§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).

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.