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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-MAR-2023
08:09 AM
Dkt. 95 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JOSEPH B. BERNABE, Appellant-Appellant,
v.
EMPLOYEES' RETIREMENT SYSTEM, STATE OF HAWAI#I,
Appellee-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 16-1-0314)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Nakasone and McCullen, JJ.)
In this secondary appeal, Appellant-Petitioner Joseph
B. Bernabe (Bernabe) appeals from the (1) August 4, 2017
"Decision and Order" affirming the Final Decision by Appellee-
Respondent Employees' Retirement System, State of Hawai#i (ERS)
(ERS Final Decision),1 denying Bernabe's application for service-
connected disability retirement, and (2) October 5, 2017 Final
Judgment, both filed and entered by the Circuit Court of the
Third Circuit (Circuit Court).2
Bernabe raises a single point of error on appeal, that
the Circuit Court erred by making the following "finding as a
matter of law" in its Decision and Order:
1
The ERS Final Decision adopted the "Hearings Officer's Findings of
Fact [(FOFs)], Conclusions of Law [(COLs)] and Recommended Decision" filed
October 28, 2015.
2
The Honorable Greg K. Nakamura presided.
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The application of the analysis set forth
in the Akamine[3] case to the issue of service
connected disability retirement would
necessarily reverse the burden of proof by
imposing upon the ERS the burden of proving that
a cardiac condition was not the result of an
accident occurring while [in] the actual
performance of duty. As seen in the evidence in
this case, a cardiac condition can have a myriad
of causes, including work. Once the employee
produces any evidence that a cardiac condition
was caused to any degree by employment which
will nearly always be the case, then the ERS
would then be forced to prove that the cardiac
condition was not caused to any degree by
employment in order to avoid the grant of the
service-connected disability retirement. That
will almost never occur. The consequence is that
any employee who is permanently incapacitated
because of a cardiac condition will
automatically be entitled [to] service-connected
disability retirement. This is certainly not a
consequence contemplated by the Hawai'i State
Legislature. Thus, the analysis in Akamine
should not be applied to the issue of service-
connected disability retirement.
(Bolding and emphases in original) (footnote added).4
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, we resolve
Bernabe's point of error as follows, and affirm.
The following background is from the unchallenged
portions of the Circuit Court's Order.5
Bernabe sought benefits under Hawaii Revised Statutes
(HRS) § 88-79(a) (2012), which provides:
3
In Akamine v. Hawaiian Packing & Crating Co., 53 Haw. 406, 408,
495 P.2d 1164, 1166 (1972), the supreme court held, in the context of a
workers' compensation case, that if doubt exists as to whether an injury is
work-related, the doubt will be resolved in favor of the claimant, and that
"the employer [has] the burden of going forward with the evidence and the
burden of persuasion."
4
Bernabe challenges an aspect of the Circuit Court's analysis in
the Decision and Order affirming its review of the ERS Final Decision, and
does not challenge any FOFs or COLs in the Circuit Court's Decision and Order,
or the Hearings Officer's FOFs and COLs adopted in the ERS Final Decision.
See Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(4) (requiring that
the point of error include a quotation of the challenged FOF or COL or
reference to appended FOFs and COLs).
5
Unchallenged FOFs and COLs are binding. See Kelly v. 1250
Oceanside Partners, 111 Hawai#i 205, 227, 140 P.3d 985, 1007 (2006) (citations
omitted); Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 125, 839
P.2d 10, 31 (1992).
2
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Service-connected disability retirement. (a) Upon
application of a member, or the person appointed by the
family court as guardian of an incapacitated member, any
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 service-
connected disability[.]
(Ellipses omitted). Bernabe argued that he suffered from two
conditions that resulted in permanent incapacity qualifying for
service-connected disability retirement under HRS § 88-79(a): a
psychiatric condition and a cardiac condition. With regard to
the psychiatric condition, the Circuit Court concluded: "the
Hearings Officer's mixed [FOF and COL] that Bernabe was not
permanently incapacitated because of his psychiatric condition
was not clearly erroneous." With regard to the cardiac
condition,6 the Circuit Court concluded that the Hearings
Officer's mixed finding and conclusion that: Bernabe was "likely
to be 'permanently incapacitated by his cardiac condition'" but
that such "permanent incapacity resulting from his cardiac
condition was 'not the natural and proximate result of an
accident'" -- was not clearly erroneous. Accordingly, the
Circuit Court affirmed the ERS Final Decision denying Bernabe's
application for service-connected disability benefits. Bernabe
timely appealed.
On secondary review of a circuit court's review of an
agency's decision,
6
With regard to the cardiac condition, the Hearings Officer found
and concluded that:
The evidence presented showed that [Bernabe]'s heart attack
occurred while he was on sick leave, and at home at 6:00
p.m. reading documents related to a complaint he filed with
the Equal Employment Opportunity Commission ("EEOC").
[Bernabe]'s heart attack did not occur on the employer's
premises and [Bernabe] was not doing what the employer
required at a time and place he was required to do it.
Accordingly, the Hearings Officer finds that [ ] [Bernabe]'s
heart attack did not occur "while in the actual performance
of duty". . . .
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[t]he 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) (1993) to the agency's decision.
HRS § 91-14, 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; or
(2) In excess of the statutory authority or
jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(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.
