2008 -- S 3111

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LC03094

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2008

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A N A C T

RELATING TO LABOR AND LABOR RELATIONS - WORKERS' COMPENSATION -

BENEFITS

     Introduced By: Senators Connors, Ruggerio, Ciccone, Lanzi, and P Fogarty

     Date Introduced: June 12, 2008

     Referred To: Senate Labor

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 28-29-2 and 28-29-7.2 of the General Laws in Chapter 28-29

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entitled "Workers' Compensation - General Provisions" are hereby amended to read as follows:

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     28-29-2. Definitions. -- In chapters 29 -- 38 of this title, unless the context otherwise

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requires:

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      (1) "Department" means the department of labor and training.

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      (2) "Director" means the director of labor and training or his or her designee unless

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specifically stated otherwise.

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      (3) (i) "Earnings capacity" means the weekly straight time earnings which an employee

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could receive if the employee accepted an actual offer of suitable alternative employment.

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Earnings capacity can also be established by the court based on evidence of ability to earn,

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including, but not limited to, a determination of the degree of functional impairment and/or

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disability, that an employee is capable of employment. The court may, in its discretion, take into

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consideration the performance of the employee's duty to actively seek employment in scheduling

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the implementation of the reduction. The employer need not identify particular employment

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before the court can direct an earnings capacity adjustment. In the event that an employee returns

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to light duty employment while partially disabled, an earnings capacity shall not be set based

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upon actual wages earned until the employee has successfully worked at light duty for a period of

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at least thirteen (13) weeks.

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      (ii) As used under the provisions of this title, "functional impairment" means an

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anatomical or functional abnormality existing after the date of maximum medical improvement as

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determined by a medically or scientifically demonstrable finding and based upon the most recent

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edition Fifth (5th) edition of the American Medical Association's Guide to the Evaluation of

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Permanent Impairment or comparable publications of the American Medical Association.

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      (iii) In the event that an employee returns to employment at an average weekly wage

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equal to the employee's pre-injury earnings exclusive of overtime, the employee will be presumed

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to have regained his/her earning capacity.

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      (4) "Employee" means any person who has entered into the employment of or works

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under contract of service or apprenticeship with any employer, except that in the case of a city or

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town other than the city of Providence it shall only mean that class or those classes of employees

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as may be designated by a city, town, or regional school district in a manner provided in this

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chapter to receive compensation under chapters 29 -- 38 of this title. Any person employed by the

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state of Rhode Island, except for sworn employees of the Rhode Island State Police, or by the

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Rhode Island Airport Corporation who is otherwise entitled to the benefits of chapter 19 of title

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45 shall be subject to the provisions of chapters 29 -- 38 of this title for all case management

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procedures and dispute resolution for all benefits. The term "employee" does not include any

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individual who is a shareholder or director in a corporation, general or limited partners in a

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general partnership, a registered limited liability partnership, a limited partnership, or partners in

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a registered limited liability limited partnership, or any individual who is a member in a limited

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liability company. These exclusions do not apply to shareholders, directors and members who

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have entered into the employment of or who work under a contract of service or apprenticeship

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within a corporation or a limited liability company. The term "employee" also does not include a

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sole proprietor, independent contractor, or a person whose employment is of a casual nature, and

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who is employed other than for the purpose of the employer's trade or business, or a person

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whose services are voluntary or who performs charitable acts, nor shall it include the members of

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the regularly organized fire and police departments of any town or city; provided however, that it

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shall include the members of the police and aircraft rescue and firefighting (ARFF) units of the

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Rhode Island Airport Corporation. Whenever a contractor has contracted with the state, a city,

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town, or regional school district any person employed by that contractor in work under contract

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shall not be deemed an employee of the state, city, town, or regional school district as the case

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may be. Any person who on or after January 1, 1999, was an employee and became a corporate

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officer shall remain an employee, for purposes of these chapters, unless and until coverage under

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this act is waived pursuant to subsection 28-29-8(b) or section 28-29-17. Any person who is

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appointed a corporate officer between January 1, 1999 and December 31, 2001, and was not

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previously an employee of the corporation, will not be considered an employee, for purposes of

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these chapters, unless that corporate officer has filed a notice pursuant to subsection 28-29-19(b).

