Lead Opinion
I. INTRODUCTION
Petitioner/employer-appellee City and County of Honolulu, Honolulu Fire Department (“the Department”) petitioned this court for a writ of certiorari to review the published opinion of the Intermediate Court of Appeals (“ICA”) in Davenport v. City and County of Honolulu, Honolulu Fire Department,
The Department contends that the ICA erred in holding: (1) psychological injuries resulting from the stress of non-disciplinary personnel actions are compensable under Hawaii’s worker’s compensation statute, Hawaii Revised Statutes (“HRS”) chapter 386 (1963); and (2) remand is required for findings on whether claimant David Davenport’s (“Davenport”) hypertension is compensable as an injury directly and naturally resulting from a compensable primary injury.
We granted certiorari because we believe the ICA erred in its application of Mitchell v. State Department of Education,
II. BACKGROUND
Davenport became a firefighter with the Department on January 3, 1972 with his ultimate goal being a captain’s position. The subject of this appeal concerns two psychological injuries. The first injury occurred in January 1994 and originated from stress surrounding Davenport’s endeavor to advance to the position of Fire Fighter Level III (“FFI-II”), one level below captain. Davenport’s second injury concerns his elevated blood pressure condition diagnosed in April 1995, allegedly stemming from a prior compensa-ble injury to his Achilles tendon.
A. January 1991 Injury
On November 2,1991, Davenport took promotional examinations for' placement on the lists of eligibles for Fire Fighter Level II (“FFII”) and FFIII positions. Davenport was dissatisfied with the outcome of the test, specifically, his resulting ranking. According to Davenport, he was originally ranked seventeen on the FFII list, but after a determination that he was not credited properly for education, his ranking increased to eight. His position on the list for FFIII eligibles, however, was not improved. Davenport filed a petition of appeal with the City and County of Honolulu’s Civil Service Commission (“the Commission”), requesting that the Commission: (1) disclose certain information relating to three challenged test questions; (2) clarify the formula used by the Personnel Department to compute the scores; and (3) allow additional time for administrative review of the test results.
In July and November of 1993, the Commission held two hearings to resolve Davenport’s claims, at which the parties discussed the selection process for determining how candidates are chosen to be placed on the list of eligibles. The Commission delayed ruling on Davenport’s complaint and directed the Personnel Department to review the promotion process to ensure that it was fair and equitable. As a result, the Commission’s proceedings and hearings on Davenport’s petition continued for the next several years and throughout the duration of this appeal. Davenport claims, however, that these events did not contribute to the cause of his psychological injuries.
Meanwhile, in October 1993, the Department promoted Davenport to FFIII. His tenure was cut short, however, when the Department rescinded his promotion in November 1993 and sent him back to his former FFII assignment. The Department claimed that it was forced to take this action after several firefighters filed a lawsuit contesting the validity of the Department’s promotional examination. In an attempt to comply with a temporary restraining order issued by the circuit court, against the use of the examination in promoting individuals to the positions of FFIII and captain, the Department rescinded seven promotions, including Davenport’s. Davenport claims he was “devastated” by the Department’s action. Fire Chief Donald S.M. Chang orally promised Davenport and the other firefighters that the De-' partment would reinstate their promotions before January 1994. However, Richard R. Seto Mook replaced Chang in November 1993, and Davenport’s promotion was not reinstated as promised. Davenport was again very upset and went on sick leave. On January 21, 1994, a doctor treated him for symptoms associated with hiatal hernia and irritable colon, which kept him off work for approximately two weeks. In February 1994, the Department reinstated Davenport’s promotion to FFIII, but refused to credit Davenport’s probationary period for the time he had accumulated from the previous promotion.
