Center for Labor Education & Research
University of Hawaiʻi - West Oʻahu

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HRS Chapter 386
HAWAIʻI WORKERS' COMPENSATION LAW

as of July 2015

SECTIONS:

PART I. GENERAL PROVISIONS
Sections 1 to 10.

PART II: COMPENSATION
Sections 21 to 57.

PART III. ADMINISTRATION
§386-71. Duties and powers of the director in general
§386-71.5 Rehabilitation unit.
§386-71.6 Workers' compensation benefits facilitator unit.
§386-72 Rule-making powers.
§386-73 Original jurisdiction over controversies.
§386-73.5 Proceedings to determine employment and coverage.
§386-78 Compromise.
§386-79 Medical examination by employer's physician.
§386-80 Examination by impartial physician.
§386-81 Notice of injury; waiver.
§386-82 Claim for compensation; limitation of time.
§386-83 When claim within specified time is unnecessary or waived.
§386-84 Limitation of time with respect to minors and mentally incompetent.
§386-85 Presumptions.
§386-86 Proceedings upon claim; hearings.
§386-87 Appeals to appellate board.
§386-87.1 Standing to intervene in appeals.
§386-88 Judicial review.
§386-89 Reopening of cases; continuing jurisdiction of director.
§386-90 Conforming prior decisions on appeal.
§386-91 Enforcement of decisions awarding compensation; judgment rendered thereon.
§386-92 Default in payments of compensation, penalty.
§386-93 Costs.
§386-94 Attorneys, physicians, other health care providers, and other fees.
§386-95 Reports of injuries, other reports, penalty.
§386-96 Reports of physicians, surgeons, and hospitals.
§386-97 Inspections.
§386-97.5 Penalties.
§386-98 Fraud violations and penalties.
§386-99 Posting of information.
§386-100 Deductible option for medical benefits in insurance policy.

PART IV: SECURITY FOR COMPENSATION
Sections 121. to 155.

PART V: APPLICABILITY TO HAWAI'I GUARD, VOLUNTEER PERSONNEL AND PUBLIC BOARD MEMBERS
Sections 161. to 181.

PART VI. SELF-INSURANCE GROUPS
Sections 191. to 214.


PART III. ADMINISTRATION

§386-71 Duties and powers of the director in general. The director of labor and industrial relations shall be in charge of all matters of administration pertaining to the operation and application of this chapter. The director shall have and exercise all powers necessary to facilitate or promote the efficient execution of this chapter and, in particular, shall supervise, and take all measures necessary for, the prompt and proper payment of compensation.

If an injury which may be compensable under this chapter is reported to, or comes to the notice of, the department of labor and industrial relations, the director and the director's staff shall investigate such injury to the extent as may appear necessary. The director shall cause to be printed and furnished free of charge to any employer or employee such blank forms as the director deems requisite to the performance of the director's functions. The blanks shall also be supplied by the director to the clerks of the respective circuit courts, who shall furnish the same to any employer or employee free of charge pursuant to any rules issued by the director. [L 1963, c 116, pt of §1; Supp, §97-70; HRS §386-1; am imp L 1984, c 90, §1]

Case Notes

      Cited: 43 H. 173, 180.

 

§386-71.5 Rehabilitation unit. There is established within the department of labor and industrial relations a rehabilitation unit. All professional and clerical employees of this unit shall be appointed by the director. The rehabilitation unit shall have the duties and responsibilities provided in section 386-25. Employees of the unit shall be subject to chapters 76 and 77. [L 1980, c 224, §1]

 

§386-71.6 Workers' compensation benefits facilitator unit. (a) There is established within the department of labor and industrial relations the workers' compensation benefits facilitator unit. All professional and clerical employees of the unit shall be appointed by the director and shall be subject to chapters 76 and 77.

(b) Facilitators of the unit shall have the following duties and responsibilities:

  1. Assist injured workers in filing their workers' compensation claims under this chapter;
  2. Assist insurers, employers, and providers; and
  3. Facilitate the workers' compensation claims process.

(c) All expenses incurred by the director in establishing the unit shall be paid from the special compensation fund. [L 1996, c 260, §1]

 

§386-72 Rule-making powers. In conformity with and subject to chapter 91, the director of labor and industrial relations shall make rules, not inconsistent with this chapter, which the director deems necessary for or conducive to its proper application and enforcement; provided that the rules were adopted prior to January 1, 2005. No rules adopted or amended on or after January 1, 2005, pertaining to any workers' compensation standard or procedure arising under this chapter shall have the force and effect of law; provided, however, that annual updates in the medical fee schedules specific to the amount paid to medical providers as provided in section 386-21(c) may be made consistent with this chapter. [L 1963, c 116, pt of §1; Supp, §97-71; HRS §386-72; gen ch 1985; am L Sp 2005, c 11, §7]

 

§386-73 Unless otherwise provided, the director of labor and industrial relations shall have original jurisdiction over all controversies and disputes arising under this chapter. The decisions of the director shall be enforceable by the circuit court as provided in 386-91. There shall be a right of appeal from the decisions of the director to the appellate board and thence to the intermediate appellate court, subject to chapter 602, as provided in sections 386-87 and 386-88,but in no case shall an appeal operate as a supersedeas or stay unless the appellate board or the appellate court so orders. [L 1963, c 116, pt of §1; Supp, §97-72; HRS §386-73; am L 1969, c 244, §2b; am L 1979, c 111, §18; am L 2004, c 202, §42; am L 2006, c 94, §1; am L 2010, c 109, §1]

Cross References

      Appeal, see chapter 91.

Rules of Court

      Stay, see HRCP rule 72(i).

Case Notes

      This section and §386-88 supersede §91-14 and remove the circuit court from the appellate process with regard to proceedings brought under chapter 386. 53 H. 640, 500 P.2d 746.

      "Independent system of legal relations" in this chapter debars declaratory relief under chapter 632. 64 H. 380, 641 P.2d 1333.

      Section does not deprive circuit court of subject matter jurisdiction over common law tort claims not based on the original work injury. 83 H. 457, 927 P.2d 858.

      Where claimant's common law tort claims against employer's insurer did not arise under this chapter, director did not have original jurisdiction under this section. 83 H. 457, 927 P.2d 858.

