later diagnosed 

as medial epicondylitis, that would require surgeries and later 

lead to complex regional pain syndrome. In any event, the ERS 

Board specifically found that Pasco did not have pre-existing 

injuries to her elbow, arm, and hands prior to April 17, 2007.

Even if she did have a preexisting condition, however, pursuant 

to Myers discussed below, an “accident” occurs when an unlooked 

for mishap or unexpected event causes a preexisting condition to 

become symptomatic. In addition, Myers also stands for the 

proposition that an unexpected result of a routine performance 

of duty, without any evidence of external force, or unusual 

stress or strain, is an “unlooked for untoward event” that 

constitutes an “accident.” 

In this regard, the ERS Board appears to argue that the 

manifestation of pain in the course of performing regular work 

duties cannot constitute an “accident.” However, this court 

already rejected such an argument in Myers, 68 Haw. 94, 704 P.2d 

902. In Myers, a state employee who injured his back on July 

25, 1977 when setting down a thirty-five-pound half-full coffee 
22

pot as part of his normal and routine preparation for conducting 

a management training class, and thereafter became disabled due 

to back pain, was denied service-connected disability retirement 

by the ERS Board. The circuit court later reversed the ERS 

Board’s denial of benefits, and the ERS Board appealed, 

contending that the incident involving the coffee pot was not an 

“accident” within the meaning of the service-connected 

disability retirement statute. 68 Haw. at 95, 704 P.2d at 904. 

Specifically, the ERS Board argued that an unexpected result of 

a routine performance of duty, without any evidence of external 

force, or unusual stress or strain, did not amount to an 

“unlooked for untoward event” and therefore did not constitute 

an “accident.” See Myers, No. 10033, ERS Board’s Opening Br., 

at 13, 19 (filed Nov. 9, 1984). 

In affirming the circuit court, this court rejected the ERS 

Board’s argument, stating, “Since the July 25, 1977 incident 

was, beyond question, an unlooked for mishap which was not 

expected or designed, it was an ‘accident[.]’” Myers, 68 Haw. 

at 96 & n.1, 704 P.2d at 904 & n.1 (emphasis added). The weight 

of the coffee pot or the employee’s pre-existing 

spondylolisthesis and degenerative disks did not affect this

court’s analysis as to whether an “accident” had occurred. 

Myers thus dispels the notion that an external force or unusual 
23

strain is required to show that an “accident” befell an 

employee; rather, an unexpected result of a routine performance 

of duty may comprise an “accident.”8 In Myers, the “routine 

performance of duty” was the employee’s routine preparation of 

coffee for the training meetings he conducted; his “unlooked for 

mishap” was the “sharp pains across his left lower back into the 

hollow of his buttocks, and . . . pulsating pain radiating down 

his right leg” that he experienced when setting down the coffee 

pot. 68 Haw. at 95, 704 P.2d at 903. 

Just as lifting the coffee pot was part of the employee’s 

routine in Myers, here, typing was a normal and routine part of 

Pasco’s job. Pasco also did not expect the onset of pain on 

April 17, 2007 while she typed, just as the employee in Myers

did not expect to suffer severe back pain from lifting a coffee 

pot when, prior to the accident, he could lift sixty-five-pound 

bags of coral sand and ninety-five-pound bags of mortar mix 

without discomfort of any kind. See Myers v. Bd. of Trs. of the 

 

8 Indeed, after our decision in Myers, the ERS Board removed the sentence 

underlined below from its September 26, 1983 definition of “accident” in 

effect at the time of the case:

“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. 

It does not mean the unexpected result of routine 

performance of duties unless it can be shown that such 

unexpected result occurred because of some unusual strain 

or exertion or some unusual condition in the employment.” 

HAR § 6-22-2 (emphasis added). The second sentence of the definition was 

removed effective February 9, 1989. See HAR § 6-22-2 (am. Feb. 9, 1989). 
24

Emps.’ Ret. Sys., Civil No. 79302, Findings of Fact & 

Conclusions of Law & Order, at 2 (filed May 17, 1984), aff’d, 68 

Haw. 94, 704 P.2d 902. 

Nevertheless, in this case, the ERS Board ruled that Myers

was distinguishable because the injury in Myers was caused by a 

single lifting of a coffee pot, as opposed to multiple liftings. 

To draw such an adverse conclusion from this distinction, 

however, does not comport with this court’s rejection of the ERS 

Board’s argument in Myers that there must be a showing of some 

unusual strain or exertion for an “accident” to occur in the 

routine performance of duty. In sum, routinely performed duties 

are, by definition, performed regularly and repeatedly; and this 

court recognized in Myers that an “accident” may occur in the 

course of such regular and repeated performance of duties. 

Thus, the onset of Pasco’s medial epicondylitis in the course of 

her regular and repeated performance of her extensive typing 

duties was an unexpected event constituting an “accident.” 

2. Pasco’s “accident” occurred “while in the actual 

performance of duty at some definite time and place.”

The second issue in determining Pasco’s eligibility for 

service-connected disability retirement under HRS § 88-336 is 

whether her injury occurred “while in the actual performance of 

duty at some definite time and place.” In contrast with the 

Dissent, we agree with the ICA that Pasco’s circumstances are 
25

analogous to the relevant facts in Panado, 134 Hawaiʻi 1, 332 

P.3d 144, where we held that an applicant had shown her injury 

was the result of an “accident” occurring at “some definite time 

and place” even though the employee could not identify the exact 

moment of injury.

