On May 18, 2016, the HAWSCT issued an opinion in Genbao Gao v. State of Haw., Dep’t of the Attorney General, SCWC-14-0000694, authored by Justice McKenna, and the first decision in an appeal in which a party received the assistance of an attorney though the Hawaii Appellate Pro Bono Pilot Project, a program we blogged about here that matches eligible pro se litigants with pro bono appellate counsel. The HAWSCT held that a notice of infraction Gao received from his employer was not a “disciplinary action” within the meaning of the relevant statutes, and, thus, his worker’s compensation claim was not barred, vacating the ICA’s decision to the contrary.
The underlying case involved a worker’s compensation claim filed by Gao after he received the Notice to Improve Performance. After the meeting at which Gao was provided the Notice, he sought treatment for major depression. Approximately one year later, Gao was terminated. Gao then filed the worker’s compensation claim. The Labor and Industrial Relations Board agreed that Gao’s psychological injury resulted from his receiving the Notice, but concluded he was not entitled to worker’s compensation because the Notice was not a “disciplinary action” as defined by the relevant worker’s compensation statutes, HRS 386-1 and 386-3(c). Rather, the LIRAB concluded that because the Notice was a mere reprimand – i.e. a “disciplinary action” – it constituted a personnel action over which Gao had no compensation claim. The ICA affirmed.
On certiorari, the HAWSCT disagreed. Reiterating that mental injuries are generally compensable under the worker’s compensation statute, and also recognizing that under HRS 386-3(c) a “disciplinary action” is not subject to compensation under the statute, the court held that the Notice received by Gao was not a “disciplinary action.” Looking to the legislative history of the statute, the HAWSCT noted that “[c]ritical to the legislature’s definition of ‘disciplinary action’ is the mandate of punishment for the infraction of a rule.” Slip. Op. at 17. The court then explained that the Notice received by Gao did not impose sanctions for the infraction of an employer rule, but only the possibility of sanctions. In other words, the Notice did not “punish Gao” but merely “highlighted Gao’s performance deficiencies[.]” Id. at 18.
The court also held that even if the Notice could be construed as punishment, it did not comply with Gao’s HGEA union collective bargaining agreement – necessary for the Notice to have been considered a written reprimand in accord with that agreement.
The HAWSCT’s full unanimous opinion is available Gao.