PART I. GENERAL PROVISIONS
§386-1 Definitions. In this chapter, unless the context otherwise requires:
"Able to resume work" means an industrially injured worker's injury has stabilized after a period of recovery and the worker is capable of performing work in an occupation for which the worker has received previous training or for which the worker has demonstrated aptitude.
"Appellate board" means the labor and industrial relations appeals board.
"Attending physician" means a physician who is primarily responsible for the treatment of a work injury. There shall not be more than one attending physician. If an injured employee is treated by more than one physician, the employee shall designate a physician as the attending physician.
"Compensation" means all benefits accorded by this chapter to an employee or the employee's dependents on account of a work injury as defined in this section; it includes medical and rehabilitation benefits, income and indemnity benefits in cases of disability or death, and the allowance for funeral and burial expenses.
"Construction design professional" means any person who is a professional engineer, architect, or land surveyor who is registered under chapter 464 to practice that profession in the State.
"Covered employment" means employment of an employee as defined in this section or of a person for whom the employer has provided voluntary coverage pursuant to section 386-4.
"Department" means the department of labor and industrial relations.
"Director" means the director of labor and industrial relations.
"Disability" means loss or impairment of a physical or mental function.
"Disciplinary action" means personnel action by an employer in the form of punishment against an employee for infraction of employer or contract rules, in the form of a reprimand, suspension, or discharge.
"Emergency medical services" means the delivery of health care services under emergency conditions occurring as the result of a patient's condition due to a work injury that manifests itself by symptoms of sufficient severity, including severe pain, such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to be life-threatening or cause serious harm or aggravation of physiological or psychological sickness, injury, or incapacitation.
"Employee" means any individual in the employment of another person.
Where an employee is loaned or hired out to another person for the purpose of furthering the other person's trade, business, occupation, or profession, the employee shall, beginning with the time when the control of the employee is transferred to the other person and continuing until the control is returned to the original employer, be deemed to be the employee of the other person regardless of whether the employee is paid directly by the other person or by the original employer. The employee shall be deemed to remain in the sole employment of the original employer if the other person fails to secure compensation to the employee as provided in section 386-121.
Whenever an independent contractor undertakes to perform work for another person pursuant to contract, express or implied, oral or written, the independent contractor shall be deemed the employer of all employees performing work in the execution of the contract, including employees of the independent contractor's subcontractors and their subcontractors. However, the liabilities of the direct employer of an employee who suffers a work injury shall be primary and that of the others secondary in their order. An employer secondarily liable who satisfies a liability under this chapter shall be entitled to indemnity against loss from the employer primarily liable.
"Employee in comparable employment" means a person, other than the injured employee, who is employed in the same grade in the same type of work by the same employer or, if there is no person so employed, a person, who is employed in the same grade in the same type of work by another employer in the same district.
"Employer" means any person having one or more persons in the person's employment. It includes the legal representative of a deceased employer and the State, any county or political subdivision of the State, and any other public entity within the State.
The insurer of an employer is subject to the employer's liabilities, shall pay the deductible as provided for under section 386-100, shall collect the amount of the deductible from the employer, and be entitled to rights and remedies under this chapter as far as applicable.
The workers' compensation self-insurance group of which an employer is a member is subject to that employer's liabilities and entitled to rights and remedies under this chapter as far as applicable.
"Employment" means any service performed by an individual for another person under any contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully entered into. It includes service of public officials, whether elected or under any appointment or contract of hire, express or implied.
