2012 -- S 2525

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LC00971

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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

     Introduced By: Senator Michael J. McCaffrey

     Date Introduced: February 16, 2012

     Referred To: Senate Labor

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 28-29-2 and 28-29-6.1 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 Sixth (6th)

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edition of the American Medical Association's Guide to the Evaluation of Permanent Impairment

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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. However, the special employee shall not be deemed to be the employer for purposes of

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section 28-29-20.

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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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     (12) "Leased employee" means an employee leased to a special employer by a labor-

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leasing firm under an agreement between the special employer and the labor-leasing firm, to

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perform duties related to the conduct of the special employer's business. "Leased employee" does

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not include a "temporary employee."

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     (13) "Temporary employee" means an employee who is furnished to a special employer

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to substitute for a "permanent employee" or for a "leased employee" as defined in this section, or

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to meet seasonal or short-team workload conditions of the special employer.

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     28-29-6.1. Secondary provision of workers' compensation insurance. -- (a) Whenever

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a general contractor or a construction manager enters into a contract with a subcontractor for

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work to be performed in Rhode Island, the general contractor or construction manager shall at all

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times require written documentation evidencing that the subcontractor carries workers'

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compensation insurance with no indebtedness for its employees for the term of the contract or is

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an independent contractor pursuant to the provisions of section 28-29-17.1. In the event that the

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general contractor or construction manager fails to obtain the written documentation and

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maintain, at policy renewal, this insurer-generated insurance coverage certification demonstrating

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Rhode Island workers' compensation and employer's liability coverage from the subcontractor,

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the general contractor or construction manager shall be deemed to be the employer pursuant to

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provisions of section 28-29-2. Upon the cancellation or failure to renew, the insurer, having

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written the workers' compensation and employer's liability policy, shall notify the certificate

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holders and the division of workers’ compensation of the cancellation or failure to renew, and

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thereafter the certificate holders shall be deemed to be the employer for the duration of the

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contract or arrangement unless or until a new certificate has been obtained.

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      (b) For the purposes of this section, "construction manager" means an individual

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corporation, partnership, or joint venture or other legal entity responsible for supervising and

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controlling all aspects of construction work to be performed on the construction project, as

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designated in the project documents, in addition to the possibility of performing some of the

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construction services itself. For the purposes of this section, the construction manager need have

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no contractual involvement with any of the parties to the construction project other than the

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owner, or may contract directly with the trade contractors pursuant to its agreement with the

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owner.

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      (c) This section only applies to a general contractor, subcontractor, or construction

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manager deemed an employer subject to the provisions of Chapters 29 -- 38 of this title, as

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provided in section 28-29-6.

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      (d) Whenever the workers' compensation insurance carrier is obligated to pay workers'

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compensation benefits to the employee of an uninsured subcontractor, the workers' compensation

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insurance carrier shall have a complete right of indemnification to the extent benefits are paid

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against either the uninsured subcontractor, uninsured general contractor or uninsured construction

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manager.

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     SECTION 2. 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 seventy-five percent (75%) of his or her average

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weekly spendable base wage, earnings or salary as computed pursuant to the provisions of section

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28-33-20, except that said weekly payment shall not be more than sixty percent (60%) of the state

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average weekly wage of individuals in covered employment under the provisions of the Rhode

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Island employment security act, as computed and established by the Rhode Island department of

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labor and training annually on or before May 31st of each year under the provisions of subsection

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28-44-6(a). Payment made under this section shall be made in a one time payment unless the

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parties otherwise agree. Payment shall be mailed within fourteen (14) days of the entry of a

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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 ninety

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

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

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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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     SECTION 3. Sections 28-35-6, 28-35-8, 28-35-32 and 28-35-57 of the General Laws in

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Chapter 28-35 entitled "Workers' Compensation - Procedure" are hereby amended to read as

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follows:

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     28-35-6. Notice of amendments to memorandum of agreement. -- (a) If the workers'

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compensation court makes any amendment or addition to the memorandum of agreement, the

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administrator of the workers' compensation court shall immediately notify the department of the

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changes in the agreement.

