NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-20-0000740

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 [AppelleeAppellee] 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...)

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000740

27-JUN-2024

07:49 AM

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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...)

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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 serviceconnected 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 serviceconnected 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. 

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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 serviceconnected 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

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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).

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"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

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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.

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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.

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