Davenport alleges that during this time, he was forced to endure a hostile work environment and harassment by his superiors. The exact nature of these allegations are not clear. However, Davenport claims that, on one occasion, shortly after the reinstatement of his promotion, Fire Chief Seto Mook called him and stated that “if he did not stop his complaining, he would be squashed like a pest, like a fly.” Chief Seto Mook’s alleged statements were apparently referring to Davenport’s appeal to the Commission and
On October 25, 1994, Davenport filed a claim for worker’s compensation benefits for this injury, which he described as “stress, hiatal hernia, [and] irritable colon,” caused by “a long series of administrative difficulties regarding [his] promotion over the last several yeai*s[.]” Davenport I,
B. April 1995 Injury
The second injury at issue in this case is Davenport’s condition of elevated blood pressure described by Davenport as “stress— cumulative trauma and pain from industrial injuries.” Id. The hypertension allegedly originated from a prior injury that occurred on May 2, 1994, when Davenport tore his right Achilles tendon while playing paddle tennis at the fire station. He underwent surgery and went on total temporary disability (“TTD”) from May 5, 1994 to June 14, 1995. The Department accepted liability for the Achilles tendon injury.
While on leave, Davenport began seeing a psychiatrist, Dr. Gordon J. Trockman, for treatment of psychological problems, including depression over his immobility from the foot injury, anger and depression over issues at work, family problems, medical problems (irritable colon and hiatal hernia), and difficulties dealing administratively with the medical system. A clinical psychologist, Joseph P. Rogers, evaluated Davenport in February 1995 and explained that “[a] contributing factor to the build up of perceived stress over the years has been his dogged persistence in pursuing these [promotion and grievance] issues without compromise.” Id. at 301,
On April 10, 1995, while still on leave and receiving TTD benefits for the Achilles tendon injury, Davenport saw Dr. John Hall, the Department’s physician, for the purpose of evaluating his ability to return to work. During this examination, Davenport was diagnosed with elevated blood pressure and was alerted to the fact that he would face medical disqualification if he did not submit a medical report and treatment plan for the hypertension by May 27, 1995. Davenport filed a worker’s compensation claim for the treatment of the hypertension and referenced April 10, 1995 as the date of injury, which he described as “stress—cumulative trauma and pain from industrial injuries.” The Department denied liability for this claim.
C. Board’s Decision
The Department of Labor and Industrial Relations, Disability Compensation Division (“DCD”) held a hearing to examine Davenport’s claims on October 15, 1996. At the hearing, Davenport alleged that his injuries resulted from: (1) harassment and threats from his superiors and other coworkers; (2) the alleged illegal activities committed by the Department during the promotion process; and (3) the depression he suffered from his Achilles tendon injury. The DCD held that
[Davenport] did not suffer compensable injuries. It is the opinions of Drs. Stitham, Ponce, Rogers and Trockman that [Davenport’s] psychiatric problems were caused not by his duties as a fireman, but from the stress of dealing with the administrative process associated with his promotion as a fireman. Even though there is a causal relationship between his injuries and the work environment, [the Board] has held psychiatric injuries arising out of personnel actions at work are won.com-pensable. See Mitchell and subsequent related cases.... Therefore, [the Department] is not responsible for benefits relating to the January 14, 1994 and April 10, 1995 injuries. The claims are hereby denied.
Davenport appealed to the Board and appeared pro se at a hearing on November 2, 1998. The Board agreed that Davenport’s January 1994 and April 1995 psychological injuries did not arise out of and in the course of employment, but found that Davenport had sustained a psychological injury as a compensable consequence of his Achilles tendon injury.
On October 27, 1999 Davenport filed a motion for reconsideration and requested that the Board reconsider its conclusion that the injuries did not arise out of and in the course of employment with the Department. Davenport argued that the Board misconstrued his claim as to the cause of the January 1994 injury. It was Davenport’s position that the injury arose out of the Department’s failure to reinstate his promotion when promised, not from the Civil Service appeals process.
