§88-79  Service-connected disability
retirement.  (a)  Upon application of a member, or the person appointed by
the family court as guardian of an incapacitated member, any member who has
been permanently incapacitated for duty as the natural and proximate result of
an accident occurring while in the actual performance of duty at some definite
time 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 board
for service-connected disability; provided that:



(1)  In the case of an accident occurring after July
1, 1963, the employer shall file with the system a copy of the employer's
report of the accident submitted to the director of labor and industrial
relations;



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



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



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



(b)  In the case of firefighters, police
officers, and sewer workers, the effect of the inhalation of smoke, toxic
gases, chemical fumes, and other toxic vapors on the heart, lungs, and
respiratory system shall be construed as an injury received or disease
contracted while in the performance of their duty and as the result of some
occupational hazard for the purpose of determining occupational disability
retirement 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 a
firefighter, police officer, or sewer worker, shall be presumed to have been
suffered in the actual performance of duty at some definite time and place
through no wilful negligence on the firefighter's, police officer's, or sewer
worker's part, and as a result of the inherent occupational hazard of exposure
to and inhalation of smoke, toxic gases, chemical fumes, and other toxic
vapors, unless the contrary be shown by competent evidence; provided that such
firefighter, police officer, or sewer worker shall have passed a physical
examination on entry into such service or subsequent to such entry, which
examination failed to reveal any evidence of such condition.



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



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



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



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



(e)  Upon approval by the board, the member
shall be eligible to receive a service-connected disability retirement benefit
after the member has terminated service.  Retirement shall become effective on
the first day of a month, except for the month of December when retirement on
the first or last day of the month shall be allowed. [L 1963, c 127, §7; am L
1965, c 225, §2; Supp, §6-46.1; HRS §88-69; am L 1969, c 110, pt of §1; am L
1971, 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; am
L 1998, c 151, §6; am L 2002, c 128, §6; am L 2007, c 215, §10]



 



Attorney General Opinions



 



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



 



Case Notes



 



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



  Danger that
accompanies a particular job is an "occupational hazard" if it is not
a risk common to employment in general.  67 H. 485, 693 P.2d 405.



  Office worker's
permanent incapacitation for duty caused by asthmatic bronchitis was not
cumulative result of an occupational hazard; incapacitation due to an
"accident" or as "the cumulative result of some occupational
hazard" are mutually exclusive.  5 H. App. 279, 687 P.2d 1340.



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



 



Hawaii Legal Reporter Citations



 



  Board decision
overturned.  80-1 HLR 800673.