§386-33 Subsequent injuries that would increase disability. (a) Where prior to any injury an employee suffers from a previous permanent partial disability already existing prior to the injury for which compensation is claimed, and the disability resulting from the injury combines with the previous disability, whether the previous permanent partial disability was incurred during past or present periods of employment, to result in a greater permanent partial disability or in permanent total disability or in death, then weekly benefits shall be paid as follows:

(1) In cases where the disability resulting from the injury combines with the previous disability to result in greater permanent partial disability the employer shall pay the employee compensation for the employee's actual permanent partial disability but for not more than one hundred four weeks; the balance if any of compensation payable to the employee for the employee's actual permanent partial disability shall thereafter be paid out of the special compensation fund; provided that in successive injury cases where the claimant's entire permanent partial disability is due to more than one compensable injury, the amount of the award for the subsequent injury shall be offset by the amount awarded for the prior compensable injury;

(2) In cases where the disability resulting from the injury combines with the previous disability to result in permanent total disability, the employer shall pay the employee for one hundred four weeks and thereafter compensation for permanent total disability shall be paid out of the special compensation fund; and

(3) In cases where the disability resulting from the injury combines with the previous disability to result in death the employer shall pay weekly benefits in accordance with sections 386-41 and 386-43 but for not more than one hundred four weeks; the balance of compensation payable under those sections shall thereafter be paid out of the special compensation fund.

(b) Notwithstanding subsection (a), where the director or the appellate board determines that the previous permanent partial disability amounted to less than that necessary to support an award of thirty-two weeks of compensation for permanent partial disability, there shall be no liability on the special compensation fund and the employer shall pay the employee or the employee's dependents full compensation for the employee's permanent partial or total disability or death.

(c) Effective July 1, 1995, subsection (a)(1), as amended, shall apply in all cases in which the work injury occurs on or after July 1, 1995, and combines with a previous disability from a compensable injury to result in a greater permanent partial disability. [L 1963, c 116, pt of §1; Supp, §97-32; HRS §386-33; am L 1982, c 93, §1; am L 1984, c 284, §1; am L 1995, c 234, §10; am L 2000, c 46, §1]

Case Notes

Section applies to death benefits. 64 H. 415, 643 P.2d 48 (1982).

Conditions to the apportionment of death benefits. 66 H. 290, 660 P.2d 1316 (1983).

Intent. 66 H. 290, 660 P.2d 1316 (1983).

Prior disability need not be manifest before compensation liability apportioned to special compensation fund. 67 H. 663, 701 P.2d 1282 (1985).

Board did not err when it concluded that claimant's permanent total disability benefits should not be apportioned with special compensation fund. 78 H. 275, 892 P.2d 468 (1995).

Odd-lot factors cannot be considered in determining whether a preexisting permanent partial disability amounted to award of thirty-two weeks of compensation for the purposes of this section. 78 H. 275, 892 P.2d 468 (1995).

Board properly concluded that, pursuant to subsection (a)(1), claimant was entitled to an award of the monetary value of 14 per cent permanent partial disability of the whole person as a result of claimant's latter work injury less the monetary value of the 2 per cent permanent partial disability award of the whole person as a result of claimant's earlier work injury. 100 H. 16 (App.), 58 P.3d 74 (2002).

Subsection (a)(1) lacks any condition or limitation that compensation for a prior injury must have been paid pursuant to a claim under the Hawaii workers' compensation law; thus, labor appeals board did not err when it decided that the offset provision set forth in subsection (a)(1) applied to claimant's prior out-of-state permanent partial disability award. 109 H. 372 (App.), 126 P.3d 415 (2005).

Cited: 56 H. 552, 545 P.2d 692 (1976).