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In the case of a person whose services are voluntary or who performs charitable acts, any benefit

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received, in the form of monetary remuneration or otherwise, shall be reportable to the

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appropriate taxation authority but shall not be deemed to be wages earned under contract of hire

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for purposes of qualifying for benefits under chapters 29 -- 38 of this title. Any reference to an

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employee who had been injured shall, where the employee is dead, include a reference to his or

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her dependents as defined in this section, or to his or her legal representatives, or, where he or she

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is a minor or incompetent, to his or her conservator or guardian. A "seasonal occupation" means

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those occupations in which work is performed on a seasonal basis of not more than sixteen (16)

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weeks.

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      (5) "Employer" includes any person, partnership, corporation, or voluntary association,

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and the legal representative of a deceased employer; it includes the state, and the city of

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Providence. It also includes each city, town, and regional school district in the state that votes or

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accepts the provisions of chapters 29 -- 38 of this title in the manner provided in this chapter.

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      (6) "General or special employer":

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      (i) "General employer" includes but is not limited to temporary help companies and

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employee leasing companies and means a person who for consideration and as the regular course

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of its business supplies an employee with or without vehicle to another person.

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      (ii) "Special employer" means a person who contracts for services with a general

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employer for the use of an employee, a vehicle, or both.

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      (iii) Whenever there is a general employer and special employer wherein the general

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employer supplies to the special employer an employee and the general employer pays or is

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obligated to pay the wages or salaries of the supplied employee, then, notwithstanding the fact

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that direction and control is in the special employer and not the general employer, the general

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employer, if it is subject to the provisions of the Workers' Compensation Act or has accepted that

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Act, shall be deemed to be the employer as set forth in subdivision (5) of this section and both the

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general and special employer shall be the employer for purposes of sections 28-29-17 and 28-29-

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18.

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      (iv) Effective January 1, 2003, whenever a general employer enters into a contract or

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arrangement with a special employer to supply an employee or employees for work, the special

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employer shall require an insurer generated insurance coverage certification, on a form prescribed

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by the department, demonstrating Rhode Island workers' compensation and employer's liability

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coverage evidencing that the general employer carries workers' compensation insurance with that

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insurer with no indebtedness for its employees for the term of the contract or arrangement. In the

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event that the special employer fails to obtain and maintain at policy renewal and thereafter this

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insurer generated insurance coverage certification demonstrating Rhode Island workers'

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compensation and employer's liability coverage from the general employer, the special employer

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is deemed to be the employer pursuant to the provisions of this section. Upon the cancellation or

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failure to renew, the insurer having written the workers' compensation and employer's liability

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policy shall notify the certificate holders and the department of the cancellation or failure to

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renew and upon notice, the certificate holders shall be deemed to be the employer for the term of

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the contract or arrangement unless or until a new certification is obtained.

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      (7) (i) "Injury" means and refers to personal injury to an employee arising out of and in

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the course of his or her employment, connected and referable to the employment.

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      (ii) An injury to an employee while voluntarily participating in a private, group, or

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employer-sponsored carpool, vanpool, commuter bus service, or other rideshare program, having

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as its sole purpose the mass transportation of employees to and from work shall not be deemed to

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have arisen out of and in the course of employment. Nothing in the foregoing provision shall be

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held to deny benefits under chapters 29 -- 38 and chapter 47 of this title to employees such as

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drivers, mechanics, and others who receive remuneration for their participation in the rideshare

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program. Provided, that the foregoing provision shall not bar the right of an employee to recover

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against an employer and/or driver for tortious misconduct.

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      (8) "Maximum medical improvement" means a point in time when any medically

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determinable physical or mental impairment as a result of injury has become stable and when no

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further treatment is reasonably expected to materially improve the condition. Neither the need for

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future medical maintenance nor the possibility of improvement or deterioration resulting from the

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passage of time and not from the ordinary course of the disabling condition, nor the continuation

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of a pre-existing condition precludes a finding of maximum medical improvement. A finding of

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maximum medical improvement by the workers' compensation court may be reviewed only

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where it is established that an employee's condition has substantially deteriorated or improved.

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      (9) "Physician" means medical doctor, surgeon, dentist, licensed psychologist,

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chiropractor, osteopath, podiatrist, or optometrist, as the case may be.

