Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
06-FEB-2020
07:59 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
DEBBIE S. QUEL,
Petitioner/Petitioner-Appellant/Appellant,
vs.
BOARD OF TRUSTEES, EMPLOYEES’ RETIREMENT SYSTEM, STATE OF
HAWAIʻI,
Respondent/Respondent-Appellee/Appellee
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CIVIL NO. 1CC151001308)
FEBRUARY 6, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
In 2008, Debbie Quel (“Quel”), an eighteen-year cafeteria
helper for the State of Hawaiʻi Department of Education (“DOE”),
applied for “service-connected disability retirement” benefits
pursuant to Hawaiʻi Revised Statutes (“HRS”) § 88-79(a) (Supp.
2007), which provides in relevant part that “any member who has
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been permanently incapacitated for duty . . . as the cumulative
result of some occupational hazard . . . may be retired by the
board for service-connected disability[.]”
There was no dispute that Quel was a “member” “permanently
incapacitated for duty” “as the cumulative result of” her
working conditions. Quel’s application for “service-connected
disability retirement” benefits was, however, denied by the
Board of Trustees of the Employees’ Retirement System of the
State of Hawaiʻi (“ERS Board”) on the grounds that the working
conditions that caused Quel’s permanent incapacity did not
constitute an “occupational hazard” as defined by Hawaiʻi law.
The Circuit Court of the First Circuit1 (“circuit court”) and the
Intermediate Court of Appeals (“ICA”) affirmed.
The ERS Board concluded that although Quel’s permanent
incapacity was due to the cumulative effects of work-related
activities, she failed to meet her burden of establishing that
her incapacity resulted from an “occupational hazard.” The ERS
Board based its decision on Quel’s failure to introduce evidence
that the “lifting requirements” of her job were “different in
character from those in the general run of occupations”
testified to by the ERS Medical Board’s (“Medical Board”)
physician chair and “that her work related problems were limited
to a relatively few number of occupations.”
1
The Honorable Rhonda A. Nishimura presided.
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On certiorari, Quel contends the ICA, circuit court, and
ERS Board erred in adopting the definition of “occupational
hazard” contained in Hawaiʻi Administrative Rules
(“HAR”) § 6-22-2 (effective 1989-2009), which defines the term
as “a danger or risk which is inherent in, and concomitant to, a
particular occupation or particular job, if [it is] not a risk
common to employment in general.” Quel contends HAR § 6-22-2
contravenes HRS § 88-79(a), as HRS § 88-79(a) affords service-
connected disability retirement to members for permanent
incapacity due to “some occupational hazard.” Quel also asserts
error in the ICA and circuit court’s affirmance of the ERS
Board’s conclusion that her permanent incapacity did not result
from an “occupational hazard.”
We hold that HAR § 6-22-2 correctly defines an
“occupational hazard” as “a danger or risk which is inherent in,
and concomitant to, a particular occupation or particular job,
if [it is] not a risk common to employment in general[,]” as the
definition is based on our decisions in Lopez v. Bd. of Trs.,
Emps.’ Ret. Sys., 66 Haw. 127, 129, 657 P.2d 1040, 1042 (1983),
and Komatsu v. Bd. of Trs., Emps.’ Ret. Sys., 67 Haw. 485, 494,
693 P.2d 405, 411 (1984). We further hold that the definition
of “occupational hazard” for purposes of service-connected
disability retirement benefits does not include a requirement
that permanent incapacity resulting from the cumulative effects
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of work-related activities be “limited to a relatively few
number of occupations.” Finally, we also hold that the ERS
Board clearly erred in finding and concluding that Quel’s
permanent capacity did not result from “a danger or risk which
is inherent in, and concomitant to,” her “particular occupation
or particular job,” which was “not a risk common to employment
in general.”
Accordingly, we vacate the ICA’s July 6, 2018 judgment on
appeal and the circuit court’s April 13, 2016 (1) “Decision and
Order Affirming the Final Decision of the Appellee Board of
Trustees of the Employees’ Retirement System of the State of
Hawaii and Dismissing Appellant Debbie S. Quel’s Appeal” and
(2) final judgment. We remand this case to the ERS Board for
further proceedings consistent with this opinion.
II. Background
A. Factual background
Quel worked for the DOE at Waialua Elementary School,
Mililani High School, Haleiwa Elementary School, and Wahiawa
Elementary School, before transferring to Helemano Elementary
School (“Helemano”).