In Panado, Eden Panado (“Panado”), a computer operator with 

the City and County of Honolulu, was assigned to print voter 

registration forms during her October 8 to October 9, 2004 work 

shift, and she was therefore required to lift between ten and 

fifteen boxes of paper, and load and unload printers. During

the task, which Panado described as her alleged accident, Panado 

felt pain in her lower back, upper back, shoulder, neck, and 

right arm. She experienced pain the day after her shift, and on

October 10, she was admitted to a hospital emergency room, 

treated for neck and low back pain, and was subsequently unable 

to return to work. See 134 Hawaiʻi at 3–4, 332 P.3d at 146–47. 

Panado’s application for service-connected disability benefits 

was ultimately denied by the ERS Board. 

On appeal, the parties stipulated that Panado was injured 

during her October 8–9, 2004 workshift. However, Panado also 

conceded that she could not “pinpoint to the exact box” that was 

picked up when her injury occurred. 134 Hawaiʻi at 8, 332 P.3d 

at 141. Thus, the issue before this court was whether the 
26

statute requires an employee to establish the exact moment she 

was injured. 

We held that it does not. See 134 Hawaiʻi at 13, 332 P.3d 

at 156. We noted that the plain language of the phrase, 

“definite time and place,” does not mean the exact moment of 

injury, but rather requires that the time and place of injury be 

“clearly stated or decided; not vague or doubtful.” Id. 

Additionally, we observed that “[t]he legislative history does 

not indicate the ‘some definite time and place’ language was 

meant to restrict the award of accidental disability retirement 

benefits to those claimants who could show an exact moment of 

injury.” 134 Hawaiʻi at 13, 332 P.3d at 156. We held that 

Panado satisfied the “some definite time and place” requirement 

by establishing that she was injured during her workshift. Id.

Moreover, this court went on to observe that “there is no 

indication the legislature intended to categorically exclude 

coverage for accidents that do not result in immediate 

symptoms.” 134 Hawaiʻi at 15, 332 P.3d at 158. We pointed out 

that the legislature “was concerned with whether an accident 

occurred during work, not with whether the employee could 

pinpoint the exact moment of injury.” 134 Hawaiʻi at 14, 332 

P.3d at 157 (emphasis added). Referring to the legislature’s 

1965 expansion of coverage to allow recovery for members who are 
27

permanently incapacitated as the cumulative result of an 

occupational hazard, we also stated:

Given the legislature’s decision to expand coverage, it would 

appear contrary to legislative policy to restrict coverage by 

interpreting HRS § 88–79 to categorically preclude claims that do 

not allege the exact moment of injury, even when it is undisputed 

that the injury occurred in the performance of work.

Id. We also noted that “there is no indication the legislature 

intended to categorically exclude coverage for accidents that do 

not result in immediate symptoms.” Id.

To illustrate, we noted: 

If in Myers, the employee had lifted the coffee maker 

twice, but the onset of the same debilitating condition did 

not occur until the next day, there is no rational 

explanation why the employee should be denied retirement 

benefits because he could not point to which one of the two 

lifts caused the incapacity. So long as the claimant could 

establish the incapacity was the proximate and natural 

result of either of the two lifts, the claimant should be 

able to qualify for disability retirement benefits under 

HRS § 88–79. To deny benefits in this situation, either 

because a claimant cannot point to which exact incident, or 

because the onset of pain did not occur immediately, would 

be “unjust and unreasonable in its consequences.”

Id. 

The ICA correctly held that Panado informs the analysis of 

Pasco’s case. Although Pasco’s injury has been characterized as 

a “cumulative or repetitive stress” injury, as we stated in 

Panado, the fact that Pasco’s “onset of pain did not occur 

immediately” does not mean it was not “the natural and proximate 

result of an accident occurring while in the actual performance 

of duty at some definite time and place.” Although Pasco cannot 

point to the exact keystroke that caused her to exceed her 
28

physiological capacity, the injury occurred “while in the actual 

performance of duty,” during her workshift. The “untoward 

event” manifested as pain at a “definite time and place” on 

April 17, 2007. Even if the pain had manifested the day after a 

workshift, however, as discussed in Panado, that Pasco’s injury 

manifested as arm pain at some time after the moment she 

exceeded her physiological capacity to perform repetitive work 

does not mean that her accident did not occur “while in the 

actual performance of duty at some definite time and place.” 

134 Hawaiʻi at 14-15, 332 P.3d at 157-58.

V. Conclusion

For the foregoing reasons, we affirm the Intermediate Court 

of Appeals’ 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 Pasco’s Appeal” and the 

September 17, 2013 “Final Judgment,” and we remand the matter to 

the Circuit Court of the First Circuit with directions to vacate 

the ERS Board’s denial of service-connected disability 
29

retirement to Pasco and for proceedings consistent with the ICA’s

Memorandum Opinion and this opinion.

Patricia Ohara and /s/ Sabrina S. McKenna

Brian P. Aburano 

for petitioner /s/ Richard W. Pollack

Edmund L. Lee /s/ Michael D. Wilson

for respondent