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      (10) "Suitable alternative employment" means employment or an actual offer of

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employment which the employee is physically able to perform and will not exacerbate the

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employee's health condition and which bears a reasonable relationship to the employee's

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qualifications, background, education, and training. The employee's age alone shall not be

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considered in determining the suitableness of the alternative employment.

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      (11) "Independent contractor" means a person who has filed a notice of designation as

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independent contractor with the director pursuant to section 28-29-17.1 or as otherwise found by

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the workers' compensation court.

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     28-29-7.2. Farm laborers. -- Farmers, nursery operators, arborists, or farm laborers are

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not subject to the provisions of chapters 29 -- 38 of this title unless the farmers or agricultural

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employers employ twenty-five (25) or more farm laborers or agricultural employees for thirteen

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(13) consecutive weeks. Farmers, nursery operators, arborists, or agricultural employers who

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employ twenty-five (25) or more farm laborers or agricultural employees for thirteen (13)

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consecutive weeks are not subject to the provisions of chapters 29 -- 38 of this title if the farmer

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or agricultural employer maintains health and disability insurance for all of its farm laborers or

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agricultural employees; provided, that the health and disability insurance premium exceeds the

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premium for workers' compensation insurance. Farmers or agricultural employers who employ

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twenty-five (25) or more farm laborers or agricultural employees for thirteen (13) consecutive

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weeks are subject to chapters 29 -- 38 of this title for those agricultural enterprises which produce

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greenhouse crops, fruit and vegetable crops, herbaceous crops, sod crops, viticulture, viniculture,

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floriculture, feed for livestock, forestry, dairy farming, aquaculture, the raising of livestock, fur-

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bearing animals, poultry and eggs, bees and honey, mushrooms, and nursery stock.

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     SECTION 2. Sections 28-33-18 and 28-33-18.3 of the General Laws in Chapter 28-33

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entitled "Workers' Compensation - Benefits" are hereby amended to read as follows:

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     28-33-18. Weekly compensation for partial incapacity. -- (a) While the incapacity for

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work resulting from the injury is partial, the employer shall pay the injured employee a weekly

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compensation equal to seventy-five percent (75%) of the difference between his or her spendable

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average weekly base wages, earnings, or salary before the injury as computed pursuant to the

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provisions of section 28-38-20, and his or her spendable weekly wages, earnings, salary, or

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earnings capacity after that, but not more than the maximum weekly compensation rate for total

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incapacity as set forth in section 28-33-17. The provisions of this section are subject to the

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provisions of section 28-33-18.2.

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      (b) For all injuries occurring on or after September 1, 1990, where an employee's

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condition has reached maximum medical improvement and the incapacity for work resulting from

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the injury is partial, while the incapacity for work resulting from the injury is partial, the

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employer shall pay the injured employee a weekly compensation equal to seventy percent (70%)

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of the weekly compensation rate as set forth in subsection (a) of this section. The court may, in its

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discretion, take into consideration the performance of the employee's duty to actively seek

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employment in scheduling the implementation of the reduction. The provisions of this subsection

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are subject to the provisions of section 28-33-18.2.

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      (c) (1) Earnings capacity determined from degree of functional impairment pursuant to

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section 28-29-2(3) shall be determined as a percentage of the whole person based on the most

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recent Fifth (5th) addition edition of the American Medical Association Guides To The Value Of

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Permanent Impairment. Earnings capacity shall be calculated from the percentage of impairment

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as follows:

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      (i) For impairment of five percent (5%) or less, earnings capacity shall be calculated so

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as to extinguish one hundred percent (100%) of weekly benefits.

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      (ii) For impairment of twenty-five percent (25%) or less, but greater than five percent

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(5%), earnings capacity shall be calculated so as to extinguish one hundred percent (100%) less

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the percent of impairment of weekly benefits.

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      (iii) For impairment of fifty percent (50%) or less, but greater than twenty-five percent

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(25%), earnings capacity shall be calculated so as to extinguish one hundred percent (100%) less

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one point two five (1.25) times the percent of impairment of weekly benefits.

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      (iv) For impairment of sixty-five percent (65%) or less, but greater than fifty percent

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(50%), earnings capacity shall be calculated so as to extinguish one hundred percent (100%) less

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one point five (1.5) times the percent of impairment of weekly benefits.

