2012 -- H 7347

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LC01081

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO WORKERS' COMPENSATION - BENEFITS

     Introduced By: Representatives Edwards, Guthrie, Williams, and DaSilva

     Date Introduced: February 02, 2012

     Referred To: House Labor

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 28-33-19 of the General Laws in Chapter 28-33 entitled "Workers'

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Compensation - Benefits" is hereby amended to read as follows:

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     28-33-19. Additional compensation for specific injuries. -- (a) (1) In case of the

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following specified injuries there shall be paid in addition to all other compensation provided for

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in chapters 29 to 38 of this title a weekly payment equal to one-half (1/2) of the average weekly

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earnings of the injured employee, but in no case more than ninety dollars ($90.00) nor less than

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forty-five dollars ($45.00) per week. In case of the following specified injuries that occur on or

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after January 1, 2012, there shall be paid in addition to all other compensation provided for in

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chapters 29 to 38 of this title a weekly payment equal to one-half (1/2) of the average weekly

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earnings of the injured employee, but in no case more than one hundred eighty dollars ($180) nor

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less than ninety dollars ($90.00) per week. Payment made under this section shall be made in a

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one time payment unless the parties otherwise agree. Payment shall be mailed within fourteen

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(14) days of the entry of a decree, order, or agreement of the parties:

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      (i) For the loss by severance of both hands at or above the wrist, or for the loss of the

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arm at or above the elbow or for the loss of the leg at or above the knee, or both feet at or above

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the ankle, or of one hand and one foot, or the entire and irrecoverable loss of the sight of both

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eyes, or the reduction to one-tenth ( 1/10) or less of normal vision with glasses, for a period of

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three hundred twelve (312) weeks; provided, that for the purpose of this chapter the Snellen chart

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reading 20/200 shall equal one-tenth ( 1/10) of normal vision or a reduction of ninety percent

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(90%) of the vision. Additionally, any loss of visual performance including, but not limited to,

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loss of binocular vision, other than direct visual acuity may be considered in evaluating eye loss;

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      (ii) For the loss by severance of either arm at or above the elbow, or of either leg at or

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above the knee, for a period of three hundred twelve (312) weeks;

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      (iii) For the loss by severance of either hand at or above the wrist for a period of two

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hundred forty-four (244) weeks;

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      (iv) For the entire and irrecoverable loss of sight of either eye, or the reduction to one-

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tenth ( 1/10) or less of normal vision with glasses, or for loss of binocular vision for a period of

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one hundred sixty (160) weeks;

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      (v) For the loss by severance of either foot at or above the ankle, for a period of two

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hundred five (205) weeks;

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      (vi) For the loss by severance of the entire distal phalange of either thumb for a period of

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thirty-five (35) weeks; and for the loss by severance at or above the second joint of either thumb,

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for a period of seventy-five (75) weeks;

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      (vii) For the loss by severance of one phalange of either index finger, for a period of

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twenty-five (25) weeks; for the loss by severance of at least two (2) phalanges of either index

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finger, for a period of thirty-two (32) weeks; for the loss by severance of at least three (3)

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phalanges of either index finger, for a period of forty-six (46) weeks;

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      (viii) For the loss by severance of one phalange of the second finger of either hand, for a

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period of sixteen (16) weeks; for the loss by severance of two (2) phalanges of the second finger

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of either hand, for a period of twenty-two (22) weeks; for the loss by severance of three (3)

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phalanges of the second finger on either hand, for a period of thirty (30) weeks;

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      (ix) For the loss by severance of one phalange of the third finger of either hand, for a

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period of twelve (12) weeks; for the loss by severance of two (2) phalanges of the third finger of

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either hand, for a period of eighteen (18) weeks; for the loss by severance of three (3) phalanges

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of a third finger of either hand, for a period of twenty-five (25) weeks;

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      (x) For the loss by severance of one phalange of the fourth finger of either hand, for a

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period of ten (10) weeks; for the loss by severance of two (2) phalanges of the fourth finger of

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either hand, for a period of fourteen (14) weeks; for the loss by severance of three (3) phalanges

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of a fourth finger of either hand, for a period of twenty (20) weeks;

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      (xi) For the loss by severance of one phalange of the big toe on either foot, for a period

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of twenty (20) weeks; for the loss by severance of two (2) phalanges of the big toe of either foot,

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for a period of thirty-eight (38) weeks; for the loss by severance at or above the distal joint of any

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other toe than the big toe, for a period of ten (10) weeks for each such toe;

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      (xii) For partial loss by severance for any of the injuries specified in paragraphs (1)(i) --

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(1)(xi) of this subsection, proportionate benefits shall be paid for the period of time that the

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partial loss by severance bears to the total loss by severance.

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      (2) Where any bodily member or portion of it has been rendered permanently stiff or

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useless, compensation in accordance with the above schedule shall be paid as if the member or

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portion of it had been completely severed; provided, that if the stiffness or uselessness is less than

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total, then compensation shall be paid for that period of weeks in proportion to the applicable

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period where the member or portion of it has been completely severed as the instant percentage of

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stiffness or uselessness bears to the total stiffness or total uselessness of the bodily members or

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portion of them.