      Where claimant's complaint raised a "controversy or dispute under this chapter" over which the director had original jurisdiction, summary judgment properly granted by circuit court as court was without jurisdiction over claim. 83 H. 457, 927 P.2d 858.

      A settlement or compromise of future workers' compensation benefits constitutes a controversy or dispute within the original jurisdiction of the director of labor and industrial relations under this section. 90 H. 152, 977 P.2d 160.

      Under §386-8, this section, and Hawaii administrative rule §12-10-31, a settlement or compromise of future workers' compensation benefits cannot be valid or binding without the consent or approval of the director of labor and industrial relations. 90 H. 152, 977 P.2d 160.

      Where plaintiff's claims did not arise under this chapter, the exclusive remedy and original jurisdiction provisions in the workers' compensation statute did not apply, and where plaintiff's claims for relief of tortious conduct on the part of workers' compensation insurer were not within the original jurisdiction of the labor director, trial court erred in granting summary judgment on that basis. 90 H. 407, 978 P.2d 845.

      This section and §386-87 set forth the right to appeal from the decisions of the director in workers' compensation cases and it gives a party the right to appeal the decision of the director in a medical fee dispute to the labor and industrial relations appeals board; thus, the no-appeal provision of Hawaii administrative rule §12-15-94(d) was invalid as inconsistent with this chapter, and the director exceeded the director's rulemaking authority in making the director's decisions in medical fee disputes final and non-appealable. 120 H. 101 (App.), 201 P.3d 614.

      Cited: 24 H. 731, 736..

 

§386-73.5 The director of labor and industrial relations shall have original jurisdiction over all controversies and disputes over employment and coverage under this chapter. Except in cases where services are specifically and expressly excluded from "employment" under section 386-1, it shall be presumed that coverage applies unless the party seeking exclusion is able to establish under both the control test and the relative nature of the work test that coverage is not appropriate under this chapter. There shall be a right of appeal from decisions of the director to the appellate board and thence to the intermediate appellate court, subject to chapter 602. [L 1996, c 94, §1; am L 2004, c 202, §43; am L 2006, c 94, §1; am L 2010, c 109, §1]

 

§386-78 Compromise. (a) [Repeal and reenactment on June 30, 2016. L 2014, c 25, §4.] No compromise in regard to a claim for compensation pending before the director shall be valid unless it is approved by decision of the director as conforming to this chapter and made a part of the decision; provided that this requirement shall not apply to compromises reached as a result of claims or actions brought under section 386-8. (b) No compromise in regard to a claim for compensation shall be effected and approved in any appeal until after the director has been notified on the proposed terms thereof and has had an opportunity to be heard relative thereto. [L 1963, c 116, pt of §1; Supp, §97-77; HRS §386-78; am L 1969, c 17, §2; am L 1973, c 11, §1; am L 1982, c 59, §1; am imp L 1984, c 90, §1; am L 1995, c 234, §12; am L 2014, c 25, §1]

Case Notes

      Where letter withdrawing compensability issue did not result in final disposition of case, claimants properly and timely filed request for attorney's fees and costs under provisions of administrative rule after appeals board's final decision and order. 84 H. 390 (App.), 935 P.2d 105.

     Cited: 24 H. 97, 102; 31 H. 672, 673.

 

§386-79 Medical examination by employer's physician. After an injury and during the period of disability, the employee, whenever ordered by the director of labor and industrial relations, shall submit to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer. The employee shall have the right to have a physician or surgeon designated and paid by the employee present at the examination, which right, however, shall not be construed to deny to the employer's physician the right to visit the injured employee at all reasonable times and under all reasonable conditions during total disability.

      If an employee refuses to submit oneself to, or in any way obstructs such examination, the employee's right to claim compensation for the work injury shall be suspended until the refusal or obstruction ceases and no compensation shall be payable for the period during which the refusal or obstruction continues.

      In cases where the employer is dissatisfied with the progress of the case or where major and elective surgery, or either, is contemplated, the employer may appoint a physician or surgeon of the employer's choice who shall examine the injured employee and make a report to the employer. If the employer remains dissatisfied, this report may be forwarded to the director.

      Employer requested examinations under this section shall not exceed more than one per case unless good and valid reasons exist with regard to the medical progress of the employee's treatment. The cost of conducting the ordered medical examination shall be limited to the complex consultation charges governed by the medical fee schedule established pursuant to section 386-21(c). [L 1963, c 116, pt of §1; Supp. §97-78; HRS §386-79; am imp L 1984, c 90, §1; am L 1995, c 234, §13; am L 1996, c 260, §4]

Case Note
Labor and industrial relations appeals board's failure to apply this section, as amended, in its decision and order constituted harmless error, where record reflected that the reason for the 1995 medical examination ordered by the director related directly "to the medical progress of employee's treatment" in accordance with the mandate of this section as amended. 94 H. 487, 17 P.3d 219.

 

§386-80 Examination by impartial physician. The director of labor and industrial relations may appoint a duly qualified impartial physician to examine the injured employee and to report. The fees for such examination shall be paid from the funds appropriated by the legislature for the use of the department of labor and industrial relations. [L 1963, c 116, pt of §1; Supp, §97-79; HRS §386-80]

 

§386-81 Notice of injury; waiver. No proceedings for compensation under this chapter shall be maintained unless written notice of the injury has been given to the employer as soon as practicable after the happening thereof. The notice may be given by the injured employee or by some other person on the employee's behalf. Failure to give such notice shall not bar a claim under this chapter if (1) the employer or the employer's agent in charge of the work in the place where the injury was sustained had knowledge of the injury; or (2) medical, surgical, or hospital service and supplies have been furnished to the injured employee by the employer; or (3) for some satisfactory reason the notice could not be given and the employer has not been prejudiced by such failure.

Unless the employer is prejudiced thereby notice of injury shall be deemed to have been waived by the employer if objection to the failure to give such notice is not raised at the first hearing on a claim in respect of such injury of which the employer is given reasonable notice and opportunity to be heard. [L 1963, c 116, pt of §1; Supp, §97-90; HRS §386-81; gen ch 1985]

Case Notes

      Time for giving notice; there is compliance where claimant gives notice after claimant becomes aware or should have become aware that the injury may be compensable. 50 H. 519, 445 P .2d 34.

