Impact of workers' comp bills unclear
By Dan Nakaso
Advertiser Staff Writer
The Lingle administration's proposals to rewrite Hawai'i's workers' compensation law would make it more difficult for employees to file stress-related claims and would remove the protections of collective bargaining agreements, but it's unclear whether the number of claims would actually go down.
Out of 30,000 workers' compensation claims filed each year, about 500 are for stress, according to the state Department of Labor. No one in Lingle's administration has projected how Senate Bill 1378 or the House version, House Bill 1206, would affect the number of claims.
But the language in the bills would "make it more difficult to file a retaliatory claim as a result of a good-faith disciplinary action," said Bob Dove, CEO and president of HEMIC, one of Hawai'i's largest workers' compensation insurance companies. "The problem is that the current language gives plenty of room for an end run. It's very easy for an employee to say, 'My job was stressful and that's why my performance dropped off.'"
Union officials are wary about the bills' language that would eliminate provisions for collective bargaining agreements or other employment agreements that may set different standards other than "good faith" for disciplinary actions.
Terry Lau, political director of the Hawai'i state AFL-CIO, said "pretty clearly, we'd be against those changes."
If the law was changed, Lau said, "I think fewer people would be covered by workers' comp. Members should be compensated for stress, as the law states. Who would be opposed to that?"
Randy Roth, Lingle's senior policy adviser and a University of Hawai'i law professor, and state Attorney General Mark Bennett said the bills were not aimed at collective bargaining agreements.
The new language does, however, include a list of reasons that would limit compensation.
Under the bill, "No compensation shall be allowed for mental injury or illness proximately caused by a disciplinary action, counseling, work evaluation or criticism, job transfer, layoff, demotion, suspension, termination, retirement, or other action associated ordinarily with personnel administration; provided that nothing in this subsection shall be construed to limit the development of the common law or to preempt any common law right or remedy as it may pertain to intentionally inflicted mental injury."
"This is an attempt to clarify the law and to expand the law," Roth said. "We don't think workers' compensation was ever intended to make the kind of claims that were made in recent years, like, for example, stress caused by being fired for insubordination, or for stress being caused by discipline for violating a rule, or stress that was caused by not getting a promotion that was expected or for stress from being investigated for stealing, where the employer had acted appropriately and responsibly to the allegations that had been made."
Even though the administration has not projected how the bills would affect the number of claims, Bennett believes the number eventually would fall — and so would the cost of insurance premiums.
"We want the law to make a little bit more sense," Bennett said.
Reach Dan Nakaso at dnakaso@honoluluadvertiser.com or 525-8085.