"Employment" does not include:
(1) Service for a religious, charitable, educational, or nonprofit organization if performed in a voluntary or unpaid capacity;
(2) Service for a religious, charitable, educational, or nonprofit organization if performed by a recipient of aid therefrom and the service is incidental to or in return for the aid received;
(3) Service for a school, college, university, college club, fraternity, or sorority if performed by a student who is enrolled and regularly attending classes and in return for board, lodging, or tuition furnished, in whole or in part;
(4) Service performed by a duly ordained, commissioned, or licensed minister, priest, or rabbi of a church in the exercise of the minister's, priest's, or rabbi's ministry or by a member of a religious order in the exercise of nonsecular duties required by the order;
(5) Service performed by an individual for another person solely for personal, family, or household purposes if the cash remuneration received is less than $225 during the current calendar quarter and during each completed calendar quarter of the preceding twelve-month period;
(6) Domestic, in-home and community-based services for persons with developmental and intellectual disabilities under the medicaid home and community-based services program pursuant to title 42 Code of Federal Regulations sections 440.180 and 441.300, and title 42 Code of Federal Regulations, part 434, subpart A, as amended, or when provided through state funded medical assistance to individuals ineligible for medicaid, and identified as chore, personal assistance and habilitation, residential habilitation, supported employment, respite, and skilled nursing services, as the terms are defined by the department of human services, performed by an individual whose services are contracted by a recipient of social service payments and who voluntarily agrees in writing to be an independent contractor of the recipient of social service payments;
(7) Domestic services, which include attendant care, and day care services authorized by the department of human services under the Social Security Act, as amended, or when provided through state-funded medical assistance to individuals ineligible for medicaid, when performed by an individual in the employ of a recipient of social service payments. For the purposes of this paragraph only, a "recipient of social service payments" is a person who is an eligible recipient of social services such as attendant care or day care services;
(8) Service performed without wages for a corporation without employees by a corporate officer in which the officer is at least a twenty-five per cent stockholder;
(9) Service performed by an individual for a corporation if the individual owns at least fifty per cent of the corporation; provided that no employer shall require an employee to incorporate as a condition of employment;
(10) Service performed by an individual for another person as a real estate salesperson or as a real estate broker, if all the service performed by the individual for the other person is performed for remuneration solely by way of commission;
(11) Service performed by a member of a limited liability company if the member is an individual and has a distributional interest, as defined in section 428-101, of not less than fifty per cent in the company; provided that no employer shall require an employee to form a limited liability company as a condition of employment;
(12) Service performed by a partner of a partnership, as defined in section 425-101, if the partner is an individual; provided that no employer shall require an employee to become a partner or form a partnership as a condition of employment;
(13) Service performed by a partner of a limited liability partnership if the partner is an individual and has a transferable interest as described in section 425-127 in the partnership of not less than fifty per cent; provided that no employer shall require an employee to form a limited liability partnership as a condition of employment; and
(14) Service performed by a sole proprietor.
As used in this definition, "religious, charitable, educational, or nonprofit organization" means a corporation, unincorporated association, community chest, fund, or foundation organized and operated exclusively for religious, charitable, or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or individual.
"Good cause" means a substantial reason amounting in law to be a legal excuse for failing to perform an act required by law considered under the circumstances of the individual case.
"Guide" or "guidelines" means an indication of a suggested criteria, course, or means to a particular end, and not an authoritative or exclusive prescription which limits the exercise of independent judgment, expertise, or care.
"Health care provider" means a person qualified by the director to render health care and service and 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 nurse under chapter 457.
"Medical care", "medical services", or "medical supplies" means every type of care, treatment, surgery, hospitalization, attendance, service, and supplies as the nature of the work injury requires, and includes such care, services, and supplies rendered or furnished by a licensed or certified physician, dispensing optician, physical therapist, physical therapist assistant as recognized pursuant to section 461J-3(e), nurse, advanced practice registered nurse as recognized pursuant to chapter 457, occupational therapist, certified occupational therapy assistant as recognized pursuant to chapter 457G, or licensed massage therapist as recognized pursuant to chapter 452.
"Personal injury" includes death resulting therefrom.
"Physician" includes a doctor of medicine, a dentist, a chiropractor, an osteopath, a naturopathic physician, a psychologist, an optometrist, an advanced practice registered nurse, and a podiatrist.
"Psychologist" means a licensed clinical psychologist with a doctorate degree in psychology and who either has at least two years clinical experience in a recognized health setting, or has met the standards of the National Register of the Health Service Providers in Psychology. When treatment or evaluation for an injury is provided by a psychologist, provision shall be made for appropriate medical collaboration when requested by the employer or the insurer, as provided by rules adopted in conformance with chapter 91.
"Recipient of social service payments" includes:
(1) A person who is an eligible recipient of social services such as attendant care and day care services; and
(2) A corporation or private agency that contracts directly with the department of human services to provide attendant care and day care authorized under the Social Security Act, as amended.
"State average weekly wage" means the amount determined by the director under section 383-22 as the average weekly wage.
"Suitable gainful employment" means employment or self-employment within the geographical area where the employee resides, which is reasonably attainable and which offers an opportunity to restore the employee's earnings capacity as nearly as possible to that level which the employee was earning at the time of injury and to return the employee to the active labor force as quickly as possible in a cost-effective manner, giving due consideration to the employee's qualifications, interests, incentives, future earnings capacity, and the present and future labor market.
"Total disability" means disability of such an extent that the disabled employee has no reasonable prospect of finding regular employment of any kind in the normal labor market.
"Trade, business, occupation, or profession" means all commercial, occupational, or professional activities, whether conducted for pecuniary gain or not. It includes all activities of nonprofit organizations conducted in pursuit of their purposes.
"Usual and customary employment" means the line or type of work in the gainful employment market consistent with a claimant's background, training, and experience.
"Vocational rehabilitation plan" means an approved plan prepared by a certified rehabilitation provider with an employee that is designed to assist the employee in obtaining and maintaining suitable gainful employment.