At Helemano, Quel’s daily duties as a cafeteria helper
involved lifting heavy trap doors, putting things into the oven
for breakfast, scooping rice with her left hand for about 250
trays, pinching dough, peeling potatoes, cutting vegetables,
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opening numerous cans with an old-fashioned manual can opener,
carrying heavy boxes or cases of food products, and serving the
meals to the students. She also helped cook rice in the oven.
Because Helemano did not have rice cookers, to cook the rice,
she would wash the rice in the morning, place the rice into six
or seven eight-inch pans, then lift and slide the pans over her
head into the oven, which was taller than Quel. She also
emptied the vegetables and other food out of the pots used to
make stew. During Quel’s testimony, she explained that Helemano
did not have the equipment common in other school cafeterias --
such as rice cookers, electric can openers, and machines for
cutting vegetables or bread -- which increased the repetitive
labor she had to do every day. In the summer, Quel did
custodial-type work, such as buffing floors, shampooing the
carpet, moving furniture, and cleaning up.
Quel’s last day of work for the DOE at Helemano was on
November 12, 2008. The next day, she was seen by a physician,
who evaluated Quel’s swollen hands and painful shoulders
allegedly caused by repetitive motions and activities at work.
For the next few years, Quel was seen by various physicians for
these injuries. She was diagnosed with various work-related
injuries to her hands, wrists, and shoulders, and underwent
multiple surgeries to her shoulders, wrists, fingers, and thumb.
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B. Application for service-connected disability benefits
On November 22, 2010, Quel applied for service-connected
disability retirement benefits with the ERS Board. The Medical
Board issued a report to the ERS Board on August 22, 2012
(“Medical Board Report”), indicating it had reviewed Quel’s
application; her employment, personnel, workers’ compensation,
and medical records; and had interviewed Quel.2 The Medical
Board concluded that Quel was permanently incapacitated for
performing her job as a cafeteria helper. The Medical Board
also opined, however, that Quel’s permanent incapacity was not
“the cumulative result of a danger or risk inherent in and
concomitant to” her occupation.
On March 11, 2013, the ERS Board reviewed the Medical Board
Report and made a preliminary decision to deny Quel’s
application for service-connected disability retirement
benefits, and informed Quel of her appeal rights. Quel filed an
2
HRS § 88-79(d) (2012) provides:
(d) The board may determine whether or not the disability
is the result of an accident occurring while in the actual
performance of duty at some definite time and place and
that the disability was not the result of wilful negligence
on the part of the member. The board may accept as
conclusive:
(1) The certification made by the head of the agency
in which the member is employed; or
(2) A finding to this effect by the medical board.
HAR Title 6, Chapter 22 governs procedures for certifications and
findings of the Medical Board relating to matters including service-connected
disability retirement benefits under HRS § 88-79. HAR § 6-22-1(2) (effective
1984-2009).
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appeal on April 29, 2013, and the matter was referred to the
Office of Administrative Hearings. A hearing was conducted on
April 10, 2014; Quel and the physician chair of the Medical
Board appeared at the hearing, represented by counsel. The
hearings officer received and reviewed evidence regarding Quel’s
employment and medical treatment.
In her post-hearing brief, Quel noted that because the
Medical Board had conceded she was permanently incapacitated for
further performance of duty as a cafeteria worker, the only
issue was whether her repetitive use injuries were the result of
occupational hazards from working as a cafeteria helper. Quel
asserted the Medical Board’s recommended denial of her service-
connected disability retirement benefits was based on an
erroneously narrow view of “occupational hazard” and not on the
causation of her injuries, which was left undisputed. She
contended her medical records, as well as her testimony, clearly
indicated her injuries were a result of overuse, repetitive use,
or cumulative trauma while performing her job, entitling her to
service-connected disability retirement benefits. Quel also
cited to Komatsu as supporting her position.
In opposition, the Medical Board contended Quel’s permanent
incapacity was not the cumulative result of an occupational
hazard, citing to Lopez, Komatsu, and the definition of
“occupational hazard” in HAR § 6-22-2. The Medical Board argued
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that repetitive use of hands and shoulders is common to various
other occupations, including administrative assistants,
custodians, musicians, and medical professionals, all who also
use their shoulders and hands at work. It further argued that
Quel’s job description as a cafeteria helper did not list any
unusual occupational hazards, the use of Quel’s hands and
shoulders was not uncommon to employment in general, and none of
the actions in her job description were inherently dangerous.
The Medical Board requested the ERS Board affirm its preliminary
decision and deny Quel service-connected disability retirement
benefits.
