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Davenport v. City and County of Honolulu12/30/2002
tion taken in good faith by the employer shall not be allowed[.]" HRS § 386-3(c) (Supp. 2001) (emphases added). As the ICA pointed out, in excluding only disciplinary action injury from coverage, the legislature impliedly left other non-disciplinary personnel actions covered under HRS § 386-3. See ICA opinion at 23-24. Where a matter is not explicitly excluded by a statute, it is impliedly included. See Evanson v. University of Hawaii, 52 Haw. 595, 600, 483 P.2d 187, 191 (1971) (holding that, "except those specifically excluded[,]" student employees were included under workers compensation law) (citation omitted).
As observed by the ICA, the legislative history confirms this facial construction. See ICA Opinion at 24-25. In the course of the amendment's passage, "the legislature had considered, but rejected, expanding the scope of the amendment to exclude claims for stress arising out of other, non-disciplinary personnel actions." Id. at 24. As stated by the ICA, in the course of the proceedings, Representative Case remarked:
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 "other personnel 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 well. 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-disciplinary 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 1-2 ("The Director's decision determined, inter alia, that Davenport's claims . . . were therefore not compensable pursuant to Hawaii Revised Statutes (HRS) § 386-3 (Supp. 2000)."), and id. at 2 n.1 (quoting from the amended version of HRS § 386-3). Absent clearly express contrary legislative intent, the well-established rule of statutory construction forbids the retrospective operation of statutes. See HRS § 1-3 (1993) ("No law has any retrospective operation, unless otherwise expressed or obviously intended."). In the present case, Act 224, which amended HRS § 386-3 in 1998, does not contain language that would indicate the legislature's direction or intention that the statute apply retroactively. Accordingly, the presumption of prospectivity is not rebutted. See HRS § 1-3.
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, (2) was not barred by HRS § 386-3 (1985), and was thus compensable. Because the 1998 amendment to HRS § 386-3 excluded only stress-related injury stemming from disciplinary action, it did not preclude coverage for such injury resulting from other type
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