No. SCWC-14-0000694, Thursday, January 7, 2016, 8:45 a.m.

GENBAO GAO, Petitioner/Claimant-Appellant, vs. STATE OF HAWAI`I, DEPARTMENT OF THE ATTORNEY GENERAL, Respondent/Employer-Appellee, Self-Insured.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioner:

Louise K. Y. Ing and Annie J. Okazaki

Attorneys for Respondent:

James E. Halvorson and Maria C. Cook, Deputy Attorneys General

NOTE: Order accepting Application for Writ of Certiorari, filed 09/02/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

On September 2, 2015, this court accepted an Application for Writ of Certiorari (“Application”) submitted by pro se Petitioner/Claimant-Appellant Genbao Gao (“Gao”). The Labor and Industrial Relations Appeals Board (“LIRAB”) had found that Gao’s workplace psychological injury was attributed to a “Notice to Improve Performance” (“NTIP”) issued by Gao’s employer, the State of Hawai`i. LIRAB then concluded that the NTIP was a “reprimand” as defined in HRS § 386-1 (Supp. 2005) and that therefore his injury was not compensable pursuant to HRS § 386-3(c) (Supp. 1998). That statute provides:

A claim for mental stress resulting solely from disciplinary action taken in good faith by the employer shall not be allowed; provided that if a collective bargaining agreement or other employment agreement specifies a different standard than good faith for disciplinary actions, the standards set in the collective bargaining agreement or other employment agreement shall be applied in lieu of the good faith standard. For purposes of this subsection, the standards set in the collective bargaining agreement or other employment agreement shall be applied in any proceeding before the department, the appellate board, and the appellate courts.

The Intermediate Court of Appeals (“ICA”), pursuant to its April 23, 2015 Summary Disposition Order, affirmed the Decision and Order filed January 31, 2014, by LIRAB, and entered a Judgment on Appeal on May 21, 2015.

Based on a liberal interpretation of Gao’s pro se Application, Gao asserts the ICA erred in affirming LIRAB’s conclusion because (1) the NTIP was not a “disciplinary action” as defined in HRS § 386-1 and used in HRS § 386-3(c), (2) in any event, the NTIP was not issued based on proper cause, and (3) at the hearing, LIRAB improperly excluded evidence that would have demonstrated that the accusations were unfounded.

On November 4, 2015, this court ordered supplemental briefing on the following issue:

Whether the Notice to Improve Performance (“NTIP”) issued to Petitioner was “disciplinary action,” as defined in HRS § 386-1 (Supp. 2005) and used in HRS § 386-3(c) (Supp. 1998), when viewed in the light of the statutes’ legislative histories.