PART I. GENERAL PROVISIONS

 

§386-1  Definitions.  In this chapter,unless the context otherwise requires:

"Able to resume work" means anindustrially injured worker's injury has stabilized after a period of recoveryand the worker is capable of performing work in an occupation for which theworker has received previous training or for which the worker has demonstratedaptitude.

"Appellate board" means the labor andindustrial relations appeals board.

"Compensation" means all benefitsaccorded by this chapter to an employee or the employee's dependents on accountof a work injury as defined in this section; it includes medical andrehabilitation benefits, income and indemnity benefits in cases of disabilityor death, and the allowance for funeral and burial expenses.

"Attending physician" means aphysician who is primarily responsible for the treatment of a work injury. There shall not be more than one attending physician.  If an injured employeeis treated by more than one physician, the employee shall designate a physicianas the attending physician.

"Construction design professional"means any person who is a professional engineer, architect, or land surveyorwho is registered under chapter 464 to practice that profession in the State.

"Covered employment" means employmentof an employee as defined in this section or of a person for whom the employerhas provided voluntary coverage pursuant to section 386-4.

"Department" means the department oflabor and industrial relations.

"Director" means the director oflabor and industrial relations.

"Disability" means loss or impairmentof a physical or mental function.

"Disciplinary action" means personnelaction by an employer in the form of punishment against an employee forinfraction of employer or contract rules, in the form of a reprimand,suspension, or discharge.

"Emergency medical services" meansthe delivery of health care services under emergency conditions occurring asthe result of a patient's condition due to a work injury that manifests itselfby symptoms of sufficient severity, including severe pain, such that a prudentlayperson, who possesses an average knowledge of health and medicine, couldreasonably expect the absence of immediate medical attention to belife-threatening or cause serious harm or aggravation of physiological orpsychological sickness, injury, or incapacitation.

"Employee" means any individual inthe employment of another person.

Where an employee is loaned or hired out toanother person for the purpose of furthering the other person's trade,business, occupation, or profession, the employee shall, beginning with thetime when the control of the employee is transferred to the other person andcontinuing until the control is returned to the original employer, be deemed tobe the employee of the other person regardless of whether the employee is paiddirectly by the other person or by the original employer.  The employee shallbe deemed to remain in the sole employment of the original employer if theother person fails to secure compensation to the employee as provided insection 386-121.

Whenever an independent contractor undertakesto perform work for another person pursuant to contract, express or implied,oral or written, the independent contractor shall be deemed the employer of allemployees performing work in the execution of the contract, including employeesof the independent contractor's subcontractors and their subcontractors. However, the liabilities of the direct employer of an employee who suffers awork injury shall be primary and that of the others secondary in their order. An employer secondarily liable who satisfies a liability under this chaptershall be entitled to indemnity against loss from the employer primarily liable.

"Employee in comparable employment"means a person, other than the injured employee, who is employed in the samegrade in the same type of work by the same employer or, if there is no personso employed, a person, who is employed in the same grade in the same type ofwork by another employer in the same district.

"Employer" means any person havingone or more persons in the person's employment.  It includes the legalrepresentative of a deceased employer and the State, any county or politicalsubdivision of the State, and any other public entity within the State.

The insurer of an employer is subject to theemployer's liabilities, shall pay the deductible as provided for under section386-100, shall collect the amount of the deductible from the employer, and beentitled to rights and remedies under this chapter as far as applicable.

The workers' compensation self-insurance groupof which an employer is a member is subject to that employer's liabilities andentitled to rights and remedies under this chapter as far as applicable.

"Employment" means any serviceperformed by an individual for another person under any contract of hire orapprenticeship, express or implied, oral or written, whether lawfully orunlawfully entered into.  It includes service of public officials, whether electedor under any appointment or contract of hire express or implied.

"Employment" does not include:

(1)  Service for a religious, charitable, educational,or nonprofit organization if performed in a voluntary or unpaid capacity;

(2)  Service for a religious, charitable, educational,or nonprofit organization if performed by a recipient of aid therefrom and theservice is incidental to or in return for the aid received;

(3)  Service for a school, college, university,college club, fraternity, or sorority if performed by a student who is enrolledand regularly attending classes and in return for board, lodging, or tuitionfurnished, in whole or in part;

(4)  Service performed by a duly ordained,commissioned, or licensed minister, priest, or rabbi of a church in theexercise of the minister's, priest's, or rabbi's ministry or by a member of areligious order in the exercise of nonsecular duties required by the order;

(5)  Service performed by an individual for anotherperson solely for personal, family, or household purposes if the cashremuneration received is less than $225 during the current calendar quarter andduring each completed calendar quarter of the preceding twelve-month period;

