Chapter 22

HAWAII 	ADMINISTRATIVE RULES
TITLE 	6
DEPARTMENT OF BUDGET AND 	FINANCE
EMPLOYEES' 	RETIREMENT 	SYSTEM
CHAPTER 	22
CERTIFICATIONS 	AND 	FINDINGS OF THE 	MEDICAL BOARD
OR DESIGNATED ENTITY
§6-22-1
§6-22-2
§6-22-3
§6-22-4
§6-22-5
§6-22-6
§6-22-7
§6-22-8
§6-22-9
§6-22-10
Scope
Definitions
Examination of member
Engagement 	of other 	specialists
Workers' 	compensation and Social 	Security
Administration 	reports 	and 	findings
Position description of member
Pre-existing 	condition of member
Certifications 	and 	findings
Appearance 	as 	witness
Additional 	medical 	reports
§6-22-1 	Scope. 	This 	chapter 	shall 	govern 	the
procedures 	for 	the 	certifications 	and 	findings 	of 	the
medical 	board 	or a 	designated entity 	relating 	to
applications 	for:
(1) 	Ordinary disability 	retirement 	under
sections 	88-75, 	88-284, 	and 	88-334, 	HRS;
(2) 	Service-connected disability 	retirement
under 	sections 	88-79, 	88-80, 	88-285, 	and 	88-
336, 	HRS; 	and
(3) 	Accidental 	death benefits 	under 	sections 	88-
85, 	88-286, 	and 	88-339, 	HRS. 	[Eff 1/9/84;
am and comp 11/26/2009; 	am and comp
APR 1·f 202? 	l 	(Auth: 	HRS 	§88-28)
22-1

(Imp: 	HRS 	§§88-31, 	88-75, 	88-79, 	88-85, 	88-
284, 	88-285, 	88-286, 	88-334, 	88-336, 	88-339)
§6-22-2 	Definitions. 	Definitions 	generally
applicable 	to 	this 	chapter 	are 	also 	provided 	in
section 	88-21, 	HRS, 	and 	section 	6-20-1. 	As 	used 	in
this 	chapter:
"Accident" 	means 	an 	unlooked 	for 	mishap 	or
untoward event which 	is 	not 	expected or designed,
occurring while 	in 	the 	actual 	performance of duty 	at
some 	definite 	time 	and place.
"Actual performance 	of duty": 	If 	the member 	is
disabled as 	the 	natural 	and proximate 	result 	of 	an
accident, 	the 	accident 	shall be deemed 	to have
occurred while 	in 	the 	actual 	performance of duty 	even
if the member may 	not 	have 	been 	actually engaged in
performing 	the 	duties 	of 	the member 1 s 	job; 	provided
that 	the 	accident 	occurred during 	working 	hours
either:
( 1) 	On the 	work 	premises; 	or
( 2) 	At 	wherever 	the member 1 s 	duties 	require 	the
member 	to 	be.
"Designated entity" 	means 	an 	entity designated by
the 	system to 	review 	applications 	for 	disability
retirement 	and 	accidental 	death 	benefits 	and 	to
provide 	findings 	and 	certifications 	to 	the 	system
regarding 	those 	applications 	in accordance 	with
sections 	88-75, 	88-79, 	88-85. 5, 	88-284, 	88-285, 	88-
286, 	88-335, 	88-336, 	or 	88-339, 	HRS.
"Gainful 	employment 11	
means 	substantial 	gainful
employment which 	is 	commensurate with 	the 	member's
age, 	education, 	experience, 	training, 	and physical 	and
mental 	capacities.
"Medical 	board" 	means 	the 	board of 	physicians
provided 	for 	in 	section 	88-31, 	HRS.
11
Natural 	and 	proximate 	result 11 means 	the 	result
that 	would 	naturally 	follow 	from 	the accident,
unbroken by any 	independent 	cause.
"Occupational 	hazard" 	means 	a 	danger 	or 	risk
which 	is 	inherent 	in, 	and concomitant 	to, 	a 	particular
22-2
3'463

