Bill Text: HI HB1014 | 2024 | Regular Session | Amended
Bill Title: Relating To Employees' Retirement System Disability Retirement.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2023-12-11 - Carried over to 2024 Regular Session. [HB1014 Detail]
Download: Hawaii-2024-HB1014-Amended.html
HOUSE OF REPRESENTATIVES |
H.B. NO. |
1014 |
THIRTY-SECOND LEGISLATURE, 2023 |
H.D. 1 |
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STATE OF HAWAII |
S.D. 1 |
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A BILL FOR AN ACT
RELATING TO EMPLOYEES' RETIREMENT SYSTEM DISABILITY RETIREMENT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
There are no similar policies or purposes behind the employees' retirement system's service-connected disability retirement and accidental death provisions. Consequently, the employees' retirement system's service-connected disability retirement and accidental death provisions do not contain a presumption favoring coverage and should not be construed liberally in favor of awarding compensation for all injuries and death occurring in the workplace, regardless of questions of employees' retirement system membership position, negligence, proximate cause, the difference between an accident and injury or incapacity, and the burden of proof. Courts in the cases of Quel v. Bd. of Trustees, Employees' Ret. Sys., 146 Haw. 197, 457 P.3d 836 (2020); Pasco v. Bd. of Trustees of the Employees' Ret. Sys., 142 Haw. 373, 420 P.3d 304 (2018), as corrected (May 29, 2018), as corrected (June 4, 2018), as corrected (June 15, 2018); Stout v. Bd. of Trustees of the Employees' Ret. Sys., 140 Haw. 177, 398 P.3d 766, reconsideration denied, 141 Haw. 90, 404 P.3d 1279 (2017); Panado v. Bd. of Trustees, Employees' Ret. Sys., 134 Haw. 1, 332 P.3d 144 (2014); and Fores v. Bd. of Trustees of the Employees' Ret. Sys., Civ. 14-1-1270-06, Circuit Court of the First Circuit, recently rendered rulings awarding employees' retirement system service-connected disability retirement and accidental death benefits beyond the legislature's original intent.
These rulings have required the employees' retirement system to
provide service-connected disability retirement and accidental death benefits
that were never contemplated in determining employer contributions, employee
contributions, and employee benefits (including monthly retirement allowance
benefits to be provided for an extended duration and at a higher rate, plus the
refund of employee contributions) and consequently, increased the State's
unfunded liability as a whole. Furthermore,
employees' retirement system members are not foreclosed from collecting service
retirement, ordinary disability retirement, ordinary death benefits, workers' compensation,
or social security disability; the employees' retirement system
service-connected disability retirement and accidental death benefits should
not be awarded in a manner similar to an award of service retirement, ordinary
disability retirement, ordinary death benefits, workers' compensation, and
social security disability benefits.
The purpose of this Act is to address any perceived ambiguity
regarding the legislative intent of the employees' retirement system's
service-connected disability retirement and accidental death statutes, as
reflected in recent court decisions.
SECTION 2. Section 88-21, Hawaii Revised Statutes, is amended as follows:
1. By adding five new definitions to be appropriately inserted and to read:
""Accident":
(1) Means a single traumatic unlooked-for mishap or untoward event that:
(A) Is not expected or designed;
(B) Is not a risk inherent in the member's performance of routine or normal job duties;
(C) Interrupts the member's performance of
routine or normal job duties; and
(D) Precedes and precipitates:
(i) A medical condition, injury, disability, or symptom of the foregoing that naturally and proximately results in the member's permanent incapacity for duty; or
(ii) Death of the member; and
(2) Does not include:
(A) A medical condition, injury, disability, mental or physical incapacity, symptom of the foregoing, or death itself; and
(B) An unexpected result of a routine performance of duty, without external force or unusual stress or strain.
"Actual performance of duty" means
the performance of duty:
(1) In the position, appointment, or office on which the member's membership in the system is based, and for which all contributions required to be made to the system by the employee or the employer, or both, have been made;
(2) During the work hours of the position, appointment, or office; and
(3) At either:
(A) The work premises of the position, appointment, or office; or
(B) Wherever the member's duties of the position, appointment, or
office require the member to be.
"Definite and exact time and place" means:
(1) An
exact time or time period that is identified, is limited and short in duration,
and does not include more than a single work shift; and
(2) An exact place or geographic location that is identified and is of a limited and small size.
"Incapacitated for duty" and "incapacitated
for the further performance of duty":
(1) Means
incapacitated for the duties prescribed in the official position description or
actual job duties of the position, appointment, or office on which the member's
membership in the system is based, and for which all contributions required to
be made to the system by the employee or the employer, or both, have been made;
and
(2) Does not include incapacitated for duties
under environmental conditions particular to the member's position,
appointment, or office, such as a particular location in proximity to or under
the supervision of particular individuals, or under other particular
environmental conditions, but not incapacitated for duties of the position,
appointment, or office as a whole.