(6)  Domestic, in‑home and community‑basedservices for persons with developmental disabilities and mental retardationunder the medicaid home and community‑based services program pursuant to Title42 Code of Federal Regulations Sections 440.180 and 441.300, and Title 42 Codeof Federal Regulations, Part 434, Subpart A, as amended, and identified aschore, personal assistance and habilitation, residential habilitation,supported employment, respite, and skilled nursing services, as the terms aredefined by the department of human services, performed by an individual whoseservices are contracted by a recipient of social service payments and whovoluntarily agrees in writing to be an independent contractor of the recipientof social service payments;

(7)  Service performed without wages for a corporationwithout employees by a corporate officer in which the officer is at least atwenty-five per cent stockholder;

(8)  Service performed by an individual for acorporation if the individual owns at least fifty per cent of the corporation;provided that no employer shall require an employee to incorporate as acondition of employment; and

(9)  Service performed by an individual for anotherperson as a real estate salesperson or as a real estate broker, if all theservice performed by the individual for the other person is performed for remunerationsolely by way of commission.

As used in this paragraph "religious,charitable, educational, or nonprofit organization" means a corporation,unincorporated association, community chest, fund, or foundation organized andoperated exclusively for religious, charitable, or educational purposes, nopart of the net earnings of which inure to the benefit of any privateshareholder or individual.

"Good cause" means a substantialreason amounting in law to be a legal excuse for failing to perform an act requiredby law considered under the circumstances of the individual case.

"Guide" or "guidelines"means an indication of a suggested criteria, course, or means to a particularend, and not an authoritative or exclusive prescription which limits the exerciseof independent judgment, expertise, or care.

"Health care provider" means a personqualified by the director to render health care and service and who has alicense for the practice of:

(1)  Medicine or osteopathy under chapter 453;

(2)  Dentistry under chapter 448;

(3)  Chiropractic under chapter 442;

(4)  Naturopathic medicine under chapter 455;

(5)  Optometry under chapter 459;

(6)  Podiatry under chapter 463E; and

(7)  Psychology under chapter 465.

"Medical care", "medicalservices", or "medical supplies" means every type of care,treatment, surgery, hospitalization, attendance, service, and supplies as thenature of the work injury requires, and includes such care, services, andsupplies rendered or furnished by a licensed or certified physician, dispensingoptician, physical therapist, physical therapist assistant as recognizedpursuant to section 461J-3(e), nurse, advanced practice registered nurse asrecognized pursuant to chapter 457, occupational therapist, certifiedoccupational therapy assistant as recognized pursuant to chapter 457G, orlicensed massage therapist as recognized pursuant to chapter 452.

"Personal injury" includes deathresulting therefrom.

"Physician" includes a doctor ofmedicine, a dentist, a chiropractor, an osteopath, a naturopath, apsychologist, an optometrist, and a podiatrist.

"Psychologist" means a licensedclinical psychologist with a doctorate degree in psychology and who either hasat least two years clinical experience in a recognized health setting, or hasmet the standards of the National Register of the Health Service Providers inPsychology.  When treatment or evaluation for an injury is provided by apsychologist, provision shall be made for appropriate medical collaborationwhen requested by the employer or the insurer, as provided by rules adopted inconformance with chapter 91.

"Recipient of social servicepayments" includes:

(1)  A person who is an eligible recipient of socialservices such as attendant care and day care services; and

(2)  A corporation or private agency that contractsdirectly with the department of human services to provide attendant care andday care authorized under the Social Security Act, as amended.

"State average weekly wage" means theamount determined by the director under section 383-22 as the average weeklywage.

"Suitable gainful employment" meansemployment or self-employment within the geographical area where the employeeresides, which is reasonably attainable and which offers an opportunity torestore the employee's earnings capacity as nearly as possible to that levelwhich the employee was earning at the time of injury and to return the employeeto the active labor force as quickly as possible in a cost-effective manner,giving due consideration to the employee's qualifications, interests,incentives, future earnings capacity, and the present and future labor market.

"Total disability" means disabilityof such an extent that the disabled employee has no reasonable prospect offinding regular employment of any kind in the normal labor market.

"Trade, business, occupation, orprofession" means all commercial, occupational, or professionalactivities, whether conducted for pecuniary gain or not.  It includes allactivities of nonprofit organizations conducted in pursuit of their purposes.

"Usual and customary employment"means the line or type of work in the gainful employment market consistent witha claimant's background, training, and experience.