occupation. 	To 	be 	considered 	an 	"occupational
hazard," 	the 	causative 	factors 	must 	be 	those 	which are
not 	ordinarily 	incident 	to 	employment 	in general 	and
must 	be different 	in 	character 	from 	those 	found 	in 	the
general 	run 	of 	occupations, 	the 	general 	run 	of
occupations meaning many 	but 	not 	all 	occupations.
"Ordinary disability" 	means 	a 	mental 	or 	physical
incapacity 	for 	the 	further 	performance 	of 	duty, 	that,
at 	the 	time 	of 	the 	application 	for 	disability
retirement, 	is 	likely to 	be permanent.
"Service-connected disability" 	means 	a 	mental 	or
physical 	incapacity 	for 	the 	further 	performance 	of
duty 	that, 	at 	the 	time 	of 	the 	application 	for
disability 	retirement 	is 	likely to 	be permanent, 	is
not 	the 	result 	of 	wilful 	negligence 	on 	the 	member's
part, 	and 	is:
(1) 	The 	natural 	and 	proximate 	result 	of 	an
accident 	occurring while 	in 	the 	actual
performance 	of duty 	at 	some 	definite 	place
and 	time; 	or
(2) 	The 	cumulative 	result 	of 	some 	occupational
hazard.
"Substantial 	gainful 	employment" 	means 	a
significant 	amount 	of 	fairly 	constant 	physical 	or
mental 	work 	activity, 	or 	both, 	which 	is 	productive 	in
nature and 	is 	done 	for 	remuneration or 	profit, 	whether
or 	not 	the 	work 	activity 	is 	part-time, 	pays 	less 	or
has 	less 	responsibility 	than 	that 	of 	the 	person's
previous 	employment; 	provided 	that 	the 	work 	activity:
(1) 	Shall 	amount 	to 	at 	least 	thirty 	hours 	a
week; 	or
(2) 	Shall 	produce 	a 	gross 	income 	of 	not 	less
than an 	amount 	which 	is 	equivalent 	to 	the
minimum hourly wage 	as 	set 	by 	state 	law
multiplied by 	thirty 	hours, 	regardless 	of
the 	number 	of hours 	the 	person may have
actually worked.
"Wilful 	negligence" 	means 	the 	intentional 	failure
to 	use 	ordinary care 	such 	as 	a 	reasonably 	prudent
person would exercise. 	[Eff 	1/9/84; 	am 	2/9/89; 	am and
22-3

comp 11/26/2009; 	am and comp 	APR 11 2022 	] 	(Auth:
HRS 	§88-28) 	(Imp: 	HRS 	§§88-31, 	88-7~, 	88-79, 	88-85,
88-284, 	88-285, 	88-286, 	88-334, 	88-336, 	88-339)
§6-22-3 	Examination of member. 	(a) 	The medical
b oard or 	a 	designated entity, 	as 	determined by 	the
executive 	director 	on 	behalf 	of 	the 	system, 	shall
investigate, 	review, 	and evaluate 	all medical 	reports
submitted to 	it 	as 	well 	as 	the 	employer's 	report 	of
the 	accident as 	submitted 	to 	the 	disability
compensation division 	of the department 	of 	labor 	and
industrial 	relations 	and 	the member's 	position
description submitted by or on 	behalf of 	the 	member's
employer.
(b) 	The applicant 	shall 	submit medical 	reports 	to
the 	medical 	board or designated 	entity 	as 	provided 	in
section 	6-26-7, 	including 	the 	physician's 	statement.
The medical 	board or designated 	entity may, 	at 	its
discretion, 	disregard any medical 	reports 	or 	other
records 	submitted:
(1) 	More 	than 	sixty days 	after 	the 	application
has been 	filed; 	or
(2) 	After any 	longer 	period of 	time 	that 	the
medical 	board or 	designated entity expressly
provides 	for 	the 	submission of medical
reports 	or other 	records.
The medical 	board or designated entity may disregard
any 	medical 	reports 	or other 	records 	submitted to 	it
after 	it 	has 	issued 	its 	certifications 	and 	findings
pursuant 	to section 	6-22-8, 	except 	as 	provided 	in
section 	6-22-10. 	The medical 	board or 	designated
entity may or may 	not, 	at 	its 	discretion, 	subject 	the
member 	to 	a 	physical 	examination 	in arriving at 	its
certifications 	and 	findings 	on 	all 	matters 	r 'eferred 	to
it. 	(Eff 	1/9/84; 	am and comp 	11/26/2009; 	am and comp
AP~ 	1· 1 ?0?? 	) 	(Auth: 	HRS 	§88-28) 	(Imp: 	HRS
§§88'...:~n,, 88-75, 	88-79, 	88-85, 	88-284, 	88-285, 	88-286,
88-334, 	88-336, 	88-339)

