Workers' Compensation

Clarifies existing workers' compensation benefits law.

HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  Chapter 386, Hawaii Revised Statutes, is amended
 2 by adding a new section to be appropriately designated and to
 3 read as follows:
 4      "386-      Defenses.  (a)  The employer shall not deny
 5 workers' compensation benefits for an injured employee when:
 6      (1)  The injury occurs on property owned or controlled by
 7           the employer;
 8      (2)  The injury is personally observed by another employee;
 9      (3)  The employer provides first aid or other related
10           services for the injured employee at the work site; and
11      (4)  The supervisor of the injured employee has personal
12           knowledge that the employee sustained an injury at the
13           work site;
14 provided that the employer does not have first-hand knowledge
15 that the employee deliberately caused the injury.
16      (b)  The employer shall not deny an injured employee
17 workers' compensation benefits when the cause of the injury is
18 proven to be related to any environment, setting, circumstance,
19 or condition controlled by the employer."

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 1      SECTION 2.  Section 386-1, Hawaii Revised Statutes, is
 2 amended by adding a new definition to be appropriately inserted
 3 and to read as follows:
 4      ""Date of injury" means:
 5      (1)  The date an employee is actually injured; and
 6      (2)  The date to begin computing compensation benefits."
 7      SECTION 3.  Section 386-31, Hawaii Revised Statutes, is
 8 amended to read as follows:
 9      "386-31  Total disability. (a)  Permanent total disability.
10 Where a work injury causes permanent total disability the
11 employer shall pay the injured employee a weekly benefit equal to
12 sixty-six and two-thirds per cent of the employee's average
13 weekly wages, subject to the following limitation:
14      Beginning January 1, 1975, and during each succeeding
15 twelve-month period thereafter, not more than the state average
16 weekly wage last determined by the director, rounded to the
17 nearest dollar, nor less than $38 or twenty-five per cent of the
18 foregoing maximum amount, rounded to the nearest dollar,
19 whichever is higher.
20      In the case of the following injuries, the disability caused
21 thereby shall be deemed permanent and total:
22      (1)  The permanent and total loss of sight in both eyes;
23      (2)  The loss of both feet at or before the ankle;

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 1      (3)  The loss of both hands at or above the wrist;
 2      (4)  The loss of one hand and one foot;
 3      (5)  An injury to the spine resulting in permanent and
 4           complete paralysis of both legs or both arms or one leg
 5           and one arm;
 6      (6)  An injury to the skull resulting in incurable
 7           imbecility or insanity.
 8      In all other cases the permanency and totality of the
 9 disability shall be determined on the facts.  No adjudication of
10 permanent total disability shall be made until after two weeks
11 from the date of the injury.
12      (b)  Temporary total disability.  Where a work injury causes
13 total disability not determined to be permanent in character, the
14 employer, for the duration of the disability, but not including
15 the first three calendar days thereof, shall pay the injured
16 employee a weekly benefit at the rate of sixty-six and two-thirds
17 per cent of the employee's average weekly wages, subject to the
18 limitations on weekly benefit rates prescribed in subsection (a),
19 or if the employee's average weekly wages are less than the
20 minimum weekly benefit rate prescribed in subsection (a), at the
21 rate of one hundred per cent of the employee's average weekly
22 wages.

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 1      The employer shall pay temporary total disability benefits
 2 promptly as they accrue to the person entitled thereto without
 3 waiting for a decision from the director, unless such right is
 4 controverted by the employer in the employer's initial report of
 5 industrial injury.  The first payment of benefits shall become
 6 due and shall be paid no later than on the tenth day after the
 7 employer has been notified of the occurrence of the total
 8 disability, and thereafter the benefits due shall be paid weekly
 9 except as otherwise authorized pursuant to section 386-53.
10      The payment of such benefits shall only be terminated
11 [upon]:
12      (1)  Upon order of the director; or [if]
13      (2)  If the employee is able to resume work[.]; and
14      (3)  When the medical provider:
15           (A)  Certifies that the employee is able to resume
16                work; or
17           (B)  Documents any appropriate restriction or
18                limitation on the employee's work duty; provided
19                that the medical provider includes a reasonable
20                time deadline when the employee shall be
21                determined to be fully recovered.
22      When the employer is of the opinion that temporary total
23 disability benefits should be terminated because the injured

