§386-82  Claim for compensation; limitation of time.  The right to compensation under this chapter shall be barred unless a written claim therefor is made to the director of labor and industrial relations[:]

     (1)  Within two years after the date at which the effects of the injury for which the employee is entitled to compensation have become manifest; and

     (2)  Within five years after the date of the accident or occurrence which caused the injury.

     The foregoing limitations of time shall not apply to a claim for injury caused by compressed air or due to occupational exposure to, or contact with, arsenic, asbestos, benzol, beryllium, zirconium, cadmium, chrome, lead, fluorine, or other mineral or substance with carcinogenic properties, as incorporated in the Hawaii Occupational Safety and Health Standards, or to exposure to X-rays, radium, ionizing radiation, or radioactive substances, but such claim shall be barred unless it is made to the director, in writing, within two years after knowledge that the injury was proximately caused by, or resulted from the nature of, the employment.  The claim may be made by the injured employee or the employee's dependents or by some other person on the employee's or their behalf.  The claim shall state in ordinary language the time, place, nature, and cause of the injury. [L 1963, c 116, pt of §1; Supp, §97-91; HRS §386-82; am L 1979, c 114, §1; gen ch 1985]

Revision Note

     In the first paragraph, (1) and (2) reformatted as paragraphs (1) and (2), and in paragraph (1), punctuation changed pursuant to §23G-15.

Case Notes

  Statute of limitations for asserting claim starts from discovery of injury or illness.  50 H. 1, 427 P.2d 845 (1967).

  Condition which causes no loss of function and having no treatment should not be considered an injury.  71 H. 269, 788 P.2d 170 (1990).

  No lawful claim for workers’ compensation benefits were filed with the director where employer’s filing of "WC-1" form did not constitute a claim for workers’ compensation benefits on employee’s behalf and no evidence that employer had been "duly empowered to act" on injured employee’s behalf.  89 H. 411, 974 P.2d 51 (1999).

  Under this section, the two-year statute of limitations for the filing of a workers' compensation claim begins to run when the claimant, as a reasonable person, should recognize the nature, seriousness, and probable compensable character of claimant's injury or disease.  93 H. 8, 994 P.2d 1054 (2000).

  In order to identify the "date of injury" required by the department of labor and industrial relations in connection with the filing of a workers' compensation claim under this section, a claimant in a case arising under the "injury-by-disease" prong of §386-3 may rely upon the last day of employment as the "date of disability", but this "date of disability" may also be the date of diagnosis of the disabling condition.  94 H. 70, 9 P.3d 382 (2000).

  Tolling of limitation period.  2 H. App. 136, 627 P.2d 288 (1981).

  The two-year limitation period begins at a point where the employee's injury has had a disabling effect that prevents employee from working.  2 H. App. 157, 628 P.2d 205 (1981).

  Cited:  24 H. 97, 101 (1917); 24 H. 731, 738 (1919).