§6-22-4 	Engagement of other 	specialists. 	The
medical 	board 	or designated entity, 	if 	it 	deems
necessary, 	may 	at 	the 	expense 	of 	the 	system engage
other 	physicians 	or 	specialists, 	or 	both, 	to 	examine
the member 	or 	review 	records 	as 	requested, 	or 	both,
and 	report 	their 	findings 	to 	the medical 	board or
designated 	entity. 	[Eff 	1/9/84; 	am and 	comp
11/26/2009; 	am and 	comp 	APR t· 1 ?022 	] 	(Auth: 	HRS
§88-28) 	(Imp: 	HRS 	§§88-31, 	88'-75, 	88-79, 	88-85,
88~284, 	88-285, 	88-286, 	88-334, 	88-336, 	88-339)
§6-22-5 	Workers' 	compensation and Social
Security Administration reports and findings. 	Any
determination 	of 	the 	disability 	compensation division
of 	the department 	of 	labor 	and 	industrial 	relations,
the 	labor and 	industrial 	relations 	appeals 	board, 	and
the 	Social 	Security Administration 	relating 	to 	the
same 	in c apacity 	for 	which 	the 	applicant 	or member 	is
claiming a 	disability or death 	benefit may be 	taken
into 	consideration; 	however, 	that 	determination 	shall
not 	be 	binding 	upon 	the 	medical 	board, 	designated
entity, 	or 	the 	system. 	[ Eff 	1 /9/84; 	am and 	comp
11/26/2009; 	am and 	comp 	APR 	1·1 2022 	I 	(Auth: 	HRS
§88-28) 	{Imp: 	HRS 	§§88-31, 	88'....75, 	88-79, 	88-85, 	88-
284, 	88-285, 	88-286, 	88-334, 	88-336, 	88-339)
§6-22-6 	Position description of member. 	The
determination of whether 	the member 	is 	incapacitated
for 	the 	further 	performance 	of duty 	shall 	be 	related
to 	the 	duties 	prescribed 	in the 	official 	position
description 	of 	the 	employing agency 	in which 	the
member was 	employed at 	the 	time 	the 	accident 	which
resulted 	in 	the 	condition occurred. 	The medical 	board
or designated entity may consider 	other 	probative 	and
credible evidence 	of 	the member's 	actual 	job duties.
[Eff 	1/9/84; 	am and comp 	11/26/2009; 	am and comp
APR 1·1 ?0?? 	l 	(Auth: 	HRS 	§88-28) 	(Imp: 	HRS
§§88-31, ' 88-75, 	88-79, 	88-284, 	88-285, 	88-334, 	88-336)
22-5

§G-22-7 	Pre-existing condition of member.
Permanent 	incapacity 	that 	is 	caused by or 	results 	from
the 	natural 	deterioration, 	degeneration, 	or
progression of 	a 	non-service 	connected pre-existing
condition 	is 	not 	the 	natural 	and 	proximate 	result 	of
an 	accident 	nor 	is 	it 	the 	cumulative 	result 	of 	some
occupational 	hazard. 	The medical 	board 	or designated
entity 	shall 	not 	consider, 	and 	the 	system shall 	not
grant, 	disability 	retirement 	benefits 	for 	a 	permanent
incapacity 	that 	is 	caused by 	or 	results 	from 	the
natural 	deterioration, 	degeneration, 	or 	progression 	of
a 	non-service connected pre-existing 	condition.
Whenever 	there 	is 	evidence 	of 	a 	non-service connected
pre-existing condition, 	the 	applicant 	shall 	have 	the
burden of 	proof, 	including 	the 	burden 	of producing
evidence 	and 	the 	burden 	of 	persuasion, 	of 	proving 	that
the 	member's 	permanent 	incapacity was 	not 	caused by
and 	did 	not 	result 	from 	the 	natural 	deterioration,
degeneration, 	or progression of 	the 	non-service
connected pre-existing 	condition. 	The
degree 	or 	quantum of 	proof 	required 	shall 	be by a
preponderance of 	the 	evidence. 	[Eff 	1/9/84; 	am 	2/9/89;
am and comp 	11/26/2009; 	am and comp 	APR 1 1 2022 	l
(Au th : 	HRS 	§ 8 8 - 2 8 ) 	( I mp : 	HRS § § 8 8 - 3 1 , 	8 8" - 7 9, 	8 8 -
285, 	88-336)
§ G-2 2-8 	Certifications and findings. 	Upon
completion 	of 	the 	examination of 	the member 	and 	the
reports 	submitted to 	it, 	the 	medical 	board 	or
designated 	entity shall 	certify 	in 	writing 	to 	the
system 	the 	following:
(1) 	In 	the 	case 	of 	an 	application 	for 	ordinary
disability or 	service-connected disability
retirement, 	whether, 	at 	the 	time 	of 	the
application:
22-6