Under HRS § 91-14(g), conclusions of law are
reviewable under subsections (1), (2), and (4);
questions regarding procedural defects under
subsection (3); findings of fact under subsection (5);
and an agency's exercise of discretion under
subsection (6).
United Pub. Workers, AFSCME, Local 646, AFL-CIO v. Hanneman,
106 Hawai#i 359, 363, 105 P.3d 236, 240 (2005) (brackets omitted)
(quoting Paul's Elec. Serv., Inc. v. Befitel, 104 Hawai#i 412,
416, 91 P.3d 494, 498 (2004)).
Bernabe's point of error challenges the Circuit Court's
conclusion that it was inappropriate to apply the workers'
compensation analysis in Akamine to service-connected disability
retirement and to the cardiac condition in this case. Bernabe
asserts that the Circuit Court "raised this issue sua sponte,"
and that Bernabe "did not suggest or argue that the Circuit Court
adopt or use the workers compensation presumption for workplace
injuries under Sec. §386-3(a), HRS, to [Bernabe]'s request for
4
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service connected disability." Bernabe's contention of error
lacks merit.
Bernabe's claim that the Circuit Court raised the
applicability of the workers' compensation analysis to Bernabe's
case sua sponte, is erroneous. The record reflects that Bernabe
himself raised this issue before the ERS Hearings Officer, and
the Circuit Court incorporated the Hearings Officer's rejection
of Bernabe's argument into the Decision and Order, as follows:
Although [Bernabe] cited cases which found that heart
attacks occurring after work hours and not in the work place
were considered to be "accidents" for purposes of workers'
compensation, the Hearing Officer declines to follow those
cases as "a workers' compensation decision is not binding in
the disability retirement arena, in part because there is no
presumption of compensability in disability retirement as
there is in workers' compensation."
(Internal brackets omitted). Thus, Bernabe's contention that the
Circuit Court erroneously "raised this issue sua sponte" is
incorrect.
Bernabe also argues that the Circuit Court's ruling
that "disabilities which are aggravated outside work hours and
the workplace, cannot qualify as a service connected disability"
under HRS § 88-79, erroneously "imposed an absolute prohibition
on cases involving injuries occurring outside of the workplace,"
created a "higher standard of proof," and is "contrary to the
purpose and intent" of HRS § 88-79 and supreme court decisions.
Bernabe cites various cases and points to evidence in the record
to argue that injuries occurring outside of the workplace can be
work-related and that his cardiac condition was work-related.
Bernabe's argument misstates and mischaracterizes the
Circuit Court's ruling. The Circuit Court simply concluded that
workers' compensation cases such as Akamine do not apply to the
issue of service-connected disability retirement cases because
they require different standards of burdens of proof; not because
injuries that occur outside of work hours and the workplace can
never be work-related. The Circuit Court, quoting Panado v. Bd.
of Trs. Emps.' Retirement Sys., 134 Hawai#i 1, 11, 332 P.3d 144,
5
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154 (2014) (citing Hawaii Administrative Rules (HAR) § 6-23-31),7
accurately explained that in disability retirement benefit cases,
"[t]he party initiating the ERS proceeding 'shall have the burden
of proof, including the burden of producing evidence and the
burden of persuasion. . . . The degree or quantum of proof shall
be a preponderance of the evidence.'" See also Hua v. Bd. of
Trs. of the Emps.' Retirement Sys., State of Haw., 112 Hawai#i
292, 300-01, 145 P.3d 835, 843-44 (App. 2006) ("[T]he two systems
are entirely separate, and [] a workers' compensation decision is
not binding in the disability arena, in part because there is no
presumption of compensability in disability retirement as there
is in workers' compensation[.]").
The Hearings Officer found, in unchallenged FOFs 22,
25, 29, 37, and 40, and in its mixed finding and conclusion,
that: when Bernabe's cardiac condition occurred, Bernabe had not
been at work for several months prior to the cardiac condition;
that at the time of the cardiac condition, Bernabe was not
performing janitorial services or at a place required of him by
his employer; that Bernabe had a medical history of
"hypertension, hyperlipidemia, diabetes and obesity[;]" and that
Bernabe had not shown by a preponderance of evidence that the
cardiac condition occurred "while in the actual performance of
duty."
The Circuit Court was not wrong in affirming the ERS
Final Decision and finding that the cardiac condition was not
work-related. See United Pub. Workers, 106 Hawai#i at 363,
105 P.3d at 240.
7
HAR § 6-23-31 (2009) states:
Except as otherwise provided by law, the party initiating
the proceeding shall have the burden of proof, including the
burden of producing evidence and the burden of persuasion.
The party having the burden of proof shall proceed first in
the presentation of opening statements, evidence, witnesses,
and arguments, followed by the other party. The degree or
quantum of proof shall be a preponderance of the evidence.
6
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For the foregoing reasons, we affirm the August 4, 2017
Decision and Order and the October 5, 2017 Final Judgment filed
and entered by the Circuit Court of the Third Circuit.
DATED: Honolulu, Hawai#i, March 17, 2023.
On the briefs:
/s/ Katherine G. Leonard
Ted H.S. Hong, Presiding Judge
for Appellant-Appellant.
/s/ Karen T. Nakasone
Jodi L.K. Yi, Associate Judge
Deputy Attorney General,
for Appellee-Appellee. /s/ Sonja M.P. McCullen
Associate Judge
7