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Oral Argument Before the Hawaii Supreme Court–SCWC-13-0003629

(Amended 11/23/16)

No. SCWC-13-0003629, Thursday, February 16, 2017, 11:15 a.m.

KIMBERLY A. PASCO, Respondent/Petitioner-Appellant, vs. BOARD OF TRUSTEES OF THE EMPLOYEES’ RETIREMENT SYSTEM, STATE OF HAWAIʻI, Petitioner/Respondent-Appellee.
      The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Aliʻiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioner Board of Trustees:

Patricia Ohara and Brian P. Aburano, Deputy Attorneys General

Attorney for Respondent Pasco:

Edmund L. Lee and Robert H. Thomas

NOTE: Order accepting Application for Writ of Certiorari, filed 10/13/16.

NOTE: Order rescheduling the oral argument from 12/01/16, 11:15 a.m. to 02/16/17, 11:15 a.m., filed 11/23/16.


[ Listen to the entire audio recording in mp3 format ]

Brief Description:

  Petitioner-Respondent/Appellee Board of Trustees of the Employees’ Retirement System of the State of Hawaiʻi (ERS) has applied for a writ of certiorari from the Intermediate Court of Appeals’ (ICA) June 17, 2016 memorandum opinion (ICA opinion).  The ICA vacated and remanded the judgment of the Circuit Court of the First Circuit (circuit court), with directions to vacate the Board of Directors of the ERS’s denial of disability retirement for Respondent–Petitioner/Appellant Kimberly A. Pasco (Pasco).

   On April 13, 2009, Pasco applied for service-connected disability retirement, alleging that she sustained injuries as a result of “extensive and unreasonable amounts of typing up to 7 hrs a day to meet project deadlines” during April 2007, not having a support staff to help with the work during that time period, and carrying training materials on inter-island trips from December 2006 thru April 2007.
   After a contested case hearing, the Medical Board denied Pasco’s application, concluding, inter alia, that Pasco’s injury was not the result of an accident occurring at some definite time and place pursuant to Hawaiʻi Revised Statutes (HRS) § 88-336 and Hawaiʻi Administrative Rules (HAR) § 6-22-2.  The circuit court affirmed this conclusion.

   While on appeal before the ICA, this court issued Panado v. Bd. of Trs., Emps.’ Ret. Sys., 134 Hawaiʻi 1, 332 P.3d 144 (2014), which held that the language of the statutory provision did not require claimant to establish the exact moment of injury in order to recover service-connected disability retirement benefits. 
   On June 17, 2016, the ICA issued a memorandum opinion concluding that, pursuant to Panado, the circuit court erred in construing the “definite time and place” language of HRS § 88-336 to disqualify Pasco because her injury did not occur on a specific date.  The ICA held that Pasco was able to identify a “definite time and place” of her injury because she was able to point to a period of time when her injury intensified and a date when her injury became so severe that she was required to seek medical attention.  As such, the ICA vacated and remanded the circuit court’s judgment.

ERS seeks review of the ICA’s decision, and raises two issues in its application:

 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 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)?