On January 5, 2000, the Board rendered an amended decision and order, finding that
[Davenport’s] January 14, 1994 psychological condition resulted from his involvement in the Civil Service administrative appeals process and not from the new fire chiefs failure to honor the alleged promise of the chiefs predecessor. ... [Participation in the Civil Service administrative appeals process to challenge the examination and promotion procedure is too remote from the usual and reasonable work of a firefighter to be considered and incident of [Davenport’s] employment.
Labor and Industrial Relations Appeals Board, Amended Decision and Order, Jan. 5, 2000 (hereinafter “Board’s Amended Decision ”) (emphasis added).
Regarding Davenport’s April 1995 hypertension claim, the Board found that “[Davenport] alleged that [the Department] conducted an improper physical examination on him while he was on industrial leave and that he was threatened with medical disqualification from his job because of his work injury.” Board’s Amended Decision at 11. Thus, the Board held “that [Davenport] did not sustain a psychological injury on or about April 10, 1995, arising out of and in the course of employment ... [because he] was receiving TTD benefits for his May 2, 1994 work injury, and was not at work in April of 1995.” Id. at 13.
D. ICA Opinion
Davenport appealed the Board’s Amended Decision arguing that the Board was clearly erroneous in making the following findings of facts and conclusions of law: (1) Davenport’s January 1994 injury arose out of the administrative appeals process and is thus too remote from the usual and reasonable work of a firefighter to be considered an incident of employment; (2) the alleged harassment did not contribute to the January? 1994 injury; and (3) the April 1995 hypertension injury is not compensable because it occurred while Davenport was on leave.
In its published opinion, the ICA affirmed in part, vacated in part, and remanded the Board’s Amended Decision. The ICA stated that “regardless of how Davenport’s January 1994 claim is articulated, the Board’s ultimate determination that it was not compen-sable was wrong as a matter of law.” Davenport I,
The ICA relied on HRS § 386-3(a), which states:
If an employee suffers personal injury either by accident arising out of and in the course of the employment or by? disease proximately caused by or resulting fromthe nature of the employment, the employee’s employer or the special compensation fund shall pay compensation to the employee or the employee’s dependents as provided in this chapter.
HRS § 386-3(a) (emphasis added). Because “Hawai'i courts have unequivocally established that purely psychological injuries are within the contemplation of HRS § 386—3[,]” Davenport I,
In answering this question, the ICA relied heavily on our decision in Mitchell v. State Department of Education,
The ICA then turned its analysis to the legislative history that surrounded the amendment to HRS § 386-3, enacted in response to Mitchell. Shortly after Mitchell was decided, the legislature added subsection c to HRS § 386-3, which provides that “[a] claim for mental stress resulting solely from disciplinary action taken in good faith by the employer shall not be allowed[.]” HRS § 386-3(c) (1998). The ICA noted that the legislative history surrounding the amendment showed that the legislature considered and rejected extending the amendment to exclude coverage of personnel actions. Thus, the ICA stated, “[i]t is apparent from the legislative history [that] ... the legislature assumes that psychological injuries engendered by other kinds of non-disciplinary personnel actions, such as promotions and demotions, arise out of and in the course of employment.” Davenport I,
On appeal to this court, the Department alleges that the ICA committed the following grave errors of law: (1) the ICA failed to apply the clearly erroneous standard of review to the Board’s findings; (2) the ICA failed to apply the unitary work connection test for determining compensability; (3) the ICA’s reliance on legislative history regarding HRS § 386-3(c) is misplaced; and (4) the ICA erred by remanding the April 1995 claim for a redetermination of compensability because the issue of whether the April 1995 claim was a direct and natural result of his previous Achilles tendon claim was never at issue before the Board.
III. STANDARD OF REVIEW
A. Board Decisions
Appellate review of Board decisions is governed by HRS § 91—14(g) (1993). Korsak v. Hawai‘i Permanente Medical Group,
B. Statutory Interpretation
The interpretation of a statute is a de novo inquiry for the appellate court.
When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.... This court may also consider the reason and spirit of the law, and the cause which induced the legislature to enact it ... to discover its true meaning.
