http://clear.uhwo.hawaii.edu                       email: clear@hawaii.edu HRS Chapter 386 HAWAIʻI WORKERS' COMPENSATION LAW as of July 2018 SECTIONS: PART I. GENERAL PROVISIONS Sections 1 to 10. PART II: COMPENSATION       A. Medical and Rehabilitation Benefits §386-21. Medical care, services and supplies §386-21.1 Medical care, services, and supplies for controverted claims. §386-21.2 Treatment plans. §386-21.5 Publication of fees by prepaid health care plan contractors §386-21.7 Prescription drugs; pharmaceuticals §386-21.9 Medical care, services, and supplies for firefighters suffering from cancer §386-22 Artificial member and other aids. §386-23 Services of attendant. §386-23.5 Services of attendant, allowance adjustments. §386-23.6 Weekly benefit adjustments for recipients of services of attendants. §386-24 Medical rehabilitation. §386-25 Vocational rehabilitation. §386-26 Guidelines on frequency of treatment and reasonable utilization of health care and services. §386-27 Qualification and duties of health care providers. §386-28 Opioid therapy; qualifying injured employees; informed consent process §386-29 Qualifying injured employees; initial concurrent prescriptions; opioids and benzodiazepines       B. Income nd Indemnity Benefits 1. Disability §386-31 Total disability. §386-32 Partial disability. §386-33 Subsequent injuries which would increase disability §386-34 Payment after death. §386-35 Benefit adjustment. 2. Death §386-41 Entitlement to and rate of compensation. §386-42 Dependents. §386-44 Effect of erroneous payment; insanity of beneficiary 3. Provisions Common to Benefits for Disability and Death §386-51 Computation of average weekly wages. §386-51.5 Limited liability in concurrent employment. §386-52 Credit for voluntary payments and supplies in kind §386-53 Nonweekly periodic payments. §386-54 Commutation of periodic payments §386-55 Trustee in case of lump sum payments §386-56 Payment from the special compensation fund in case of default §386-57 Legal status of right to compensation and compensation payments. PART III: ADMINISTRATION Sections 71. to 100. PART IV: SECURITY FOR COMPENSATION Sections 121. to 155. PART V: APPLICABILITY TO HAWAI'I GUARD, VOLUNTEER PERSONNEL AND PUBLIC BOARD MEMBERS Sections 161. to 181. PART VI. SELF-INSURANCE GROUPS Sections 191. to 214. PART II. COMPENSATION A. Medical and Rehabilitation Benefits §386-21 Medical care, services and supplies.      (a) Immediately after a work injury sustained by an employee and so long as reasonably needed the employer shall furnish to the employee all medical care, services, and supplies as the nature of the injury requires. The liability for the medical care, services, and supplies shall be subject to the deductible under section 386-100.      (b) Whenever medical care is needed, the injured employee may select any physician or surgeon who is practicing on the island where the injury was incurred to render medical care. If the services of a specialist are indicated, the employee may select any physician or surgeon practicing in the State. The director may authorize the selection of a specialist practicing outside the State where no comparable medical attendance within the State is available. Upon procuring the services of a physician or surgeon, the injured employee shall give proper notice of the employee's selection to the employer within a reasonable time after the beginning of the treatment. If for any reason during the period when medical care is needed, the employee wishes to change to another physician or surgeon, the employee may do so in accordance with rules prescribed by the director. If the employee is unable to select a physician or surgeon and the emergency nature of the injury requires immediate medical attendance, or if the employee does not desire to select a physician or surgeon and so advises the employer, the employer shall select the physician or surgeon. The selection, however, shall not deprive the employee of the employee's right of subsequently selecting a physician or surgeon for continuance of needed medical care.      (c) The liability of the employer for medical care, services, and supplies shall be limited to the charges computed as set forth in this section. The director shall make determinations of the charges and adopt fee schedules based upon those determinations. Effective January 1, 1997, and for each succeeding calendar year thereafter, the charges shall not exceed one hundred ten per cent of fees prescribed in the Medicare Resource Based Relative Value Scale applicable to Hawaii as prepared by the United States Department of Health and Human Services, except as provided in this subsection. The rates or fees provided for in this section shall be adequate to ensure at all times the standard of services and care intended by this chapter to injured employees.      If the director determines that an allowance under the medicare program is not reasonable or if a medical treatment, accommodation, product, or service existing as of June 29, 1995, is not covered under the medicare program, the director, at any time, may establish an additional fee schedule or schedules not exceeding the prevalent charge for fees for services actually received by providers of health care services, to cover charges for that treatment, accommodation, product, or service. If no prevalent charge for a fee for service has been established for a given service or procedure, the director shall adopt a reasonable rate which shall be the same for all providers of health care services to be paid for that service or procedure.      The director shall update the schedules required by this section every three years or annually, as required. The updates shall be based upon: (1) Future charges or additions prescribed in the Medicare Resource Based Relative Value Scale applicable to Hawaii as prepared by the United States Department of Health and Human Services; or (2) A statistically valid survey by the director of prevalent charges for fees for services actually received by providers of health care services or based upon the information provided to the director by the appropriate state agency having access to prevalent charges for medical fee information.      When a dispute exists between an insurer or self-insured employer and a medical services provider regarding the amount of a fee for medical services, the director may resolve the dispute in a summary manner as the director may prescribe; provided that a provider shall not charge more than the provider's private patient charge for the service rendered.      When a dispute exists between an employee and the employer or the employer's insurer regarding the proposed treatment plan or whether medical services should be continued, the employee shall continue to receive essential medical services prescribed by the treating physician necessary to prevent deterioration of the employee's condition or further injury until the director issues a decision on whether the employee's medical treatment should be continued. The director shall make a decision within thirty days of the filing of a dispute. If the director determines that medical services pursuant to the treatment plan should be or should have been discontinued, the director shall designate the date after which medical services for that treatment plan are denied. The employer or the employer's insurer may recover from the employee's personal health care provider qualified pursuant to section 386-27, or from any other appropriate occupational or non-occupational insurer, all the sums paid for medical services rendered after the date designated by the director. Under no circumstances shall the employee be charged for the disallowed services, unless the services were obtained in violation of section 386-98. The attending physician, employee, employer, or insurance carrier may request in writing that the director review the denial of the treatment plan or the continuation of medical services.      (d) The director, with input from stakeholders in the workers' compensation system, including but not limited to insurers, health care providers, employers, and employees, shall establish standardized forms for health care providers to use when reporting on and billing for injuries compensable under this chapter. The forms may be in triplicate, or in any other configuration so as to minimize, to the extent practicable, the need for a health care provider to fill out multiple forms describing the same workers' compensation case to the department, the injured employee's employer, and the employer's insurer.      (e) If it appears to the director that the injured employee has wilfully refused to accept the services of a competent physician or surgeon selected as provided in this section, or has wilfully obstructed the physician or surgeon, or medical, surgical, or hospital services or supplies, the director may consider such refusal or obstruction on the part of the injured employee to be a waiver in whole or in part of the right to medical care, services, and supplies, and may suspend the weekly benefit payments, if any, to which the employee is entitled so long as the refusal or obstruction continues.      (f) Any funds as are periodically necessary to the department to implement the foregoing provisions may be charged to and paid from the special compensation fund provided by section 386-151.      (g) In cases where the compensability of the claim is not contested by the employer, the medical services provider shall notify or bill the employer, insurer, or the special compensation fund for services rendered relating to the compensable injury within two years of the date services were rendered. Failure to bill the employer, insurer, or the special compensation fund within the two-year period shall result in the forfeiture of the medical services provider's right to payment. The medical [services] provider shall not directly charge the injured employee for treatments relating to the compensable injury. [L 1963, c 116, pt of §1; Supp, §97-20; am L 1967, c 16, §1; HRS §386-21; am L 1973, c 78, §1; am L 1979, c 132, §1; am imp L 1984, c 90, §1; am L 1985, c 296, §15; am L 1987, c 120, §1; am L 1995, c 234, §7; am L 1996, c 260, §2; am L 1998, c 191, §1; am L 2006, c 191, §1; am L Sp 2009, c 26, §1] 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.      Voluntary, involuntary medical attendance. 