On July 23, 2014, the hearings officer issued a recommended
decision containing fifty-one findings of fact (“FOFs”) and
twenty-nine conclusions of law (“COLs”). On August 28, 2014,
the ERS Board issued a proposed decision adopting relevant FOFs
and COLs in the hearings officer’s recommended decision in their
entirety.3 After arguments on Quel’s exceptions to the proposed
decision on May 13, 2015, on June 9, 2015, the ERS Board issued
its final decision affirming its proposed decision.
In its FOFs, the ERS Board found in relevant part:
46. Repetitive use of the hands and arms is common to
employment in general. . . .
3
The ERS Board amended COL 1 to indicate that as a noncontributory plan
member, Quel’s application was actually brought under HRS § 88-285 (Supp.
2005), not HRS § 88-336 (Supp. 2007), which governs hybrid plan members. As
the ERS Board also noted, service-connected disability requirement benefits
under HRS § 88-285 are, in any event, adjudged under the requirements set
forth in HRS § 88-79.
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47. Other occupations besides cafeteria helper require
repetitive use of a person's hands. This includes court
reporters, clerical workers, people who stock shelves,
people who pick strawberries, people who cut hair, dish
washers, mail sorters, data entry workers, musicians,
people who do sign language, and surgeons. . . .
In its FOFs and COLs, the ERS Board found and concluded in
relevant part:
16. [] [The ERS Board] finds and concludes [Quel’s]
incapacitation was due to the cumulative effects of work
related activities.
17. That conclusion, however, does not end the analysis
of [Quel’s] claim. [Quel’s] position appears to be . . .
that work related incapacitating injuries due to repetitive
work activities equate to an “occupational hazard." The
[ERS Board] concludes, however, that such a position is
not in accord with the law applicable to ERS service-
connected disability benefits.
18. The definition of "occupational hazard" is a legal
one that must follow the specific terms of the statutes and
regulations applicable to the ERS.
. . . .
22. As the Lopez case explains, the mere fact that a
medical condition is job related does not lead to the
conclusion that the condition is the result of an
occupational hazard.
An occupational hazard is a danger or risk which is
inherent in[] and concomitant to a particular
occupation. To be considered an occupational hazard,
the causative factors must be those which are not
ordinarily incident to employment in general
and must be different in character from those found
in the general run of occupations.
66 Haw. at 129, 657 P.2d at 1042. [Emphasis omitted.]
[Quel] failed to introduce evidence that the lifting
requirements were "different in character" from those in
the general run of occupations that were the subject of
[the Medical Board physician chair’s] testimony.
23. The [ERS Board] does not interpret the concept of the
general run of occupations to automatically include all
occupations. [Emphasis omitted.] The Medical Board
introduced evidence that [Quel’s] problems were similar to
work related problems across a wide spectrum of
occupations. . . . [Quel] had the burden to introduce
evidence that her work related problems were limited to a
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relatively few number of occupations, but she failed to do
so.
(Emphases added.)
Thus, the ERS Board concluded Quel’s permanent incapacity
did not qualify as an “occupational hazard” because she failed
to show that her work-related problems were “different in
character from those in the general run of occupations” and
“were limited to a relatively few number of occupations.” On
this basis, the ERS Board ruled that Quel was not entitled to
service-connected disability retirement benefits.
C. Appeal to the circuit court
Quel filed a notice of appeal to the circuit court. The
circuit court concluded Quel failed to carry her burden of
proving her permanent incapacity was the cumulative result of an
occupational hazard, affirmed the ERS Board, and filed its final
judgment on April 13, 2016.
D. Appeal to the ICA
Quel further appealed to the ICA. In its May 18, 2018
summary disposition order (“SDO”), the ICA ruled the ERS Board
and the circuit court did not err in relying on the definition
of “occupational hazard” contained in HAR § 6-22-2. Quel v. Bd.
of Trs., Emps.’ Ret. Sys., No. CAAP-XX-XXXXXXX, at 3 (App. May
18, 2018). The ICA also concluded Quel failed to prove her work
conditions were “not ordinarily incident to employment in
general” and were “different in character from those found in
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the general run of occupations.” Quel, SDO at 5. The ICA
affirmed the circuit court’s final judgment. Id.
D. Certiorari application
Quel’s certiorari application raises one question:
Whether or not cumulative trauma (i.e., excessive
kitchen and cafeteria work of cutting, peeling, chopping,
stirring, missing [sic], pinching, lifting and carrying
resulting in [Quel’s] upper extremity injuries) is an
“Occupational Hazard” entitling [Quel] to Service-Connected
Disability Retirement benefits with the ERS.
III. Standards of Review
A. Interpretation of a statute
Statutory interpretation is a question of law reviewable de
novo. Citizens Against Reckless Dev. v. Zoning Bd. of Appeals,
114 Hawai‘i 184, 193, 159 P.3d 143, 152 (2007). When
interpreting statutes, we look at the following:
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 Hawai‘i at 193-94, 159 P.3d at 152-53 (citation omitted).