      "Satisfactory reason" to excuse late notice. 55 H. 558, 523 P .2d 832.

      Notice. 24 H. 97. Neither technical nor formal notice is required. 24 H. 731.

      Sufficiency of knowledge of injury. 32 H. 503. Furnishing medical aid. Id.

      Minors. 32 H. 928. Time limitation runs from date of accident, not time of discovery of permanency of injury. 32 H. 920. Time limitation runs from date employee is disabled by injury from working; notice dispensed with 34 H. 65.

      Cited: 24 H. 97, 101.

 

§386-82 Claim for compensation; limitation of time. The right to compensation under this chapter shall be barred unless a written claim therefor is made to the director of labor and industrial relations (1) within two years after the date at which the effects of the injury for which the employee is entitled to compensation have become manifest, and (2) within five years after the date of the accident or occurrence which caused the injury.

The foregoing limitations of time shall not apply to a claim for injury caused by compressed air or due to occupational exposure to, or contact with, arsenic, asbestos, benzol, beryllium, zirconium, cadmium, chrome, lead, fluorine, or other mineral or substance with carcinogenic properties, as incorporated in the Hawaii Occupational Safety and Health Standards, or to exposure to X-rays, radium, ionizing radiation, or radioactive substances, but such claim shall be barred unless it is made to the director, in writing, within two years after knowledge that the injury was proximately caused by, or resulted from the nature of, the employment. The claim may be made by the injured employee or the employee's dependents or by some other person on the employee's or their behalf. The claim shall state in ordinary language the time, place, nature, and cause of the injury. [L 1963, c 116, pt of §1; Supp, §97-91; HRS §386-82; am L 1979, c 114, §1; gen ch 1985]

Case Notes

      Statute of limitations for asserting claim starts from discovery of injury or illness. 50 H. 1, 427 P .2d 845.

      Tolling of limitation period. 2 H. App. 136, 627 P .2d 288.

      The two-year limitation period begins at a point where the employee's injury has had a disabling effect that prevents employee from working. 2 H. App. 157, 628 P .2d 205.

      Condition which causes no loss of function and having no treatment should not be considered an injury. 71 H. 269, 788 P .2d 170.

    &n,.bsp; Cited: 24 H. 97, 101; 24 H. 731, 738.

 

§386-83 When claim within specified time is unnecessary or waived. (a) If payments of income and indemnity benefits have been made voluntarily by the employer, the making of a claim within the time prescribed in section 386-82 shall not be required. No such payments shall be deemed to have been made if the payments are in the nature of a gift and not intended as compensation, or are made by welfare or benefit organizations operating under direction or control of the employer, or are for medical, surgical, or hospital services and supplies, or are made as wages during periods of partial or total disability if the employer notifies the director of labor and industrial relations at the time in writing that such payments of wages are not in lieu of and shall not be considered as compensation.

(b) Unless the employer is prejudiced thereby, failure to make a claim within the time prescribed in section 386-82 shall not bar a claim to compensation if objection to such failure is not raised at the first hearing on the claim of which the employer is given reasonable notice and opportunity to be heard. (L 1963, c 116, pt of §1; Supp, §97-92; HRS §386-83]

Case Notes

      Payment of wages for work actually performed by employee on hourly wages basis is not payment of compensation for injuries. 54 H. 98, 503, P .2d 434.

      Where employer objects at first hearing to the delay in filing, there is no waiver of limitation period, notwithstanding employer might have indicated, prior to hearing an intent to waive the limitation period. 54 H. 98, 503, P .2d 434.

      Tolling of limitation period. 2 H. App. 136, 627 P .2d 288.

      Cited: 24 H. 97, 101; 24 H. 731, 738.

 

§386-84 Limitation of time with respect to minors and mentally incompetent. No limitation of time provided in this chapter shall run as against any person who is mentally incompetent or a minor dependent so long as the person or minor has no guardian or next friend. [L 1963, c 116, pt of §1; Supp, §97-93; HRS §386-84; gen ch 1985]

Case Notes

      Limitation does not run against minors, even though represented by next friend prosecuting an action in tort for wrongful death. 32 H. 928.

      Cited: 24 H. 97, 101; 32 H. 503, 506.

 

§386-85 Presumptions. In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary:

  1. That the claim is for a covered work injury;
  2. That sufficient notice of such injury has been given;
  3. That the injury was not caused by the intoxication of the injured employee; and
  4. That the injury was not caused by the wilful intention of the injured employee to injure oneself or another.
[L 1963, c 116, pt of §1; Supp, §97-94; HRS §386-85; gen ch 1985]

Case Notes

      Scope and nature of presumption discussed. 51 H. 312, 459 P .2d 541; 51 H. 632, 466 P .2d 439.

      Substantial evidence defined. 51 H. 312, 459 P .2d 541; 53 H. 406, 495 P .2d 1164.

      Where death might have been caused by pre-existing heart condition or by occupational exertions or by both, presumption of paragraph (1) was applicable. 51 H. 312, 459, P .2d 541.

      Presumption places on employer the burden of going forward with the evidence as well as that of persuasion. 53 H. 32, 487 P .2d 278; 53 H. 406, 495 P .2d 1164.

      If employer fails to produce substantial evidence to contrary, presumption dictates that claimant must win. 53 H. 161, 489, P .2d 419.

      Presumption may be rebutted only by substantial evidence to the contrary. 53 H. 406, 495 P .2d 1164.

      Evidence adduced by employer to show that death by heart attack was not work-connected held not to amount to substantial evidence. 53 H. 406, 495 P .2d 1164.

      Presumption applies in HRS §386-89 (c) proceeding and places burden on employer. 56 H. 552, 545 P .2d 692.

      Employer has burden of going forward with evidence and burden of ultimate persuasion, and all reasonable doubt should be resolved in favor of claimant. 57 H. 296, 555 P .2d 855.

      Proceeding for review brought by claimant under §386-89 (c) is a "proceeding for the enforcement of a claim for compensation under this chapter." 57 H. 535, 560 P .2d 1292.

      If employer fails to present substantial evidence to rebut presumption, employee must prevail. 59 H. 551, 584 P .2d 119.

      Injury or death arises in course of employment when it takes place within the period of employment, at place where the employee may reasonably be, and while fulfilling duties or engaged in something incidental thereto. 1 H. App. 77, 613 P .2d 927.