32 H. 503.      A decision that finally adjudicates the matter of medical and temporary disability benefits under §§386-31(b), 386-32(b), and this section is an appealable final order under §91-14(a), even though the matter of permanent disability benefits under §§386-31(a) and 386-32(a) has been left for later determination. 89 H. 436, 974 P.2d 1026.      There is no statutory authority granted to board to apportion the medical treatment coverage afforded under this section between a preexisting dental condition and the accident-induced temporomandibular joint disorder; where substantial evidence in record indicated that the medical treatment proposed was necessitated by the nature of the injury, the employer was required to provide compensation for "all" medical treatment required. 93 H. 116 (App.), 997 P.2d 42.      Cited: 24 H. 731, 733. §386-21.1 Medical care, services, and supplies for controverted claims. In the event of a controverted claim, the injured employee's private health care plan shall pay for or provide medical care, services, and supplies in accordance with the private health care contract. When the claim is accepted or determined to be compensable, the employer shall reimburse the private health care plan and the injured employee in amounts as authorized by this chapter and rules adopted by the director. [L 2018, c 107, pt of §2] §386-21.2 Treatment plans. (a) A physician may transmit a treatment plan to an employer by mail or facsimile; provided that the physician shall send the treatment plan to an address or facsimile number provided by the employer.      (b) Beginning January 1, 2021, an employer shall allow a physician to transmit a treatment plan to an employer by mail, facsimile, or secure electronic means; provided that the physician shall send the treatment plan to an address or facsimile number provided by the employer.      (c) A treatment plan shall be deemed received by an employer when the plan is sent by mail or facsimile with reasonable evidence showing that the treatment plan was received.      (d) A treatment plan shall be deemed accepted if an employer fails to file with the director: (1) An objection to the treatment plan; (2) Any applicable documentary evidence supporting the denial; and (3) A copy of the denied treatment plan, copying the physician and the injured employee.      (e) After acceptance of the treatment plan, an employer may file an objection to the plan if new documentary evidence supporting the denial is received by the employer. [L 2016, c 101, §2] §386-21.5 Publication of fees by prepaid health care plan contractors. (a) A prepaid health care plan contractor as defined in section 393-3 shall provide the director upon request with a schedule of all the maximum allowable medical fees.      (b) Pursuant to section 386-21(c), the director shall review and, to the extent possible, shall use the fee obtained under subsection (a) as the primary guideline in establishing prevalent charges for medical care, services, and supplies in adopting the fee schedule for workers' compensation claims. [L 1995, c 234, §2] §386-21.7 Prescription drugs; pharmaceuticals. (a) Notwithstanding any other provision to the contrary, immediately after a work injury is sustained by an employee and so long as reasonably needed, the employer shall furnish to the employee all prescription drugs as the nature of the injury requires; provided that initial concurrent prescriptions for opioids and benzodiazepines shall meet the requirements of section 386-29. The liability for the prescription drugs shall be subject to the deductible under section 386-100.      (b) Payment for all forms of prescription drugs including repackaged and relabeled drugs shall be one hundred forty per cent of the average wholesale price set by the original manufacturer of the dispensed prescription drug as identified by its National Drug Code and as published in the Red Book: Pharmacy's Fundamental Reference as of the date of dispensing, except where the employer or carrier, or any entity acting on behalf of the employer or carrier, directly contracts with the provider or the provider's assignee for a lower amount.      (c) Payment for compounded prescription drugs shall be the sum of one hundred forty per cent of the average wholesale price by gram weight of each underlying prescription drug contained in the compounded prescription drug. For compounded prescription drugs, the average wholesale price shall be that set by the original manufacturer of the underlying prescription drug as identified by its National Drug Code and as published in the Red Book: Pharmacy's Fundamental Reference as of the date of compounding, except where the employer or carrier, or any entity acting on behalf of the employer or carrier, directly contracts with the provider or provider's assignee for a lower amount.      (d) All pharmaceutical claims submitted for repackaged, relabeled, or compounded prescription drugs shall include the National Drug Code of the original manufacturer. If the original manufacturer of the underlying drug product used in repackaged, relabeled, or compounded prescription drugs is not provided or is unknown, then reimbursement shall be one hundred forty per cent of the average wholesale price for the original manufacturer's National Drug Code number as listed in the Red Book: Pharmacy's Fundamental Reference of the prescription drug that is most closely related to the underlying drug product.      (e) Notwithstanding any other provision in this section to the contrary, equivalent generic drug products shall be substituted for brand name pharmaceuticals unless the prescribing physician certifies that no substitution shall be prescribed because the injured employee's condition does not tolerate an equivalent generic drug product.      (f) For purposes of this section, "equivalent generic drug product" has he same meaning as provided in section 328-91. [L 2014, c 231, §2; am L 2018, c 155, §3] §386-21.9 Medical care, services, and supplies for firefighters suffering from cancer. If a claim for leukemia, multiple myeloma, non-Hodgkin lymphoma, or cancer of the lung, brain, stomach, esophagus, intestines, rectum, kidney, bladder, prostate, or testes filed by an employee with five or more years of service as a firefighter is accepted or determined to be compensable, section 386-21 shall remain applicable; provided that the employer shall be liable for medical care, services, and supplies for a minimum of one hundred ten per cent, and not to exceed one hundred fifty per cent of fees prescribed in the Medicare Resource Based Relative Value Scale applicable to Hawaii as prepared by the United States Department of Health and Human Services. [L 2018, c 107, pt of §2] §386-22 Artificial member and other aids. Where an injury results in the amputation of an arm, hand, leg, or foot, or the enucleation of an eye, or the loss of natural or artificial teeth, or the loss of vision which may be partially or wholly corrected by the use of lenses, the employer shall furnish an artificial member to take the place of each member lost and, in the case of correctable loss of vision, a set of suitable glasses. Where it is certified to be necessary by a licensed physician or surgeon chosen by agreement of the employer and the employee, the employer shall furnish such other aids, appliances, apparatus, and supplies as are required to cure or relieve the effects of the injury. When a licensed physician or surgeon, chosen as above, certifies that it is necessitated by ordinary wear, the employer shall repair or replace such artificial members, aids, appliances, or apparatus. Where an employee suffers the loss of or damage to any artificial member, aid, appliance, or apparatus by accident arising out of and in the course of the employee's employment, the employer shall repair or replace the member, aid, appliance, or apparatus whether or not the same was furnished initially by the employer. The liability of the employer for artificial members, aids, appliances, apparatus, or supplies as is imposed by this section shall be limited to such charges as prevail in the same community for similar equipment of a person of a like standard of living when the equipment is paid for by that person and shall be subject to the deductible under section 386-100. [L 1963, c 116, pt of §1; Supp, §97-21; HRS §396-22; am imp L 1984, c 90, §1; am L 1985, c 296, §16] §386-23 Services of attendant. When the director of labor and industrial relations finds that the service of an attendant for the injured employee is constantly necessary the director may award a monthly sum of not more than the product of four times the effective maximum weekly benefit rate prescribed in section 386-31, as the director may deem necessary, for the procurement of such service. Payment for the services of an attendant shall be the liability of the employer, but shall be subject to the deductible under section 386-100, [L 1963, c 116, pt of §1; Supp, §97-22; HRS §386-23; am L 1971, c 25, §1; am L 1976, c 17, §1; am imp L 1984, c 90, §1; am L 1985, c 296, §17] §386-23.5 Services of attendant, allowance adjustments. (a) When the maximum allowed for procurement of services of an attendant as provided in section 386-23 is changed by law, any employee who has been totally and continuously disabled and has been awarded and is receiving a sum under this chapter to procure such services in an amount which is less than the new maximum allowed for this purpose shall be entitled upon application, to a supplemental allowance calculated in accordance with the following provisions: (1) In any case where a totally disabled employee is receiving the maximum allowed at the time the award was made, the supplemental allowance shall be an amount which, when added to such award, will equal the new maximum allowance. (2) In any case where a totally disabled employee is receiving less than the maximum allowed at the time the award was made, the supplemental allowance shall be an amount equal to the difference between the amount the disabled employee is receiving and a percentage of the new maximum allowance by multiplying it by a fraction, the numerator of which is the amount the employee is receiving and the denominator of which is the maximum monthly allowance applicable at the time such award was made.      (b) As of July 1, 1973 any employee who has been totally and continuously disabled and has been awarded and is receiving a sum under this chapter to procure services of an attendant in an amount which is less than the maximum allowed for this purpose, shall be entitled, upon application, to an additional amount calculated in accordance with the following provisions: (1) In any case where a totally disabled person is receiving the maximum allowed under this chapter at the time the award was made, the supplemental allowance shall be an amount which, when added to such award, will equal the maximum allowance effective as of the date of this section. (2) In any case where a totally disabled person is receiving less than the maximum allowed under this chapter at the time the award was made, the supplemental allowance shall be an amount equal to the difference between the amount the disabled employee is receiving and a percentage of the maximum allowance as of July 1, 1973, by multiplying it by a fraction, the numerator of which is the amount the employee is receiving and the denominator of which is the maximum monthly allowance applicable at the time such award was made.      (c) Any supplemental allowances awarded by the director pursuant to this section shall be paid to the employee from the special compensation fund. [L 1973, c 101, §1; am imp L 1984, c 90, §1] §386-23.6 Weekly benefit adjustments for recipients of services of attendants. Any permanently and totally disabled employee awarded and receiving compensation under section 386-23 or 386-23.5, but: (1) Who is no longer receiving weekly benefits shall, without application, be entitled to a resumption of weekly benefits from the special compensation fund in an amount equal to a percentage of the current maximum weekly benefit determined by multiplying the current maximum weekly benefit rate by a fraction, the numerator of which is the weekly benefit amount the employee has been receiving and the denominator of which is the maximum weekly benefit rate applicable at the time the weekly benefit award was made. (2) Who is receiving one-half of weekly benefits from the special compensation fund shall be entitled to weekly benefits in an amount equal to a percentage of the current maximum weekly benefit rate determined by multiplying the current maximum weekly benefit rate by a fraction, the numerator of which is twice the amount the employee has been receiving and the denominator of which is the maximum weekly benefit rate applicable at the time the weekly benefit award was made. [L 1974, c 52, §1; am L 1980, c 232, §21; am imp L 1984, c 90, §1] §386-24 Medical rehabilitation. The medical services and supplies to which an employee suffering a work injury is entitled shall include such services, aids, appliances, apparatus, and supplies as are reasonably needed for the employee's greatest possible medical rehabilitation. The director of labor and industrial relations, on competent medical advice, shall determine the need for or sufficiency of medical rehabilitation services furnished or to be furnished to the employee and may order any needed change of physician, hospital or rehabilitation facility. [L 1963, c 116, pt of §1; Supp, §97-23; HRS §386-24; am imp L 1984, c 90, §1] §386-25 Vocational rehabilitation. (a) The purposes of vocational rehabilitation are to restore an injured worker's earnings capacity as nearly as possible to that level that the worker was earning at the time of injury and to return the injured worker to suitable gainful employment in the active labor force as quickly as possible in a cost-effective manner. Vocational rehabilitation shall not be available for public employees who have retired from a public employer, as defined in section 76-11, with whom they sustained their work injury. Employees of public employers, as defined in section 76-11, who are eligible for their respective public employer's return to work program, shall participate in and complete the return to work program, including temporary light duty placement efforts, as a prerequisite to vocational rehabilitation benefits under this section.      (b) The director may refer employees who may have or have suffered permanent disability as a result of work injuries and who in the director's opinion can be vocationally rehabilitated to the department of human services or to private providers of rehabilitation services for vocational rehabilitation services that are feasible. A referral shall be made upon recommendation of the rehabilitation unit established under section 386-71.5 and after the employee has been deemed physically able to participate in rehabilitation by the employee's attending physician. The unit shall include appropriate professional staff and shall have the following duties and responsibilities: (1) To review and approve rehabilitation plans developed by certified providers of rehabilitation services whether they be private or public; (2) To adopt rules consistent with this section that shall expedite and facilitate the identification, notification, and referral of industrially injured employees to rehabilitation services, and establish minimum standards for providers providing rehabilitation services under this section; (3) To certify private and public providers of rehabilitation services meeting the minimum standards established under paragrapg (2); and (4) To enforce the implementation of rehabilitation plans.      (c) Enrollment in a rehabilitation plan or program shall not be mandatory and the approval of a proposed rehabilitation plan or program by the injured employee shall be required. The injured employee may select a certified provider of rehabilitation services. Both the certified provider and the injured employee, within a reasonable time after initiating rehabilitation services, shall give proper notice of selection to the employer. (d) A provider shall submit an initial evaluation report of the employee to the employer and the director within forty-five days of the date of referral or selection. The evaluation shall determine whether the employee requires vocational rehabilitation services to return to suitable gainful employment, identify the necessary services, and state whether the provider can provide these services. The initial evaluation report shall contain: (1) An assessment of the employee's: (A) Current medical status; (B) Primary disability; (C) Secondary disability; (D) Disabilities that are not related to the work injury; and (E) Physical or psychological limitations or both. If this information is not provided by the treating physician within a reasonable amount of time, information from another physician shall be accepted; (2) A job analysis addressing the demands of the employee's employment; (3) A statement from the provider identifying the employee's vocational handicaps in relation to the employee's ability to: (A) Return to usual and customary employment; and (B) Participate in and benefit from a vocational rehabilitation program; (4) A statement from the provider determining the feasibility of vocational rehabilitation services, including: (A) The provider's ability to assist the employee in the employee's efforts to return to suitable gainful employment; (B) An outline of specific vocational rehabilitation services to be provided, justification for the necessity of services, and how the effectiveness of these services is measured; and (C) How the vocational rehabilitation services directly relate to the employee obtaining suitable gainful employment; and (5) The enrollment form and the statement of worker's rights and responsibilities form obtained from the department. (e) A provider shall file the employee's plan with the approval of the employee. Upon receipt of the plan from the provider, an employee shall have ten days to review and sign the plan. The plan shall be submitted to the employer and the employee and be filed with the director within two days from the date of the employee's signature. A plan shall include a statement of the feasibility of the vocational goal, using the process of: (1) First determining if the employee's usual and customary employment represents suitable gainful employment, and, should it not; (2) Next determining if modified work or other work with the same employer represents suitable gainful employment, and, should it not; (3) Next determining if modified or other employment with a different employer represents suitable gainful employment, and finally, should it not; (4) Then providing training to obtain employment in another occupational field. When training to obtain employment in another occupational field is required, the first appropriate option among the following options shall be selected for the employee: (A) On-the-job training; (B) Short-term retraining proqram (less than fifty-two weeks): or (C) Long-term retraining program (more than fifty-two weeks); and (5) Lastly, if training under paragraph (4) is not feasible, then self-employment may be considered. (f) A plan may be approved by the director; provided the plan includes: (1) A physician's assessment of the employee's physical limitations, psychological limitations, and ability to return to work. If this information is not provided by the treating physician within a reasonable amount of time, information from another physician shall be accepted; (2) A labor market survey indicating there are reasonable assurances that the proposed occupation for which the employee is to be placed or trained is readily available in the community when placement begins, or there are assurances of reemployment by the employer; (3) A job analysis of the proposed occupation, setting forth its duties, responsibilities, physical demands, environmental working conditions, specific qualifications needed for entry-level employment, reasonable accommodations, expected estimated earnings, and other relevant information; (4) The nature and extent of the vocational rehabilitation services to be provided, including: (A) Specific services to be provided; (B) Justification for the necessity of the services; (C) Estimated time frames for delivery of services; (D) The manner in which the effectiveness of these services is to be measured; (E) Criteria for determining successful completion of the vocational rehabilitation plan; and (F) The employee's responsibilities; (5) A report of tests and copies thereof that have been administered to the employee, including