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 1 employee is able to resume work, the employer shall notify the
 2 employee and the director in writing of an intent to terminate
 3 such benefits at least two weeks prior to the date when the last
 4 payment is to be made.  The notice shall give the reason for
 5 stopping payment and shall inform the employee that the employee
 6 may make a written request to the director for a hearing if the
 7 employee disagrees with the employer.  Upon receipt of the
 8 request from the employee, the director shall conduct a hearing
 9 as expeditiously as possible and render a prompt decision as
10 specified in section 386-86.
11      (c)  An employer or insurance carrier who fails to comply
12 with this section shall pay not more than $2,500 into the special
13 compensation fund upon the order of the director, in addition to
14 other penalties prescribed in section 386-92[.]:
15      (1)  In any case where the director determines based upon a
16           review of medical records and reports and other
17           relevant documentary evidence that an injured
18           employee's medical condition may be stabilized and the
19           employee is unable to return to the employee's regular
20           job, the director shall issue a preliminary decision
21           regarding the claimant's entitlement and limitation to
22           benefits and rights under Hawaii's workers'
23           compensation laws.  The preliminary decision shall be

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 1           sent to the affected employee and the employee's
 2           designated representative and the employer and the
 3           employer's designated representative and shall state
 4           that any party disagreeing with the director's
 5           preliminary findings of medical stabilization and work
 6           limitations may request a hearing within twenty days of
 7           the date of the decision.  The director shall be
 8           available to answer any questions during the twenty-day
 9           period from the injured employee and affected employer.
10           If neither party requests a hearing challenging the
11           director's finding the determination shall be deemed
12           accepted and binding upon the parties.  In any case
13           where a hearing is held on the preliminary findings,
14           any person aggrieved by the director's decision and
15           order may appeal under section 386-87.
16           A preliminary decision of the director shall inform the
17           injured employee and the employer of the following
18           responsibilities, benefits, and limitations on
19           vocational rehabilitation benefits which are designed
20           to facilitate the injured employee's early return to
21           suitable gainful employment:
22           (A)  That the injured employee may invoke the
23                employee's rights under section 378-2, 378-32, or

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 1                386-142, or all of them, in the event of unlawful
 2                discrimination or other unlawful employment
 3                practice by the employer.
 4           (B)  That after termination of temporary total
 5                disability benefits an injured employee who
 6                resumes work may be entitled to permanent partial
 7                disability benefits, which if awarded, shall be
 8                paid regardless of the earnings or employment
 9                status of the disabled employee at the time.
10      (2)  In any case in which the rehabilitation unit determines
11           that an injured employee is not a feasible candidate
12           for rehabilitation and that the employee is unable to
13           resume the employee's regular job, it shall promptly
14           certify the same to the director.  Soon thereafter, the
15           director shall conduct a hearing to determine whether
16           the injured employee remains temporarily totally
17           disabled, or whether the employee is permanently
18           partially disabled, or permanently totally disabled."
19      SECTION 4.  Section 386-79, Hawaii Revised Statutes, is
20 amended to read as follows:
21      "386-79  Medical examination by employer's physician.
22 After an injury and during the period of disability, the
23 employee, whenever ordered by the director of labor and

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 1 industrial relations, shall submit to examination, at reasonable
 2 times and places, by a duly qualified physician or surgeon
 3 designated and paid by the employer.  The employee shall have the
 4 right to have a physician or surgeon designated and paid by the
 5 employee present at the examination, which right, however, shall
 6 not be construed to deny to the employer's physician the right to
 7 visit the injured employee at all reasonable times and under all
 8 reasonable conditions during total disability.
 9      If an employee refuses to submit to, or in any way obstructs
10 such examination, the employee's right to claim compensation for
11 the work injury shall be suspended until the refusal or
12 obstruction ceases and no compensation shall be payable for the
13 period during which the refusal or obstruction continues.
14      If the employer's physician's report supports the employee's
15 workers' compensation claim, the employer's physician's report
16 shall be absolute and final and the employer shall not appeal the
17 determination of the report.
18      In cases where the employer is dissatisfied with the
19 progress of the case or where major and elective surgery, or
20 either, is contemplated, the employer may appoint a physician or
21 surgeon of the employer's choice who shall examine the injured
22 employee and make a report to the employer.  If the employer
23 remains dissatisfied, this report may be forwarded to the
24 director.

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 1      Employer requested examinations under this section shall not
 2 exceed more than one per case unless good and valid reasons exist
 3 with regard to the medical progress of the employee's treatment.
 4 The cost of conducting the ordered medical examination shall be
 5 limited to the complex consultation charges governed by the
 6 medical fee schedule established pursuant to section 386-21(c)."
 7      SECTION 5.  Statutory material to be repealed is bracketed.
 8 New statutory material is underscored.
 9      SECTION 6.  This Act shall take effect upon its approval.
11                           INTRODUCED BY:_________________________