B. Administrative agency appeals
An appellate court reviews administrative decisions by
applying the following standard:
Review of a decision made by the circuit court upon
its review of an agency’s decision is a secondary appeal.
The standard of review is one in which [the appellate]
court must determine whether the circuit court was right or
wrong in its decision, applying the standards set forth in
HRS § 91-14(g) to the agency’s decision.
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Korean Buddhist Dae Won Sa Temple of Haw. v. Sullivan, 87 Hawai‘i
217, 229, 953 P.2d 1315, 1327 (1998) (alteration in original
omitted).4
IV. Discussion
A. The definition of “occupational hazard” in HAR § 6-22-2
is consistent with our case law.
Preliminarily, on certiorari, Quel repeats her contention
that the definition of “occupational hazard” in HAR § 6-22-2
contravenes HAR § 88-79(a). She points out HRS § 88-79(a)
provides that “any member who has been permanently incapacitated
for duty . . . as the cumulative result of some occupational
hazard . . . may be retired by the board for service-connected
disability[.]” She argues that HRS § 88-79(a) does not restrict
“some occupational hazard” to the definition in HAR § 6-22-2, “a
danger or risk which is inherent in, and concomitant to, a
4
HRS § 91-14 (Supp. 2016), entitled “Judicial review of contested
cases,” provides in relevant part:
(g) Upon review of the record, the court may affirm the
decision of the agency or remand the case with instructions
for further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the
petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory
provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted exercise of
discretion.
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particular occupation or particular job, if [it is] not a risk
common to employment in general.” Quel therefore contends the
ICA, circuit court, and ERS Board erred in applying the
HAR § 6-22-2 definition of “occupational hazard” to her case.
Quel’s contention is without merit, as the definition of
“occupational hazard” in HAR § 6-22-2 is derived from our
decisions in Lopez and Komatsu.
In Lopez, we held that an “occupational hazard” for
service-connected disability retirement purposes “is a danger or
risk which is inherent in, and concomitant to a particular
occupation,” and that the disability’s “causative factors must
be those which are not ordinarily incident to employment in
general and must be different in character from those found in
the general run of occupations.” 66 Haw. at 129, 657 P.2d at
1042. In that case, a state employee contended the stress and
pressures from his job contributed to a mental health-related
disability and that he should be eligible for service-connected
disability retirement benefits. 66 Haw. at 128, 657 P.2d at
1041. We adopted the definition above and ruled that the
pressures and stress in the employee’s job were not
exceptionally different from those found by other employees in
other occupations. 66 Haw. at 130, 657 P.2d at 1042.
The next year, we decided Komatsu, which addressed a city
employee’s service-connected disability retirement claim for an
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obstructive respiratory defect caused by exposure to mold and
fungi from a defective workplace air conditioning system, which
permanently incapacitated him for further performance of duty.
67 Haw. at 488, 494, 693 P.2d at 407, 411. We examined the
employee’s specific work environment in addressing whether the
work environment constituted an occupational hazard, not whether
the exposure to the contaminants that caused the employee’s
disability was an occupational hazard to office workers in
general. 67 Haw. at 494, 693 P.2d at 411-12. We stated:
Where, as in this case, the employee was exposed to
mold or fungi in his particular work environment over a
lengthy period and the causal nexus between the exposure
and his disability is undisputed, entitlement to service-
connected disability retirement benefits is clear. For a
danger that accompanies a particular job is an
“occupational hazard” if it is not a risk common to
employment in general. And since the peril of noxious
organisms emitting from faulty air-conditioning systems is
hardly incident to employment generally, we are led to the
ineluctable conclusion that the intermediate court erred in
holding Komatsu's disability was not the cumulative result
of an “occupational hazard.”
Id. (internal citation and footnote omitted). Therefore,
in Komatsu, we ruled that where a causal nexus between a
work condition and a disability is undisputed, entitlement
to service-connected disability retirement benefits is
clear, and a danger that accompanies a particular job is an
“occupational hazard” if it is not a risk common to
employment in general.
Thus, the definition of “occupational hazard” in
HAR § 6-22-2 is an amalgam of our definitions of the term in
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Lopez and Komatsu. Quel’s contention that the ICA, circuit
court, and ERS Board erred in applying the HAR § 6-22-2
definition of “occupational hazard” to her case is therefore
without merit.
B. An occupational hazard does not require a risk be “limited
to a relatively few number of occupations.”