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      (3) In case of the following specified injuries there shall be paid in addition to all other

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compensation provided for in chapters 29 -- 38 under this title a weekly payment equal to one-

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half ( 1/2) of the average weekly earnings of the injured employee, but in no case more than

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ninety dollars ($90.00) nor less than forty-five dollars ($45.00) per week. Payment under this

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subsection shall be made in a one time payment unless the parties otherwise agree. Payment shall

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be mailed within fourteen (14) days of the entry of a decree, order, or agreement of the parties:

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      (i) For permanent disfigurement of the body the number of weeks may not exceed five

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hundred (500) weeks, which sum shall be payable in a one time payment within fourteen (14)

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days of the entry of a decree, order, or agreement of the parties in addition to all other sums under

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this section wherever it is applicable.

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      (4) (i) Loss of hearing due to industrial noise is recognized as an occupational disease for

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purposes of chapters 29 -- 38 of this title and occupational deafness is defined to be a loss of

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hearing in one or both ears due to prolonged exposure to harmful noise in employment. Harmful

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noise means sound capable of producing occupational deafness.

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      (ii) Hearing loss shall be evaluated pursuant to protocols established by the workers'

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compensation medical advisory board. All treatment consistent with this subsection shall be

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consistent with the protocols established by the workers' compensation medical advisory board

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subject to section 28-33-5.

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      (iii) If the employer has conducted baseline screenings within one (1) year of exposure to

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harmful noise to evaluate the extent of an employee's pre-existing hearing loss, the causative

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factor shall be apportioned based on the employee's pre-existing hearing loss and subsequent

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occupational hearing loss, and the compensation payable to the employee shall only be that

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portion of the compensation related to the present work-related exposure.

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      (iv) There shall be payable as permanent partial disability for total occupational deafness

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of one ear, seventy-five (75) weeks of compensation; for total occupational deafness of both ears,

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two hundred forty-four (244) weeks of compensation; for partial occupational deafness in one or

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both ears, compensation shall be paid for any periods that are proportionate to the relation which

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the hearing loss bears to the amount provided in this subdivision for total loss of hearing in one or

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both ears, as the case may be. For the complete loss of hearing for either ear due to external

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trauma or by other mechanism, acuity loss shall be paid pursuant to this subsection.

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      (v) No benefits shall be granted for tinnitus, psychogenic hearing loss, congenital

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hearing loss, recruitment or hearing loss above three thousand (3,000) hertz.

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      (vi) The provisions of this subsection and the amendments insofar as applicable to

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hearing loss shall be operative as to any occupational hearing loss that occurs on or after

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September 1, 2003, except for acuity hearing loss related to a single event which shall become

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effective upon passage.

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      (vii) If previous hearing loss, whether occupational or not, is established by an

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audiometric examination or other competent evidence, whether or not the employee was exposed

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to assessable noise exposure within one year preceding the test, the employer is not liable for the

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previous loss, nor is the employer liable for a loss for which compensation has previously been

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paid or awarded. The employer is liable only for the difference between the percent of

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occupational hearing loss determined as of the date of the audiometric examination conducted by

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a certified audiometric technician using an audiometer which meets the specifications established

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by the American National Standards Institute (ANSI 3.6-1969, ri973) used to determine

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occupational hearing loss and the percentage of loss established by the baseline audiometric

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examination. An amount paid to an employee for occupational hearing loss by any other

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employer shall be credited against compensation payable by the subject employer for the hearing

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loss. The employee shall not receive in the aggregate greater compensation from all employers

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for occupational hearing loss than that provided in this section for total occupational hearing loss.

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A payment shall not be paid to an employee unless the employee has worked in excessive noise

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exposure employment for a total period of at least one hundred eighty (180) days for the

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employer for whom compensation is claimed.

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      (viii) No claim for occupational deafness may be filed until six (6) months separation

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from the type of noisy work for the last employer in whose employment the employee was at any

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time during the employment exposed to harmful noise.

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      (ix) The total compensation due for hearing loss is recovered from the employer who last

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employed the employee in whose employment the employee was last exposed to harmful noise

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and the insurance carrier, if any, on the risk when the employee was last so exposed, and if the

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occupational hearing loss was contracted while the employee was in the employment of a prior

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employer, and there was no baseline testing by the last employer, the employer and insurance

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carrier which is made liable for the total compensation as provided by this section may petition

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the worker's compensation court for an apportionment of the compensation among the several

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employers which since the contraction of the hearing loss have employed the employee in a noisy

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environment.

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      (b) Where payments are required to be made under more than one clause of this section,

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payments shall be made in a one time payment unless the parties otherwise agree. Payment shall

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be mailed within fourteen (14) days of the entry of a decree, order, or agreement of the parties.

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      (c) Payments pursuant to this section, except paragraph (a)(3)(ii) of this section, shall be

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made only after an employee's condition as relates to loss of use has reached maximum medical

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improvement as defined in section 28-29-2(8) and as found pursuant to section 28-33-18(b).

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     (d) An employer or insurer shall be entitled to recover any overpayments made for

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indemnity benefits by set-off against payments due to an employee for loss of use or

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disfigurement pursuant to this section.

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     SECTION 2. This act shall take effect upon passage.

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LC01081

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO WORKERS' COMPENSATION - BENEFITS

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     This act would allow an employer or insurer to be entitled to recover any overpayments

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made for indemnity benefits by set-off against payments due to an employee for loss of use or

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disfigurement pursuant to this section.

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     This act would take effect upon passage.

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LC01081

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