2012 -- S 2298

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LC00168

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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 LABOR AND LABOR RELATIONS -- WORKERS' COMPENSATION --

BENEFITS

     Introduced By: Senators Doyle, Tassoni, Miller, and Lanzi

     Date Introduced: February 01, 2012

     Referred To: Senate Labor

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 28-33-18 and 28-33-20 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%) eighty-five percent (85%) of the difference

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between his or her spendable average weekly base wages, earnings, or salary before the injury as

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computed pursuant to the provisions of section 28-38-20, and his or her spendable weekly wages,

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earnings, salary, or earnings capacity after that, but not more than the maximum weekly

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compensation rate for total incapacity as set forth in section 28-33-17. The provisions of this

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section are subject to the 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, shall 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 Sixth

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(6th) edition of the American Medical Association Guides To The Value Of Permanent

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Impairment. Earnings capacity shall be calculated from the percentage of impairment 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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     28-33-20. Computation of earnings. -- (a) For the purposes of this chapter, the average

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weekly wage shall be ascertained as follows:

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      (1) For full-time or regular employees, by dividing the gross wages, inclusive of

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overtime pay; provided, that bonuses and overtime shall be averaged over the length of

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employment but not in excess of the preceding fifty-two (52) week period, earned by the injured

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worker in employment by the employer in whose service he or she is injured during the thirteen

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(13) calendar weeks immediately preceding the week in which he or she was injured, by the

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number of calendar weeks during which, or any portion of which, the worker was actually

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employed by that employer, including any paid vacation time. In making this computation,

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absence for seven (7) consecutive calendar days, although not in the same calendar week, shall be

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considered as absence for a calendar week. When the employment commenced otherwise than the

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beginning of a calendar week, the calendar week and wages earned during that week shall be

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excluded in making the above computation. When the employment previous to injury as provided

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above is computed to be less than a net period of two (2) calendar weeks, his or her weekly wage

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shall be considered to be equivalent to the average weekly wage prevailing in the same or similar

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employment at the time of injury except that when an employer has agreed to pay a certain hourly

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wage to the worker, then the hourly wage so agreed upon shall be the hourly wage for the injured

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worker and his or her average weekly wage shall be computed by multiplying that hourly wage

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by the number of weekly hours scheduled for full-time work by full-time employees regularly

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employed by the employer. Where the injured employee has worked for more than one employer

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during the thirteen (13) weeks immediately preceding his or her injury, his or her average weekly

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wages shall be calculated upon the basis of wages earned from all those employers in the period

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involved by totaling the gross earnings from all the employers and dividing by the number of

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weeks in which he or she was actually employed by any employer, in the same manner as if the

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employee had worked for a single employer and, except in the case of apportionment of liability

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among successive employers as provided in section 28-34-8, the employer in whose employ the

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injury was sustained shall be liable for all benefits provided by chapters 29 -- 38 of this title. A

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schedule of the computation of the average weekly wage in compliance with this section shall be

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a necessary part of the memorandum of agreement required by section 28-35-1. Where the

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employer has been accustomed to paying the employee a sum to cover any special expense

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incurred by the employee by the nature of his or her employment, the sum paid shall not be

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reckoned as part of the employee's wages, earnings, or salary. The fact that an employee has

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suffered a previous injury or received compensation for a previous injury shall not preclude

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compensation for a later injury or for death; but in determining the compensation for the later

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injury or death, his or her average weekly wages shall be any sum that will reasonably represent

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his or her weekly earning capacity at the time of the later injury, in the employment in which he

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or she was working at that time, and shall be arrived at according to, and subject to the limitations

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of, the provisions of this section. In computing the average weekly wages earned subsequent to

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the first injury, the time worked and wages earned prior to that injury shall be excluded.

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      (2) In occupations that are seasonal, the "average weekly wage" means one-fifty second (

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1/52) of the total wages which the employee has earned during the twelve (12) calendar months

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immediately preceding the injury.