"Occupational hazard":
(1) Means
danger or risk inherent in, and concomitant to, a particular occupation, the
causative factors of which are not ordinarily incident to employment in
general, and are different in character from those found in the general run of
occupations; and
(2) Does
not include:
(A) A job-related condition that results in incapacitation for
further performance of duty or death, without a danger or risk inherent in, and
concomitant to, a particular occupation;
(B) Work activities that are common to many occupations, such as
repetitive motion of hands and arms, lifting, and carrying; and
(C) Dangers or risks that are particular to a
member's workplace, but not particular to the member's occupation as a whole,
such as a lack of proper tools or malfunctioning equipment at the workplace."
2. By amending the definition of "accidental death" to read:
""Accidental death" means
death of a member while employed in a position in which all contributions
required to be made to the system by the employee or the employer, or both,
have been made, that is the natural and proximate result of an accident
occurring at [some] a definite and exact time and place
while the member [was 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,] was in the actual performance of duty[,]
or due to the result of some occupational hazard[,] of the position,
appointment, or office upon which the employee's membership is based, and
not caused by wilful negligence on the part of the member."
SECTION 3. Section 88-79, Hawaii Revised Statutes, is amended to read as follows:
"§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 at a definite and exact time and place while in the actual
performance of duty [at some definite time and place,] or as the
cumulative result of [some] an occupational hazard[,] of
the position, appointment, or office upon which the member's membership is
based, 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)
Permanent incapacity that is primarily caused by the natural
deterioration, degeneration, or progression of a pre-existing condition is not
the natural and proximate result of an accident occurring at a definite and
exact time and place while in the actual performance of duty. Permanent incapacity that is primarily caused
by the natural deterioration, degeneration, or progression of a pre-existing
condition is not the cumulative result of an occupational hazard of the
position, appointment, or office upon which the member's membership is based,
unless the pre-existing condition itself was caused by the occupational hazard. In the case of an application for
service-connected disability retirement, where there is evidence that the
member claiming permanent incapacity had a pre-existing condition, the member
shall have the burden of proving by a preponderance of the evidence that the
member's permanent incapacity was not primarily caused by the pre-existing
condition.
[(b)] (c) 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 in the position and as the result of
[some] an occupational hazard of the position 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 in the position, at [some]
a definite and exact 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 the position, 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] the firefighter, police officer, or sewer worker shall
have passed a physical examination on entry into [such] service or
subsequent to [such] entry[,] into service, which
examination failed to reveal any evidence of [such] the condition.
[(c)] (d) 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)] (e) 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] a definite and exact 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)] (f) 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."
SECTION 4. Section 88-82, Hawaii Revised Statutes, is amended to read as follows:
"§88-82 Petition for contested case hearing regarding disability retirement or accidental death benefits; attorney's fees and costs. (a) A member or applicant who is not satisfied with the preliminary decision of the board to grant or deny an application for disability retirement benefits or accidental death benefits based on the certifications and findings of the medical board may file a petition for contested case hearing with the board within sixty days after receiving written notification of the preliminary decision of the board.
(b) The member or applicant initiating the proceeding shall have the burden of proof, including the burden of producing evidence and the burden of persuasion. The degree or quantum of proof shall be a preponderance of the evidence. The member or applicant shall have the responsibility of furnishing all medical evidence available or that can be made available to the member or applicant pertaining to the member's death or disability. Any determination of the disability compensation division of the department of labor and industrial relations, the labor and industrial relations appeals board, and the Social Security Administration relating to the same incapacity for which the applicant or member is claiming a disability or death benefit may be taken into consideration; provided that the determination shall not be binding upon the medical board. The medical board may, at its discretion, subject the member to a physical examination in arriving at its certifications and findings on all matters referred to it; provided that the burden of proof is not shifted to the medical board, and the member or applicant has the burden of proof.
[(b)] (c) If the member or applicant is the prevailing
party in the contested case, and disability retirement or accidental death
benefits are awarded to the member or applicant by the board or court of the
appropriate jurisdiction under section 88-75, 88-79, 88-85, 88-284, 88-285,
88-286(c), 88-334, 88-336, or 88-339, the member or applicant shall be paid
reasonable attorney's fees together with any costs payable by the system. The attorney's fees and costs shall be
subject to the approval of the board or approval by a court of appropriate
jurisdiction after evidence has been provided by the member or applicant
regarding the reasonableness of the claimed attorney's fees and costs."
SECTION 5. Section 88-85.5, Hawaii Revised Statutes, is amended to read as follows:
"§88-85.5 Applications for accidental death benefits; approval by the system. (a) Under rules the board of trustees may adopt, an application for service-connected accidental death benefits may be filed with the system by or on behalf of the claimant pursuant to section 88-85, 88-286, or 88-339, on a form provided by the system. The application shall be filed no later than three years from the date of the member's death.
