§386-89 Reopening of cases; continuing
jurisdiction of director. (a) In the absence of an appeal and within
twenty days after a copy of the decision has been sent to each party, the
director of labor and industrial relations may upon the director's own motion
or upon the application of any party reopen a case to permit the introduction
of newly discovered evidence, and may render a revised decision.
(b) The director may at any time, either of
the director's own motion or upon the application of any party, reopen any case
on the ground that fraud has been practiced on the director or on any party and
render such decision as is proper under the circumstances.
(c) On the application of any party in
interest, supported by a showing of substantial evidence, on the ground of a
change in or of a mistake in a determination of fact related to the physical
condition of the injured employee, the director may, at any time prior to eight
years after date of the last payment of compensation, whether or not a decision
awarding compensation has been issued, or at any time prior to eight years
after the rejection of a claim, review a compensation case and issue a decision
which may award, terminate, continue, reinstate, increase, or decrease
compensation. No compensation case may be reviewed oftener than once in six
months and no case in which a claim has been rejected shall be reviewed more
than once if on such review the claim is again rejected. The decision shall
not affect any compensation previously paid, except that an increase of the
compensation may be made effective from the date of the injury, and if any part
of the compensation due or to become due is unpaid, a decrease of the
compensation may be made effective from the date of the injury, and any payment
made prior thereto in excess of such decreased compensation shall be deducted
from any unpaid compensation in such manner and by such method as may be
determined by the director. In the event any such decision increases the
compensation in a case where the employee has received damages from a third
party pursuant to section 386-8 in excess of compensation previously awarded,
the amount of such excess shall constitute a pro tanto satisfaction of the
amount of the additional compensation awarded. This subsection shall not apply
when the employer's liability for compensation has been discharged in whole by
the payment of a lump sum in accordance with section 386-54. [L 1963, c 116, pt
of §1; am L 1965, c 69, §1; Supp, §97-98; HRS §386-89; am L 1974, c 8, §2; am L
1985, c 296, §9; gen ch 1985]
Law Journals and Reviews
Administering Justice or Just Administration: The Hawaii
Supreme Court and the Intermediate Court of Appeals. 14 UH L. Rev. 271 (1992).
Case Notes
Constitutional. 24 H. 97 (1917).
Departure of alien dependent widow from U.S. constitutes a
"change of condition" and board might modify its former award
accordingly to take effect from date of departure subject to maximum and
minimum amount of death benefit. 27 H. 431 (1923).
The presumptions contained in §386-85 apply to a reopening
proceeding under subsection (c). 56 H. 552, 545 P.2d 692 (1976).
On review, claimant is entitled to the same presumption
claimant is entitled to under §386-85. 57 H. 535, 560 P.2d 1292 (1977).
Request for reopening of case must be supported by showing of
substantial evidence. 57 H. 535, 560 P.2d 1292 (1977).
Fair construction of subsection (c) would only prevent
reopening when claim for periodic benefits has been "completely 'lump
summed' out". 65 H. 415, 653 P.2d 420 (1982).
A motion to reopen a case for newly discovered evidence
pursuant to subsection (a) tolls the twenty-day period within which a claimant
must appeal the department's decision under §386-87. 85 H. 275, 942 P.2d 539
(1997).
Petitioner's September 7, 2010 appeal was timely, where
petitioner's June 14, 2010 letter to the disability compensation division (DCD)
objecting to the director's approval of petitioner's attorney's fees and
requesting a hearing, followed by petitioner's subsequent letters, was an
application to reopen the case pursuant to §386-89(a) to permit the
introduction of newly discovered evidence and the DCD's August 30, 2010 letter
was the director's final decision denying the application to reopen the case.
132 H. 320, 321 P.3d 671 (2014).
The intermediate court of appeals did not err in concluding
that the disability compensation division of the department of labor and
industrial relations was not required to hold a contested case hearing on
petitioner's request to reopen petitioner's attorney's fees and costs request.
132 H. 320, 321 P.3d 671 (2014).
Where Hawaii supreme court determined that intermediate court
of appeals did not err in issuing a partial dismissal order instead of wholly
denying defendant's motion to dismiss and addressing any partial dismissal in
its summary disposition order, remand for entry of order of dismissal was
without prejudice to subsequent attempt by plaintiff to request that her case
be reopened pursuant to subsection (c), notwithstanding that plaintiff's
request was inappropriately filed with the labor and industrial relations
appeals board instead of the director of labor and industrial relations. 140
H. 226, 398 P.3d 815 (2016).
The ten-year limitation provision in subsection (c) is not
applicable to an application not based on a change in fact, or on a mistake in
a determination of fact, relating to the physical condition of the claimant. 2
H. App. 136, 627 P.2d 288 (1981).
Cited: 24 H. 731, 735 (1919); 27 H. 476, 485 (1923); 31 H.
672, 673 (1930); 31H. 814, 816 (1931); 32 H. 920, 926 (1933).
Notes of Decisions
Waltrip v. TS Enter., Inc., 398 P.3d 815 (Haw. 2016).
· cites it 26× “a determination of fact related to [her] physical condition” pursuant to HRS § 386-89. Such a motion, however, should have been submitted to the Director of DLIR instead of LIRAB.”
De Victoria v. H & K Contractors, 545 P.2d 692 (Haw. 1976).
· cites it 52× “We do not believe that a showing of substantial evidence is necessary as a prerequisite to a review by the Director or the Board of an application under subparagraph (c) of HRS § 386-89. That subparagraph requires that the applicant for a review must show by substantial evidence…”
Treloar v. Swinerton & Walberg Co., 653 P.2d 420 (Haw. 1982).