Although the definition of “occupational hazard” quoted by
the ERS Board is correct, in denying service-connected
disability retirement benefits to Quel, the ERS Board added a
requirement to the definition that does not exist in the law.
In FOF 47, the ERS Board found that other occupations besides
cafeteria helpers require repetitive use of a person's hands,
including “court reporters, clerical workers, people who stock
shelves, people who pick strawberries, people who cut hair, dish
washers, mail sorters, data entry workers, musicians, people who
do sign language, and surgeons.” Based on this finding, the ERS
Board concluded in COL 23 that Quel’s permanent incapacity did
not qualify as an “occupational hazard” because she failed to
show her work-related problems “were limited to a relatively few
number of occupations.”
Lopez, Komatsu, and HAR § 6-22-2 do not include a
requirement that permanent incapacity resulting from the
cumulative effects of work-related activities be “limited to a
relatively few number of occupations.” Rather, an “occupational
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hazard” is “a danger or risk which is inherent in, and
concomitant to, a particular occupation or particular job, if
[it is] not a risk common to employment in general.”
By defining an occupational hazard to exclude risks common
to employment in general, we only excluded “work pressures and
frustrations, in and of themselves, [from] constitut[ing] an
occupational hazard.”5 Lopez, 66 Haw. at 129, 657 P.2d at 1042.
We did not impose an additional requirement that an employee
prove their work-related problems “were limited to a relatively
few number of occupations.” In fact, in Komatsu, we rejected a
requirement that an employee submit data comparing their
employment to other industries, and noted “the imposition of
similar requisites in other situations would render
‘occupational hazard’ well-nigh meaningless . . . . We neither
intended nor envisioned that Lopez would be so inhibitive.”
Komatsu, 67 Haw. at 494, 693 P.2d at 411.
Even if all of the occupations listed by the ERS Board in
FOF 47 were considered, the “danger or risk inherent in, and
concomitant to” Quel’s “particular occupation or particular job,”
was “not a risk common to employment in general.” In this
regard, the ERS Board also concluded in COL 22 that Quel failed
to introduce evidence that “the lifting requirements” of her job
5
However, in Lopez, we noted that “[i]n the workers' compensation
context, however, the appellant's mental infirmity would probably have been
compensable.” 66 Haw. at 130 n.1, 130, 657 P.2d at 1042 n.1.
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were "different in character" from those in the occupations
listed in FOF 47. Even assuming the ERS Board meant to include
“repetitive use of hands” in COL 22 as not being “different in
character,” the ERS Board had also noted that Quel’s job duties
included placing rice into six or seven eight-inch pans and
lifting them into and lowering them from an oven taller than
her, emptying food out of stew pots, pinching dough, scooping
rice with her left hand for about 250 trays, peeling potatoes,
cutting vegetables, and opening numerous cans with an old-
fashioned manual can opener instead of an electric can opener.
The cumulative, repetitive work performed by Quel,
especially without the proper equipment, which led to the
serious injuries to her hands, wrists, and shoulders, requiring
multiple surgeries to her shoulders, wrists, fingers, and thumb,
and resulting in her permanent incapacity for duty, is not “a
risk common to employment in general.” As in Komatsu, a
determination of whether an “occupational hazard” exists
requires an analysis of whether a specific work environment
created the occupational hazard. The nature of Quel’s
occupation or job, as well as the lack of proper equipment at
her job site, both contributed to her injuries.
Thus, the “danger or risk” “inherent in, and concomitant to”
Quel’s “particular occupation” as a cafeteria helper, or to her
“particular job” at Helemano, was “not a risk common to
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employment in general.” We therefore also hold the ERS Board
erred in concluding Quel’s permanent incapacity did not result
from “a danger or risk which is inherent in, and concomitant
to,” her “particular occupation or job,” which was “not a risk
common to employment in general.”
V. Conclusion
Based on the reasons above, we vacate the ICA’s July 6,
2018 judgment on appeal and the circuit court’s April 13, 2016
(1) “Decision and Order Affirming the Final Decision of the
Appellee Board of Trustees of the Employees’ Retirement System
of the State of Hawaii and Dismissing Appellant Debbie S. Quel’s
Appeal” and (2) final judgment. We remand this case to the ERS
Board for further proceedings consistent with this opinion.
Dan S. Ikehara, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Elmira K.L. Tsang,
(Jodi L.K. Yi /s/ Sabrina S. McKenna
with her on the briefs)
for respondent /s/ Richard W. Pollack
/s/ Michael D. Wilson
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Quel v. Board of Trustees, Employees' Retirement System of Hawai'i.
Combined Opinion