§88-79 Service-connected disability
retirement. (a) Under rules the board of trustees may adopt, upon
application of a member, or the person appointed by the family court as
guardian of an incapacitated member, any member while employed in a position in
which all contributions required to be made to the employees' retirement system
by the employee or the employer, or both, have been made, who has been
permanently incapacitated for duty as the natural and proximate result of an
accident occurring while in the actual performance of duty at some definite time
and place, or as the cumulative result of some occupational hazard, through no
wilful negligence on the member's part, may be retired by the system for
service-connected disability; provided that:
(1) In the case of an accident occurring after July
1, 1963, the employer shall file with the system a copy of the employer's
report of the accident submitted to the director of labor and industrial
relations;
(2) An application for retirement is filed with the
system within two years of the date of the accident, or the date upon which
workers' compensation benefits cease, whichever is later;
(3) Certification is made by the head of the agency
in which the member is employed, stating the time, place, and conditions of the
service performed by the member resulting in the member's disability and that
the disability was not the result of wilful negligence on the part of the
member; and
(4) The medical board or other entity designated by
the board of trustees certifies that the member is incapacitated for the
further performance of duty at the time of application and that the member's
incapacity is likely to be permanent.
(b) In the case of firefighters, police
officers, and sewer workers, the effect of the inhalation of smoke, toxic
gases, chemical fumes, and other toxic vapors on the heart, lungs, and
respiratory system shall be construed as an injury received or disease
contracted while in the performance of their duty and as the result of some
occupational hazard for the purpose of determining occupational disability
retirement under this section.
Notwithstanding any other law to the contrary,
any condition of impairment of health caused by any disease of the heart,
lungs, or respiratory system, resulting in permanent incapacity to a
firefighter, police officer, or sewer worker, shall be presumed to have been
suffered in the actual performance of duty at some definite time and place
through no wilful negligence on the firefighter's, police officer's, or sewer
worker's part, and as a result of the inherent occupational hazard of exposure
to and inhalation of smoke, toxic gases, chemical fumes, and other toxic
vapors, unless the contrary be shown by competent evidence; provided that such
firefighter, police officer, or sewer worker shall have passed a physical
examination on entry into such service or subsequent to such entry, which
examination failed to reveal any evidence of such condition.
(c) The system may waive strict compliance
with the time limits within which a report of the accident and an application
for service-connected disability retirement must be filed with the system if it
is satisfied that the failure to file within the time limited by law was due to
ignorance of fact or law, inability, or to the fraud, misrepresentation, or
deceit of any person, or because the applicant was undergoing treatment for the
disability or was receiving vocational rehabilitation services occasioned by
the disability.
(d) The system may determine whether or not
the disability is the result of an accident occurring while in the actual
performance of duty at some definite time and place and that the disability was
not the result of wilful negligence on the part of the member. The system may
accept as conclusive:
(1) The certification made by the head of the agency
in which the member is employed; or
(2) A finding to this effect by the medical board or
other entity designated by the board of trustees.
(e) Upon approval by the system, the member
shall be eligible to receive a service-connected disability retirement benefit
after the member has terminated service. Retirement shall become effective on
the first day of a month, except for the month of December when retirement on
the first or last day of the month shall be allowed. [L 1963, c 127, §7; am L
1965, c 225, §2; Supp, §6-46.1; HRS §88-69; am L 1969, c 110, pt of §1; am L
1971, c 152, §3; am L 1974, c 182, §3; am L 1975, c 41, §1; am L 1983, c 124,
§15; gen ch 1985; am L 1987, c 81, §1 and c 283, §14; am L 1997, c 212, §3; am
L 1998, c 151, §6; am L 2002, c 128, §6; am L 2007, c 215, §10; am L 2017, c
17, §4; am L 2018, c 69, §3]
Attorney General Opinions
Heart attack could
constitute "accident" within meaning of section. Att. Gen. Op.
69-25.
