§386-33 Subsequent injuries that 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 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) 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 (1982).
Conditions to the apportionment of death benefits. 66 H.
290, 660 P.2d 1316 (1983).
Intent. 66 H. 290, 660 P.2d 1316 (1983).
Prior disability need not be manifest before compensation
liability apportioned to special compensation fund. 67 H. 663, 701 P.2d 1282 (1985).
Board did not err when it concluded that claimant's permanent
total disability benefits should not be apportioned with special compensation
fund. 78 H. 275, 892 P.2d 468 (1995).
Odd-lot factors cannot be considered in determining whether a
preexisting permanent partial disability amounted to award of thirty-two weeks
of compensation for the purposes of this section. 78 H. 275, 892 P.2d 468
(1995).
Board properly concluded that, pursuant to subsection (a)(1),
claimant was entitled to an award of the monetary value of 14 per cent
permanent partial disability of the whole person as a result of claimant's
latter work injury less the monetary value of the 2 per cent permanent partial
disability award of the whole person as a result of claimant's earlier work
injury. 100 H. 16 (App.), 58 P.3d 74 (2002).
Subsection (a)(1) lacks any condition or limitation that
compensation for a prior injury must have been paid pursuant to a claim under
the Hawaii workers' compensation law; thus, labor appeals board did not err
when it decided that the offset provision set forth in subsection (a)(1)
applied to claimant's prior out-of-state permanent partial disability award.
109 H. 372 (App.), 126 P.3d 415 (2005).
Cited: 56 H. 552, 545 P.2d 692 (1976).
Notes of Decisions
Bumanglag v. Oahu Sugar Co., Ltd., 892 P.2d 468 (Haw. 1995).
· cites it 26× “In their argument before the Board, Employer and Adjuster asserted that Claimant’s permanent disability must be apportioned between Employer and SCF, because Claimant’s congenital defects of spinal stenosis and hypertrophy of the facets and ligamentum flavum were significant…”
Duque v. Hilton Hawaiian Vill., 98 P.3d 640 (Haw. 2004).
· cites it 36× “HRS § 386-33(a) is silent on the issue of whether the most recent edition of the Guides should be used to calculate an employee’s PPD rating where the employee’s prior injury was evaluated under a different edition of the Guides.”
Flor v. Holguin, 9 P.3d 382 (Haw. 2000).
· cites it 10× “of Kalapodes’s disability was due to the injury received while working for one employer, five percent was due to the injury received while working for another, and the remaining seventy percent was not work-related, and ordered that the two employers pay him corresponding…”
Amantiad v. Odum, 977 P.2d 160 (Haw. 1999).
· cites it 4× “60 in permanent partial disability benefits), impheating a potential need for future reliance upon the special compensation fund under HRS § 386-33. In light of the Director of Labor’s original jurisdiction under HRS § 386-73, the Director’s discretion under HAR § 12-10-31, and…”
Crowley v. City & Cnty. of Honolulu, Wastewater Mgmt., 58 P.3d 74 (Haw. App. 2002).
· cites it 14× “Hence, Employer requests that we reverse the LIRAB’s February 14, 2000 decision and order and “issue an amended decision awarding [Crowley 12% PPD] of the whole person (14% for the [April 1996] claim—2% for the [January 1995] claim).”
De Victoria v. H & K Contractors, 545 P.2d 692 (Haw. 1976).
· cites it 6× “If an employee receives an injury which of itself would cause a permanent partial disability but which, combined with a previous disability, results in a greater permanent partial disability or in permanent total disability, the employer shall pay compensation only for such…”
Survivors of Wallace Medeiros v. Maui Land & Pineapple Co., 660 P.2d 1316 (Haw. 1983).
· cites it 5× “The legislative history underpinning the Crawford decision necessitated the conclusion that the permanent partial disability not merely preexist the subsequent injury but preexist employment; HRS § 386-33 was enacted to alleviate discriminatory hiring practices which confronted…”
Dep. of Crawford v. Fin. Plaza Contractors, 643 P.2d 48 (Haw. 1982).
· cites it 4× “The question on appeal is whether HRS § 386-33 (1976) (“section 33”), 1 a part of our workers’ compensation statute, provides for the apportionment between an employer and the state special compensation fund of responsibility for payment of death benefits to a deceased…”
Flores v. City of Honolulu, 701 P.2d 1282 (Haw. 1985).
· cites it 11× “HRS § 386-33 (1976), as it applied at the time of the claim, 1 provided: § 386-33 Subsequent injuries whieh would increase disability.”
Ermocida v. Destination Resorts Hawaii, Inc., 126 P.3d 415 (Haw. App. 2005).
