Bill Text: HI HB931 | 2021 | Regular Session | Amended
Bill Title: Relating To Employees' Retirement System Benefits.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2021-03-09 - Referred to LCA, WAM/JDC. [HB931 Detail]
Download: Hawaii-2021-HB931-Amended.html
HOUSE OF REPRESENTATIVES |
H.B. NO. |
931 |
THIRTY-FIRST LEGISLATURE, 2021 |
H.D. 1 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO EMPLOYEES' RETIREMENT SYSTEM BENEFITS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that this Act is necessary to prevent future unwarranted increases to the unfunded liability of the Employees' Retirement System of the State of Hawaii ("system"). The system's service-connected disability retirement and accidental death provisions are intended to provide benefits different than those of Hawaii's workers' compensation program. The paramount purpose of Hawaii's workers' compensation law is to provide compensation for an employee for all work-connected injuries, regardless of questions of negligence, and work injuries are among the costs of production that industry is required to bear. Accordingly, the workers' compensation statute is to be construed liberally in favor of awarding compensation, and specifically creates a presumption that an employee's claim is for a covered work injury, in exchange for providing an employer with exclusion of all other liability on account of a work injury, except for sexual harassment, sexual assault and infliction of emotional distress, or invasion of privacy.
There are no similar policies or purposes behind the system's service-connected disability retirement and accidental death provisions. Consequently, the 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 system membership position, negligence, proximate cause, the difference between an accident and injury/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 system service-connected disability retirement and accidental death benefits beyond the legislature's original intent.
These rulings have required the 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, system members are not foreclosed from collecting ERS service retirement, system ordinary disability retirement, system ordinary death, workers' compensation, or social security disability; the system's service-connected disability retirement and accidental death programs should not be awarded in a manner similar to an award of system service retirement, system ordinary disability retirement, system ordinary death, workers' compensation, and social security disability benefits.
If there is any perceived ambiguity regarding the legislative intent of the system's service-connected disability retirement and accidental death statutes, as reflected in recent court decisions, this bill addresses such perceived ambiguities.
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 as follows:
""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) 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;
(2) During the working
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 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 as follows:
""Accidental death" means death of a 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, 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[,] in the position, appointment, or office
upon which the employee's membership is based, 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,] in the
position, appointment, or office upon which the employee's membership is based,
or as the cumulative result of some occupational hazard[,] of the position,
appointment, or office upon which the employee'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) The member or applicant initiating the proceeding
shall have the burden of proof, including the burden of producing evidence as well
as 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, labor and industrial
relations appeals board, and 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 or may not, at its discretion, subject the member to a physical examination
in arriving at its certifications and findings on all matters referred to it; provided
further that the burden of proof shall not be shifted to the medical board, and
the member or applicant has the burden of proof.
[(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 such position
and as the result of some occupational hazard of such 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 such 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 such 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 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)]
(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 in
the position, appointment, or office upon which the employee's membership is based,
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) 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 while
in the actual performance of duty in the position, appointment, or office upon which
the employee's membership is based, at a definite and exact time and place. 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 employee'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) 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 while in the actual performance of duty
in the position, appointment, or office upon which the employee's membership is
based, at a definite and exact time and place.
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 employee'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,]
in the position, appointment, or office upon which the employee's membership
is based, or as the cumulative result of some occupational hazard[,]
of the position, appointment, or office upon which the employee'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 while
in the actual performance of duty in the position, appointment, or office upon which
the employee's membership is based, at a definite and exact time and place. 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 employee'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 such position and as the result of some occupational hazard of
duty in such 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 such 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 such
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, which examination
failed to reveal any evidence of such 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 while in the actual
performance of duty in the position, appointment, or office upon which the employee's
membership is based, 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 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 such 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 such 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,
which examination failed to reveal any evidence of the condition."
SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 10. This Act shall take effect on December 25, 2040, and shall apply to applications and claims filed after its effective date.
Report Title:
Employees' Retirement System; Service-Connected Disability Retirement; Accidental Death
Description:
Clarifies the Employees' Retirement System's eligibility requirement definitions for service-connected disability retirement and accidental death benefits. Effective 12/25/2040. (HD1)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.