Case Notes
Applicant for
benefits under section is, by chapter 91 and constitutional due process,
entitled to trial-type hearing on contested issues before the board of
trustees. 52 H. 212, 473 P.2d 866.
Danger that
accompanies a particular job is an "occupational hazard" if it is not
a risk common to employment in general. 67 H. 485, 693 P.2d 405.
Where the
intermediate court of appeals (ICA) reviewed the circuit court's decision upon
its review of a decision by the board of trustees of the employees' retirement
system, the ICA erred in concluding that the circuit court's decision should be
reviewed under a clearly erroneous standard and in characterizing the
determinative issue as a mixed question of law and fact; because the
determinative issue was whether the statutory language of "definite time
and place" in this section requires a claimant to show the exact moment
when an injury occurs, the appropriate standard of review was de novo. 134 H.
1, 332 P.3d 144 (2014).
Where there
was no dispute that employee was injured while lifting boxes during a work
shift for the city and county of Honolulu's department of information
technology, the "definite time and place" language in this section
did not preclude the recovery of benefits despite employee's inability to
pinpoint the precise moment of injury. 134 H. 1, 332 P.3d 144 (2014).
Where appellant, a
regular school-year teacher employed by the department of education, applied
for service-connected disability retirement based on injuries suffered as a
result of being shot by a student at school, the circuit court erred in
affirming decision of the board of trustees of the employees' retirement system
that appellant was not eligible to receive benefits. Although appellant's
summer school employment at the time of injury was not "membership
service", it was nevertheless "service" as defined under §88-21,
and this section provides for "service-connected disability
retirement", not "membership service-connected disability
retirement". 140 H. 177, 398 P.3d 766 (2017).
Office worker's
permanent incapacitation for duty caused by asthmatic bronchitis was not
cumulative result of an occupational hazard; incapacitation due to an
"accident" or as "the cumulative result of some occupational
hazard" are mutually exclusive. 5 H. App. 279, 687 P.2d 1340.
Where an employee is
on the employer's premises, doing what the employer requires at a time and
place the employee is required to do it, the employee is engaged in the actual
performance of duty for purposes of service-connected disability retirement.
112 H. 292 (App.), 145 P.3d 835.
Notes of Decisions
Stout v. Bd. of Trs. of the Employees' Ret. Sys., State of Hawaii., 398 P.3d 766 (Haw. 2017).
· cites it 197× “Introduction This case concerns whether a public school teacher who is a member of the Employees’ Retirement System of the State of Hawaiʻi (“ERS”) through her regular full-time position is eligible for “service-connected disability retirement” benefits *** FOR PUBLICATION IN…”
Panado v. Bd. of Trs. Employees' Ret. Sys. State of Hawaii ., 332 P.3d 144 (Haw. 2014).
· cites it 66× “Although the parties stipulated that Panado had suffered an injury sometime during her October 8-9, 2004 work shift, and that she was permanently incapacitated for work by the time of her application, the Board of Trustees determined that (1) Pana-do’s October 8-9, 2004 injury…”
Komatsu v. Bd. of Trs., Emp. Ret. Sys., 693 P.2d 405 (Haw. 1984).
· cites it 19× “Concluding that the pertinent finding and conclusion of the Board were not supported by reliable, probative, and substantial evidence and therefore clearly erroneous, it held Komatsu’s “working conditions or employment environment constitute[d] an occupational hazard under HRS §…”
Komatsu v. Bd. of Trs., Employees' Ret. Sys., 687 P.2d 1340 (Haw. App. 1984).
· cites it 37× “The general question is whether the circuit court was right in reversing the Board’s decision which denied Komatsu’s application for HRS § 88-79 benefits. The specific question is whether Koma-tsu’s permanent incapacitation for duty caused by asthmatic bronchitis was either “the…”
Chuong Thanh Hua v. Bd. of Trs. of the Employees' Ret. Sys., 145 P.3d 835 (Haw. App. 2006).
