§386-93 Costs. (a) If the director of labor and industrial relations, appellate board, or any court finds that proceedings under this chapter have been brought, prosecuted, or defended without reasonable ground, the whole costs of the proceedings including reasonable attorney's fees may be assessed against the party who has brought, prosecuted, or defended the proceedings.
(b) If an employer appeals a decision of the director or appellate board, the costs of the proceedings of the appellate board or the appellate court, together with reasonable attorney's fees, shall be assessed against the employer if the employer loses; provided that if an employer or an insurance carrier, other than the employer who appealed, is held liable for compensation, the costs of the proceedings of the appellate board or the appellate court, together with reasonable attorney's fees, shall be assessed against the party held liable for the compensation. [L 1963, c 116, pt of §1; Supp, §97-102; am L 1967, c 180, §1; HRS §386-93; am L 1969, c 244, §2g; am L 2004, c 202, §45; am L 2006, c 94, §1; am L 2010, c 109, §1; am L 2012, c 234, §1]
Rules of Court
See HRCP rule 54(d).
Law Journals and Reviews
One-Sided Bargain? Assessing the Fairness of Hawai €˜i's Workers' Compensation Law. 31 UH L. Rev. 553 (2009).
Case Notes
Attorney fees. 35 H. 591 (1940).
Reasonable grounds. 38 H. 405 (1949).
Party who prevailed on the crucial issue held to be the prevailing party. 57 H. 535, 560 P.2d 1292 (1977).
Imposes liability for costs and fees incurred by nonappealing employer on appealing employer who loses. 66 H. 290, 660 P.2d 1316 (1983).
An order regarding the award or denial of attorney's fees and costs with respect to subsection (b) is a final order under §91-14(a) for purposes of appeal; this final order rule applies prospectively to prevent injustice; subsection (b) allows assessment of attorney's fees and costs against an employer if the employer loses the final appeal. 104 H. 164, 86 P.3d 973 (2004).
Where appeals court's opinion regarding attorney's fees and costs under this section was not ripe for decision, constituted an advisory opinion akin to the issuance of an opinion when there was no subject matter jurisdiction, and constituted inappropriate judicial interference with an administrative decision of an entity within a separate, co-equal branch that had not been formalized and had not yet affected the challenging parties in a concrete way, thereby implicating separation-of-powers concerns, the appeals court's exercise of appellate power constituted error. 121 H. 33, 211 P.3d 750 (2009).
Employee was entitled to award of costs and reasonable attorney fees incurred in defending against a point of appeal that employer, who did not file its own appeal, was permitted to raise at a pretrial conference and ultimately lost during employee's appeal. 136 H. 483 (App.), 363 P.3d 331 (2015).
Imposes liability for costs and fees incurred by nonappealing employer on appealing employer who loses; "crucial issue" test applied. 5 H. App. 521, 704 P.2d 914 (1985).
When employer appeals decision of director or appeals board and subsequently withdraws either entire appeal or any portion of appeal, or concedes, the decision of director or appeals board becomes final and employer is considered losing party for purposes of subsection (b). 84 H. 390 (App.), 935 P.2d 105 (1997).
Cited: 33 H. 634 (1935).
Structure Hawaii Revised Statutes
Title 21. Labor and Industrial Relations
386. Workers' Compensation Law
386-2 Definitions relating to family relationships.
386-5 Exclusiveness of right to compensation; exception.
386-6 Territorial applicability.
386-7 Interstate and foreign commerce and maritime employment.
386-8 Liability of third person.
386-8.5 Limits of third party liability.
386-9 Contracting out forbidden.
386-10 Out of state employers.
386-21 Medical care, services, and supplies.
386-21.5 Publication of fees by prepaid health care plan contractors.
386-21.7 Prescription drugs; pharmaceuticals.
386-22 Artificial member and other aids.
386-23.5 Services of attendant, allowance adjustments.
386-23.6 Weekly benefit adjustments for recipients of services of attendants.
386-24 Medical rehabilitation.
386-25 Vocational rehabilitation.
386-26 Guidelines on frequency of treatment and reasonable utilization of health care and services.
386-27 Qualification and duties of health care providers.
386-28 Opioid therapy; qualifying injured employees; informed consent process.
386-29 Qualifying injured employees; initial concurrent prescriptions; opioids and benzodiazepines.
386-33 Subsequent injuries that would increase disability.
386-41 Entitlement to and rate of compensation.
386-43 Duration of dependents' weekly benefits.
386-44 Effect of erroneous payment; insanity of beneficiary.
386-51 Computation of average weekly wages.
386-51.5 Limited liability in concurrent employment.
386-52 Credit for voluntary payments and supplies in kind.
386-53 Nonweekly periodic payments.
386-54 Commutation of periodic payments.
386-55 Trustee in case of lump sum payments.
386-56 Payment from the special compensation fund in case of default.
386-57 Legal status of right to compensation and compensation payments.
386-71 Duties and powers of the director in general.
386-73 Original jurisdiction over controversies.
386-73.5 Proceedings to determine employment and coverage.
386-79 Medical examination by employer's physician.
386-80 Examination by impartial physician.
386-81 Notice of injury; waiver.
386-82 Claim for compensation; limitation of time.
386-83 When claim within specified time is unnecessary or waived.
386-84 Limitation of time with respect to minors and mentally incompetent.
386-86 Proceedings upon claim; hearings.
386-87 Appeals to appellate board.
386-87.1 Standing to intervene in appeals.
386-89 Reopening of cases; continuing jurisdiction of director.
386-90 Conforming prior decisions on appeal.
386-91 Enforcement of decisions awarding compensation; judgment rendered thereon.
386-92 Default in payments of compensation, penalty.
386-94 Attorneys, physicians, other health care providers, and other fees
386-95 Reports of injuries, other reports, penalty.
386-96 Reports of physicians, surgeons, and hospitals.
386-98 Fraud violations and penalties.
386-99 Posting of information.
386-100 Deductible option for medical benefits in insurance policy.
386-121 Security for payment of compensation; misdemeanor.
386-123 Failure to give security for compensation; penalty; injunction.
386-124 The insurance contract.
386-124.5 Insurer's requirements; failure to maintain claims service office; penalty; injunction.
386-125 Knowledge of employer imputed to insurance carrier.
386-126 Insolvency of employer not to release insurance carrier.
386-127 Cancellation of insurance contracts.
386-128 Insurance by the State, counties, and municipalities.
386-129 Employees not to pay for insurance; penalty.
386-142 Employment rights of injured employees.
386-151 Special compensation fund established and maintained.
386-152 Levy and charges to finance special compensation fund.
386-153 Levy on insurers of employers insured under section 386-121(a)(1).
386-154 Charge against employers not insured under section 386-121(a)(1).
386-154.5 Special assessments.
386-161 Who entitled to compensation.
386-171 Volunteer personnel, medical, etc., expenses.
386-172 Administration and procedure.
386-173 Time for giving notice, etc.
386-193 Authority to act as workers' compensation self-insurance group.
386-195 Certificate of approval; termination.
386-197 Board of trustees; membership, powers, duties, and prohibitions.
386-198 Group membership; termination, liability.
386-201 Financial statements and other reports.
386-202 Misrepresentation prohibited.
386-204 Rates and reporting of rates.
386-206 Premium payment; reserves.
386-207 Deficits and insolvencies.
386-210 Cease and desist orders.