B.  Income
and Indemnity Benefits



 



1.  Disability



 



§386-31  Total disability.  (a) 
Permanent total disability.  Where a work injury causes permanent total
disability the employer shall pay the injured employee a weekly benefit equal
to sixty-six and two-thirds per cent of the employee's average weekly wages,
subject to the following limitation:



Beginning January 1, 1975, and during each
succeeding twelve-month period thereafter, not more than the state average
weekly wage last determined by the director, rounded to the nearest dollar, nor
less than $38 or twenty-five per cent of the foregoing maximum amount, rounded
to the nearest dollar, whichever is higher.



In the case of the following injuries, the
disability caused thereby shall be deemed permanent and total:



(1)  The permanent and total loss of sight in both
eyes;



(2)  The loss of both feet at or before the ankle;



(3)  The loss of both hands at or above the wrist;



(4)  The loss of one hand and one foot;



(5)  An injury to the spine resulting in permanent and
complete paralysis of both legs or both arms or one leg and one arm;



(6)  An injury to the skull resulting in incurable
imbecility or insanity.



In all other cases the permanency and totality
of the disability shall be determined on the facts.  No adjudication of
permanent total disability shall be made until after two weeks from the date of
the injury.



(b)  Temporary total disability.  Where a work
injury causes total disability not determined to be permanent in character, the
employer, for the duration of the disability, but not including the first three
calendar days thereof, shall pay the injured employee a weekly benefit at the
rate of sixty-six and two-thirds per cent of the employee's average weekly
wages, subject to the limitations on weekly benefit rates prescribed in
subsection (a), or if the employee's average weekly wages are less than the
minimum weekly benefit rate prescribed in subsection (a), at the rate of one
hundred per cent of the employee's average weekly wages.



If an employee is unable to complete a regular
daily work shift due to a work injury, the employee shall be deemed totally
disabled for work for that day.



The employer shall pay temporary total
disability benefits promptly as they accrue to the person entitled thereto without
waiting for a decision from the director, unless this right is controverted by
the employer in the employer's initial report of industrial injury.  The first
payment of benefits shall become due and shall be paid no later than on the
tenth day after the employer has been notified of the occurrence of the total
disability, and thereafter the benefits due shall be paid weekly except as
otherwise authorized pursuant to section 386-53.



The payment of these benefits shall only be
terminated upon order of the director or if the employee is able to resume
work.  When the employer is of the opinion that temporary total disability
benefits should be terminated because the injured employee is able to resume
work, the employer shall notify the employee and the director in writing of an
intent to terminate the benefits at least two weeks prior to the date when the
last payment is to be made.  The notice shall give the reason for stopping
payment and shall inform the employee that the employee may make a written request
to the director for a hearing if the employee disagrees with the employer. 
Upon receipt of the request from the employee, the director shall conduct a
hearing as expeditiously as possible and render a prompt decision as specified
in section 386-86.  If the employee is unable to perform light work, if
offered, temporary total disability benefits shall not be discontinued based
solely on the inability to perform or continue to perform light work.



An employer or insurance carrier who fails to
comply with this section shall pay not more than $2,500 into the special
compensation fund upon the order of the director, in addition to other
penalties prescribed in section 386-92.



(1)  If the director determines, based upon a review
of medical records and reports and other relevant documentary evidence, that an
injured employee's medical condition may be stabilized and the employee is
unable to return to the employee's regular job, the director shall issue a
preliminary decision regarding the claimant's entitlement and limitation to
benefits and rights under Hawaii's workers' compensation laws.  The preliminary
decision shall be sent to the affected employee and the employee's designated
representative and the employer and the employer's designated representative
and shall state that any party disagreeing with the director's preliminary
findings of medical stabilization and work limitations may request a hearing
within twenty days of the date of the decision.  The director shall be
available to answer any questions during the twenty‑day period from the
injured employee and affected employer.  If neither party requests a hearing
challenging the director's finding the determination shall be deemed accepted
and binding upon the parties.  In any case where a hearing is held on the
preliminary findings, any person aggrieved by the director's decision and order
may appeal under section 386-87.



A preliminary decision of the director
shall inform the injured employee and the employer of the following
responsibilities, benefits, and limitations on vocational rehabilitation
benefits that are designed to facilitate the injured employee's early return to
suitable gainful employment:



(A)  That the injured employee may invoke the
employee's rights under section 378-2, 378-32, or 386-142, or all of them, in
the event of unlawful discrimination or other unlawful employment practice by
the employer; and



(B)  That after termination of temporary total
disability benefits, an injured employee who resumes work may be entitled to
permanent partial disability benefits, which if awarded, shall be paid
regardless of the earnings or employment status of the disabled employee at the
time.



(2)  If the rehabilitation unit determines that an
injured employee is not a feasible candidate for rehabilitation and that the
employee is unable to resume the employee's regular job, it shall promptly
certify the same to the director.  Soon thereafter, the director shall conduct
a hearing to determine whether the injured employee remains temporarily totally
disabled, or whether the employee is permanently partially disabled, or
permanently totally disabled. [L 1963, c 116, pt of §1; am L 1965, c 152,
§1(a); Supp, §97-30; am L 1967, c 138, §1; HRS §386-31; am L 1969, c 18, §1; am
L 1972, c 42, §1; am L 1974, c 153, §2; am L 1975, c 107, §1; am L 1979, c 66,
§1; am L 1985, c 296, §3; gen ch 1985; am L 1988, c 37, §1; am L Sp 2005, c 11,
§6]



 



Case Notes



 



  Offsets for workers' compensation benefits in pension plan
constituted forfeitures under ERISA.  504 F. Supp. 958.



  Workers' compensation benefits clearly intended to indemnify
workers for job related injury or disease, not to provide income lost on
retirement.  504 F. Supp. 958.



  Right to compensation presupposes disability for work, either
total or partial.  34 H. 317.



  "Average", "weekly" defined.  37 H. 517.



  Burden of proof for claimants under odd-lot doctrine
discussed.  72 H. 272, 813 P.2d 1386.



  Claimant's temporary total disability payments properly
terminated where director's review of medical records and reports found
claimant's condition stable and claimant was not feasible candidate for
rehabilitation because of lack of motivation.  80 H. 239, 909 P.2d 567.



  Administrative penalties authorized by subsection (b) and
§386-92 not intended to provide an injured worker's exclusive remedy for
injuries resulting from an insurer's tortious delay or termination of
benefits.  83 H. 457, 927 P.2d 858.



  A decision that finally adjudicates the matter of medical and
temporary disability benefits under §§386-21, 386-32(b), and subsection (b) is
an appealable final order under §91-14(a), even though the matter of permanent
disability benefits under §386-32(a) and subsection (a) has been left for later
determination.  89 H. 436, 974 P.2d 1026.



  The date-of-death maximum weekly benefit rate should be used
to calculate death benefits.  109 H. 255, 125 P.3d 476.



  Odd-lot doctrine.  2 H. App. 659, 638 P.2d 1381.



  Cited:  32 H. 920, 924, 34 H. 65, 70.