(b) After the claimant files an application for service-connected accidental death benefits, the system shall obtain the following:
(1) A copy of the employer's report of the accident submitted by the employer to the department of labor and industrial relations, workers' compensation division, and other reports relating to the accident;
(2) A certified statement from the head of the department in which the deceased member was employed, stating the date, time, and place of the accident, and the nature of the service being performed when the accident occurred. The statement shall also include an opinion as to whether or not the accident was the result of wilful negligence on the deceased member's part;
(3) A copy of the latest position description of the deceased member's duties and responsibilities;
(4) A certified copy of the death certificate; and
(5) A copy of an autopsy report, if performed.
(c) Upon the system's receipt of the application and documents specified in subsection (b), the medical board or other entity designated by the board of trustees shall determine and certify to the system whether the member's death was an accidental death as defined in section 88-21.
(d)
Death that is primarily caused by the natural deterioration,
degeneration, or progression of a pre-existing condition is not the natural and
proximate result of an accident occurring at a definite and exact time and
place while in the actual performance of duty.
Death that is primarily caused by the natural deterioration,
degeneration, or progression of a pre-existing condition is not the cumulative
result of some occupational hazard of the position, appointment, or office upon
which the member's membership is based, unless the pre-existing condition
itself was caused by the occupational hazard.
In the case of an application for accidental death benefits, where there
is evidence that the member had a pre-existing condition, the applicant shall
have the burden of proving by a preponderance of the evidence that the member's
death was not primarily caused by the pre-existing condition.
[(d)] (e) The system may accept as conclusive as to
whether [or not] the member's death was caused by wilful negligence on
the part of the member:
(1) A certification made by the head of the agency in which the member is employed; or
(2) A finding by the medical board or other entity designated by the board of trustees.
[(e)] (f) After
the medical board or other entity designated by the board of trustees submits
its certification to the system, the system shall approve or disapprove the
application. Upon approval of an
application, benefits shall be paid as provided in section 88-85, 88-286, or
88-339."
SECTION 6. Section 88-261, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The following words and phrases as used in this part shall have the same meanings as defined in section 88-21, unless a different meaning is plainly required by the context: "accident"; "accidental death"; "accumulated contributions”; "actual performance of duty"; "actuarial equivalent"; "average final compensation"; "beneficiary"; "board"; "county"; "definite and exact time and place"; "employee"; "incapacitated for duty"; "incapacitated for the further performance of duty"; "medical board"; "occupational hazard"; "retirant"; "retirement allowance"; "service"; and "system"."
SECTION 7. Section 88-336, Hawaii Revised Statutes, is amended to read as follows:
"§88-336 Service-connected disability retirement. (a)
Under rules the board of trustees may adopt, upon application of a class
H member, or the person appointed by the family court as guardian of an
incapacitated member, any class H member, 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 at a definite and exact time and place while in the actual
performance of duty [at some definite time and place,] or as the
cumulative result of some occupational hazard[,] of the position,
appointment, or office upon which the member's membership is based, 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)
Permanent incapacity that is primarily caused by the natural
deterioration, degeneration, or progression of a pre-existing condition is not
the natural and proximate result of an accident occurring at some definite and
exact time and place while in the actual performance of duty. Permanent incapacity that is primarily caused
by the natural deterioration, degeneration, or progression of a pre-existing
condition is not the cumulative result of some occupational hazard of the
position, appointment, or office upon which the member's membership is based,
unless the pre-existing condition itself was caused by the occupational hazard. In the case of an application for
service-connected disability retirement, where there is evidence that the
member claiming permanent incapacity had a pre-existing condition, the member
shall have the burden of proving by a preponderance of the evidence that the
member's permanent incapacity was not primarily caused by the pre-existing
condition.
[(b)] (c) In the case of 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 in
the position and as the result of [some] an occupational hazard
of duty in the position 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
sewer worker shall be presumed to have been suffered in the actual performance
of duty in the position, at [some] a definite and exact
time and place through no wilful negligence on the sewer worker's part, and as
a result of the inherent occupational hazard of the position, of
exposure to the inhalation of smoke, toxic gases, chemical fumes, and other
toxic vapors, unless the contrary be shown by competent evidence; provided that
the sewer worker shall have passed a physical examination on entry into [such]
service or subsequent to [such] entry[,] into service,
which examination failed to reveal any evidence of [such] the
condition.
[(c)] (d) 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 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)] (e) The system may determine whether the disability
is the result of an accident occurring at a definite and exact time and
place 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)] (f) 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 be 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."
SECTION 8. Section 88-339, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b)
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 death to a sewer worker shall be presumed to have been
suffered in the actual performance of duty in the position, at [some]
a definite and exact time and place through no wilful negligence
on the sewer worker's part, and as a result of the inherent occupational hazard
of the position, 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 the sewer worker shall have passed a physical
examination on entry into service or subsequent to entry[,] into
service, which examination failed to reveal any evidence of the
condition."
SECTION 9. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 11. This Act shall take effect on June 30, 3000, and shall apply to applications and claims filed after its effective date.
Report Title:
Employees' Retirement System; Service-Connected Disability; Accidental Death
Description:
Clarifies the employees' retirement system's eligibility requirement definitions for service-connected disability and accidental death benefits. Effective 6/30/3000. (SD1)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.