HRS §386-1 Definitions
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]