a statement regarding the need for and use of the tests to identify a vocational goal; (6) If retraining, including on-the-job training, is found to be necessary, the estimated cost of retraining, a description of specific skills to be learned or knowledge acquired with specific time periods and clearly defined measurements of success, and the nature, amount, and duration of living expenses; (7) The total cost of the plan; and (8) The employee's approval of the plan. (g) The employer shall have ten calendar days from the postmark date on which the plan was mailed to submit in writing to the director any objections to the plan. (h) The director may approve a plan that does not include all of the requirements outlined in subsection (f); provided that the director finds the plan: (1) Is in the best interest of the employee; (2) Contains reasonable assurances that the employee will be placed in suitable gainful employment; and (3) Has been approved by the employee. (i) If the plan requires the purchase of any tools, supplies, or equipment, the purchase deadline shall be included in the plan. Tools, supplies, and equipment shall be considered to be the property of the employer until the plan is determined by the director to be successfully completed, after which it shall become the property of the employee. If the plan requires the purchase, etc., the employer shall purchase the items prior to the purchase deadline in the plan. (j) An employee with an approved plan who is determined as able to return to usual and customary employment may choose to complete the plan or request a new plan of which the goal may be the employee's usual and customary employment.      (k) An injured employee's enrollment in the rehabilitation plan or program shall not affect the employee's entitlement to temporary total disability compensation if the employee earns no wages during the period of enrollment. If the employee receives wages for work performed under the plan or program, the employee shall be entitled to temporary total disability compensation in an amount equal to the difference between the employee's average weekly wages at the time of injury and the wages received under the plan or program, subject to the limitations on weekly benefit rates prescribed in section 386-31(a). The employee shall not be entitled to such compensation for any week during this period where the wages equal or exceed the average weekly wages at the time of injury.      (l) The director shall adopt rules for additional living expenses necessitated by the rehabilitation program, together will all reasonable and necessary vocational training.      (m) If the rehabilitation unit determines that vocational rehabilitation is not possible or feasible, it shall certify the determination to the director.      (n) Except as otherwise provided, determinations of the rehabilitation unit shall be final unless a written request for reconsideration is filed with the rehabilitation unit within ten calendar days of the date of the determination. The rehabilitation unit shall issue a reconsideration determination to affirm, reverse, or modify the determination or refer the request for reconsideration for hearing.      (o) A reconsideration determination shall be final unless a written request for hearing is filed within ten calendar days from the date of the reconsideration determination. All hearings shall be held before a hearings officer designated by the director. A written decision shall be issued in the name of the director.      (p) The eligibility of any injured employee to receive other benefits under this chapter shall in no way be affected by the employee's entrance upon a course of vocational rehabilitation as herein provided.      (q) Vocational rehabilitation services for the purpose of developing a vocational rehabilitation plan may be approved by the director and the director may periodically review progress in each case. [L 1963, c 116, pt of §1; Supp, §97-24; HRS §386-25; am L 1970, c 105, §5; am L 1980, c 224, §2; am imp L 1984, c 90, §1; am L 1985, c 296, §2; am L 1987, c 339, §4; am L 1998, c 256, §1; am L Sp 2005, c 11, §4; am L 2010, c 18, §1; am L 2015, c 168, §2; am L 2018, c 188, §1] Case Notes       Board properly found claimant not interested or motivated in pursuing vocational rehabilitation or returning to suitable work where claimant moved to remote mainland village, declared claimant was "fully retired", and made unreasonable demands upon employer as conditions for returning to work. 80 H. 239, 909 P.2d 567.       Board properly terminated claimant's vocational rehabilitation services where it found claimant not interested or motivated in pursuing vocational rehabilitation. 80 H. 239, 909 P.2d 567.   §386-26 Guidelines on frequency of treatment and reasonable utilization of health care and services. The director shall issue guidelines for the frequency of treatment and for reasonable utilization of medical care and services by health care providers that are considered necessary and appropriate under this chapter. The guidelines shall not be considered as an authoritative prescription for health care, nor shall they preclude any health care provider from drawing upon the health care provider's medical judgment and expertise in determining the most appropriate care. The guidelines shall be adopted pursuant to chapter 91 and shall not interfere with the injured employee's rights to exercise free choice of physicians under section 386-21. In addition, the director shall adopt updated medical fee schedules referred to in section 382-21 and where deemed appropriate shall establish separate fee schedules for services of health care providers as defined in section 386-1 to become effective no later than June 30, 1986 in accordance with chapter 91. [L 1985, c 296, pt of §5; am L 1995, c 234, §8; am L 1996, c 260, §3; am L Sp 2005, c 11, §5] Cross Refernces Publication of fees by prepaid health care plan contractors, see §386-21.5. §386-27 Qualification and duties of health care providers. (a) All health care providers rendering health care and services under this chapter shall be qualified by the director and shall remain qualified by satisfying the requirements established in this section. The director shall qualify any person initially who has a license 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; (7) Psychology under chapter 465; and (8) Advanced practice registered nurses under chapter 457.      (b) To remain a qualified provider under this chapter a health care provider shall: (1) Comply with guidelines established by the director on the frequency of treatment and reasonable utilization of health care and services; (2) Conform to limitations established by the director for charges on services under medical fee and other fee schedules; (3) File timely reports required under section 386-96; (4) Avoid unnecessary and unreasonable referrals of injured employees to other health care providers; (5) Refrain from ordering unnecessary and unreasonable diagnostic tests and studies; (6) Remain available as a treating health care provider to injured employees and as an advisor to the director in proceedings under this section; and (7) Comply with all requirements established under this chapter and by rules and decisions adopted and issued by the director pursuant to this chapter.      (c) Any health care provider who fails to comply with subsections (a) and (b) may be subject to such sanctions deemed just and proper by the director which may include: (1) Disallowance of fees for services rendered to an injured employee; (2) Forfeiture of payments for services rendered to an injured employee under this chapter; (3) Fines of not more than $1,000 for each violation; (4) Suspension as a qualified provider; and (5) Disqualification as a provider of services under this chapter.      (d) No sanction shall be imposed by the director under this section except upon submission of a written complaint which shall specifically allege that a violation of this section occurred within two years of the date of the complaint. A copy of the complaint shall be sent to the health care provider charged promptly upon receipt by the director. The director may establish an advisory panel of health care providers consisting of three members, one selected by the complainant, another selected by the health care provider charged, and the third selected by the director who shall assist the director in any case arising under this section. Fees for services rendered by members of the advisory panel shall be paid for by the special compensation fund. No member of the advisory panel shall be liable in damages for libel, slander, or other defamation of character of any party for any action taken while acting within their capacities as members of the advisory panel.      The director shall issue, where a sanction is ordered under this section, a written decision of findings following a hearing held upon not less [than] twenty days written notice to the complainant and the health care provider charged. No violation shall be found unless the director determines that the violator acted in bad faith. Any person aggrieved by a decision of the director may appeal the decision under section 386-87.      (e) In any case arising under this section, the injured employee treated by the health care provider charged with a violation of this section shall not be a party to the proceedings and shall not appear unless called as a witness before the director or the appellate board. Charges for services rendered by the health care provider alleged to be in violation of this section shall be suspended pending action by the director and the appellate board in cases on appeal. In any case in which fees for services rendered by a health care provider are disallowed by the director, the health care provider shall be ordered to forfeit payment. [L 1985, c 296, pt of §5; am L 2009, c 11, §48; am L Sp 2009, c 22, §11(2); am L 2016, c 183, §7] §386-28 Opioid therapy; qualifying injured employees; informed consent process (a) Beginning on July 1, 2019, any health care provider authorized to prescribe opioids shall adopt and maintain a written policy or policies that include execution of a written agreement to engage in an informed consent process between the health care provider authorized to prescribe opioids and a qualifying injured employee.       (b) If the qualifying injured employee is unable to physically or mentally execute the written agreement pursuant to subsection (a), due to the injury, then the physician shall execute the agreement as soon as the employee's condition improves. At no time shall the employee be responsible for the payment of the medication prescribed.      (c) The department shall make available on its website a copy of the template for an opioid therapy informed consent process agreement developed by the department of health pursuant to section 329-38.5(b). The template shall be posted to the department's website no later than December 31, 2018.      (d) For the purposes of this section, "qualifying injured employee" means: (1) An injured employee requiring opioid treatment for more than three months; (2) An injured employee who is prescribed benzodiazepines and opioids together; or (3) An injured employee who is prescribed a dose of opioids that exceeds ninety morphine equivalent doses.      (e) A violation of this section shall not be subject to the penalty provisions of part IV of chapter 329. [L 2018, c 155, pt of §2] §386-29 Qualifying injured employees; initial concurrent prescriptions; opioids and benzodiazepines. (a) Initial concurrent prescriptions for opioids and benzodiazepines shall not be for longer than seven consecutive days unless a supply of longer than seven days is determined to be reasonably needed for the treatment of: (1) Pain experienced while the qualifying injured employee is in post-operative care; (2) Chronic pain and pain management; (3) Substance abuse or opioid or opiate dependence; (4) Cancer; (5) Pain experienced while the qualifying injured employee is in palliative care; or (6) Pain experienced while the qualifying injured employee is in hospice care; provided that if a health care provider authorized to prescribe opioids issues a concurrent prescription for more than a seven-day supply of an opioid and benzodiazepine, the health care provider shall document in the qualifying injured employee's medical record the condition for which the health care provider issued the prescription and that an alternative to the opioid and benzodiazepine was not appropriate treatment for the condition.      (b) After an initial concurrent prescription for opioids and benzodiazepines has been made, a health care provider authorized to prescribe opioids may authorize subsequent prescriptions through a telephone consultation with the qualifying injured employee when the health care provider deems such action to be reasonably needed for post-operative care and pain management; provided that the health care provider shall consult with a qualifying injured employee in person at least once every ninety days for the duration during which the health care provider concurrently prescribes opioids and benzodiazepines to the qualifying injured employee.      (c) For the purposes of this section, "qualifying injured employee" has the same meaning as in section 386-28. [L 2018, c 155, pt of §2] 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 $5,000 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 employee'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 imp L 1984, c 90, §1; am L 1985, c 296, §3; am L 1988, c 37, §1; am L Sp 2005, c 11, §6; am L 2016, c 187, §1] 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..   §386-32 Partial disability. (a) Permanent partial disability. Where a work injury causes permanent partial disability, the employer shall pay the injured worker compensation in an amount determined by multiplying the effective maximum weekly benefit rate prescribed in section 386-31 by the number of weeks specified for the disability as follows: Thumb. For the loss of thumb, seventy-five weeks; First finger. For the loss of a first finger, commonly called index finger, forty-six weeks; Second finger. For the loss of a second finger, commonly called the middle finger, thirty weeks; Third finger. For the loss of a third finger, commonly called the ring finger, twenty-five weeks; Fourth finger. For the loss of a fourth finger, commonly called the little finger, fifteen weeks; Phalanx of thumb or finger. Loss of the first phalanx of the thumb shall be equal to the loss of three-fourths of the thumb, and compensation shall be three-fourths of the amount above specified for the loss of the thumb. The loss of the first phalanx of any finger shall be equal to the loss of one-half of the finger, and compensation shall be one-half of the amount above specified for loss of the finger. The loss of more than one phalanx of the thumb or any finger shall be considered as loss of the entire thumb or finger; Great toe. For the loss of a great toe, thirty-eight weeks; Other toes. For the loss of one of the toes other than the great toe, sixteen weeks; Phalanx of toe. Loss of the first phalanx of any toe shall be equal to the loss of one-half of the toe, and the compensation shall be one-half of the amount specified for the loss of the toe. The loss of more than one phalanx of any toe shall be considered as the loss of the entire toe; Hand. For the loss of a hand, two hundred forty-four weeks; Arm. For the loss of an arm, three hundred twelve weeks; Foot. For the loss of a foot, two hundred five weeks; Leg. For the loss of a leg, two hundred eighty-eight weeks; Eye. For the loss of an eye by enucleation, one hundred sixty weeks. For the loss of vision in an eye, one hundred forty weeks. Loss of binocular vision or of eighty per cent of the vision of an eye shall be considered loss of vision of the eye; Ear. For permanent and complete loss of hearing in both ears, two hundred weeks. For the permanent and complete loss of hearing in one ear, fifty-two weeks. For the loss of both ears, eighty weeks. For the loss of one ear, forty weeks; Loss of use. Permanent loss of the use of a hand, arm, foot, leg, thumb, finger, toe, or phalanx shall be equal to and compensated as the loss of a hand, arm, foot, leg, thumb, finger, toe, or phalanx; Partial loss or loss of use of member named in schedule. Where a work injury causes permanent partial disability resulting from partial loss of use of a member named in this schedule, and where the disability is not otherwise compensated in this schedule, compensation shall be paid for a period that stands in the same proportion to the period specified for the total loss or loss of use of the member as the partial loss or loss of use of that member stands to the total loss or loss of use thereof; More than one finger or toe of same hand or foot. In cases of permanent partial disability resulting from simultaneous injury to the thumb and one or more fingers of one hand, or to two or more fingers of one hand, or to the great toe and one or more toes other than the great toe of one foot, or to two or more toes other than the great toe of one foot, the disability may be rated as a partial loss or loss of use of the hand or the foot and the period of benefit payments shall be measured accordingly. In no case shall the compensation for loss or loss of use of more than one finger or toe of the same hand or foot exceed the amount provided in this schedule for the loss of a hand or foot; Amputation. Amputation between the elbow and the wrist shall be rated as the equivalent of the loss of a hand. Amputation between the knee and the ankle shall be rated as the equivalent of the loss of a foot. Amputation at or above the elbow shall be rated as the loss of an arm. Amputation at or above the knee shall be rated as the loss of a leg; Disfigurement. In cases of personal injury resulting in disfigurement the director may award compensation not to exceed $30,000 as the director deems proper and equitable in view of the disfigurement. Disfigurement shall be separate from other permanent partial disabilities and shall include scarring and other disfiguring consequences caused by medical, surgical, and hospital treatment of the employee; Other cases. In all other cases of permanent partial disability resulting from the loss or loss of use of a part of the body or from the impairment of any physical function, weekly benefits shall be paid at the rate and subject to the limitations specified in this subsection for a period that bears the same relation to a period named in the schedule as the disability sustained bears to a comparable disability named in the schedule. In cases in which the permanent partial disability must be rated as a percentage of the total loss or impairment of a physical or mental function of the whole person, the maximum compensation shall be computed on the basis of the corresponding percentage of the product of three hundred twelve times the effective maximum weekly benefit rate prescribed in section 386-31. Payment of compensation for permanent partial disability. Compensation for permanent partial disability shall be paid in weekly installments at the rate of sixty-six and two-thirds per cent of the worker's average weekly wage, subject to the limitations on weekly benefit rates prescribed in section 386-31. Unconditional nature and time of commencement of payment. Compensation for permanent partial disability shall be paid regardless of the earnings of the disabled employee subsequent to the injury. Payments shall not commence until after termination of any temporary total disability that may be caused by the injury.      (b) Temporary partial disability. Where a work injury causes partial disability, not determined to be permanent, which diminishes the employee's capacity for work, the employer, beginning with the first day of the disability and during the continuance thereof, shall pay the injured employee weekly benefits equal to sixty-six and two-thirds per cent of the difference between the employee's average weekly wages before the injury and the employee's weekly earnings thereafter, subject to the schedule for the maximum and minimum weekly benefit rates prescribed in section 386-31.      (c) Provisions common to permanent and temporary partial disability. No determination of partial disability shall be made until two weeks from the date of the injury. [L 1963, c 116, pt of §1; am L 1965, c 106, §1; Supp, §97-31; am L 1967, c 138, §2; HRS §386-32; am L 1969, c 25, §1; am L 1970, c 100, §1 and c 126, §1; am L 1972, c 42, §2; am L 1973, c 47, §1; am L 1974, c 153, §3; am imp L 1984, c 90, §1; am L 1992, c 67, §1; am L 1995, c 234, §9] Note The 1992 amendment applies to injuries occurring after December 31, 1992. L 1992, c 67, §3. Case Notes Right to compensation presupposes disability for work, either total or partial. 