"Vocational rehabilitation services" means services provided in a rehabilitation program to assist an employee in obtaining and maintaining suitable gainful employment that may include but shall not be limited to on-the-job training, job modification, vocational evaluation, adjustment to disability, counseling, guidance, vocational and personal adjustment, referrals, transportation, training, supplies, equipment, appliances, aid, occupational licenses, and other goods and services needed to assist an employee in obtaining and maintaining suitable gainful employment.
"Wages" means all remuneration for services constituting employment. It includes the market value of board, lodging, fuel, and other advantages having a cash value which the employer has paid as a part of the employee's remuneration and gratuities received in the course of employment from others than the employer to the extent that they are customary and expected in that type of employment or accounted for by the employee to the employer.
"Work injury" means a personal injury suffered under the conditions specified in section 386-3. [L 1963, c 116, pt of §1; Supp, §97-1; HRS §386-1; am L 1969, c 244, §2a; am L 1970, c 200, §1; am L 1974, c 153, §1; am L 1975, c 68, §1; am L 1978, c 110, §4; am L 1979, c 40, §1; am L 1985, c 296, §§4, 14; gen ch 1985; am L 1986, c 304, §2; am L 1987, c 339, §4 and c 374, §1; am L 1989, c 56, §§1, 2 and c 300, §4; am L 1993, c 363, §2; am L 1996, c 94, §3; am L 1999, c 222, §2; am L 2000, c 69, §2; am L 2003, c 171, §1; am L Sp 2005, c 11, §1; am L 2006, c 176, §2; am L 2007, c 259, §§3, 7; am L 2009, c 11, §47; am L Sp 2009, c 22, §11(2); am L 2010, c 4, §6; am L 2011, c 196, §1 and c 220, §15; am L 2012, c 157, §1 and c 158, §2; am L 2016, c 183, §6; am L 2017, c 153, §1]
Attorney General Opinions
Prisoners compensated under §353-25 are not covered by this chapter. Att Gen. Op. 69-11.
Law Journals and Reviews
Torts and Workers' Compensation. 2 UH L. Rev. 209 (1979).
Company is liable to employee of its contractor. 23 H. 291 (1916).
Law must be broadly and liberally construed. 23 H. 291 (1916); 24 H. 324 (1918); 24 H. 731 (1919); 26 H. 737 (1923).
Prior law, L 1915, c 221 held constitutional. 24 H. 97 (1917); 26 H. 737 (1923); 28 H. 383 (1925).
Employer defined. 31 H. 102 (1929).
Independent contractor. 32 H. 373 (1932).
Casual employment excluded. 32 H. 735 (1933).
Wages defined. 33 H. 412 (1935).
Owner of premises held employer of employee of independent contractor. 41 H. 603 (1957).
Effect of 1963 amendment. 48 H. 288, 398 P.2d 154 (1965).
Under definition of "employer" as it read prior to 1963 revision, general contractor was not "employer" of a subcontractor's employee. 50 H. 293, 439 P.2d 669 (1968).
Act should be given liberal construction to accomplish its beneficent purposes. 52 H. 595, 483 P.2d 187 (1971).
Student employees, coverage of. 52 H. 595, 483 P.2d 187 (1971).
Third-party general contractors are not immune to common law negligence actions by employees of their subcontractors. 54 H. 578, 513 P.2d 156 (1973).
Factors to be considered in determining the employer in loaned-employee cases. 56 H. 544, 545 P.2d 687 (1976).
Factors to be considered in determining the employer in lent employee cases. 59 H. 139, 577 P.2d 787 (1978).
"Disability", "total disability" referred to. 59 H. 409, 583 P.2d 321 (1978).
Control of employee is the predominant consideration in fixing compensation liability between a lending and a borrowing employer. 63 H. 374, 628 P.2d 629 (1981).
Sole director and stockholder of corporation was "employee". 63 H. 642, 636 P.2d 721 (1981).
Intent is to place primary responsibility on subcontractor to obtain workers' compensation coverage; construing contract insurance policies to cover workers' compensation claims would frustrate intent. 69 H. 37, 731 P.2d 167 (1987).
Licensed real estate agents who performed sales activities pursuant to independent contractor agreements were independent contractors, and not employees. 79 H. 208, 900 P.2d 784 (1995).
Section assigns secondary liability for workers' compensation benefits to next subcontractor above primarily liable employer in default regardless of whether that subcontractor carries workers' compensation insurance mandated by Hawaii law. 83 H. 1, 924 P.2d 169 (1996).
Cited: 25 H. 747, 751 (1921); 31 H. 554 (1930); 31 H. 638, 648 (1930); 32 H. 928, 932 (1933); 37 H. 517, 523 (1947); 41 H. 442, 446 (1956).