Davenport v. City and County of Honolulu

• Citation: 100 Haw. 297,59 P.3d 932
• Decision Date: 13 December 2001
• Docket Number: No. 23141.,23141.
• Parties: David K. DAVENPORT, Claimant-Appellant, v. CITY AND COUNTY OF HONOLULU, Honolulu Fire Department, Employer-Appellee, Self-Insured.
• Court: Court of Appeals of Hawai'i

59 P.3d 932

100 Haw. 297

David K. DAVENPORT, Claimant-Appellant, v. CITY AND COUNTY OF HONOLULU, Honolulu Fire Department, Employer-Appellee, Self-Insured.

No. 23141.

Intermediate Court of Appeals of Hawaii.

December 13, 2001.

Certiorari Granted January 23, 2002.

David K. Davenport, on the briefs, claimant-appellant, pro se.

Paul K.W. Au, Deputy Corporation Counsel, on the briefs, for employer-appellee, self-insured.

BURNS, C.J., and LIM, J.; with WATANABE, J., concurring.

Opinion of the court by LIM, J.

In this workers' compensation case, Claimant Appellant David K. Davenport (Davenport) appeals, pro se, the January 5, 2000 amended decision and order of the Labor and Industrial Relations Appeals Board (the Board) that affirmed in part, and modified in part, the November 21, 1996 decision of the Director of the Department of Labor and Industrial Relations, Disability Compensation Division (the Director).

The Director's decision determined, inter alia, that Davenport's claims of psychological injury sustained on January 14, 1994 and April 10, 1995 did not arise out of and in the course of his employment as a firefighter with the Employer-Appellee, City and County of Honolulu Fire Department (the Department), and were therefore not compensable pursuant to Hawaii Revised Statutes (HRS) § 386-3 (Supp.2000).¹ Davenport had also made a claim for a torn Achilles tendon sustained at work on May 2, 1994. The Department had accepted liability for the physiological component of that claim. The Director's decision awarded additional disability benefits for Davenport's May 2, 1994 physical injuries.

The Board affirmed the Director's denial of compensation for Davenport's January 1994 and April 1995 claims, and modified the Director's award of benefits for Davenport's May 1994 claim by adding compensation for psychological sequelae.

In doing so, the Board concluded that Davenport's January 1994 claim of psychological injury was not work-related, and hence not compensable, because it arose out of his efforts to secure a promotion at work. The Board determined that Davenport's April 1995 stress injury was not compensable because it did not occur while he was at work. We hold, with respect to the former issue, that the Board erred as a matter of law in its interpretation and application of HRS § 386-3. We hold, with respect to the latter issue, that the Board fundamentally misapprehended the pertinent issues. We therefore vacate and remand the Board's determination of both issues. We otherwise affirm the Board's amended decision and order.

I. BACKGROUND.

Davenport began his employment as a firefighter with the Department on January 3, 1972. On November 2, 1991, with a captain's position as his ultimate goal, Davenport took promotional examinations for placement on the lists of eligibles for Fire Fighter Level II (FF II) and Fire Fighter Level III (FF III). FF III is one step below captain. Dissatisfied with his resulting rankings, Davenport filed a February 13, 1992 petition of appeal with the City and County of Honolulu's Civil Service Commission (the CSC). Davenport requested the following remedies from the CSC: (1) disclosure of information relating to three challenged test questions, (2) clarification of the formula the City and County's Department of Personnel (Personnel Department) used to compute the scores, and (3) additional time for administrative review of the test results.

Davenport appeared before the CSC in July and November of 1993. Among the issues Davenport discussed at the hearings was the selection process, or how the Personnel Department places qualified firefighter candidates on the lists of eligibles. The Fire Chief selects candidates from the lists to fill vacancies within the Department. The lists normally expire after two years. The CSC delayed ruling on Davenport's complaint and instead directed the Personnel Department to review the process to ensure that it was fair and equitable. As a result, the CSC proceedings and hearings, including a judicial review in Davenport's favor, continued for the next several years.

Meanwhile, in June 1992, Fire Chief Donald S.M. Chang (Fire Chief Chang) promoted Davenport to the position of FF II at the Kalihi Kai fire station, based on his examination score. Appointments within the Department require a six-month probationary period before they can become permanent. In October 1993, the Department again promoted Davenport, this time to a vacant permanent FF III position at the Ka`a`awa Fire Station.