      Pursuant to requirements of §91-12, appeals board should generally state whether or not it has applied presumption of paragraph (1). But failure to do so in instant case did not prejudice appellant's substantial rights. 1 H. App. 77, 613 P .2d 927.

      Substantial evidence defined. 1 H. App. 77, 613 P .2d 927.

      Scope and nature of presumption discussed. 3 H. App. 39, 640 P .2d 1175.

      Paragraph (1) applies from outset. Preliminary showing that injury occurred in course of employment not required. 63 H. 642, 636, P .2d 721.

      Mentioned. 52 H. 242, 473 P .2d 561; 4 H. App. 26, 659 P .2d 77.

 

§386-86 Proceedings upon claim; hearings. (a) If a claim for compensation is made, the director shall make such further investigation as deemed necessary and render a decision within sixty days after the conclusion of the hearing awarding or denying compensation, stating the findings of fact and conclusions of law. The director may extend the due date for decisions for good cause provided all parties agree. The decision shall be filed with the record of the proceedings and a copy of the decision shall be sent immediately to each party.

(b) The hearing shall be informal and shall afford the parties a full and fair opportunity to present the facts and evidence to be considered. Hearings under this section shall not be subject to chapter 91. No stenographic or tape recording shall be allowed.

(c) The order of presentation shall not alter the burden of proof, including the burden of producing evidence and the burden of persuasion. The party or parties who bear these burdens shall be determined by law consistent with the purposes of this section.

(d) Should the injured employee or injured employee's representative, or the employer or employer's representative fail to appear at the hearing, the director may issue a decision based on the information on file. The decision shall be final unless appealed pursuant to section 386-87. In all other circumstances, a decision shall not be rendered by the director without a hearing, which may not be waived by the parties.

(e) For the purpose of obtaining any matter, not privileged, which is relevant to the subject matter involved in the pending action, the director, upon application and for good cause shown, may order the taking of relevant testimony by deposition, upon oral examination, or written interrogatories, or by other means of discovery in the manner and effect prescribed by the Hawaii rules of civil procedure; provided that when the claimant's deposition is taken, the employer shall pay for the cost to the claimant of attending the deposition, any costs associated with having the deposition transcribed and copied, and any and all reasonable attorney's fees and costs incurred by the claimant with respect to the deposition.

(f) Subpoenas requiring the attendance of witnesses at a hearing before a hearings officer or for the taking of a deposition or the production of documentary evidence from any place within the State at any designated place of hearing may be issued by the director or a duly authorized representative. The employer shall serve a claimant with a copy of a medical record subpoena unless the employer has previously obtained the claimant's authorization to examine the claimant's medical records. Should the claimant subpoena medical records, the employer shall be served a copy. The party subpoenaing the records shall provide these records within fifteen calendar days of their receipt to the employer, claimant, and the special compensation fund if a joinder has been filed, or their representatives. These records shall be submitted by the party requesting the subpoena to the director within seven calendar days of the date of the notice of hearing or upon request by the director. A party who desires to enforce the director's subpoena shall seek enforcement from a court of competent jurisdiction. [L 1963, c 116, pt of §1; Supp, §97-95; HRS §386-86; am L 1985, c 296, §8; am L Sp 2005, c 11, §8]

Case Notes

      Where no lawful claim was filed with the director, director lacked the statutory authority either to award or to deny benefits to injured employee. 89 H. 411, 974 P.2d 51.

 

§386-87 Appeals to appellate board. (a) A decision of the director shall be final and conclusive between the parties, except as provided in section 386-89, unless within twenty days after a copy has been sent to each party, either party appeals therefrom to the appellate board by filing a written notice of appeal with the appellate board or the department. In all cases of appeal filed with the department the appellate board shall be notified of the pendency thereof by the director. No compromise shall be effected in the appeal except in compliance with section 386-78.

(b) The appellate board shall hold a full hearing de novo on the appeal.

(c) The appellate board shall have power to review the findings of fact, conclusions of law and exercise of discretion by the director in hearing, determining or otherwise handling of any compensation case and may affirm, reverse or modify any compensation case upon review, or remand the case to the director for further proceedings and action.

(d) In the absence of an appeal and within thirty days after mailing of a certified copy of the appellate board's decision or order, the appellate board may, upon the application of the director or any other party, or upon its own motion, reopen the matter and thereupon may take further evidence or may modify its findings, conclusions or decisions. The time to initiate judicial review shall run from the date of mailing of the further decision if the matter has been reopened. If the application for reopening is denied, the time to initiate judicial review shall run from the date of mailing of the denial decision. [L 1963, c 116, pt of §1; Supp, §97-96; HRS §386-87; am L 1969, c 244, §2d; am L 1974, c 8, §1]

Cross References

      Hearings, see chapter 91.

Case Notes:

      Constitutional 27 H. 97.

      If board's questions to court are ambiguous or uncertain, the reserved question cannot be answered or determined. 31 H. 554.

      Reservations to supreme court confined to questions of law. 37 H. 517. See 33 H. 412; 34 H. 65.
Issue of credibility is responsibility of appeals board as fact finder. 56 H. 552, 545 P .2d 692.

      Appeal lies from circuit court to supreme court. 38 H. 384.

      Contested case heard by appellate board is bound by requirements of §91-10. 54 H. 479, 510 P .2d 89.

      Time for filing a written notice of appeal is mandatory. 57 H. 37, 549 P .2d 470.

      Denial of application for reconsideration under subsection (d) is not subject to requirements of §91-11. 57 H. 535, 560 P .2d 1292.

      Collateral estoppel did not preclude determination that employee was permanently and totally disabled, despite employee's failure to appeal department's finding of no permanent disability, since finding was superfluous to department's decision. 8 H. App. 543, 812 P .2d 1199.

      Cited: 27 H. 431, 433; 31 H. 672, 676; 31 H. 814, 815; 32 H. 699, 700, 928; 37 H. 556, 565, 583; 39 H. 258.

