§386-79 Medical examination by employer's
physician. (a) After an injury and during the period of disability, the
employee, whenever ordered by the director of labor and industrial relations,
shall submit to examination, at reasonable times and places, by a duly
qualified physician or surgeon designated and paid by the employer. The
employee shall have the right to have a physician, surgeon, or chaperone
designated and paid by the employee present at the examination, which right,
however, shall not be construed to deny to the employer's physician the right to
visit the injured employee at all reasonable times and under all reasonable
conditions during total disability. The employee shall also have the right to
record such examination by a recording device designated and paid for by the
employee; provided that the examining physician or surgeon approves of the
recording.
If an employee refuses to submit to, or the
employee or the employee's designated chaperone in any way obstructs such
examination, the employee's right to claim compensation for the work injury
shall be suspended until the refusal or obstruction ceases and no compensation
shall be payable for the period during which the refusal or obstruction
continues.
(b) In cases where the employer is
dissatisfied with the progress of the case or where major and elective surgery,
or either, is contemplated, the employer may appoint a physician or surgeon of
the employer's choice who shall examine the injured employee and make a report
to the employer. If the employer remains dissatisfied, this report may be
forwarded to the director.
Employer requested examinations under this
section shall not exceed more than one per case unless good and valid reasons
exist with regard to the medical progress of the employee's treatment. The
cost of conducting the ordered medical examination shall be limited to the
complex consultation charges governed by the medical fee schedule established
pursuant to section 386-21(c). [L 1963, c 116, pt of §1; Supp, §97-78; HRS
§386-79; gen ch 1985; am L 1995, c 234, §13; am L 1996, c 260, §4; am L 2017, c
172, §§1, 4; am L 2019, c 201, §1]
Case Notes
Labor and industrial relations appeals board's failure to
apply this section, as amended, in its decision and order constituted harmless
error, where record reflected that the reason for the 1995 medical examination
ordered by the director related directly "to the medical progress of
employee's treatment" in accordance with the mandate of this section as
amended. 94 H. 487, 17 P.3d 219 (2001).
Cited: 760 F. Supp. 2d 1005 (2010).
Notes of Decisions
Tam v. Kaiser Permanente, 17 P.3d 219 (Haw. 2001).
· cites it 37× “1999) 1 and *490 Hawaii Administrative Rules (HAR) Rule 12-10-75 2 and (b) the record before the Director did not warrant the issuance of a medical examination order; (2) ruling that the June 29, 1995 amendment to HRS § 386-79, see supra note 1, did not affect the enforceability…”
Cadiz v. QSI, Inc., 468 P.3d 110 (Haw. 2020).
· cites it 6× “” Pursuant to HRS § 386-79 (1996), the employer designated and paid two physicians and one psychologist to examine Cadiz and produce independent medical examinations.”
Van Ness v. State, Dep't of Educ.., 319 P.3d 464 (Haw. 2014).
· cites it 4× “On March 31,2010, the DOE filed a motion for an order suspending Van Ness’s right to claim compensation for failure to comply with HRS § 386-79, based on Van Ness’s refusal to have tests done during the IME.”
Kaho'ohanohano ex rel. Morales-Kaho'ohanohano v. Dep't of Human Servs., 178 P.3d 538 (Haw. 2008).
· cites it 2× “Tam (a workers' compensation case) involved the retroactive application of the amendment to HRS § 386-79 (1993 & Supp.1999), which limited the discretion of the director of Labor and Industrial Relations "in ordering medical examinations requested by employers by providing that,…”
Abbey v. Hawaii Employers Mut. Ins. Co.(hemic), 760 F. Supp. 2d 1005 (D. Haw. 2011).
“That examination complied with section 386-79 of Hawaii Revised Statutes, which allows a medical examination by an employer’s physician after an injury and during the period of disability.”
Ras v. Hasegawa, 500 P.2d 746 (Haw. 1972).
· cites it 2× “Such an order is authorized by HRS § 386-79. On February 8, 1971, Ras filed this action in the circuit court seeking a preliminary injunction barring the enforcement of the director’s order.”
Lane v. Avis Budget Grp., Inc (Haw. 2025).
· cites it 8× “Employer’s Medical Examiner Reports Pursuant to HRS § 386-79 (2015) (Medical examination by employer’s physician), Lane was examined by two medical doctors designated by the Employer.”
Suzuki v. Am. Healthways, Inc. (Haw. App. 2025).
· cites it 7× “Here, Suzuki argues "Employer did not meet the 'good cause' exemption in HRS § 386-79[.]" Employer argues it did. The parties disagree about the facts, and about which facts were material to the LIRAB's decision.”
Novak v. Cnty. of Hawai'i (Haw. App. 2025).
· cites it 7× “HAR § 12-10-75 was promulgated to effectuate HRS § 386-79. 5 See HAR § 12-10-75. But nothing in HRS § 386-79 indicates the Director's order compelling a medical examination is not an appealable order.”
Novak v. Cnty. of Hawai'i (Haw. App. 2025).
· cites it 7× “2 HRS § 386-79 (2015 & 2017 Supp.), entitled "Medical examination by employer's physician," requires the employee to submit to an examination by a physician designated by the employer, and provides that no compensation shall be paid to an employee who refuses such examination,…”
Suzuki v. Am. Healthways, Inc (Haw. 2023).
· cites it 6× “Petitioner’s opposition objected to having to undergo another round of IMEs because good cause did not exist pursuant to HRS § 386-79 (Supp. 2017). On December 17, 2021, Employer/Insurance Carrier filed a reply that asserted that these two IMEs “are proper and good cause exists…”
— Haw. Rev. Stat. § 386-79(a) — 3 cases
Cadiz v. QSI, Inc., 468 P.3d 110 (Haw. 2020).
“” Pursuant to HRS § 386-79 (1996), the employer designated and paid two physicians and one psychologist to examine Cadiz and produce independent medical examinations.”
Novak v. Cnty. of Hawai'i (Haw. App. 2025).
“HAR § 12-10-75 was promulgated to effectuate HRS § 386-79. 5 See HAR § 12-10-75. But nothing in HRS § 386-79 indicates the Director's order compelling a medical examination is not an appealable order.”
— Haw. Rev. Stat. § 386-79(b) — 2 cases
Suzuki v. Am. Healthways, Inc. (Haw. App. 2025).
“Here, Suzuki argues "Employer did not meet the 'good cause' exemption in HRS § 386-79[.]" Employer argues it did. The parties disagree about the facts, and about which facts were material to the LIRAB's decision.”
Suzuki v. Am. Healthways, Inc (Haw. 2023).
“Petitioner’s opposition objected to having to undergo another round of IMEs because good cause did not exist pursuant to HRS § 386-79 (Supp. 2017). On December 17, 2021, Employer/Insurance Carrier filed a reply that asserted that these two IMEs “are proper and good cause exists…”
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