· cites it 38× “” On November 5, 2003, Ermoeida filed his opposition to the Motion for Summary Judgment and a Cross-Motion for Summary Judgment, in which he argued: To imply that the legislature meant for prior non-Hawaii compensation awards to be considered under § 386-33 simply because the…”
Shipley v. Ala Moana Hotel, 926 P.2d 1284 (Haw. 1996).
· cites it 2× “Employer/Carrier were ordered to pay permanent total disability benefits until June 16, 1976, after which the Special Compensation Fund (SCF) was ordered to pay benefits, pursuant to HRS §§ 386-33 and 386-31(a). Claimant relocated to California in 1972, then to Georgia in 1979.”
Kalapodes v. E. E. Black, Ltd., 669 P.2d 635 (Haw. 1983).
· cites it 3× “The Board consequently ordered Black and PCC to pay Kalapodes corresponding permanent partial disability compensation under HRS § 386-32(a) and, pursuant to HRS § 386-33, ordered the SCF to pay the remaining 70% of Kalapodes’s compensation award.”
— Haw. Rev. Stat. § 386-33(1) — 1 case
Ermocida v. Destination Resorts Hawaii, Inc., 126 P.3d 415 (Haw. App. 2005).
“” On November 5, 2003, Ermoeida filed his opposition to the Motion for Summary Judgment and a Cross-Motion for Summary Judgment, in which he argued: To imply that the legislature meant for prior non-Hawaii compensation awards to be considered under § 386-33 simply because the…”
— Haw. Rev. Stat. § 386-33(a) — 3 cases
Bumanglag v. Oahu Sugar Co., Ltd., 892 P.2d 468 (Haw. 1995).
“In their argument before the Board, Employer and Adjuster asserted that Claimant’s permanent disability must be apportioned between Employer and SCF, because Claimant’s congenital defects of spinal stenosis and hypertrophy of the facets and ligamentum flavum were significant…”
Duque v. Hilton Hawaiian Vill., 98 P.3d 640 (Haw. 2004).
“HRS § 386-33(a) is silent on the issue of whether the most recent edition of the Guides should be used to calculate an employee’s PPD rating where the employee’s prior injury was evaluated under a different edition of the Guides.”
— Haw. Rev. Stat. § 386-33(a)(1) — 3 cases
Duque v. Hilton Hawaiian Vill., 98 P.3d 640 (Haw. 2004).
“HRS § 386-33(a) is silent on the issue of whether the most recent edition of the Guides should be used to calculate an employee’s PPD rating where the employee’s prior injury was evaluated under a different edition of the Guides.”
Ermocida v. Destination Resorts Hawaii, Inc., 126 P.3d 415 (Haw. App. 2005).
“” On November 5, 2003, Ermoeida filed his opposition to the Motion for Summary Judgment and a Cross-Motion for Summary Judgment, in which he argued: To imply that the legislature meant for prior non-Hawaii compensation awards to be considered under § 386-33 simply because the…”
— Haw. Rev. Stat. § 386-33(a)(3) — 1 case
— Haw. Rev. Stat. § 386-33(a)(l) — 3 cases
Duque v. Hilton Hawaiian Vill., 98 P.3d 640 (Haw. 2004).
“HRS § 386-33(a) is silent on the issue of whether the most recent edition of the Guides should be used to calculate an employee’s PPD rating where the employee’s prior injury was evaluated under a different edition of the Guides.”
Crowley v. City & Cnty. of Honolulu, Wastewater Mgmt., 58 P.3d 74 (Haw. App. 2002).
“Hence, Employer requests that we reverse the LIRAB’s February 14, 2000 decision and order and “issue an amended decision awarding [Crowley 12% PPD] of the whole person (14% for the [April 1996] claim—2% for the [January 1995] claim).”
Ermocida v. Destination Resorts Hawaii, Inc., 126 P.3d 415 (Haw. App. 2005).
“” On November 5, 2003, Ermoeida filed his opposition to the Motion for Summary Judgment and a Cross-Motion for Summary Judgment, in which he argued: To imply that the legislature meant for prior non-Hawaii compensation awards to be considered under § 386-33 simply because the…”
— Haw. Rev. Stat. § 386-33(b) — 3 cases
Bumanglag v. Oahu Sugar Co., Ltd., 892 P.2d 468 (Haw. 1995).
“In their argument before the Board, Employer and Adjuster asserted that Claimant’s permanent disability must be apportioned between Employer and SCF, because Claimant’s congenital defects of spinal stenosis and hypertrophy of the facets and ligamentum flavum were significant…”
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