 

§386-87.1 Standing to intervene in appeals. In any proceeding before the appellate board under section 386-87, a pre-paid health care plan contractor, as defined in section 393-3, may participate as a party in interest for the sole purpose of asserting its subrogation rights or other reimbursement right against any employer or insurance carrier for medical benefits which were previously paid by the contractor provided however any reimbursement shall be in accordance with the appropriate health care provider fee schedule. A pre-pad health care plan contractor shall not have a right to intervene or participate on any other contested issue including the issue of compensability or entitlement to benefits before the appellate board. [L 1985, c 296, §21]

§386-88 Judicial review. The decision or order of the appellate board shall be final and conclusive, except as provided in section 386-89, unless within thirty days after mailing of a certified copy of the decision or order, the director or any other party appeals to the intermediate appellate court, subject to chapter 602, by filing a written notice of appeal with the appellate board, or by electronically filing a notice of appeal in accordance with the Hawaii rules of appellate procedure. A fee in the amount prescribed by section 607-5 for filing a notice of appeal from a circuit court shall be paid to the appellate board for filing the notice of appeal from the board, which together with the appellate court costs shall be deemed costs of the appellate court proceeding. The appeal shall be on the record, and the court shall review the appellate board's decision on matters of law only. No new evidence shall be introduced in the appellate court, except that if evidence is offered that is clearly newly discovered evidence and material to the just decision of the appeal, the court may admit the evidence. [L 1963, c 116, pt of §1; am L 1965, c 156, §1; Supp, §97-97; HRS §386-88; am L 1969, c 244, §2e; am L 1974, c 145, §4; am L 1979, c 111, §19; am L 2004, c 202, §44; am L 2006, c 94, §1; am L 2010, c 109, §1; am L 2013, c 14, §2]


Appeal is upon both law and facts and is trial of cause de novo. 24 H. 731; 40 H. 660.
Appeal proceedings are governed by this section and §386-73 and not by §91-14. 53 H. 640, 500 P .2d 746.
Constitutional. 27 H. 97.
Appeals to supreme court from appeals board are governed by Administrative Procedure Act which sets out the "clearly erroneous" standard of review. 57 H. 296, 555, P .2d 855.
Appeals are governed by chapter 91. 2 H. App. 219, 629, P .2d 125.
Cited: 56 H. 544, 545 P .2d 687; 56 H. 552, 545 P .2d 692.

§386-89 Reopening of cases; continuing jurisdiction of director. (a) In the absence of an appeal and within twenty days after a copy of the decision has been sent to each party, the director of labor and industrial relations may upon the director's own motion or upon the application of any party reopen a case to permit the introduction of newly discovered evidence, and may render a revised decision.

(b) The director may at any time, either of the director's own motion or upon the application of any party, reopen any case on the ground that fraud has been practiced on the director or on any party and render such decision as is proper under the circumstances.

(c) On the application of any party in interest, supported by a showing of substantial evidence, on the ground of a change in or of a mistake in a determination of fact related to the physical condition of the injured employee, the director may, at any time prior to eight years after date of the last payment of compensation, whether or not a decision awarding compensation has been issued, or at any time prior to eight years after the rejection of a claim, review a compensation case and issue a decision which may award, terminate, continue, reinstate, increase, or decrease compensation. No compensation case may be reviewed oftener than once in six months and no case in which a claim has been rejected shall be reviewed more than once if on such review the claim is again rejected. The decision shall not affect any compensation previously paid, except that an increase of the compensation may be made effective from the date of the injury, and if any part of the compensation due or to become due is unpaid, a decrease of the compensation may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased compensation shall be deducted from any unpaid compensation in such manner and by such method as may be determined by the director. In the event any such decision increases the compensation in a case where the employee has received damages from a third party pursuant to section 386-8 in excess of compensation previously awarded, the amount of such excess shall constitute a pro tanto satisfaction of the amount of the additional compensation awarded. This subsection shall not apply when the employer's liability for compensation has been discharged in whole by the payment of a lump sum in accordance with section 386-54. [L 1963, c 116, pt of §1; am L 1965, c 69, §1; Supp, §97-98; HRS §386-89; am L 1974, c 8, §2; am imp L 1984, c 90, §1; am L 1985, c 296, §9]

Case Notes

      Constitutional. 24 H. 97.

      Departure of alien dependent widow from U.S. constitutes a "change of condition" and board might modify its former award accordingly to take effect from date of departure subject to maximum and minimum amount of death benefit. 27 H. 431.

      The presumptions contained in §386-85 apply to a reopening preceeding under subsection (c). 56 H. 552, 545 P .2d 692.

      Request for reopening of case must be supported by showing of substantial evidence. 57 H. 535, 560 P .2d 1292.

      Fair construction of subsection (c) would only prevent reopening when claim for periodic benefits has been "completely 'lump summed" out". 65 H. 415, 653 P .2d 420.

      The ten-year limitation provision in subsection (c) is not applicable to an application not based on a change in fact, or on a mistake in a determination of fact, relating to the physical condition of the claimant. 2 H. App. 136, 627 P .2d 288.

      Where payments commuted under section 386-54, liability for compensation has been discharged even when there is a continuing obligation for medical services. 3 H. App. 41, 641 P .2d 327.

      Cited: 24 H. 731, 735; 27 H. 476, 485; 31 H. 814, 816; 31 H. 672, 673; 32 H. 920, 926.

 

§386-90 Conforming prior decisions on appeal. Upon the filing of a certified copy of a decision of the director rendered pursuant to section 386-89 with the appellate board, the board shall revoke or modify its prior decision so that it will conform to the decision of the director. [L 1963, c 116, pt of §1; Supp, §97-99; HRS §386-90; am L 1969, c 244, §2f.]

 

§386-91 Enforcement of decisions awarding compensation; judgment rendered thereon. (a) Any party in interest or the director may file in the circuit court in the jurisdiction in which the injury occurred, a certified copy of:

  1. A decision of the director assessing penalties, or awarding compensation or other relief, including attorneys fees, from which no appeal has been taken within the time allowed therefor;
  2. A decision of the director assessing penalties, or awarding compensation or other relief, including attorneys fees, from which decision an appeal has been taken but as to which no order has been made by the director or the appellate board or the court that the appeal therefrom shall operate as a supersedeas or stay;
  3. A decision of the appellate board assessing penalties, or awarding compensation or other relief, including attorneys fees, from which no appeal has been taken within the time allowed therefor; or
  4. A decision of the appellate board assessing penalties, or awarding compensation or other relief, including attorneys fees, from which an appeal has been taken but as to which no order has been made by the appellate board or the court that the appeal therefrom shall operate as a supersedeas or stay.
The court shall render a judgment in accordance with the decision and notify the parties thereof. The judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though the judgment had been rendered in an action duly heard and determined by the court, except that there shall be no appeal therefrom.