(A) 	The member 	is 	incapacitated 	for 	the
further 	performance 	of duty 	or 	for
gainful 	employment; 	and
(B) 	The member's 	incapacity 	for 	the 	further
performance 	of duty 	or 	for 	gainful
employment 	is 	likely 	to 	be 	permanent.
(2) 	In 	the case 	of 	an 	application 	for 	service-
connected disability 	retirement 	or 	for
accidental 	death 	benefits, 	whether 	the
incapacity or death 	is:
(A) 	The 	natural 	and proximate 	result 	of 	an
accident 	occurring while 	in 	the 	actual
performance 	of duty 	at 	some 	definite
time 	and 	place; 	or
(B) 	The 	cumulative 	result 	of 	some
occupational 	hazard 	(in 	the 	case 	of
service-connected disability
retirement) 	or 	the 	result 	of 	some
occupational 	hazard 	{in 	the 	case 	of
accidental 	death benefits); 	and
(C) 	Through 	no 	wilful 	negligence on 	the
part 	of 	the 	member. 	[Eff 1/9/84; 	am and
comp 	11/26/2009; 	am and 	comp
APR 	1 f ?O?? 	l 	(Auth: 	HRS §88-28)
(Imp: 	HRS 	§§88-31, 	88-75, 	88-79, 	88-
85, 	88-284, 	88-285, 	88-286, 	88-334, 	88-
336, 	88-339)
§6-22-9 	Appearance as 	witness. 	One 	or more 	of
the 	members 	of 	the 	medical 	board may serve 	as 	a
witness 	on 	behalf 	of 	the 	medical 	board, 	whenever
required 	to do so, 	at 	any 	hearing 	of 	an appeal 	from
the 	certifications 	and 	findings 	of 	the medical 	board.
One 	or more 	representatives 	of 	a 	designated entity may
serve 	as 	a 	witness 	on 	behalf of 	the 	designated entity,
whenever 	required 	to 	do 	so, 	at 	any 	hearing 	of 	an
appeal 	from 	the 	certifications 	and 	findings 	of the
designated 	entity. 	[Eff 	1/9/84; 	am and 	comp
11/26/2009; 	am and 	comp 	APR 	t··,1 ?0?? ] 	(Auth: 	HRS
22-7

§88-28) 	(Imp: 	HRS 	§§88-31, 	88-75, 	88-79, 	88-85, 	88-
284, 	88-285, 	88-286, 	88-334, 	88-336, 	88-339)
§G-22-10 	Additional medical reports. 	Upon
receipt of 	prior approval 	of 	the 	executive director 	on
behalf of 	the system, 	the 	medical 	board or a
designated entity may consider 	additional medical
reports 	offered by the 	applicant 	after 	the 	submission
of the 	medical 	board's 	or 	designated 	entity's
certifications 	and 	findings 	to 	the 	system; 	provided,
however, 	the 	additional 	medical 	reports 	must 	relate 	to
the 	condition of 	the member 	at 	the 	time 	of 	the
application 	and any determination 	of disability 	shall
be 	related 	to 	the 	condition 	of 	the member 	at 	the 	time
of 	application. 	[Eff 	1/9/84; 	am and 	comp 	11/26/2009;
am and 	comp 	APR 	t 1 ?n?? 	l 	(Auth: 	HRS 	§88-28) 	(Imp:
HRS 	§§88-31, 	88-75, 	ffS'-79, 	88-85, 	88-284, 	88-285, 	88-
286, 	88-334, 	88-336, 	88-339)
22-8