§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).