· cites it 25× “1 HRS § 386-89 covers the reopenings of claims; § 386-89(c), which is relevant here, reads as follows: (c) On the application of any party in interest, supported by a showing of substantial evidence, on the ground of a change in or of a mistake in a determination of fact related…”
Alvarez v. Liberty House, Inc., 942 P.2d 539 (Haw. 1997).
· cites it 20× “” A director’s decision obviously cannot be “final and conclusive” while the HRS § 386-89 motion to reopen is pending because HRS § 386-89 clearly states that the director’s decision is subject to revision in the event the motion to reopen is granted.”
Mitchell v. BWK Jt. Venture, 560 P.2d 1292 (Haw. 1977).
· cites it 21× “However, on November 16, 1971, at the request of the appellants, who claimed that HRS § 386-89 (1975 Supp.) required a showing of substantial evidence that there has been a change in or a mistake in the determination of a fact concerning claimant’s physical condition, the…”
Tamashiro v. Control Specialist, Inc., 34 P.3d 16 (Haw. 2001).
· cites it 4× “In all cases of appeal filed with the department the appellate board shall be notified of the pendency thereof by the director. No compromise shall be effected in the appeal except in compliance with section 386-78.”
Porter v. The Queen's Med. Ctr.., 479 P.3d 148 (Haw. 2021).
· cites it 14× “DISCUSSION The issue before this court arises from the Labor and Industrial Relations Appeal Board’s (“LIRAB”) denial of Porter’s request to reopen her claims pursuant to HRS § 386-89 (2013),4 and the Intermediate Court of Appeals’ (“ICA”) affirmance of the denial.”
Keliipuleole v. Wilson, 941 P.2d 300 (Haw. 1997).
· cites it 2× “In Treloar , this court overruled an ICA decision in favor of the party challenging the Labor and Industrial Relations Appeals Board’s interpretation of HRS § 386-89(c). Quoting Waikiki Resort Hotel, Inc.”
Lindinha v. Hilo Coast Processing Co., 86 P.3d 973 (Haw. 2004).
· cites it 2× “HRS § 386-87 states in relevant part: A decision of the director shall be final and conclusive between the parties, except as provided in section 386-89 [reopening cases and continuing jurisdiction of the Director], unless within twenty days after a copy has been sent to each…”
Teixeira v. Kauikeolani Child.'s Hosp., 652 P.2d 635 (Haw. App. 1982).
· cites it 4× “The only two provisions in Hawaii’s Workers’ Compensation Law, Hawaii Revised Statutes (HRS) Chapter 386 (1976), relating to fraud are HRS § 386-98 and HRS § 386-89(b). *434 HRS § 386-98 (1976) states: Penalties forfalse representations.”
Tauese v. State, Dep't of Labor & Indus. Relations, 147 P.3d 785 (Haw. 2006).
“HRS § 386-88 (1993), entitled "Judicial Review,” provides in relevant part: The decision or order of the [LIRAB] shall be final and conclusive, except as provided in section 386-89, unless within thirty days after mailing of a certified copy of the decision or order, the…”
— Haw. Rev. Stat. § 386-89(a) — 3 cases
Alvarez v. Liberty House, Inc., 942 P.2d 539 (Haw. 1997).
“” A director’s decision obviously cannot be “final and conclusive” while the HRS § 386-89 motion to reopen is pending because HRS § 386-89 clearly states that the director’s decision is subject to revision in the event the motion to reopen is granted.”
— Haw. Rev. Stat. § 386-89(b) — 2 cases
Teixeira v. Kauikeolani Child.'s Hosp., 652 P.2d 635 (Haw. App. 1982).
“The only two provisions in Hawaii’s Workers’ Compensation Law, Hawaii Revised Statutes (HRS) Chapter 386 (1976), relating to fraud are HRS § 386-98 and HRS § 386-89(b). *434 HRS § 386-98 (1976) states: Penalties forfalse representations.”
— Haw. Rev. Stat. § 386-89(c) — 14 cases
De Victoria v. H & K Contractors, 545 P.2d 692 (Haw. 1976).
“We do not believe that a showing of substantial evidence is necessary as a prerequisite to a review by the Director or the Board of an application under subparagraph (c) of HRS § 386-89. That subparagraph requires that the applicant for a review must show by substantial evidence…”
Treloar v. Swinerton & Walberg Co., 653 P.2d 420 (Haw. 1982).
“1 HRS § 386-89 covers the reopenings of claims; § 386-89(c), which is relevant here, reads as follows: (c) On the application of any party in interest, supported by a showing of substantial evidence, on the ground of a change in or of a mistake in a determination of fact related…”
Waltrip v. TS Enter., Inc., 398 P.3d 815 (Haw. 2016).
“a determination of fact related to [her] physical condition” pursuant to HRS § 386-89. Such a motion, however, should have been submitted to the Director of DLIR instead of LIRAB.”
Mitchell v. BWK Jt. Venture, 560 P.2d 1292 (Haw. 1977).
“However, on November 16, 1971, at the request of the appellants, who claimed that HRS § 386-89 (1975 Supp.) required a showing of substantial evidence that there has been a change in or a mistake in the determination of a fact concerning claimant’s physical condition, the…”
Keliipuleole v. Wilson, 941 P.2d 300 (Haw. 1997).
“In Treloar , this court overruled an ICA decision in favor of the party challenging the Labor and Industrial Relations Appeals Board’s interpretation of HRS § 386-89(c). Quoting Waikiki Resort Hotel, Inc.”
— Haw. Rev. Stat. § 386-89(c)(1993) — 1 case
Waltrip v. TS Enter., Inc., 398 P.3d 815 (Haw. 2016).
“a determination of fact related to [her] physical condition” pursuant to HRS § 386-89. Such a motion, however, should have been submitted to the Director of DLIR instead of LIRAB.”
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