"Vocational rehabilitation plan"means an approved plan prepared by a certified rehabilitation provider with anemployee that is designed to assist the employee in obtaining and maintainingsuitable gainful employment.

"Vocational rehabilitation services"means services provided in a rehabilitation program to assist an employee inobtaining and maintaining suitable gainful employment that may include butshall not be limited to on-the-job training, job modification, vocationalevaluation, adjustment to disability, counseling, guidance, vocational andpersonal adjustment, referrals, transportation, training, supplies, equipment,appliances, aid, occupational licenses, and other goods and services needed toassist an employee in obtaining and maintaining suitable gainful employment.

"Wages" means all remuneration forservices constituting employment.  It includes the market value of board,lodging, fuel, and other advantages having a cash value which the employer haspaid as a part of the employee's remuneration and gratuities received in thecourse of employment from others than the employer to the extent that they arecustomary and expected in that type of employment or accounted for by theemployee to the employer.

"Work injury" means a personal injurysuffered under the conditions specified in section 386-3. [L 1963, c 116, pt of§1; Supp, §97-1; HRS §386-1; am L 1969, c 244, §2a; am L 1970, c 200, §1; am L1974, c 153, §1; am L 1975, c 68, §1; am L 1978, c 110, §4; am L 1979, c 40,§1; am L 1985, c 296, §§4, 14; gen ch 1985; am L 1986, c 304, §2; am L 1987, c339, §4 and c 374, §1; am L 1989, c 56, §§1, 2 and c 300, §4; am L 1993, c 363,§2; am L 1996, c 94, §3; am L 1999, c 222, §2; am L 2000, c 69, §2; am L 2003,c 171, §1; am L Sp 2005, c 11, §1; am L 2006, c 176, §2; am L 2007, c 259, §§3,7; am L 2009, c 11, §47; am L Sp 2009, c 22, §11(2)]

 

Note

 

  The L 2009, c 11 amendment to definition of "health careprovider" is retroactive to April 3, 2008.  L 2009, c 11, §76(2).

 

Attorney General Opinions

 

  Prisoners compensated under §353-25 are not covered by thischapter.  Att Gen. Op. 69-11.

 

Law Journals and Reviews

 

  Torts and Workers' Compensation, James E. Koshiba, 2 UH L.Rev. 209.

 

Case Notes

 

  Prior law, L 1915, c 221 held constitutional.  24 H. 97; 26H. 737; 28 H. 383.

  Effect of 1963 amendment.  48 H. 288, 398 P.2d 154.

  Company is liable to employee of its contractor.  23 H. 291. Owner of premises held employer of employee of independent contractor.  41 H.603.  Under definition of "employer" as it read prior to 1963revision, general contractor was not "employer" of a subcontractor'semployee.  50 H. 293, 439 P.2d 669.

  Law must be broadly and liberally construed.  23 H. 291; 24H. 324; 24 H. 731; 26 H. 737.  Act should be given liberal construction toaccomplish its beneficent purposes.  52 H. 595, 483 P.2d 187.

  Employer defined.  31 H. 102.  Wages defined.  33 H. 412.

  Independent contractor.  32 H. 373.  Third-party generalcontractors are not immune to common law negligence actions by employees oftheir subcontractors.  54 H. 578, 513 P.2d 156.

  Factors to be considered in determining the employer inloaned-employee cases.  56 H. 544, 545 P.2d 687.

  Casual employment excluded.  32 H. 735.  Student employees,coverage of.  52 H. 595, 483 P.2d 187.

  Factors to be considered in determining the employer in lentemployee cases.  59 H. 139, 577 P.2d 787.

  "Disability", "total disability" referredto.  59 H. 409, 583 P.2d 321.

  Control of employee is the predominant consideration infixing compensation liability between a lending and a borrowing employer.  63 H.374, 628 P.2d 629.

  Sole director and stockholder of corporation was"employee".  63 H. 642, 636 P.2d 721.

  Intent is to place primary responsibility on subcontractor toobtain workers' compensation coverage; construing contract insurance policiesto cover workers' compensation claims would frustrate intent.  69 H. 37, 731P.2d 167.

  Licensed real estate agents who performed sales activitiespursuant to independent contractor agreements were independent contractors, andnot employees.  79 H. 208, 900 P.2d 784.

  Section assigns secondary liability for workers' compensationbenefits to next subcontractor above primarily liable employer in defaultregardless of whether that subcontractor carries workers' compensationinsurance mandated by Hawaii law.  83 H. 1, 924 P.2d 169.

  Cited:  25 H. 747, 751; 31 H. 554; 31 H. 638, 648; 32 H. 928,932; 37 H. 517, 523; 41 H. 442, 446.