· cites it 10× “As stated by the hearings officer, “the general issue is under [HRS § 88-79] whether or not the Appellant meets all of the statutory requirements for service-connected occupational disability retirement benefits[.”
Pasco v. Bd. of Trs. of the Employees' Ret. Sys.., 420 P.3d 304 (Haw. 2018).
· cites it 10× “" The circuit court concluded that Pasco's excessive keyboarding, whether over weeks or months, does not describe or constitute an accident occurring while in the actual performance of duty at some definite time and place within the meaning of HRS § 88-336.”
E & J Lounge Operating Co. v. Liquor Comm'n of Honolulu, 174 P.3d 367 (Haw. App. 2007).
· cites it 4× “For example, a state or county employee seeking service-connected-occupational-disability-retirement benefits pursuant to HRS § 88-79 (Supp.2006) must first be examined and then certified by the Employees' Retirement System (ERS) medical board as permanently incapacitated for…”
Shizue Inouye v. Bd. of Trs. of the Employees' Ret. Sys., 669 P.2d 638 (Haw. App. 1983).
· cites it 6× “On August 1, 1975, Inouye was awarded a service-connected 1 occupational disability retirement pursuant to HRS § 88-79. 2 On January 18, 1978, the Employees’ Retirement System (ERS) notified Inouye that, pursuant to HRS § 88-80 (1976), her benefits would be decreased to 33-1/3%…”
Nakamine v. Bd. of Trs. of the Employees' Ret. Sys., 649 P.2d 1162 (Haw. 1982).
· cites it 5× “nclusions of Law, IT IS HEREBY ORDERED that the decision and ruling of the Board Of Trustees Of The Employees’ Retirement System denying Janice Nakamine accidental disability retirement benefits be and it is hereby reversed and the Board Of Trustees is hereby further ordered to…”
Lopez v. Bd. of Trs., 657 P.2d 1040 (Haw. 1983).
· cites it 2× “” HRS § 88-77(a); see also HRS § 88-79(a). (Emphasis added) In the present case, there was no unexpected event or unforeseen occurrence which resulted in the appellant’s present incapacity.”
Chun v. Liberty Mut. Ins., 687 P.2d 564 (Haw. App. 1984).
· cites it 2× “A fireman also has the benefit of a similar presumption when applying for service-connected occupational disability retirement under HRS § 88-79 (1976). IV. We hold that no-fault monthly earnings loss benefits are payable primarily, and not secondarily, to HRS § 79-15 benefits.”
Mortensen v. Bd. of Trs. of the Employees' Ret. Sys., 473 P.2d 866 (Haw. 1970).
“Freeman later filed an application for accidental disability retirement benefits pursuant to HRS § 88-69 (1968) (now included in HRS '§ 88-79 (Supp. 1969)). The Medical Board examined Freeman and certified that he was not incapacitated for the further performance of duty or for…”
— Haw. Rev. Stat. § 88-79(3) — 1 case
Komatsu v. Bd. of Trs., Employees' Ret. Sys., 687 P.2d 1340 (Haw. App. 1984).
“The general question is whether the circuit court was right in reversing the Board’s decision which denied Komatsu’s application for HRS § 88-79 benefits. The specific question is whether Koma-tsu’s permanent incapacitation for duty caused by asthmatic bronchitis was either “the…”
— Haw. Rev. Stat. § 88-79(a) — 9 cases
Panado v. Bd. of Trs. Employees' Ret. Sys. State of Hawaii ., 332 P.3d 144 (Haw. 2014).
“Although the parties stipulated that Panado had suffered an injury sometime during her October 8-9, 2004 work shift, and that she was permanently incapacitated for work by the time of her application, the Board of Trustees determined that (1) Pana-do’s October 8-9, 2004 injury…”
Komatsu v. Bd. of Trs., Employees' Ret. Sys., 687 P.2d 1340 (Haw. App. 1984).
