§386-33  Subsequent injuries that wouldincrease disability.  (a)  Where prior to any injury an employee suffersfrom a previous permanent partial disability already existing prior to theinjury for which compensation is claimed, and the disability resulting from theinjury combines with the previous disability, whether the previous permanentpartial disability was incurred during past or present periods of employment,to result in a greater permanent partial disability or in permanent totaldisability or in death, then weekly benefits shall be paid as follows:

(1)  In cases where the disability resulting from theinjury combines with the previous disability to result in greater permanentpartial disability the employer shall pay the employee compensation for theemployee's actual permanent partial disability but for not more than onehundred four weeks; the balance if any of compensation payable to the employeefor the employee's actual permanent partial disability shall thereafter be paidout of the special compensation fund; provided that in successive injury caseswhere the claimant's entire permanent partial disability is due to more thanone compensable injury, the amount of the award for the subsequent injury shallbe offset by the amount awarded for the prior compensable injury;

(2)  In cases where the disability resulting from theinjury combines with the previous disability to result in permanent totaldisability, the employer shall pay the employee for one hundred four weeks andthereafter compensation for permanent total disability shall be paid out of thespecial compensation fund; and

(3)  In cases where the disability resulting from theinjury combines with the previous disability to result in death the employershall pay weekly benefits in accordance with sections 386-41 and 386-43 but fornot more than one hundred four weeks; the balance of compensation payable underthose sections shall thereafter be paid out of the special compensation fund.

(b)  Notwithstanding subsection (a), where thedirector or the appellate board determines that the previous permanent partialdisability amounted to less than that necessary to support an award ofthirty-two weeks of compensation for permanent partial disability, there shallbe no liability on the special compensation fund and the employer shall pay theemployee or the employee's dependents full compensation for the employee'spermanent partial or total disability or death.

(c)  Effective July 1, 1995, subsection (a)(1),as amended, shall apply in all cases in which the work injury occurs on orafter July 1, 1995, and combines with a previous disability from a compensableinjury to result in a greater permanent partial disability. [L 1963, c 116, ptof §1; Supp, §97-32; HRS §386-33; am L 1982, c 93, §1; am L 1984, c 284, §1; amL 1995, c 234, §10; am L 2000, c 46, §1]

 

Case Notes

 

  Section applies to death benefits.  64 H. 415, 643 P.2d 48.

  Conditions to the apportionment of death benefits.  66 H.290, 660 P.2d 1316.

  Intent.  66 H. 290, 660 P.2d 1316.

  Prior disability need not be manifest before compensationliability apportioned to special compensation fund.  67 H. 663, 701 P.2d 1282.

  Board did not err when it concluded that claimant's permanenttotal disability benefits should not be apportioned with special compensationfund.  78 H. 275, 892 P.2d 468.

  Odd-lot factors cannot be considered in determining whether apreexisting permanent partial disability amounted to award of thirty-two weeksof compensation for the purposes of this section.  78 H. 275, 892 P.2d 468.

  Board properly concluded that, pursuant to subsection (a)(1),claimant was entitled to an award of the monetary value of 14 per centpermanent partial disability of the whole person as a result of claimant'slatter work injury less the monetary value of the 2 per cent permanent partialdisability award of the whole person as a result of claimant's earlier workinjury.  100 H. 16 (App.), 58 P.3d 74.

  Subsection (a)(1) lacks any condition or limitation thatcompensation for a prior injury must have been paid pursuant to a claim underthe Hawaii workers' compensation law; thus, labor appeals board did not errwhen it decided that the offset provision set forth in subsection (a)(1)applied to claimant's prior out-of-state permanent partial disability award. 109 H. 372 (App.), 126 P.3d 415.

  Cited:  56 H. 552, 545 P.2d 692.