34 H. 317. 1974 amendment effective January 1, 1975. L 1974, c 153, §7. 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. Disfigurement benefits may be awarded in addition to permanent total disability benefits. 59 H. 409, 583 P .2d 321. "Odd lot doctrine", 2 H. App. 659, 638 P .2d 1381; 8 H. App. 543, 812 P .2d 1199. Exclusiveness of scheduled allowances rejected. 67 H. 16, 675 P .2d 770. Injury to one finger may constitute hand disability. 67 H. 16, 675 P .2d 770. Cited: 24 H. 731, 733. §386-33 Subsequent injuries which would increase disability. (a) Where prior to any injury an employee suffers from a previous permanent partial disability already existing prior to the injury for which compensation is claimed, and the disability resulting from the injury combines with the previous disability, whether the previous permanent partial disability was incurred during past or present periods of employment, to result in a greater permanent partial disability or in permanent total disability or in death then weekly benefits shall be paid as follows: (1) In cases where the disability resulting from the injury combines with the previous disability to result in greater permanent partial disability the employer shall pay the employee compensation for the employee's actual permanent partial disability but for not more than one hundred four weeks; the balance if any of compensation payable to the employee for the employee's actual permanent partial disability shall thereafter be paid out of the special compensation fund; provided that in successive injury cases where the claimant's entire permanent partial disability is due to more than one compensable injury, the amount of the award for the subsequent injury shall be offset by the amount awarded for the prior compensable injury; (2) In cases where the disability resulting from the injury combines with the previous disability to result in permanent total disability, the employer shall pay the employee for one hundred four weeks and thereafter compensation for permanent total disability shall be paid out of the special compensation fund; and (3) In cases where the disability resulting from the injury combines with the previous disability to result in death the employer shall pay weekly benefits in accordance with sections 386-41 and 386-43 but for not more than one hundred four weeks; the balance of the compensation payable under those sections shall thereafter be paid out of the special compensation fund.      (b) Notwithstanding subsection (a), where the director or the appellate board determines that the previous permanent partial disability amounted to less than that necessary to support an award of thirty-two weeks of compensation for permanent partial disability, there shall be no liability on the special compensation fund and the employer shall pay the employee or the employee's dependents full compensation for the employee's permanent partial or total disability or death.      (c) Subsections (a) and (b) shall apply in all cases where the work injury occurs on or after May 15, 1982 and combines with a previous disability to result in a greater permanent partial disability or in a permanent total disability or in death. Effective July 1, 1995, subsection (a)(1), as amended, shall apply in all cases in which the work injury occurs on or after July 1, 1995, and combines with a previous disability from a compensable injury to result in a greater permanent partial disability.[L 1963, c 116, pt of §1; Supp, §97-32; HRS §386-33; am L 1982, c 93, §1; am L 1984, c 284, §1; am L 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 compensation liability apportioned to special compensation fund. 67 H. 663, 701 P .2d 1282. Cited: 56 H. 552, 545 P .2d 692. §386-34 Payment after death. Where an employee is entitled to weekly income and indemnity benefits for permanent total or permanent partial disability and dies from any cause other than the compensable work injury, payment of any unpaid balance of the benefits to the extent that the employer is liable therefor, but not to exceed the amount prescribed under section 386-32 (a) for other cases, shall be made to the employee's dependents as provided herein. If, at the time of the death, the employee is entitled to any benefits from the special compensation fund, the benefits shall also be paid to the employee's dependents as provided herein. (1) To a dependent widow, widower, or reciprocal beneficiary, for the use of the widow, widower, or reciprocal beneficiary, and the dependent children, if any. The director of labor and industrial relations may from time to time apportion such compensation among the widow, widower, or reciprocal beneficiary, and any dependent children. (2) If there be no dependent widow, widower, or reciprocal beneficiary, but one or more dependent children, then to such child or children to be divided equally among them if more than one. (3) If there be no dependent widow, widower, reciprocal beneficiary, or child, but there be a dependent parent, then to such parent, or if both parents be dependent, to both of them, to be divided equally between them; or if there be no such parents, but a dependent grandparent, then to such grandparent, or if more than one, then to all of them to be divided equally among them. (4) If there be no dependent widow, widower, reciprocal beneficiary, child, parent, or grandparent, but there be a dependent grandchild, brother, or sister, then to such dependent, or if more than one, then to all of them to be divided equally among them. (5) If there be no such dependents, the unpaid balance of the compensation shall be paid in a lump sum into the special compensation fund. [L 1963, c 116, pt of §1; Supp, §97-33; HRS §386-34; am L 1969, c 85, §1; am L 1972, c 42, §3; am L 1973, c 47, §2; am imp L 1984, c 90, §1; am L 1997, c 383, §52] §386-35 Benefit adjustment. (a) Effective January 1, 1992, and January 1 of every tenth year thereafter, any employee whose date of work injury is before January 1, 1992, and January 1 of every tenth year thereafter, and who is at any time after the work injury determined to be permanently and totally disabled shall be paid, without application, a supplemental allowance by the responsible employer calculated in accordance with the following provisions: (1) In any case where the employee is entitled to receive the maximum weekly income benefit applicable on the date of the work injury, the supplemental allowance shall be an amount which when added to the benefit will equal the maximum weekly benefit as of January 1, 1992, and January 1 of every tenth year thereafter; or (2) In any case where the employee is entitled to receive less than the maximum weekly income benefit applicable on the date of the work injury, the supplemental allowance shall be an amount equal to the maximum weekly income benefit as of January 1, 1992, and January 1 of every tenth year thereafter, multiplied by the ratio of the employee's weekly income benefit to the maximum weekly income benefit applicable on the date of the work injury, minus the employee's current weekly income benefit.      (b) The employer shall be entitled to reimbursement from the special compensation fund for the additional amount paid under subsection (a). Requests for reimbursements shall be filed annually with the department by January 31 of the subsequent calendar year. The director shall disapprove requests that are not filed properly or not filed in a timely manner, except for good cause shown.      (c) Effective January 1, 1992, and January 1 of every tenth year thereafter, any employee whose date of work injury is before January 1, 1992, and January 1 of every tenth year thereafter, and who is at any time after the work injury determined to be permanently and totally disabled, and who is further being paid weekly income benefits for permanent total disability by the special compensation fund shall be paid, without application, a supplemental allowance in accordance with the following provisions: (1) In any case where the employee is entitled to receive the maximum weekly income benefit applicable on the date of the work injury, the supplemental allowance shall be an amount which when added to the benefit will equal the maximum weekly benefit as of January 1, 1992, and January 1 of every tenth year thereafter; (2) In any case where the employee is entitled to receive less than the maximum weekly income benefit applicable on the date of the work injury, the supplemental allowance shall be an amount equal to the maximum weekly income benefit as of January 1, 1992, and January 1 of every tenth year thereafter, multiplied by the ratio of the employee's currently weekly income benefit to the maximum weekly income benefit applicable on the date of the work injury, minus the employee's current weekly income benefit; (3) In any case where the employee is entitled to receive weekly benefits at a fifty per cent rate, the supplemental allowance shall be an amount equal to the maximum weekly income benefit as of January 1, 1992, and January 1 of every tenth year thereafter, multiplied by twice the ratio of the employee's current weekly income benefit to the maximum weekly income benefit applicable on the date of the work injury minus the employee's current weekly income benefit; or (4) In any case where the employee is no longer receiving weekly benefits, the supplemental allowance shall be an amount equal to the maximum weekly income benefit as of January 1, 1992, and January 1 of every tenth year thereafter, multiplied by the ratio of the employee's last weekly income benefit to the maximum weekly income benefit applicable on the date of the work injury. [L 1980, c 298, §1; am L 1981, c 114, §1; am imp L 1984, c 90, §1; am L 1991, c 71, §1] Note The 1991 amendment does not eliminate the right to supplemental adjustment benefits preceding January 1, 1992. L 1991, c 71, §3. 