Id. at 303,
IV. DISCUSSION
A. January U, 1991 Injury
The Department alleges that the ICA erred in holding that psychological injuries deriving from non-disciplinary personnel actions arise out of and in the course of employment and are thus compensable under HRS § 386-3. We agree with the ICA’s conclusion that Davenport’s January 1994 injury is compensable. We find it necessary, however, to clarify the analysis of such claims and the application of our prior decisions in Mitchell, 85 Hawai‘i 250,
1. The Board’s Findings of Fact
The Board determined that Davenport’s January 1994 injury “resulted from his involvement in the Civil Service administrative appeals process and not from the new fire chiefs failure to honor the alleged promise of the chiefs predecessor[J” Board’s Amended Decision at 9. On appeal to the ICA, Davenport argued that the Board’s findings of fact regarding the cause of his January 1994 injuries were clearly erroneous.
We hold that the Board’s findings of fact are not clearly erroneous because the record does not support a firm and definite conviction that a mistake has been made. The Board explained that based on
the opinions of Dr. Trockman, Dr. Rogers, and Dr. Ponce, the written statements of [Davenport’s] co-workers, [Davenport’s] answers to [the Department’s] interrogatories, the fact that [Davenport’s] promotion was reinstated in February of 1994, a month after the January 14, 1994 injury date, [Davenport’s] continued pursuit of his Civil Service appeal beyond that date, despite the promotion, and the fact that he continued to experience emotional problems that required him to seek psychiatric treatment in October 1994, even though his promotion had already been restored many months before, we find that [Davenport’s] January 14, 1994 psychological condition resulted from his involvement in the Civil Service administrative appeals process and not from the new fire chiefs failure to honor the alleged promise of the chiefs predecessor.
Id. at 8-9. Davenport himself attributed his stress injury to “a long series of administrative difficulties regarding [his] promotion over the last several years[.]” Davenport I,
Davenport also appeals the Board’s finding that the alleged harassment and threats from the Fire Chief did not contribute to the injury. In its Amended Decision, the Board held that it was “unable to find that such harassment and threats, even if they occurred, contributed to [Davenport’s] January 14, 1994 stress injury, because by [Davenport’s] own account, the harassment and threats occurred after the January 14, 1994 injury.” Board’s Amended Decision at 9. Thus, the Board did not clearly err in finding that the alleged harassment did not contribute to Davenport’s injuries, and we analyze Davenport’s claim as if it arose solely out of his frustrations with the Civil Service administrative appeals process.
2. Application of Mitchell
The determination of what injuries are compensable under Hawaii’s worker’s compensation statute is governed by HRS § 386-3(a), which provides:
If an employee suffers personal injury either by accident arising out of and in the course of the employment or by disease proximately caused by or resulting from the nature of the employment, the employee’s employer or the special compensation fund shall pay compensation to the employee or the employee’s dependents as provided in this chapter.
HRS § 386-3(a) (emphasis added).