Davenport did not complete his probationary period for the FF III position, because the Department rescinded his promotion on November 1, 1993 and sent him back to his former FF II assignment. Davenport claims he was "devastated." The Department took this action because several firefighters had filed a lawsuit contesting the validity of the Department's promotional examination and list of eligibles for the position of captain. In that lawsuit, the court issued a temporary restraining order (TRO) against the use of the examination for the position of captain (captain's examination). In an attempt to comply with the TRO, the Department rescinded four promotions to captain positions, along with seven promotions to FF III positions, one of which was Davenport's.

While the lawsuit over the captain's examination continued, the FF II and FF III lists, from which the Department had made the eleven rescinded promotions, were due to expire in January 1994. Davenport maintained that Fire Chief Chang had orally promised the affected firefighters that the Department would reinstate their promotions before then. However, Richard R. Seto-Mook replaced Fire Chief Chang in November 1993, and Davenport's promotion was not reinstated as purportedly promised. This forced Davenport to take new promotional examinations for the FF III list of eligibles. 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, and kept him off work for approximately two weeks.

Attorney Dennis W.S. Chang represented Davenport in connection with the CSC matters. He wrote a February 2, 1994 letter to the Personnel Department demanding that it immediately promote Davenport to the FF III position. Shortly thereafter, in February 1994, the Department reinstated Davenport's promotion to FF III, at the Aikahi Fire Station. The Department required Davenport to complete a new six-month probationary period, from February 16 to August 15, 1994, giving him no credit for the time he had accumulated from the previous FF III promotion.

Davenport received a probationary performance evaluation report, dated April 10, 1994, for the period February 16 to May 15, 1994. The report commented: "This is a mature, motivated employee. He has a good attitude about his work. He constantly strives to improve his performance and has good suggestions. With more experience and training he will develop into an excellent officer candidate."

However, on May 2, 1994, Davenport tore his right Achilles tendon while playing paddle tennis at the Aikahi fire station. Davenport underwent surgery on May 4, 1994 and went on sick leave. He was on total temporary disability (TTD) from May 5, 1994 through June 14, 1995. The Department accepted liability for the physiological component of Davenport's injuries.

In October 1994, Davenport began seeing a psychiatrist, Dr. Gordon J. Trockman (Dr. Trockman), for treatment of psychological problems. Dr. Trockman's reports, from the period October 1994 to August 1996, discuss in great detail Davenport's woes, 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. Dr. Trockman diagnosed Davenport as having an "[a]djustment disorder with mixed emotional features[.]" A clinical psychologist, Joseph P. Rogers, Ph.D. (Dr. 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. This [is] characteristic of his underlying obsessive-compulsive/passive aggressive personality structure, which also plays a contributing role in the build up of perceived stress."

On December 22, 1994, Dr. Trockman filed a physician's report (WC-2 Form) of the May 2, 1994 Achilles tendon injury. His report described the injury thus: "Torn Achilles tendon physically[.] Depressed, frustrated, and upset emotionally due to additional stress, etc. [sic]." Dr. Trockman's report also mentioned a contributing cause of the injury: "Previous difficulties with Honolulu Fire Dept. administrative procedures created a background of on-going stress since 1990."

On October 25, 1994, Davenport signed a claim for workers' compensation benefits (WC 5 Form) for an injury suffered back on January 14, 1994. He described the injury as "stress, hiatal hernia, [and] irritable colon." Davenport attributed his stress injury to "a long series of administrative difficulties regarding [my] promotion over the last several years[.]" (internal quotation marks omitted). The Department had earlier filed an Employer's Report of Industrial Injury (WC-1 Form) denying the January 1994 claim "pending investigation[.]"

On April 10, 1995, while he was still off work on TTD, Davenport attended an annual health assessment for the Department conducted by the City and County Department of Health. Dr. John E. Hall diagnosed Davenport with elevated blood pressure. As a result, Davenport faced medical disqualification from his employment if he did not submit a medical report and treatment plan for the hypertension by May 27, 1995. Later, on April 8, 1996, Davenport filed a WC-5 Form for treatment...