2. Death §386-41 Entitlement to and rate of compensation. (a) Funeral and burial allowance. Where a work injury causes death, the employer shall pay funeral expenses not to exceed ten times the maximum weekly benefit rate to the mortician and burial expenses not to exceed five times the maximum weekly benefit rate to the cemetery selected by the family including a reciprocal beneficiary or next of kin of the deceased or in the absence of such family including a reciprocal beneficiary or next of kin, by the employer. Such payments shall be made directly to the mortician and cemetery; provided that when the deceased has a pre-paid funeral and burial plan such payments for funeral and burial expenses, not to exceed the foregoing limits, shall be made directly to the surviving spouse or reciprocal beneficiary or the decedent's estate if there is no surviving spouse or reciprocal beneficiary.      (b) Weekly benefits for dependents. In addition, the employer shall pay weekly benefits to the deceased's dependents at the percentages of the deceased's average weekly wages specified below, taking into account not more than the maximum weekly benefit rate prescribed in section 386-31 divided by .6667 and not less than the minimum prescribed in the section divided by .6667. To the dependent widow, widower, or reciprocal beneficiary if there are no dependent children, fifty per cent. To the dependent widow, widower, or reciprocal beneficiaryif there are one or more dependent children of the deceased, sixty-six and two-thirds per cent. The compensation to the widow, widower, or reciprocal beneficiary shall be for the use and benefit of the widow, widower, or reciprocal beneficiary and of the dependent children, and the director of labor and industrial relations from time to time may apportion the compensation between them in such way as the director deems best. If there is no dependent widow, widower, or reciprocal beneficiary , but a dependent child, then to the child forty per cent, and if there are more than one dependent child, then to the children in equal parts sixty-six and two-thirds per cent. If there is no dependent widow, widower, reciprocal beneficiary or child, but there is a dependent parent, then to the parent, if wholly dependent fifty per cent, or if partially dependent, twenty-five per cent; if both parents are dependent, then one-half of the foregoing compensation to each of them; if there is no dependent parent, but one or more dependent grandparents, then to each of them the same compensation as to a parent. If there is no dependent widow, widower, or reciprocal beneficiary, child, parent or grandparent, but there is a dependent grandchild, brother, or sister, or two or more of them, then to those dependents thirty-five per cent for one dependent, increased by fifteen per cent for each additional dependent, to be divided equally among the dependents if more than one.      (c) Maximum weekly amounts. The sum of all weekly benefits payable to the dependents of the deceased employee shall not exceed sixty-six and two-thirds per cent of the employee's average weekly wages, computed by observing the limits specified in subsection (b), if necessary, the individual benefits shall be proportionally reduced.      (d) Liability in the absence of dependents. If there be no dependents who are entitled to benefits under this section, the employer shall pay an amount equal to twenty-five per cent of three hundred and twelve times the effective maximum weekly benefit rate provided in section 386-31, to the nondependent parent or parents. If there be no such parent or parents, the employer shall pay the sum into the special compensation fund, pursuant to an order made by the director. The employer, pursuant to an order made by the director, shall pay any remaining balance into the special compensation fund, if the weekly benefits to which dependents are entitled terminate without totalling the amount as calculated above. [L 1963, c 166, pt of §1; am L 1965, c 152, §1 (b); Supp, §97-40; HRS §386-41; am L 1971, c 24, §1 and c 101, §1; am L 1972, c 42, §4; am L 1973, c 64, §1; am L 1974, c 153, §4; am L 1977, c 87, §1; am L 1982, c 52, §1; am imp L 1984, c 90, §1; am L 1991, c 72, §1 and c 98, §1; am L 1997, c 383, §53] Notes 1974 amendment effective January 1, 1975. L 1974, c 153, §7. 191 amendment §386-41(b) effective April 30, 1991. am L 1991, c 72, §1. 1991 amendment §386-41(d) effective May 7, 1991. am L 1991, c 98, §1. Case Notes Cited: 43 H. 173, 175. §386-42 Dependents. (a) The following persons, and no others, shall be deemed dependents and entitled to income and indemnity benefits under this chapter: (1) A child who is (A) Unmarried and under eighteen years; (B) Unmarried and under twenty years if the child is a full-time student at a high school, business school, or technical school, or unmarried and under twenty-two years if the child is a full-time undergraduate student at a college; (C) Unmarried and incapable of self-support; (D) Married and under eighteen years, if actually dependent upon the deceased; (2) The surviving spouse or reciprocal beneficiary, if either living with the deceased at the time of the injury or actually dependent upon the deceased; (3) A parent or grandparent, if actually dependent upon the deceased; and (4) A grandchild, brother, or sister, if under eighteen years or incapable of self-support, and actually and wholly dependent upon the deceased.      (b) A person shall be deemed to be actually dependent upon the deceased, if the deceased contributed all or a substantial portion of the living expenses of that person at the time of the injury.      (c) Alien dependents not residing in the United States at the time of the injury or leaving the United States subsequently shall maintain annual proof of such dependency as required by the director of labor and industrial relations. [L 1963, c 116, pt of §1; Supp, §97-41; am L 1967, c 213, §1 and c 257, §1; HRS §386-42; am L 1971, c 87, §1; am L 1974, c 151, §1; am imp L 1984, c 90, §1; am L 1997, c 383, §54; am L 2016, c 55, §13] Case Notes Alien Japanese dependent upon leaving the United States loses all rights to benefits; "leaving the U.S." construed; an alien widow leaving the U.S. ceases to be a "dependent". 27 H. 431. Nonresident alien. 32 H. 118. Alien "actually residing". 32 H. 699. Illegitimate children. 31 H. 814. Citizen of Philippine Republic. 39 H. 258. Actual dependency of parents on child. 43 H. 173. Cited: 41 H. 422, 447. §386-43 Duration of dependents' weekly benefits. (a) The weekly benefits to dependents shall continue: (1) To surviving a surviving spouse or reciprocal beneficiary, until death, remarriage, marriage, or entry into a new reciprocal beneficiary relationship with two years' compensation in one sum upon remarriage, marriage, or entry into a new reciprocal beneficiary relationship; (2) To or for a child; (A) So long as unmarried, until attainment of the age of eighteen; (B) So long as unmarried, until attainment of the age of (i)Twenty if the child is a full-time student at a high school, business school, technical school; (ii) Twenty-two if the child is a full-time undergraduate student at a college; (C) So long as unmarried, until termination of the child's incapability of self-support; or (D) Until marriage, except that in the case of a married child under eighteen, weekly benefits shall continue during the period of actual dependency until attainment of the age of eighteen; (3) To a parent or grandparent, for the duration, whether continuous or not, of such actual dependency, provided that the amount of the weekly benefits shall at no time exceed the amount payable at the time of death. (4) To or for a grandchild, brother, or sister, for the period in which that grandchild, brother, or sister remains actually and wholly dependent until attainment of the age of eighteen or termination of the incapability of self-support.      (b) The aggregate weekly benefits payable on account of any one death shall not exceed the product of three hundred and twelve times the effective maximum weekly benefit rate prescribed in section 386-31, but this limitation shall not apply with respect to benefits to a surviving spouse or reciprocal beneficiary who is physically or mentally incapable of self-support and unmarried as long as that surviving spouse or reciprocal beneficiary remains in that condition and to benefits to a child and to benefits to an unmarried child over eighteen incapable of self-support as long as that unmarried child is otherwise entitled to compensation.      (c) Upon the cessation under this section of compensation to or for any person, the benefits of the remaining dependents in the same class for any further period during which they are entitled to weekly payments shall be in the amounts which they would have received, had they been the only dependents entitled to benefits at the time of the employee's death. [L 1963, c 116, pt of §1; Supp, §97-42; am L 1966, c 6, §2; am L 1967, c 257, §2; HRS 386-43; am L 1974, c 151, §2 and c 153, §5; am L 1975, c 4, §1; am imp L 1984, c 90, §1; am L 1997, c 383, §55; am L 2016, c 55, §14] Case Notes Cited: 27 H. 431, 435. §386-44 Effect of erroneous payment; insanity of beneficiary. If an employer in good faith pays weekly benefits to a dependent who is inferior in right to another dependent or with whom another dependent is entitled to share, the payment shall discharge the employer, unless and until such other dependent notifies the employer of such other dependent's claim. In case the employer is in doubt as to the respective rights of rival claimants, the employer may institute proceedings before the director of labor and industrial relations for determination of the proper beneficiary. Benefits to a person who is insane shall be paid to the person's guardian. [L 1963, c 116, pt of §1; Supp, §97-43; HRS §386-44; am imp L 1984, c 90, §1] Case Notes Cited: 27 H. 431, 438. 