In interpreting this statute, the ICA relied primarily on Mitchell,
As discussed above, the ICA relied on Mitchell in holding that, in light of the policy to construe chapter 386 broadly and the lack of an express exception for non-coverage of injuries deriving from personnel actions, psychological injuries arising out of non-disciplinary personnel actions are compensable under HRS § 386-3. Davenport I,
In reading Mitchell broadly, we hold that the ICA’s interpretation of Mitchell is over-broad. In Mitchell we held that the court must look at the reason for the disciplinary action and whether it relates to the method of accomplishing the ultimate work. We did not hold that all disciplinary actions are covered by HRS § 386-3, but rather, that the statute did not expressly exclude injuries arising out of disciplinary actions from coverage. Mitchell,
We then asked whether the action that gave rise to the discipline arose out of and in the course of employment. We specifically pointed to the distinction in Mitchell that made the injury in that case compensable. We compared Mitchell to our decision in Wharton v. Hawaiian Electric Company, Inc.,
The ICA then turned to legislative history to support its conclusion that psychological injuries resulting from personnel actions arise out of employment. It is apparent that the legislature considered extending the amendment to exclude personnel actions, but decided against it and intentionally failed to address the issue in its amendment. The ICA’s reading of Mitchell and the amendment to mean that “HRS § 386-3 [thus] covers psychological injuries arising out of non-disciplinary promotions and demotions[,]” however, is over-inclusive. The ICA stated that “[o]nce an etiological connection between non-disciplinary personnel action and psychological injury [is] established, it [is] ... a compensable claim.” Davenport I,
3. The “Unitary” Test
In determining what injuries arise out of employment, we have adopted a “unitary’1’ test, which
considers whether there is a sufficient work connection to bring the accident within the scope of the statute. First articulated in Royal State National Insurance Co. v. Labor and Industrial Relations Appeal Board,53 Haw. 32 ,487 P.2d 278 (1971), the work connection approach simply requires the finding of a causal connection between the injury and any incidents or conditions of employment. Chung [v. Animal Clinic, Inc.,63 Haw. 642 ,] 648, 636 P.2d [721,] 725 [(1981)] (citations omitted). The unitary work connection test was formally adopted as the correct means of interpreting and applying HRS § 386-3 in Chung. Id. at 649,636 P.2d at 726 .
Tate,
The ICA declined to apply the “unitary” test, stating:
On this argument, we leave to one side the query whether aspiring to advancement should, as a matter of policy, be considered an intrinsic incident of employment. We instead observe that the Tate analysis militates in support of the Board’s determination only where, as here, the promotions grievance procedure is a formalized process conducted in all respects outside of the work milieu by a separate agency. In the many, perhaps majority, other instances in which promotions and their related grievances are settled at work, while at work, the Tate analysis cuts keenly in the opposite direction. We see no fair or reasoned basis for denying compensationin the former instance while bestowing it in the latter. To do so would be to decide compensability on the mere—and in this context, immaterial—serendipity of the particular administrative apparatus involved.
Davenport I,
4. Application of the “Unitary” Test
In applying the unitary test to the present case, we must look at the activity that gave rise to the injury. The Board held that Davenport’s injury stemmed from “his involvement in the Civil Service administrative appeals process.” Davenport I,
A firefighter’s voluntary effort to obtain a promotion is not essential to the ultimate duties of a firefighter and does not fall within the box of injuries that are clearly compensa-ble. Thus, we must determine whether the injury sustained under these circumstances is “incidental” to the duties of a firefighter.
The issue of whether an employee’s voluntary effort to seek promotion is incidental to employment has not been decided by this court and remains a developing area of worker’s compensation law.
When employees, by undertaking educational or training programs, enhance their proficiency in the work, they do in a sense benefit the employer. On the other hand, self-improvement is primarily the employee’s own concern. Obviously the ambitious clerk who is burning the midnight oil studying to become an accountant cannot expect workmen’s compensation if the lamp blows up. In some situations, however, it may be found that, either by the contemplation of the contract or by custom, the educational activity is part of the employment.
Larson’s Workers’ Compensation Law § 27.03[l][a] (1999).
In resolving the confusion oyer the compensability of purely psychological injuries stemming from non-disciplinary personnel actions, some state legislatures have amended their statutes to exclude such injuries from coverage. See Larson’s § 56.04[5] (providing a list of statutes denying coverage for emotional injuries resulting from bona fide personnel actions). As the ICA pointed out, however, our legislature contemplated joining this trend, but decided against it in declining to address personnel actions in its amendment to section 386-3. It is well-established in Hawaii that chapter 386 is social legislation that is to be interpreted broadly. See Royal State,
Many courts have held that self-improvement and participation in training programs for the purpose of promotion does not fall within the ambit of compensability. See Jordan v. Pinellas County School Board,
Courts finding in favor of compensability have likewise emphasized that them decisions rested on the employer’s encouragement and other factors linking the employment to the injury. See Meaux v. Cormier,
In Courser v. Darby School District # 1,
(1) whether the activity was undertaken at the employer’s request; (2) whether employer, either directly or indirectly, compelled employees attendance at the activity; (3) whether the employer controlled or participated in the activity; and (4) whether both employer and employee mutually benefitted from the activity. The presence or absence of each factor, may or may not be determinative and the significance of each factor must be considered in the totality of all attendant circumstances.