“The general question is whether the circuit court was right in reversing the Board’s decision which denied Komatsu’s application for HRS § 88-79 benefits. The specific question is whether Koma-tsu’s permanent incapacitation for duty caused by asthmatic bronchitis was either “the…”
Komatsu v. Bd. of Trs., Emp. Ret. Sys., 693 P.2d 405 (Haw. 1984).
“Concluding that the pertinent finding and conclusion of the Board were not supported by reliable, probative, and substantial evidence and therefore clearly erroneous, it held Komatsu’s “working conditions or employment environment constitute[d] an occupational hazard under HRS §…”
Chuong Thanh Hua v. Bd. of Trs. of the Employees' Ret. Sys., 145 P.3d 835 (Haw. App. 2006).
“As stated by the hearings officer, “the general issue is under [HRS § 88-79] whether or not the Appellant meets all of the statutory requirements for service-connected occupational disability retirement benefits[.”
Stout v. Bd. of Trs. of the Employees' Ret. Sys., State of Hawaii., 398 P.3d 766 (Haw. 2017).
“Introduction This case concerns whether a public school teacher who is a member of the Employees’ Retirement System of the State of Hawaiʻi (“ERS”) through her regular full-time position is eligible for “service-connected disability retirement” benefits *** FOR PUBLICATION IN…”
— Haw. Rev. Stat. § 88-79(a)(3) — 2 cases
Stout v. Bd. of Trs. of the Employees' Ret. Sys., State of Hawaii., 398 P.3d 766 (Haw. 2017).
“Introduction This case concerns whether a public school teacher who is a member of the Employees’ Retirement System of the State of Hawaiʻi (“ERS”) through her regular full-time position is eligible for “service-connected disability retirement” benefits *** FOR PUBLICATION IN…”
Komatsu v. Bd. of Trs., Emp. Ret. Sys., 693 P.2d 405 (Haw. 1984).
“Concluding that the pertinent finding and conclusion of the Board were not supported by reliable, probative, and substantial evidence and therefore clearly erroneous, it held Komatsu’s “working conditions or employment environment constitute[d] an occupational hazard under HRS §…”
— Haw. Rev. Stat. § 88-79(a)(4) — 1 case
Komatsu v. Bd. of Trs., Emp. Ret. Sys., 693 P.2d 405 (Haw. 1984).
“Concluding that the pertinent finding and conclusion of the Board were not supported by reliable, probative, and substantial evidence and therefore clearly erroneous, it held Komatsu’s “working conditions or employment environment constitute[d] an occupational hazard under HRS §…”
— Haw. Rev. Stat. § 88-79(b) — 1 case
Komatsu v. Bd. of Trs., Employees' Ret. Sys., 687 P.2d 1340 (Haw. App. 1984).
“The general question is whether the circuit court was right in reversing the Board’s decision which denied Komatsu’s application for HRS § 88-79 benefits. The specific question is whether Koma-tsu’s permanent incapacitation for duty caused by asthmatic bronchitis was either “the…”
— Haw. Rev. Stat. § 88-79(d) — 2 cases
Stout v. Bd. of Trs. of the Employees' Ret. Sys., State of Hawaii., 398 P.3d 766 (Haw. 2017).
“Introduction This case concerns whether a public school teacher who is a member of the Employees’ Retirement System of the State of Hawaiʻi (“ERS”) through her regular full-time position is eligible for “service-connected disability retirement” benefits *** FOR PUBLICATION IN…”
— Haw. Rev. Stat. § 88-79(d)(2) — 1 case
Stout v. Bd. of Trs. of the Employees' Ret. Sys., State of Hawaii., 398 P.3d 766 (Haw. 2017).
“Introduction This case concerns whether a public school teacher who is a member of the Employees’ Retirement System of the State of Hawaiʻi (“ERS”) through her regular full-time position is eligible for “service-connected disability retirement” benefits *** FOR PUBLICATION IN…”
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