B.  Incomeand Indemnity Benefits

 

1.  Disability

 

§386-31  Total disability.  (a) Permanent total disability.  Where a work injury causes permanent totaldisability the employer shall pay the injured employee a weekly benefit equalto 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 eachsucceeding twelve-month period thereafter, not more than the state averageweekly wage last determined by the director, rounded to the nearest dollar, norless than $38 or twenty-five per cent of the foregoing maximum amount, roundedto the nearest dollar, whichever is higher.

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

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

(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 andcomplete paralysis of both legs or both arms or one leg and one arm;

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

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

(b)  Temporary total disability.  Where a workinjury causes total disability not determined to be permanent in character, theemployer, for the duration of the disability, but not including the first threecalendar days thereof, shall pay the injured employee a weekly benefit at therate of sixty-six and two-thirds per cent of the employee's average weeklywages, subject to the limitations on weekly benefit rates prescribed insubsection (a), or if the employee's average weekly wages are less than theminimum weekly benefit rate prescribed in subsection (a), at the rate of onehundred per cent of the employee's average weekly wages.

If an employee is unable to complete a regulardaily work shift due to a work injury, the employee shall be deemed totallydisabled for work for that day.

The employer shall pay temporary totaldisability benefits promptly as they accrue to the person entitled thereto withoutwaiting for a decision from the director, unless this right is controverted bythe employer in the employer's initial report of industrial injury.  The firstpayment of benefits shall become due and shall be paid no later than on thetenth day after the employer has been notified of the occurrence of the totaldisability, and thereafter the benefits due shall be paid weekly except asotherwise authorized pursuant to section 386-53.

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

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

(1)  If the director determines, based upon a reviewof medical records and reports and other relevant documentary evidence, that aninjured employee's medical condition may be stabilized and the employee isunable to return to the employee's regular job, the director shall issue apreliminary decision regarding the claimant's entitlement and limitation tobenefits and rights under Hawaii's workers' compensation laws.  The preliminarydecision shall be sent to the affected employee and the employee's designatedrepresentative and the employer and the employer's designated representativeand shall state that any party disagreeing with the director's preliminaryfindings of medical stabilization and work limitations may request a hearingwithin twenty days of the date of the decision.  The director shall beavailable to answer any questions during the twenty‑day period from theinjured employee and affected employer.  If neither party requests a hearingchallenging the director's finding the determination shall be deemed acceptedand binding upon the parties.  In any case where a hearing is held on thepreliminary findings, any person aggrieved by the director's decision and ordermay appeal under section 386-87.

A preliminary decision of the directorshall inform the injured employee and the employer of the followingresponsibilities, benefits, and limitations on vocational rehabilitationbenefits that are designed to facilitate the injured employee's early return tosuitable gainful employment:

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

(B)  That after termination of temporary totaldisability benefits, an injured employee who resumes work may be entitled topermanent partial disability benefits, which if awarded, shall be paidregardless of the earnings or employment status of the disabled employee at thetime.

(2)  If the rehabilitation unit determines that aninjured employee is not a feasible candidate for rehabilitation and that theemployee is unable to resume the employee's regular job, it shall promptlycertify the same to the director.  Soon thereafter, the director shall conducta hearing to determine whether the injured employee remains temporarily totallydisabled, or whether the employee is permanently partially disabled, orpermanently 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; amL 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 planconstituted forfeitures under ERISA.  504 F. Supp. 958.

  Workers' compensation benefits clearly intended to indemnifyworkers for job related injury or disease, not to provide income lost onretirement.  504 F. Supp. 958.

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

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

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

  Claimant's temporary total disability payments properlyterminated where director's review of medical records and reports foundclaimant's condition stable and claimant was not feasible candidate forrehabilitation 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 forinjuries resulting from an insurer's tortious delay or termination ofbenefits.  83 H. 457, 927 P.2d 858.

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

  The date-of-death maximum weekly benefit rate should be usedto 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.