Id. at 419. Under the totality of the circumstances, the court then held that Courser’s injuries were compensable because he was encouraged to pursue the master’s degree program, the employer received the benefit of a maintaining qualified teachers, and the school exhibited control by requiring approval of Courser’s curriculum as a condition of the promotion. Id. at 419-20.
Although not expressly enumerating the factors to be balanced, this court has implemented a similar totality of the circumstances test, talcing into account the benefit to the employer and the employer’s acquiescence in the activity. In Pacheco v. Orchids of Hawai'i,
We noted in Tate, after considering the totality of the circumstances, that personal errands are generally not, by their nature, work-related. Tate,
The California Court of Appeals took the same position in Department of Water and Power of the City of Los Angeles v. Workmen’s Compensation Appeals Board,
[i]f there is any reasonable doubt as to whether such activity was contemplated by the employment or whether the injuries were sustained in the course of employment, such doubt should be resolved in favor of compensation coverage in view of the state’s policy of liberal construction of the Workmen’s Compensation Act in the employee’s favor.
Id,
In accordance with our policy of liberally construing HRS chapter 386, we agree with the Department of Water court and hold that Davenport’s January 1994 injury is compen-sable. Although Davenport was not physically injured while taking the test, he sustained psychological injuries caused by his dissatisfaction with the process for ranking individuals and the overall grievance and promotion processes. Like the employee in Department of Water, Davenport took an examination, administered by the state, on state property, and for the benefit of the employer. Undoubtedly, the Department encourages its employees to advance within the ranks of the Department by taking the promotional examination to be placed on the list of eligibles for FFII and FFIII positions. Moreover, the Department derives a substantial benefit from the advancement of its own employees rather than having to select and train individuals from outside the Department. Thus, if Davenport was directly injured while taking the test, his injuries would be clearly compensable. Here, however, Davenport’s stress injury does not stem from taking the test itself, but from the alleged mis-scoring of his results. Although this situation appears two steps removed from the ultimate work, upon closer inspection, it is no less work-related than the activity in Pacheco and is incidental to the employment of a Honolulu firefighter.
In Pacheco we held that an injury sustained while cashing a paycheck during an authox'ized coffee break was compensable because the employer benefitted by having a refreshed and more productive employee. Although the cashing of the paycheck was not authorized, the general activity of taking a coffee break was not only permissible, but encouraged. In the present case, the Department derives a substantial benefit from having its own employees seek advancement within the Department. The promotion examination allows the Department an avenue for assessing its current firefighters to fulfill their employment needs rather than hiring outside the Department where the candidate has no history with the Department. Thus, the promotion process is an essential function of the Department, which depends on the application of current firefighters employed within the Department. Accordingly, an injury that stems from that process is incidental to the employment and results from an activity that serves an important interest of the Department. We therefore affirm the ICA’s holding that Davenport’s January 1994 injury is compensable.
