Stress Of Complaining

Psychological injury caused by the stress of complaining about adverse promotion decisions is now compensatory under Hawaii’s workers’ compensation law, under the recent Hawaii Supreme Court opinion in Davenport v. City and County of Honolulu.

The Honolulu Fire Depart-ment employed Dave Davenport as a Fire Fighter Level II. Davenport took an exam to qualify for promotion to Level III. He was dissatisfied with the exam outcome regarding his eligibility ranking and appealed it to the Honolulu Civil Service Commission. The appeal continued for years.

Meanwhile, the department promoted Davenport to Level III, rescinded the promotion and then reinstated it again after three months. Before the promotion was reinstated, a doctor treated Davenport, and he took two weeks’ leave. He claimed workers’ compensation benefits for stress, hiatal hernia and irritable colon, caused by what he called “a long series of administrative difficulties regarding his promotion over the last several years.”

The court held that Davenport’s injury was compensatory. It was irrelevant that the grievance was handled formally outside of work by a separate agency rather than informally at work by upper management. Davenport’s use of the appeals process to grieve the exam outcome was work-related, because his effort to obtain a promotion through the exam was incidental to his work.

The court explained that Davenport sustained injuries caused by his dissatisfaction with the exam and the grievance process. The department administered the exam on its own property and benefited from having its own employees seek advancement rather than selecting and training individuals from outside.

After the Davenport case, compensation of psychological injury resulting from stress of grieving – internally or externally – will depend on the subject of the employee’s grievance. Stress of grieving over disciplinary action taken in response to an employee’s misconduct will not be compensatory, due to an explicit exception from the Hawaii workers’ compensation statute. The stress of grieving about adverse promotion decisions will be compensatory. Whether stress of grieving over personnel actions other than promotions is compensatory will be the subject of future developments, absent intervention by the Legislature.

Jeffrey Harris is a partner in the law firm of Torkildson Katz Fonseca Jaffe Morre & Hetherington. He specializes in labor and employment law. He can be reached at 523-5393.

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