Workers’ comp When the state Legislature passed Act 224 in 1998, it meant to keep employees from filing stress-related workers' compensation injury claims after routine discipline by an employer.
stress loophole
faces closure
A bill would expand an earlier
ruling involving discipline
to include all personnel actionsBy Lyn Danninger
ldanninger@starbulletin.comThe legislation was sparked after a state court sided with an employee in a claim arising from on-the-job discipline.
In Mitchell vs. Department of Education, a teacher appealed a state Labor and Industrial Relations Appeals Board decision that partially denied her workers' compensation benefits for a stress-related injury she suffered as a result of disciplinary action against her for violating a rule prohibiting corporal punishment of an unruly student.
With the possibility that any employee could file similar workers' compensation claims after being reprimanded at work, legislators, with the support of business owners, sought to bar the claims.
But when they passed the law to address the Mitchell court decision, lawmakers apparently did not foresee that other types of job-related actions -- such as promotions, demotions or transfers -- could become a catalyst for similar workers' compensation claims.
Such a case began in 1995, after City and County of Honolulu firefighter David Davenport filed a workers' compensation claim saying he sustained a psychological injury when he was denied promotion in January 1994.
While the claim was denied by the state Department of Labor and its appeals board several times, the state Intermediate Court of Appeals eventually sided with Davenport in a decision handed down on Dec. 13, 2000.
To close the legal loophole, Sen. Norman Sakamoto, supported by four other legislators, this year introduced Senate Bill 2098, which expands the prohibition of stress-related claims to include all lawful personnel actions, rather than those related only to discipline.
Sakamoto (D, Moanalua-Salt Lake) described the 1998 legislation as "a narrow fix."
Legislators likely did not deal with other personnel issues such as promotion and demotion at that time because they were reluctant to address more than what they had been asked to fix, in that case, stress claims related to on-the-job discipline, he said.
If the current measure passes, Sakamoto believes it could remove a lot of potential workplace problems.
"You shouldn't have to be worried every time you take a normal workplace action," he said.
The bill was introduced and passed at the first hearing and is now scheduled to be heard by the House Labor Committee and the Ways and Means Committee, Sakamoto said.
Sen. Sam Slom (R, Aina Haina), also a sponsor of the bill and Executive Director of Small Business Hawaii, said he first tried to raise the issue several years ago.
The potential impact and liability for businesses if such claims can be easily filed is tremendous should the measure not pass, he said. Like Sakamoto, he too is hopeful the situation will be rectified this session.
"I know a lot of people are pushing for it," he said.
The events leading up to SB 2098 began with firefighter Davenport's claim.
With the position of captain as his ultimate goal, Davenport had taken a series of exams and been placed on a list of those eligible for promotion, according to court records.
But two promotions later and one step below captain, Davenport did not complete a probationary period because the department rescinded his promotion.
The department took the action because several firefighters had contested the validity of the promotional exam and the list of firefighters eligible for the position of captain. A court then issued a temporary restraining order against the use of the exam and in an attempt to comply, the department rescinded a number of promotions, including Davenport's.
Davenport claimed he was told orally at the time by the fire chief that he and other firefighters would be reinstated once the matter of the examination was settled.
But with a change in fire chiefs in 1993, Davenport and others were forced to re-take the exams.
Eventually Davenport became so upset about the situation that he went on sick leave for two weeks and was treated for symptoms associated with a hiatal hernia and an irritable colon.
While Davenport was eventually reinstated and given good evaluations, he was upset because he once again had to undergo a new probationary period for the position and was given no credit for the time he already put into the job.
In May 1994 Davenport tore his Achilles tendon at work and had to undergo surgery. He then went on total temporary disability and was off work through the middle of June. The fire department accepted liability for the physical injury.
But by October, Davenport was seeing a psychiatrist, depressed about his continued immobility from the foot injury and still suffering from the other medical problems.
A psychiatrist's report in the workers' compensation claim mentioned "previous difficulties with the Honolulu Fire Department administrative procedures created a background of on-going stress since 1990" as a contributing cause of the injury to his foot.
A psychologist who evaluated Davenport in February 1995 added that "a contributing factor to the build-up of perceived stress over the years had been his dogged persistence in pursuing the promotion and grievance issues without compromise."
While still off work in April 1995, Davenport found he had elevated blood pressure and faced disqualification from his job if he did not submit a medical report and treatment plan.
Later that month, Davenport added an additional claim for treatment of the condition, which he claimed was due to a stress claim that had been denied pending an investigation.
Even though Davenport was allowed to return to work on limited duty from June 15, 1995, until Dec.18, 1995, a psychiatrist eventually declared him incapable of working as a firefighter.
With the assistance of an attorney, Davenport continued to seek workers' compensation for what were now three psychological injuries alleged to have occurred in January 1994, May 1994 and April 1995.
Eventually the matter ended up in the state Intermediate Court of Appeals, which overturned the state Labor and Industrial Relations Appeals Board decision denying the stress claims.
Neither Davenport, nor the attorney who represented the city in the case returned calls for comment.
Given the business implications of the case and the subsequent legal decision, Sakamoto said he is hopeful the Legislature will pass SB 2098.
"If the measure passes as far as normal workplace actions, at least at this point, it would take away a lot of problems," he said.
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