B. April 10, 1995 Injury
With respect to Davenport’s April 1995 hypertension injury, the ICA held that the Board was clearly erroneous in finding that Davenport’s April 1995 injury was “psychological stress as a result of having to undergo a medical examination on April 10, 1995, while he was on disability for the ... [Achilles tendon] injury.” Davenport I,
In light of all the evidence on the record, we agree with the ICA that the Board’s determination that the April 1995 injury was caused by the stress of undergoing a medical examination was clearly erroneous. On his WC-5 Form for the hypertension claim, Davenport described the injury as “stress—cumulative trauma and pain from industrial injuries[,]” and that the injury was “hypertension related to [a] stress claim that has been denied pending investigation.” Id. at 301,
Second, the ICA held that the Board erred as a matter of law by failing to make any findings as to whether the April 1995 hypertension injury was the direct and natural result of the prior Achilles tendon and related stress injuries. “Generally, ‘a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.’” Davenport I, 100 Hawai‘i at 310,
The test for whether a subsequent injury is a direct and natural consequence of a compensable injury is: (1) whether any causal connection exists between the original and subsequent injury; and, if so, (2) whether the cause of the subsequent injury is attributable to some activity that would be customary in light of the claimant’s condition.
Id. at 310-311,
We agree with the ICA regarding its analysis of Davenport’s hypertension injury and hold that the Board erred by fading to make any findings of fact regarding the relationship of the hypertension to the Achilles tendon injury. The ICA cited HRS § 91-12 (1993), which provides that the Board must make findings and rulings that are reasonably clear, and the court should not be left to speculate as to the findings of an administrative agency. Id. Thus, the ICA had no basis upon which to review the pertinent issues. Davenport I,
V. CONCLUSION
For the foregoing reasons, we affirm the ICA’s determination of Davenport’s January 1994 injury and hold that the injury is com-pensable under the unitary test. We also affirm the ICA’s decision to vacate the Board’s determination of Davenport’s April 1995 hypertension claim and remand for a redetermination of the issue of compensability.
Notes
. Davenport was compensated for this injury and thus, the Achilles tendon and related stress injuries are not issues on appeal, but are relevant to the determination of the April 1995 hypertension claim.
. Davenport suffered from depression and anxiety as a direct result of his physical Achilles tendon injury. Because these psychological injuries were the direct and natural result of his prior compensable Achilles tendon injury, the Board held die injuries were compensable. Thus, these psychological injuries are not at issue in this appeal.
. Davenport argued that the Board was clearly erroneous in finding that his January 1994 injury was not caused by the Fire Chief's rescission of his promotion and from the alleged harassment by the Fire Chief.
Concurrence Opinion
Concurring Opinion of
I concur in granting the application for a writ of certiorari filed by Petitioner/Employer-Appellee
I.
The 1985 version of HRS § 386-3 provided as follows:
Injuries covered. If an employee suffers personal injury either by accident arising out of and in the course of the employment or by disease proximately caused by or resulting from the nature of the employment, the employee’s employer or the special compensation fund shall pay compensation to the employee or the employee’s dependents as hereinafter provided.
Accident arising out of and in the course of the employment includes the wilful act of a third person directed against an employee because of the employee’s employment.
No compensation shall be allowed for an injury incurred by an employee by the employee’s wilful intention to injury oneself or another or by the employee’s intoxication.
HRS § 386-3 (1993). In Mitchell v. Department of Educ.,
As for the question of whether injuries arising from disciplinary actions were com-pensable,
In the absence of an express exception in HRS § 386-3, we cannot unilaterally pronounce one. To do so would run counter to the clear import of HRS § 386-3. If the legislature should deem it advisable in the future, it can ... amend HRS chapter 386 to exclude from coverage those injuries resulting from disciplinary action taken in good faith by the employer. However, unless and until the Hawai'i legislature chooses to amend HRS chapter 386, we are compelled to reach the result we have today.
Id. Intervening amendments made to the 1985 version of HRS § 386-3 are not material, to the instant case (referred to herein as the pre-1998 version).
II.