3. Provisions Common to Benefits for Disability and Death §386-51 Computation of average weekly wages. Average weekly wages shall be computed in a manner that the resulting amount represents most fairly, in the light of the employee's employment pattern and the duration of the employee's disability, the injured employee's average weekly wages from all covered employment at the time of the personal injury. In no event, however, shall an employee's average weekly wages be computed to be less than the employee's hourly rate of pay multiplied by thirty-five; provided that where the employee holds part-time employment of fewer than thirty-five hours per week, the employee's average weekly wages shall be the hourly rate at the place of employment where the injury occured multiplied by the average hours worked in the fifty-two weeks (or portions thereof) preceding the week in which the injury occured, for the calculation of temporary partial disability and temporary total disability benefits only. Other benefits including permanent partial disability, permanent total disability, and death shall be calculated as if the employee had been a full-time employee. (1) Where appropriate and feasible, computation shall be made on the basis of the injured employee's earnings from covered employment during the twelve months preceding the employee's personal injury; but if during that period, the employee, because of sickness or similar personal circumstances was unable to engage in employment for one or more weeks then the number of those weeks shall not be included in the computation of the average weekly wage. (2) Where an employee at the time of the injury was employed at higher wages than during any other period of the preceding twelve months then the employee's average weekly wages shall be computed exclusively on the basis of the higher wages. (3) Where, by reason of the shortness of the time during which the employee has been in the employment or the casual nature or terms of the employment, it is not feasible to compute the average weekly wages on the basis of the injured employee;s own earnings from such employment, regard may be had to the average weekly wages which during the twelve months preceding the injury was being earned by an employee in comparable employment. (4) Except as otherwise provided, the total average weekly wages of any employee shall be computed at a lower amount than the average weekly wages earned at the time of the injury by an employee in comparable employment engaged as a full-time employee on an annual basis in the type of employment in which the injury occurred. (5) If an employee, while under twenty-five years of age, sustains a work injury causing permanent disability or death, the employee's average weekly wages shall be computed on the basis of the wages which the employee would have earned in the employee's employment had the employee been twenty-five years of age. (6) The director may issue rules for the determination of the average weekly wages in particular classes of cases, consistent with the principles laid down in the first paragraph of this section. [L 1963, c 116, pt of §1; Supp, §97-50; am L 1967, c 139, §1; HRS §386-51; am L 1970, c 53 §1; am imp L 1984, c 90, §1; am L 1995, c 234, §11] Cross References Rulemaking, see chapter 91. Law Journals and Reviews Paragraph (5) not applicable to injuries sustained before its effective date. Haw. Supp. 6 HBJ 23. Case Notes Section limited by last paragraph of §386-42 applying to aliens. 27 H. 431. "Earnings" defined. 37 H. 517. Overtime included as wages. 33 H. 412. English rule to be used. 43 H. 173. Par. (5): Where there is injury causing permanent disability or death, use of hypothetical earnings at age 25 is proper to compute benefits for both the permanent and temporary disabilities. 52 H. 577, 482 P .2d 151. §386-51.5 Limited liability in concurrent employment. Where an employee is concurrently engaged in more than one employment covered by this chapter and sustains a personal injury in one employment under conditions specified in section 386-3, the liability of the employer shall be limited to the benefits as would be payable had the employee no other employment than the one in which the employee was injured. The balance of the employee's benefits shall be paid from the special compensation fund, except that benefits for disability rated as a percentage of total impairment of physical or mental function of the whole person shall be the sole liability of the employer. [L 1970, c 53, §2; am imp L 1984, c 90, §1; am L 1998, c 281, §1] §386-52 Credit for voluntary payments and supplies in kind. (a) Any payments made by the employer to the injured employee during the employee's disability or to the employee's dependents which by the terms of this chapter were not payable when made, shall be deducted from the amount payable as compensation subject to the approval of the director; provided that: (1) The employer notifies the injured employee and the director in writing of any such credit request stating the reasons for such credit and informing the injured employee that the employee has the right to file a written request for a hearing to submit any evidence to dispute such a credit; (2) The deduction shall be made by shortening the period during which the compensation must be paid, or by reducing the total amount for which the employer is liable and not the amount of weekly benefits; (3) If overpayment cannot be credited, the director shall order the claimant to reimburse the employer. Failure to reimburse the employer shall entitle the employer to file for enforcement of such a decision in accordance with section 386-91. (b) If the employer continues to furnish to the injured employee, during the employee's disability, or to the employee's dependents, during their entitlement to weekly benefits, board, lodging, fuel, and other advantages the value of which has been included in the calculation of wages as provided in section 386-1, the furnishing of such advantages may be considered as payment in kind of that portion of the compensation which is based on such remuneration in kind; but if at any time during the compensation period the employer ceases to furnish such advantages, no further deduction of the value of such advantages as payment in kind from the compensation shall be permissible. [L 1963, c 116, pt of §1; Supp, §97-51; HRS §386-52; am L 1979, c 66, §2; gen ch 1985] Case Notes Claimant required to reimburse employer/carrier where claimant's attendant care services were not "constantly necessary" under §386-23 and benefits were thus not "payable when made" and employer/carrier letter satisfied notice requirements of this section. 83 H. 361, 926 P.2d 1284.   §386-53 Nonweekly periodic payments. On the application of either party, the director may, having due regard for the welfare of the employee or the employee's dependents and the convenience of the employee's employer, authorize benefits to be paid fortnightly, semimonthly, monthly or quarterly instead of weekly. [L 1963, c 116, pt of §1; Supp, §97-52; HRS §386-53; am L 1969, c 18, §2; ; gen ch 1985] §386-54 Commutation of periodic payments. Upon application of the disabled employee, the employee's dependents or the employer, the director of labor and industrial relations may order that periodic benefit payments be commuted to one or more lump sum payments equal to the present value at the time when the lump sum payments are due of the future benefit payments, computed at four per cent true discount compounded annually, if the director finds that such commutation is in the best interest of the employee or the employee's dependents and does not impose undue hardship upon the employer. The probability of the death of the disabled employee or of a dependent entitled to benefits before the expiration of the period during which the employee or dependent is entitled to receive such payments and the probability of the remarriage of the spouse shall be determined in accordance with the latest United States Life Tables and the American Remarriage Tables, respectively, as adjusted and corrected on the basis of the most recent available experience, or in accordance with any other appropriate actuarial tables selected by the director, upon advice of the chief actuary of the Social Security Administration. The probability of the happening of any other contingency affecting the amount or duration of the benefit payments shall not be considered. Payment of the lump sums shall discharge the employer of the employer's liability for the corresponding income and indemnity benefits. [L 1963, c 116, pt of §1; Supp, §97-53; HRS §386-54; am L 1974, c 157, §1; ; gen ch 1985] Case Notes Board may make lump sum payments not less than the present worth of installments. 31 H. 672.   §386-55 Trustee in case of lump sum payments. Whenever for any reason the director of labor and industrial relations deems it advisable, any lump sum which is payable as provided in section 386-54 shall be paid to a suitable individual or corporation appointed by the circuit judge in whose jurisdiction the work injury occurred as trustee to administer or apply the same for the benefit of the disabled worker or the dependent entitled thereto in the manner determined by the director. The receipt of the trustee for the amount so paid shall discharge the employer of the employer's liability. [L 1963, c 116, pt of §1; Supp, §97-54; HRS §386-55; gen ch 1985] §386-56 Payment from the special compensation fund in case of default. Where an injured employee or the employee's dependents fail to receive prompt and proper compensation and this default is caused through no fault of the employee, the director shall pay the full amount of all compensation awards and benefits from the special compensation fund to the employee or dependent. The employer, upon order of the director, shall reimburse the special compensation fund for the sums paid therefrom under this section, and the fund, represented by the director, shall be subrogated to all the rights and remedies of the individual receiving the payments. In case a defaulting employer moves to another state without reimbursing the special compensation fund, the director shall be authorized to contract, on a contingent fee basis, with a private collection agency in that state to effect collection from the employer. [L 1963, c 116, pt of §1; Supp, §97-55; HRS §386-56; am L 1971, c 86, §1; am L 1985, c 296, §18; ; gen ch 1985] §386-57 Legal status of right to compensation and compensation payments. (a) The right to compensation under this chapter shall not be assignable, and the right to compensation and compensation payments received shall be exempt from the reach of creditors. (b) The right to compensation under this chapter shall have the same status as a lien or the same priority for the whole thereof with respect to the assets of the employer as are accorded by law to any unpaid wages for labor. [L 1963, c 116, pt of §1; Supp, §97-56; HRS §386-57] Case Notes Does not bar use of portion of lump sum payment to pay child support arrearage. 6 H. App. 217, 716 P .2d 501.