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      (2) An earnings capacity adjustment under this section shall be applicable only when the

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employee's condition has reached maximum medical improvement under section 28-29-2(3)(ii)

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and benefits are subject to adjustment pursuant to subsection (b) of this section.

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      (d) In the event partial compensation is paid, in no case shall the period covered by the

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compensation be greater than three hundred and twelve (312) weeks. In the event that

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compensation for partial disability is paid under this section for a period of three hundred and

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twelve (312) weeks, the employee's right to continuing weekly compensation benefits shall be

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determined pursuant to the terms of section 28-33-18.3. At least twenty-six (26) weeks prior to

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the expiration of the period, the employer or insurer shall notify the employee and the director of

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its intention to terminate benefits at the expiration of three hundred and twelve (312) weeks and

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advise the employee of the right to apply for a continuation of benefits under the terms of section

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28-33-18.3. In the event that the employer or insurer fails to notify the employee and the director

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as prescribed, the employer or insurer shall continue to pay benefits to the employee for a period

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equal to twenty-six (26) weeks after the date the notice is served on the employee and the

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director.

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     28-33-18.3. Continuation of benefits -- Partial incapacity. -- (a) (1) For all injuries

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occurring on or after September 1, 1990, in those cases where the employee has received a notice

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of intention to terminate partial incapacity benefits pursuant to section 28-33-18, the employee or

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his or her duly authorized representative may file with the workers' compensation court a petition

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for continuation of benefits on forms prescribed by the workers' compensation court. In any

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proceeding before the workers' compensation court on a petition for continuation of partial

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incapacity benefits, where the employee demonstrates by a fair preponderance of the evidence

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that his or her partial incapacity poses a material hindrance to obtaining employment suitable to

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his or her limitation, partial incapacity benefits shall continue. For injuries on and after July 1,

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2007 2010, "material hindrance" is defined to include only compensable injuries causing a greater

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than sixty-five percent (65%) degree of functional impairment and/or disability. Any period of

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time for which the employee has received benefits for total incapacity shall not be included in the

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calculation of the three hundred and twelve (312) week period.

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      (2) The provisions of this subsection apply to all injuries from Sept. 1, 1990, to July 1,

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2007 2010.

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      (b) (1) Where any employee's incapacity is partial and has extended for more than three

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hundred and twelve (312) weeks and the employee has proved an entitlement to continued

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benefits under subsection (a) of this section, payments made to these incapacitated employees

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shall be increased annually on the tenth (10th) day of May thereafter so long as the employee

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remains incapacitated. The increase shall be by an amount equal to the total percentage increase

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in the annual consumer price index, United States city average for urban wage earners and

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clerical workers, as formulated and computed by the Bureau of Labor Statistics of the United

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States Department of Labor for the period of March 1 to February 28 each year.

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      (2) "Index" as used in this section refers to the consumer price index, United States city

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average for urban wage earners and clerical workers, as that index was formulated and computed

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by the Bureau of Labor Statistics of the United States Department of Labor.

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      (3) The annual increase shall be based upon the percentage increase, if any, in the

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consumer price index for the month of a given year, over the index for February, the previous

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year. Thereafter, increases shall be made on May 10 annually, based upon the percentage

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increase, if any, in the consumer price index for the period of March 1 to February 28.

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      (4) The computations in this section shall be made by the director of labor and training

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and promulgated to insurers and employers making payments required by this section. Increases

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shall be paid by insurers and employers without further order of the court. If payment payable

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under this section is not mailed within fourteen (14) days after the employer or insurer has been

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notified by publication in a newspaper of general circulation in the state it becomes due, there

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shall be added to the unpaid payment an amount equal to twenty percent (20%) of it, to be paid at

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the same time as but in addition to the payment.

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      (5) This section applies only to payment of weekly indemnity benefits to employees as

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described in subdivision (1) of this subsection, and does not apply to specific compensation

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payments for loss of use or disfigurement or payment of dependency benefits or any other

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benefits payable under the Workers' Compensation Act.

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      (c) No petitions for commutation shall be allowed or entertained in those cases where an

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employee is receiving benefits pursuant to this section.