In its opinion, the ICA discussed the effect of the 1998 amendment on Davenport’s claims. As the ICA indicated, in 1998, the legislature responded to the Mitchell invitation by adding HRS § 386-3(c), which excluded stress related injury arising from disciplinary action from worker compensation coverage, to HRS § 386-3. See ICA opinion at
As observed by the ICA, the legislative history confirms this facial construction. See ICA Opinion at
The concerns relate to the restriction of this bill for now to “disciplinary actions.” The House version had proposed to extend the applicability of this measure to “otherpersonnel action” as well, and the House, in conference, in order to define that term as “counseling, work evaluation or criticism, job transfer, layoff, demotion, suspension, termination, retirement or other action associated ordinarily with personnel administration.” .... Yet ... the Senate conference co-chairs ... refused to accede to the House’s position to extend this measure to other personnel actions as loell.
Id. (quoting Statement of Sen. Case in 1998 House Journal, at 884-85) (emphases added). I believe that, as a result of the 1998 amendment, the legislature narrowed the scope of coverage for mental stress claims, by prohibiting claims resulting “solely from disciplinary action taken in good faith by the employer[.]” HRS § 386-3(c). In other words, after the 1998 amendment, HRS § 386-3 still allowed for compensation of stress-related injury resulting from non-diseiplinary personnel decisions.
III.
However, the ICA appears not only to have utilized the 1998 amendment as an interpretive aid, but to have incorrectly applied the amendment to the present case. See ICA Opinion at
IV.
But, had the ICA applied the pre-1998 HRS § 386-3 provision, it would have reached the same result as it did in applying the 1998 amendment. Under the pre-1998 amendment version of HRS § 386-3, as construed by this court in Mitchell, coverage for Davenport’s stress-related injury (1) arose out of and in the course of employment,
Subject to the foregoing clarification, I join in affirming the ICA’s opinion.
. The dissent contends that the application for writ of "certiorari [was] improvidently granted." Dissenting opinion at 498,
. I observe that the Mitchell court construed the 1985 version of HRS § 386-3. See Mitchell,
. Davenport's claims arose out of incidents which occurred prior to the 1995 amendment of HRS § 386-3, which took effect on June 29, 1995. See 1995 Haw. Sess. L. Act 234, § 26, at 621. Davenport filed his second claim, however, on April 8, 1996, after the 1995 amendment took effect. Because both incidents occurred prior to the 1995 amendment, the 1985 version, which remained unchanged until 1995, was applicable. Thus, the 1985 version of HRS § 386-3 was relevant in this case. For citation purposes, inasmuch as the correct version of HRS § 386-3 applicable to these events was available in the 1993 Replacement of the Hawai'i Revised Statutes, this volume is cited to.
I note that the 1995 amendment would not affect Davenport’s claims, inasmuch as it excluded those injuries incurred “by an employee by the employee’s wilful intention to injure oneself or another by actively engaging in any unprovoked non-work related physical altercation other than in self defense, or by the employee’s intoxication.” Id. (new material underscored). Accordingly, the 1995 amendment is irrelevant for purposes of the instant case.
. Here, unlike in Mitchell, there was no question of whether the acts of the employee that resulted in the employment action constituted "an unauthorized departure from the course of employment[.]” The employment actions in the present case do not appear to be grounded in any conduct by Davenport, and, thus, the "unauthorized departure’’ exception discussed in Mitchell appears inapplicable.
Dissenting Opinion
Dissenting Opinion of
I respectfully dissent. Although the majority agrees with the Intermediate Court of Appeals (ICA) that Davenport’s injuries are compensable, it grants certiorari because it believes that the ICA erred in (1) relying on Mitchell v. State Department of Education,
With respect to Justice Aeoba’s concurring opinion indicating his belief that the ICA retroactively applied HRS § 386-3 (2000), I do not believe, based on the ICA’s analysis as a whole, that its citation to the subsequent version of HRS § 386-3 constitutes grave error or inconsistencies dictating the need for further appeal. See HRS § 602-59(b) (1993). Justice Acoba concedes that the subsequent amendment to HRS § 386-3 (2000) “would not affect stress-related claims resulting from the non-disciplinary actions such as those filed by Davenport,” but writes separately to clarify that the ICA erroneously applied the 1998 amendment. Unlike State v. Hanson,