Suing Over a Work Injury in Hawaii

Generally no: workers' comp rights and remedies exclude all other liability of the employer to the worker, the worker's spouse, dependents, next of kin or anyone else entitled to recover damages for the injury, whether under common law or otherwise. The statute's exception allows a civil lawsuit for sexual harassment or sexual assault and infliction of emotional distress or invasion of privacy related to it.

Yes. A worker may collect comp and also sue a third party (not the employer or a co-employee acting in the course of employment) who is liable for the injury, and must notify the employer in writing without delay, by personal service or registered mail, naming the court. If the worker has not sued within nine months after the injury, the employer is subrogated to the worker's rights (the worker may still sue or join). A settlement or release is invalid without the written consent of both employer and worker; from any recovery the employer is reimbursed for comp paid (less its share of fees and costs when the worker brought the suit) and may get a first lien, and the employer is then relieved of further comp up to the remaining net recovery.

Private employers must secure comp by insuring with an authorized insurer, depositing security, proving solvency, or qualified self-insurance or group arrangements. If an injured worker fails to receive prompt and proper compensation through no fault of the worker, the Director of Labor and Industrial Relations pays the full compensation and benefits from the special compensation fund; the employer must then repay the fund on the director's order, and the fund takes over the worker's rights against the employer.