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     SECTION 3. Sections 28-36-12 and 28-36-15 of the General Laws in Chapter 28-36

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entitled "Workers' Compensation - Insurance" are hereby amended to read as follows:

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     28-36-12. Notice of issuance, cancellation, or failure to renew policies. -- (a) Every

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insurance company having written a policy insuring against liability for personal injuries to

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employees shall notify the director of the issuance of the policy within thirty (30) five (5) days of

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the effective date of this policy in a manner determined by the director. Upon the cancellation of

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the policy or failure to renew it, every insurance company having written the policy shall

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immediately notify the director of the cancellation or failure to renew. The director shall have

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discretion to assess an administrative penalty of not more than two hundred fifty dollars ($250)

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per offense against any insurance company that fails to notify the director as required in this

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section. The director, in his or her discretion, may bring a civil action to collect all assessed civil

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penalties. The workers' compensation court shall have jurisdiction to enforce compliance with

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any order of the director made pursuant to this section. Additionally, any insurance company that

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willfully fails to notify the director as required in this section shall be subject to prosecution for a

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misdemeanor and upon conviction may be punished by a fine of not more than two hundred fifty

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dollars ($250) for each offense. All criminal actions for any violation of this section shall be

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prosecuted by the attorney general at the request of the director.

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      (b) Cancellation of the policy or non-renewal shall not be deemed effective until written

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notice of the cancellation or non-renewal is received by the director.

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      (c) All penalties and fines collected pursuant to this section shall be deposited in the

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general fund.

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     28-36-15. Penalty for failure to secure compensation -- Personal liability of

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corporate officers. -- (a) Any employer required to secure the payment of compensation under

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chapters 29 -- 38 of this title who knowingly fails to secure that compensation shall be guilty of a

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felony and shall be subject to imprisonment for up to two (2) years. In addition to the foregoing,

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the employer shall be subject to a civil penalty punished by a fine of not less than five hundred

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dollars ($500) and not more than not to exceed one thousand dollars ($1,000) for each day of

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noncompliance with the requirements of this title. The director shall institute any and all

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reasonable measures to comprehensively monitor, investigate, and otherwise discover all

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employer noncompliance with this section and shall establish rules and regulations governing

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these measures. Each day shall constitute a separate and distinct offense for calculation of the

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penalty. Where that employer is a corporation the president, vice president, secretary, treasurer,

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and other officers of the corporation, shall be severally liable for the fine, penalty or

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imprisonment as provided in this section for the failure of that corporation to secure the payment

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of compensation. The president, vice president, secretary, treasurer, and other officers of the

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corporation shall also be severally personally liable, jointly with the corporation for any

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compensation or other benefit which may accrue under those chapters in respect to any injury

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which may occur to any employee of that corporation while it fails to secure the payment of

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compensation as required by those chapters.

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      (b) Where the employer is a limited liability company, the managers and managing

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members who knowingly fail to secure the payment of compensation under chapters 29 -- 38 of

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this title shall be guilty of a felony and shall be subject to imprisonment for up to two (2) years.

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The managers and managing members shall also be severally liable for the fine, penalty or

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imprisonment as provided in this section for the failure of that company to secure the payment of

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compensation. The managers and managing members shall be severally personally liable, jointly

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with the company, for any compensation or other benefit which may accrue under those chapters

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in respect to any injury which may occur to any employee of that company while it fails to secure

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the payment of compensation as required by those chapters.

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      (c) Where the employer is a partnership, or a registered limited liability partnership, the

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partners who knowingly fail to secure the payment of compensation under chapters 29 -- 38 of

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this title shall be guilty of a felony and shall be subject to imprisonment for up to two (2) years.

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The partners shall also be severally liable for the fine, penalty, or imprisonment as provided in

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this section for the failure of that partnership to secure the payment of compensation. The partners

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shall be severally personally liable, jointly with the partnership, for any compensation or other

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benefit which may accrue under those chapters in respect to any injury which may occur to any

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employee of that partnership while it fails to secure the payment as required by those chapters.

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      (d) Where the employer is a limited partnership or a registered limited liability limited

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partnership, the general partners who knowingly fail to secure the payment of compensation

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under chapters 29 -- 38 of this title shall be guilty of a felony and shall be subject to

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imprisonment for up to two (2) years. The general partners shall also be severally liable for the

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fine, penalty or imprisonment as provided in this section for the failure of that limited partnership

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to secure the payment of compensation. The general partners shall be severally personally liable,

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jointly with the limited partnership, for any compensation or other benefit which may accrue

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under those chapters in respect to any injury which may occur to any employee of that partnership

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while it fails to secure the payment of compensation as required by those chapters.

