§88-79  Service-connected disabilityretirement.  (a)  Upon application of a member, or the person appointed bythe family court as guardian of an incapacitated member, any member who hasbeen permanently incapacitated for duty as the natural and proximate result ofan accident occurring while in the actual performance of duty at some definitetime and place, or as the cumulative result of some occupational hazard,through no wilful negligence on the member's part, may be retired by the boardfor service-connected disability; provided that:

(1)  In the case of an accident occurring after July1, 1963, the employer shall file with the system a copy of the employer'sreport of the accident submitted to the director of labor and industrialrelations;

(2)  An application for retirement is filed with thesystem within two years of the date of the accident, or the date upon whichworkers' compensation benefits cease, whichever is later;

(3)  Certification is made by the head of the agencyin which the member is employed, stating the time, place, and conditions of theservice performed by the member resulting in the member's disability and thatthe disability was not the result of wilful negligence on the part of themember; and

(4)  The medical board certifies that the member isincapacitated for the further performance of duty at the time of applicationand that the member's incapacity is likely to be permanent.

(b)  In the case of firefighters, policeofficers, and sewer workers, the effect of the inhalation of smoke, toxicgases, chemical fumes, and other toxic vapors on the heart, lungs, andrespiratory system shall be construed as an injury received or diseasecontracted while in the performance of their duty and as the result of someoccupational hazard for the purpose of determining occupational disabilityretirement under this section.

Notwithstanding any other law to the contrary,any condition of impairment of health caused by any disease of the heart,lungs, or respiratory system, resulting in permanent incapacity to afirefighter, police officer, or sewer worker, shall be presumed to have beensuffered in the actual performance of duty at some definite time and placethrough no wilful negligence on the firefighter's, police officer's, or sewerworker's part, and as a result of the inherent occupational hazard of exposureto and inhalation of smoke, toxic gases, chemical fumes, and other toxicvapors, unless the contrary be shown by competent evidence; provided that suchfirefighter, police officer, or sewer worker shall have passed a physicalexamination on entry into such service or subsequent to such entry, whichexamination failed to reveal any evidence of such condition.

(c)  The board may waive strict compliance withthe time limits within which a report of the accident and an application forservice-connected disability retirement must be filed with the board if it issatisfied that the failure to file within the time limited by law was due toignorance of fact or law, inability, or to the fraud, misrepresentation, ordeceit of any person, or because the applicant was undergoing treatment for thedisability or was receiving vocational rehabilitation services occasioned bythe disability.

(d)  The board may determine whether or not thedisability is the result of an accident occurring while in the actualperformance of duty at some definite time and place and that the disability wasnot the result of wilful negligence on the part of the member.  The board mayaccept as conclusive:

(1)  The certification made by the head of the agencyin which the member is employed; or

(2)  A finding to this effect by the medical board.

(e)  Upon approval by the board, the membershall be eligible to receive a service-connected disability retirement benefitafter the member has terminated service.  Retirement shall become effective onthe first day of a month, except for the month of December when retirement onthe first or last day of the month shall be allowed. [L 1963, c 127, §7; am L1965, c 225, §2; Supp, §6-46.1; HRS §88-69; am L 1969, c 110, pt of §1; am L1971, c 152, §3; am L 1974, c 182, §3; am L 1975, c 41, §1; am L 1983, c 124,§15; gen ch 1985; am L 1987, c 81, §1 and c 283, §14; am L 1997, c 212, §3; amL 1998, c 151, §6; am L 2002, c 128, §6; am L 2007, c 215, §10]

 

Attorney General Opinions

 

  Heart attack couldconstitute "accident" within meaning of section.  Att. Gen. Op.69-25.

 

Case Notes

 

  Applicant forbenefits under section is, by chapter 91 and constitutional due process,entitled to trial-type hearing on contested issues before the board oftrustees.  52 H. 212, 473 P.2d 866.

  Danger thataccompanies a particular job is an "occupational hazard" if it is nota risk common to employment in general.  67 H. 485, 693 P.2d 405.

  Office worker'spermanent incapacitation for duty caused by asthmatic bronchitis was notcumulative result of an occupational hazard; incapacitation due to an"accident" or as "the cumulative result of some occupationalhazard" are mutually exclusive.  5 H. App. 279, 687 P.2d 1340.

  Where an employee ison the employer's premises, doing what the employer requires at a time andplace the employee is required to do it, the employee is engaged in the actualperformance of duty for purposes of service-connected disability retirement. 112 H. 292 (App.), 145 P.3d 835.

 

Hawaii Legal Reporter Citations

 

  Board decisionoverturned.  80-1 HLR 800673.