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      (3) "Wages of an employee working part-time" means the gross wages earned during the

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number of weeks so employed, or of weeks in which the employee worked, up to a maximum of

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twenty-six (26) calendar weeks immediately preceding the date of injury, divided by the number

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of weeks employed, or by twenty-six (26), as the case may be. "Part-time" means working by

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custom and practice under the verbal or written employment contract in force at the time of the

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injury, where the employee agrees to work or is expected to work on a regular basis less than

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twenty (20) hours per week. Wages shall be calculated as follows:

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      (i) For part-time employees, by dividing the gross wages, inclusive of overtime pay;

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provided, any bonuses and overtime shall be averaged over the length of employment but not in

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excess of the preceding fifty-two (52) week period, earned by the injured worker in employment

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by the employer in whose service he or she is injured during the twenty-six (26) consecutive

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calendar weeks immediately preceding the week in which he or she was injured, by the number of

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calendar weeks during which, or any portion of which, the worker was actually employed by that

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employer, including any paid vacation time. In making this computation, absence for seven (7)

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consecutive calendar days, although not in the same calendar week, shall be considered as

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absence for a calendar week. Overtime pay shall be averaged over the twenty-six (26) weeks

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preceding the injury and added to the average weekly wage. When the employment commenced

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otherwise than the beginning of a calendar week, the calendar week and wages earned during that

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week shall be excluded in making the above computation. When the employment previous to

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injury as provided above is computed to be less than a net period of two (2) weeks, the weekly

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wage shall be considered to be equivalent to the average weekly wage prevailing in the same or

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similar employment at the time of injury except that when an employer has agreed to pay a

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certain hourly wage to the worker, then the hourly wage so agreed upon shall be the hourly wage

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for the injured worker and his or her average weekly wage shall be computed by multiplying that

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hourly wage by the number of weekly hours agreed upon in the contract of hire.

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      (ii) In the event the injured employee had concurrent employment with one or more

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additional employers at the time of injury, the average weekly wage shall be calculated for the

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twenty-six (26) calendar weeks preceding the week in which the employee was injured upon the

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basis of wages earned from all those employers in the period involved by totaling the gross

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earnings from all the employers and dividing by the number of usable weeks the employee

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actually was employed by that employer, in the same manner as if the employee had worked for a

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single employer; provided, in the case of apportionment of liability among successive employers

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pursuant to section 28-34-8, the employer in whose employ the injury was sustained shall be

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liable for all benefits provided by chapters 29 -- 38 of this title. In the case that the injured

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employee's other employer is a full-time employer, the average weekly wage shall be calculated

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according to subdivision (1) for the thirteen (13) calendar weeks immediately preceding the week

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in which he or she was injured. Calculations for part-time employment shall be calculated

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separately for the twenty-six (26) calendar weeks immediately preceding the week of injury. A

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schedule of computation of the average weekly wage in compliance with this section shall be a

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necessary part of the memorandum of agreement required by section 28-35-1.

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      (iii) Where the employer is accustomed to paying the employee a sum to cover any

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special expense incurred by the employee by the nature of the employment, that sum shall not be

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reckoned as part of the employee's wages, earnings, or salary. The fact that an employee has

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suffered a previous injury or received compensation for a previous injury shall not preclude

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compensation for a later injury or for death. In determining the compensation for the later injury

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or death, the average weekly wage shall be any sum that will reasonably represent the employee's

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earning capacity at the time of the later injury, in the employment in which he or she was working

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at that time, and shall be derived according to, and subject to, the limitations of the provisions of

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this section; provided, that in computing the average weekly wages earned subsequent to the first

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injury, the time worked and wages earned prior to that injury shall be excluded.

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     SECTION 2. This act shall take effect upon passage and shall apply retroactively,

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regardless of the date of injury.

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LC00168

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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 act would change the spendable base wage calculation from seventy-five percent

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(75%) to eighty-five percent (85%) under the workers’ compensation law. This act would also

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make additional changes to the law relating to partial incapacity.

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     This act would take effect upon passage and would apply retroactively, regardless of the

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date of injury.

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LC00168

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