(b) In all cases where an appeal from the decision concerned has been taken within the time provided therefor, but where no order has been made by the director or the appellate board or the court that the appeal shall operate as a supersedeas or stay, the decree or judgment of the circuit court shall provide that the decree or judgment shall become void if the decision or award of the director or appellate board, as the case may be, is finally set aside.

(c) In addition to the enforcement remedies set forth in subsection (a) above, the director or employee as part of the proceedings set out therein may ask the court to fine the employer from one per cent to five per cent of the judgment, which fine shall be payable to the employee:

  1. When the employer does not take an appeal from the decision of the director within the time allowed therefor and does not commence making payments within ten days after such appeal period has expired, or
  2. When the employer does take an appeal from the decision of the director within the time allowed therefor and the employer does not request from the appellate board a supersedeas or stay of the decision and the employer does not commence making payments within ten days after such appeal period has expired, or
  3. When the employer does take an appeal from the decision of the director within the time allowed therefor and the appellate board denies the employer's request for supersedeas or stay and the employer does not commence making payments within ten days after such a denial by the appellate board.
(d) In addition to the enforcement remedies set forth in subsection (a) above, the employer as part of the proceedings set out therein may ask the court to fine the employee from one per cent to five per cent of the judgment, which fine shall be payable to the employer:
  1. When the employee does not take an appeal from the decision of the director within the time allowed therefor and does not commence making payments within thirty days after such appeal period has expired, or
  2. When the employee does take an appeal from the decision of the director within the time allowed therefor and the employee does not request from the appellate board a supersedeas or stay of the decision and the employee does not commence making payments within thirty days after such appeal period has expired, or
  3. When the employee does take an appeal from the decision of the director within the time allowed therefor and the appellate board denies the employee's request for supersedeas or stay and the employee does not commence making payments within thirty days after such a denial by the appellate board.
[L 1963, c 116, pt of §1; Supp, §97-100; HRS §386-91, am L 1972, c 3, §1; am L 1979, c 66, §3; am L 1993, c 255, §1]

Case Notes

      Proceedings are to be as simple and informal as may be consistent with right and justice. 24 H. 731.

      Cited: 27 H. 431, 432.

 

§386-92 Default in payments of compensation, penalty. If any compensation payable under the terms of a final decision or judgment is not paid by a self-insured employer or an insurance carrier within thirty-one days after it becomes due, as provided by the final decision or judgment, or if any temporary total disability benefits are not paid by the employer or carrier within ten days, exclusive of Saturdays, Sundays, and holidays, after the employer or carrier has been notified of the disability, and where the right to benefits are not controverted in the employer's initial report of industrial injury or where temporary total disability benefits are terminated in violation of section 386-31, there shall be added to the unpaid compensation an amount equal to twenty per cent thereof payable at the same time as, but in addition to, the compensation, unless the nonpayment is excused by the director after a showing by the employer or insurance carrier that the payment of compensation could not be made on the date prescribed therefor owing to the conditions over which the employer or carrier had no control. [L 1963, c 116, pt of §1; Supp, §97-101; HRS §386-92; am L 1971, c 159, §1; am L 1979, c 66, §4; am imp L 1984, c 90, §1; am L 1995, c 234, §14]

 

§386-93 Costs. (a) If the director of labor and industrial relations, appellate board or any court finds that proceedings under this chapter have been brought, prosecuted, or defended without reasonable ground, the whole costs of the proceedings including reasonable attorney fees may be assessed against the party who has brought, prosecuted, or defended the proceedings.

      (b) If an employer appeals a decision of the director or appellate board, the costs of the proceedings of the appellate board or the appellate court, together with reasonable attorney's fees, shall be assessed against the employer if the employer loses; provided that if an employer or an insurance carrier, other than the employer who appealed, is held liable for compensation, the costs of the proceedings of the appellate board or the appellate court, together with reasonable attorney's fees, shall be assessed against the party held liable for the compensation. [L 1963, c 116, pt of §1; Supp, §97-102; am L 1967, c 180, §1; HRS §386-93; am L 1969, c 244, §2g; am L 2004, c 202, §45; ; am L 2006, c 94, §1; am L 2010, c 109, §1; am L 2012, c 234, §1]

Rules of Court

      See HRCP rule 54(d).

Case Notes

      Attorney fees. 35 H. 591.

      Reasonable grounds. 38 H. 405.

      Party who prevailed on the crucial issue held to be the prevailing party. 57 H. 535, 560 P.2d 1292.

      Imposes liability for costs and fees incurred by nonappealing employer on appealing employer who loses. 66 H. 290, 660 P.2d 1316.

      Imposes liability for costs and fees incurred by nonappealing employer on appealing employer who loses; "crucial issue" test applied. 5 H. App. 521, 704 P.2d 914.

      An order regarding the award or denial of attorney’s fees and costs with respect to subsection (b) is a final order under §91-14(a) for purposes of appeal; this final order rule applies prospectively to prevent injustice; subsection (b) allows assessment of attorney’s fees and costs against an employer if the employer loses the final appeal. 104 H. 164, 86 P.3d 973.

      Where appeals court's opinion regarding attorney's fees and costs under this section was not ripe for decision, constituted an advisory opinion akin to the issuance of an opinion when there was no subject matter jurisdiction, and constituted inappropriate judicial interference with an administrative decision of an entity within a separate, co-equal branch that had not been formalized and had not yet affected the challenging parties in a concrete way, thereby implicating separation-of-powers concerns, the appeals court's exercise of appellate power constituted error. 121 H. 33, 211 P.3d 750.

      When employer appeals decision of director or appeals board and subsequently withdraws either entire appeal or any portion of appeal, or concedes, the decision of director or appeals board becomes final and employer is considered losing party for purposes of subsection (b). 84 H. 390 (App.), 935 P.2d 105.

      Cited: 33 H. 634.