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      (e) All criminal actions for any violation of this section shall be prosecuted by the

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attorney general. The attorney general shall prosecute actions to enforce the payment of penalties

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and fines at the request of the director. The workers' compensation court shall have jurisdiction

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over all civil actions filed pursuant to this section.

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     The court shall consider the following factors in assessing a civil penalty: gravity of

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offense, resources of the employer, effect of the penalty on employees of the company, the reason

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for the lapse in coverage, and the recommendation of the director. Following a review of the

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factors set forth above, the court may suspend all or a part of a civil penalty or shall establish a

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time table for compliance with any court order.

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      (f) (1) As soon as practicable after the director receives notice of noncompliance under

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this section, the director shall determine whether cause exists for the imposition of a civil penalty.

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Unless the director determines that the noncompliance was unintentional or the result of a clerical

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error and subject to the administrative proceedings under subsection (g) of this section, the

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director shall commence an action in the workers' compensation court to assess a civil penalty

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against the employer as set forth in subsection (a) of this section and shall refer the matter to the

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attorney general for prosecution of criminal charges.

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      (2) The director shall bring a civil action in the workers' compensation court to collect all

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payments and penalties ordered and not paid. All civil actions for any violations of this chapter or

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of any of the rules or regulations promulgated by the director, or for the collection of payments in

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accordance with section 28-37-13, 28-33-17.3(a)(2) or 28-33-17.3(a)(3) or civil penalties under

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this chapter, shall be prosecuted by any qualified member of the Rhode Island bar whom the

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director may designate, in the name of the director, and the director is exempt from giving surety

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for costs in any proceedings.

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      (g) In the case of unintentional noncompliance or noncompliance resulting from clerical

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error where the uninsured period is less than one year from the date of discovery and there were

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no employees injured during the uninsured period and the employer has not been subject to any

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other findings of noncompliance with these chapters, the director shall assess an administrative

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penalty of not less than the estimated annual workers' compensation insurance premium for that

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employer and not more than triple that amount. Any party has the right to appeal the orders of the

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director. Such appeal shall be to the workers' compensation court in the first instance and

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thereafter from the workers' compensation court to the Rhode Island supreme court in accordance

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with section 28-35-30.

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      (h) The director shall collect all payments under this chapter under the rules and

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regulations that may be set forth by the director. All fines collected pursuant to this section shall

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be deposited to a restricted receipt account to be administered by the director of the department of

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labor and training in his or her sole discretion to carry out chapters 29 -- 38 of this title.

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      (i) (1) In that the operation of a commercial enterprise without the required workers'

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compensation insurance is a crime and creates a clear and present danger of irreparable harm to

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employees who are injured while the employer is uninsured, the director shall suspend the

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operation of the business immediately and until workers' compensation and employers' liability

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insurance is secured consistent with these chapters. The director shall lift the suspension upon

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receipt of satisfactory proof of insurance and evidence sufficient to satisfy the director that the

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employer is in full compliance with these chapters. Any party has the right to appeal the

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suspension to the workers' compensation court where the matter shall proceed pursuant to the

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workers' compensation court rules of procedure.

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      (2) In the event that the employer shall fail to comply with the director's order of

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suspension, the director may apply immediately to the workers' compensation court for an order

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directing the employer to comply with the director's prior orders.

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      (3) Actions filed with the workers' compensation court pursuant to this section shall not

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be subject to a pretrial conference in accordance with section 28-35-20 but shall be assigned

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consistent with the workers' compensation court rules of procedure.

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      (4) Interest shall accrue on unpaid penalties during the pendency of any appeal at the rate

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per annum provided in section 9-21-10.

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      (j) These provisions shall take effect upon passage except section 28-29-2(6)(iv) which

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shall take effect on January 1, 2006.

