2.  death

     §386-41  Entitlement to and rate of compensation.  (a)  Funeral and burial allowance.  Where a work injury causes death, the employer shall pay funeral expenses not to exceed ten times the maximum weekly benefit rate to the mortician and burial expenses not to exceed five times the maximum weekly benefit rate to the cemetery selected by the family including a reciprocal beneficiary or next of kin of the deceased or in the absence of such family including a reciprocal beneficiary or next of kin, by the employer.  Such payments shall be made directly to the mortician and cemetery; provided that when the deceased has a prepaid funeral and burial plan such payments for funeral and burial expenses, not to exceed the foregoing limits, shall be made directly to the surviving spouse or reciprocal beneficiary or the decedent's estate if there is no surviving spouse or reciprocal beneficiary.

     (b)  Weekly benefits for dependents.  In addition, the employer shall pay weekly benefits to the deceased's dependents at the percentages of the deceased's average weekly wages specified below, taking into account not more than the maximum weekly benefit rate prescribed in section 386-31 divided by .6667 and not less than the minimum prescribed in the section divided by .6667.

     To the dependent widow, widower, or reciprocal beneficiary, if there are no dependent children, fifty per cent.

     To the dependent widow, widower, or reciprocal beneficiary, if there are one or more dependent children of the deceased, sixty-six and two-thirds per cent.  The compensation to the widow, widower, or reciprocal beneficiary shall be for the use and benefit of the widow, widower, or reciprocal beneficiary and of the dependent children, and the director of labor and industrial relations from time to time may apportion the compensation between them in such way as the director deems best.

     If there is no dependent widow, widower, or reciprocal beneficiary, but a dependent child, then to the child forty per cent, and if there is more than one dependent child, then to the children in equal parts sixty-six and two-thirds per cent.

     If there is no dependent widow, widower, or reciprocal beneficiary, or child, but there is a dependent parent, then to the parent, if wholly dependent fifty per cent, or if partially dependent twenty-five per cent; if both parents are dependent, then one-half of the foregoing compensation to each of them; if there is no dependent parent, but one or more dependent grandparents, then to each of them the same compensation as to a parent.

     If there is no dependent widow, widower, or reciprocal beneficiary, child, parent or grandparent, but there is a dependent grandchild, brother, or sister, or two or more of them, then to those dependents thirty-five per cent for one dependent, increased by fifteen per cent for each additional dependent, to be divided equally among the dependents if more than one.

     (c)  Maximum weekly amounts.  The sum of all weekly benefits payable to the dependents of the deceased employee shall not exceed sixty-six and two-thirds per cent of the employee's average weekly wages, computed by observing the limits specified in subsection (b), if necessary, the individual benefits shall be proportionally reduced.

     (d)  Liability in the absence of dependents.  If there be no dependents who are entitled to benefits under this section, the employer shall pay an amount equal to twenty-five per cent of three hundred and twelve times the effective maximum weekly benefit rate provided in section 386-31, to the nondependent parent or parents.  If there be no such parent or parents, the employer shall pay the sum into the special compensation fund, pursuant to an order made by the director.  The employer, pursuant to an order made by the director, shall pay any remaining balance into the special compensation fund, if the weekly benefits to which dependents are entitled terminate without totalling the amounts as calculated above. [L 1963, c 116, pt of §1; am L 1965, c 152, §1(b); Supp, §97-40; HRS §386-41; am L 1971, c 24, §1 and c 101, §1; am L 1972, c 42, §4; am L 1973, c 64, §1; am L 1974, c 153, §4; am L 1977, c 87, §1; am L 1982, c 52, §1; gen ch 1985; am L 1991, c 72, §1 and c 98, §1; am L 1997, c 383, §53]

Attorney General Opinions

  Cited in discussion of hanai children.  Att. Gen. Op. 93-1.

Case Notes

  The date-of-death maximum weekly benefit rate should be used to calculate death benefits.  109 H. 255, 125 P.3d 476 (2005).

  Cited:  43 H. 173, 175 (1959).