 

§386-94 Attorneys, physicians, other health care providers, and other fees. Claims for services shall not be valid unless approved by the director or, if an appeal is had, by the appellate board or court deciding the appeal. Any claim so approved shall be a lien upon the compensation in the manner and to the extent fixed by the director, the appellate board, or the court.

In approving fee requests, the director, appeals board, or court may consider factors such as the attorney's skill and experience in state workers' compensation matters, the amount of time and effort required by the complexity of the case, the novelty and difficulty of issues involved, the amount of fees awarded in similar cases, benefits obtained for the claimant, and the hourly rate customarily awarded attorneys possessing similar skills and experience. In all cases, reasonable attorney's fees shall be awarded.

Any person who receives any fee, other consideration, or gratuity on account of services so rendered, without approval, in conformity with the preceding paragraph, shall be fined by the director not more than $10,000. [L 1963, c 116, pt of §1; Supp, §97-103; HRS §386-94; am L 1985, c 296, §6; am L 1988, c 37, §2; am L 1993, c 301, §1; am L Sp 2005, c 11, §9]

 

§386-95 Reports of injuries, other reports, penalty. Every employer shall keep a record of all injuries, fatal or otherwise, received by the employer's employees in the course of their employment, when known to the employer or brought to the employer's attention.

Within seven working days after the employer has knowledge of such injury causing absence from work for one day or more or requiring medical treatment beyond ordinary first aid, the employer shall make a report thereon to the director. The report shall set forth the name, address, and the nature of the employer's business and the name, age, sex, wages, and occupation of the injured employee and shall state the date and hour of the accident, if the injury is produced thereby, the nature and cause of the injury, and such other information as the director may require.

By January 31 of each year, the employer shall file with the director a report with respect to each injury on which the employer is continuing to pay compensation, showing all amounts paid by the employer on account of the injury.

The reports required by this section shall be made on forms to be obtained from the director pursuant to section 386-71 and deposit of reports in the United States mail, addressed to the director, within the time specified shall be deemed compliance with the requirements of this section.

When an injury results in immediate death, the employer shall within forty-eight hours notify personally or by telephone a representative of the department in the county where the injury occurred.

Within thirty days after final payment of compensation for an injury, the employer shall file a final report with the director showing the total payments made, the date of termination of temporary total disability, and such other information as the director may require.

Any employer who wilfully refuses or neglects to file any of the reports or give any notice required by this section shall be fined by the director not more than $5,000.

Copies of all reports, other than those of fatal injuries, filed with the director as required by this section shall be sent to the injured employee by the employer. [L 1963, c 116, pt of §1; am L 1965, c 59, §1; Supp, §97-110; am L 1966, c 7, §2; HRS §386-95; am L 1973, c 10, §1; am L 1982, c 51, §1; am imp L 1984, c 90, §1; am L 1988, c 37, §3; am L 1993, c 254, §1; am L 2002, c 221, §1]

Case Notes

      Failure of employer to file form reporting employee's injury does not toll statute of limitations. 68 H. 111, 706 P .2d 13.

 

§386-96 Reports of physicians, surgeons, and hospitals. (a) Any physician, surgeon, or hospital that has given any treatment or rendered any service to an injured employee shall make a report of the injury and treatment on forms prescribed by and to be obtained from the department as follows:

  1. Within seven days after the date of first attendance or service rendered, an initial report shall be made to the department and to the employer of the injured employee in the manner prescribed by the department;
  2. Interim reports to the same parties and in the same manner as prescribed in paragraph (1) shall be made at appropriate intervals to verify the claimant's current diagnosis and prognosis, that the information as to the nature of the examinations and treatments performed is complete, including the dates of those treatments and the results obtained within the current reporting period, the execution of all tests performed within the current reporting period and the results of the tests, whether the injured employee is improving, worsening, or if "medical stabilization" has been reached, the dates of disability, any work restrictions, and the return to work date. When an injured employee is returned to full-time, regular, light, part-time, or restricted work, the attending physician shall submit a report to the employer within seven calendar days indicating the date of release to work or medical stabilization; and
  3. A final report to the same parties and in the same manner as prescribed in paragraph (1) shall be made within seven days after termination of treatment.
No physician, surgeon, or hospital that has given any treatment or rendered any service to an injured employee shall be required to provide any additional reports not otherwise mandated by this section.

(b) No claim under this chapter for medical treatment, surgical treatment, or hospital services and supplies, shall be valid and enforceable unless the reports are made as provided in this section, except that the director may excuse the failure to make the report within the prescribed period or a nonsubmission of the report when the director finds it in the best interest of justice to do so. If the director does not excuse the submission of:

  1. An initial or interim report within the time prescribed in subsection (a)(1) and (2); or
  2. A final report that is thirty days late or a nonsubmission, the delinquent physician shall be fined not more than $250.
(c) The director shall furnish to the injured employee a copy of the final report of the attending physician or surgeon or, if more than one physician or surgeon should treat or examine the employee, a copy of the final report of each physician or surgeon.

(d) Within fifteen days after being requested to do so by the injured employee or the employee's duly authorized representative, the employer shall furnish the employee or the employee's duly authorized representative with copies of all medical reports relating to the employee's injury which are in the possession of the employer. The copies shall be furnished at the expense of the employer. The employer shall allow the employee or the employee's duly authorized representative to inspect and copy transcripts of depositions of medical witnesses, relating to the employee's injury, in the possession of the employer. Any employer who fails to furnish medical reports or to allow inspection and copying of transcripts of depositions of medical witnesses, as required by this paragraph shall be fined in an amount not to exceed $1,000.

(e) Deposit of the records required by subsection (a)(1) in the United States mail, addressed to the director and to the employer, within the time limit specified, shall be deemed in compliance with the requirements of this section. [L 1963, c 116, pt of §1; Supp, §97-111; am L 1966, c 7, §3; HRS §386-96; am L 1969, c 31, §1; am L 1972, c 13, §1 and c 60, §1; am L 1973, c 12, §1; am imp L 1984, c 90, §1; am L 1988, c 37, §4; am L 1995, c 234, §15; am L Sp 2005, c 11, §10]

 

§386-97 Inspections. The director of labor and industrial relations may inspect the plants and establishments of all employers in the State and the inspectors designated by the director shall have free access to such premises during regular working hours, and at other reasonable times. [L 1963, c 116, pt of §1, Supp, §97-112; HRS §386-97]

 

§386-97.5 Penalties. (a) Any person who, after twenty-one days written notice and the opportunity to be heard by the director, is found to have violated any provision of this chapter or rule adopted thereunder for which no penalty is otherwise provided, shall be fined not more than $250 for each offense.