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     SECTION 4. Sections 28-53-2 and 28-53-7 of the General Laws in Chapter 28-53

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entitled "Rhode Island Uninsured Employers Fund" are hereby amended to read as follows:

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     28-53-2. Establishment -- Sources -- Administration. -- (a) There shall be established

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within the department of labor and training a special restricted receipt account to be known as the

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Rhode Island uninsured employers fund. The fund shall be capitalized from excise taxes assessed

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against uninsured employers pursuant to the provisions of section 28-53-9 of this chapter and

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from general revenues appropriated by the legislature. Beginning in state fiscal year ending June

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30, 2009 2010, the legislature may appropriate up to two million dollars ($2,000,000) in general

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revenue funds annually for deposit into the Rhode Island uninsured employers fund.

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      (b) All moneys in the fund shall be mingled and undivided. The fund shall be

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administered by the director of the department of labor and training or his or her designee, but in

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no case shall the director incur any liability beyond the amounts paid into and earned by the fund.

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      (c) All amounts owed to the uninsured employers fund from illegally uninsured

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employers are intended to be excise taxes and as such, all ambiguities and uncertainties are to be

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resolved in favor of a determination that such assessments are excise taxes.

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     28-53-7. Payments to employees of uninsured employers. -- (a) Where it is determined

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that the employee was injured in the course of employment while working for an employer who

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fails to maintain a policy of workers' compensation insurance as required by Rhode Island general

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laws section 28-36-1, et seq., the uninsured employers fund shall pay the benefits to which the

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injured employee would be entitled pursuant to chapters 29 to 38 of this title subject to the

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limitations set forth herein.

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      (b) The workers' compensation court shall hear all petitions for payment from the fund

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pursuant to Rhode Island general laws section 28-30-1, et seq., provided, however, that the

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uninsured employers fund and the employer shall be named as parties to any petition seeking

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payment of benefits from the fund.

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      (c) Where an employee is deemed to be entitled to benefits from the uninsured

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employers fund, the fund shall pay benefits for disability and medical expenses as provided

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pursuant to chapters 29 to 38 of this title except that the employee shall not be entitled to receive

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benefits for loss of function and disfigurement pursuant to the provisions of Rhode Island general

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laws section 28-33-19.

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      (d) The fund shall pay cost, counsel and witness fees as provided in Rhode Island

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general laws section 28-35-32 to any employee who successfully prosecutes any petitions for

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compensation, petitions for medical expenses, petitions to amend a pretrial order or memorandum

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of agreement and all other employee petitions and to employees who successfully defend, in

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whole or in part, proceedings seeking to reduce or terminate any and all workers' compensation

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benefits; provided, however, that the attorney's fees awarded to counsel who represent the

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employee in petitions for lump sum commutation filed pursuant to Rhode Island general laws

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section 28-33-25 or in the settlement of disputed cases pursuant to Rhode Island general laws

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section 28-33-25.1 shall be limited to the maximum amount paid to counsel who serve as court

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appointed attorneys in workers' compensation proceedings as established by rule or order of the

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Rhode Island supreme court.

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      (e) In the event that the uninsured employer makes payment of any monies to the

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employee to compensate the employee for lost wages or medical expenses, the fund shall be

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entitled to a credit for all such monies received by or on behalf of the employee against any future

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benefits payable directly to the employee.

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     (f) This section shall apply to injuries that occur on or after January 1, 2011.

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     SECTION 5. This act shall take effect upon passage with the exception of the

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amendments contained within section 28-29-7.2 in Section 1 shall take effect on January 1, 2009.

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This act shall not abrogate or affect substantive rights or pre-existing agreements, preliminary

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determinations, orders or decrees; provided, however, that the amendments contained within

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sections 28-29-2 in Section 1 and 28-33-18 in Section 2 shall be applied retroactively to

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December 22, 2007 regardless of the date of injury. All other sections of this act shall take effect

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upon passage.

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LC03094

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR AND LABOR RELATIONS - WORKERS' COMPENSATION -

BENEFITS

***

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     This would allow for members of the police and aircraft rescue and firefighting (ARFF)

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units of Rhode Island Airport Corporation to be covered relative to injuries sustained while in the

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performance of his/her duties by the workers compensation system.

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     Section 28-53-7 would take effect on January 1, 2011, Section 28-29-7.2 would take

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effect on January 1, 2009, and Sections 28-29-2 and 28-33-18 would be applied retroactively to

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December 22, 2007. All other sections of this act would take effect upon passage.

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     This act would take effect upon passage.

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LC03094

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