(b) All fines collected pursuant to this chapter shall be deposited into the special compensation fund created by section 386-151. [L 1991, c 107, §1]

 

§386-98 Fraud violations and penalties. (a) A fraudulent insurance act, under this chapter, shall include acts or missions committed by any person who intentionally or knowingly acts or omits to act so as to obtain benefits, deny benefits, obtain benefits compensation for services provided, or provides legal assistance or counsel to obtain benefits or recovery through fraud or deceit by doing the following:

  1. Presenting, or causing to be presented, any false information on an application;
  2. Presenting, or causing to be presented, any false or fraudulent claim for the payment of a loss;
  3. Presenting multiple claims for the same loss or injury, including presenting multiple claims to more than one insurer except when these multiple claims are appropriate and each insurer is notified immediately in writing of all other claims and insurers;
  4. Making, or causing to be made, any false or fraudulent claim for payment or denial of a health care benefit;
  5. Submitting a claim for a health care benefit that was not used by, or on behalf of, the claimant;
  6. Presenting multiple claims for payment of the same health care benefit;
  7. Presenting for payment any undercharges for health care benefits on behalf of a specific claimant unless any known overcharges for health care benefits for that claimant are presented for reconciliation at that same time;
  8. Misrepresenting or concealing a material fact;
  9. Fabricating, altering, concealing, making a false entry in, or destroying a document;
  10. Making, or causing to be made, any false or fraudulent statements with regard to entitlements or benefits, with the intent to discourage an injured employee from claiming benefits or pursuing a workers' compensation claim; or
  11. Making, or causing to be made, any false or fraudulent statements or claims by, or on behalf of, a client with regard to obtaining legal recovery or benefits.
(b) No employer shall wilfully make a false statement or representation to avoid the impact of past adverse claims experience through change of ownership, control, management, or operation to directly obtain any workers' compensation insurance policy. (c) It shall be inappropriate for any discussion on benefits, recovery, or settlement to include the threat or implication of criminal prosecution. Any threat or implication shall be immediately referred in writing to:
  1. The state bar if attorneys are in violation;
  2. The insurance commissioner if insurance company personnel are in violation; or
  3. The regulated industries complaints office if health care providers are in violation, for investigation and, if appropriate, disciplinary action.
(d) An offense under subsections (a) and (b) shall constitute a:
  1. Class C felony if the value of the moneys obtained or denied is not less than $2,000;
  2. Misdemeanor if the value of the moneys obtained or denied is less than $2,000; or
  3. Petty misdemeanor if the providing of false information did not cause any monetary loss.
Any person subject to a criminal penalty under this section shall be ordered by a court to make restitution to an insurer or any other person for any financial loss sustained by the insurer or other person caused by the fraudulent act. (e) In lieu of the criminal penalties set forth in subsection (d), any person who violates subsections (a) and 9b) may be subject to the administrative penalties of restitution of benefits or payments fraudulently received under this chapter, whether received from an employer, insurer, or the special compensation fund, to be made to the source form which the compensation was received, and one or more of the following:
  1. A fine of not more than $10,000 for each violation;
  2. Suspension or termination of benefits in whole or in part;
  3. Suspension or disqualification from providing medical care or services, vocational rehabilitation services, and all other services rendered for payment under this chapter;
  4. Suspension or termination of payments for medical, vocational rehabilitation and all other services rendered under this chapter;
  5. Recoupment by the insurer of all payments made for medical care, medical services, vocational rehabilitation services, and all other services rendered for payment under this chapter; and
  6. Reimbursement of attorney's fees and costs of the party or parties defrauded.
(f) With respect to the administrative penalties set forth in subsection (e), no penalty shall be imposed except upon consideration of a written complaint that specifically alleges a violation of this section occurring within two years of the date of said complaint. A copy of the complaint specifying the alleged violation shall be served promptly upon the person charged. The director or board shall issue, where a penalty is ordered, a written decision stating all findings following a hearing held not fewer than twenty days after written notice to the person charged. Any person aggrieved by the decision may appeal the decision under sections
386-87 and 386-88. [L 1963, c 116, pt of §1; Supp, §97-113; HRS §386-98; am L 1982, c 98, §1; am L 1985, c 296, §7; am L 1995, c 234, §16; am L 1996, c 260, §5; am L Sp 2005, c 11, §11]

 

§386-99 Posting of information. Each employer shall post and maintain in places readily accessible to individuals in the employer's employ printed statements concerning benefit rights, claims for benefits, and such other matters relating to the administration of this chapter as the department of labor and industrial relations may by regulation prescribe. Each employer shall supply to such individuals copies of such printed statements or other materials relating to claims for benefits when and as the department may by regulation prescribe. Such printed statements and other materials shall be supplied by the department to each employer without cost to the employer. [L 1971, c 85, §1; am imp L 1984, c 90, §1]

 

§386-100 Deductible option for medical benefits in insurance policy. (a) Each workers' compensation insurance policy issued by every insurer shall offer, at the option of the insured employer, a deductible for medical benefits in the amount of $100, $150, $200, $300, $400, $500, $2,500, $5,000, or $10,000, or greater if agreed upon by the insurer and the insured employer. The insured employer, if choosing to exercise the option, shall choose only one of the amounts as the deductible. The provisions of this subsection shall be fully disclosed to the prospective purchaser in writing.

(b) If an insured employer exercises the option and chooses a deductible, the insured employer shall be liable for the amount of the deductible for the medical benefits paid for each claim of work injury suffered by an injured employee. The insurer shall not be liable for the deductible.

The insurer shall pay the entire cost of medical bills directly to the provider of services and then seek reimbursement from the insured for the deductible amount.

Deductible medical benefit amounts shall be reported by insurers as required by section 386-95 and shall be included in the total average annual compensation paid by all insurance carriers in determining the charge against employers not insured under section 386-121 (a)(1) for the purpose of the special compensation fund. [L 1985, c 296, §13; am L 1989, c 243, §1; am L 1995, c 234, §17]


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