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      (b) If an employer or insurer and an employee and his or her attorney, if represented,

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reach an agreement, subsequent to the filing of a memorandum of agreement, order, or decree, as

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to any issue, the parties shall file a written agreement and receipt with the department, signed by

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the parties, and on a form prescribed by the department. A copy of any agreement and receipt

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shall be delivered to each of the parties. Upon the filing of the agreement and receipt with the

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department, it shall be as binding upon both parties as a preliminary determination order or

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decree.

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     (c) The attorney for an injured worker shall be entitled to a counsel fee reasonably

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compensating him or her for the services he or she rendered on behalf of the injured worker in

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securing the relief sought.

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     28-35-8. Filing of non-prejudicial memorandum of agreement. -- (a) Notwithstanding

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section 28-35-1, if the employer files a memorandum of agreement but specifically designates

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that agreement as a "non-prejudicial" or "without prejudice", the employer may pay weekly

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compensation benefits not exceeding thirteen (13) weeks. In these cases, the employer shall send

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a copy of the non-prejudicial memorandum and any amendments to it to the employee and his or

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her attorney or the representative of the decedent and his or her attorney by certified mail, return

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receipt requested, at the same time as it is filed with the department in the same manner as if it

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were a memorandum of agreement. The non-prejudicial memorandum of agreement shall contain

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all information as directed by section 28-35-1. Having done so, the non-prejudicial memorandum

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of agreement and any action taken pursuant to it shall be without prejudice to any party

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subsequently maintaining any position as to employer liability for payments under chapters 29 --

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38 of this title, maintainable in the absence of an agreement. If at any time within or at the close

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of the thirteen-week period after payments of compensation have commenced the employer or

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insurer terminates weekly payments to the employee or to those entitled to payments on account

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of death of an employee, the employer or insurer shall notify the employee and his or her attorney

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or the representative of the decedent employee and his or her attorney within ten (10) days on a

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form prescribed by the department by certified mail, return receipt requested that:

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      (1) Payments have terminated;

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      (2) The claim has not been formally accepted; and

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      (3) The employee has the right to file a petition, within the two (2) year limitation as set

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forth in section 28-35-57, to formally establish liability of the employer or insurer.

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      (b) If the employer or insurer makes payments of weekly benefits to the employee or to

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those entitled to payments on account of death of an employee for more than the thirteen (13)

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week period, the payments shall constitute a conclusive admission of liability and ongoing

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incapacity as to the injuries set forth in the non-prejudicial memorandum of agreement. The

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employer or insurer shall within ten (10) days of making additional payments file a memorandum

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of agreement pursuant to section 28-35-1.

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     28-35-32. Costs -- Counsel and witness fees. – (a) No fee shall be charged by the clerk

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of any court or by the administrator of the workers' compensation court for the performance of

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any service required by this chapter, except for certified copies of decrees and copies of

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transcripts. Notwithstanding any provisions of law to the contrary, the workers' compensation

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court shall be allowed a filing fee of twenty dollars ($20.00) for the filing of a petition under

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chapters 29 -- 38 of this title, and a filing fee of twenty-five dollars ($25.00) for the filing of an

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appeal under section 28-35-28, which sums shall be deposited to provide additional funding to the

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uninsured employers fund as established by chapter 28-53. In proceedings under this chapter, and

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in proceeding under chapter 37 of this title, costs shall be awarded, including counsel fees and

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fees for medical and other expert witnesses including interpreters, to employees who successfully

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prosecute petitions for compensation, petitions for medical expenses, petitions to amend a

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preliminary order or memorandum of agreement, and all other employee petitions, except

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petitions for lump sum commutation, and to employees who successfully defend, in whole or in

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

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to medical services providers who successfully prosecute petitions for the payment of medical

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expenses except that medical services providers shall not be paid expert witness fees for

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testimony in support of petitions filed in their behalf. These costs shall be assessed against the

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employer by a single judge, by an appellate panel and by the supreme court on appeal consistent

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with the services rendered before each tribunal and shall be made a part of the decree. No

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employee's attorney shall accept any other or additional fees for his services for the particular

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petition for which the fees are awarded in each tribunal.

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     (b) Costs, including counsel fees, shall be awarded in the same manner as subsection (a)

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to reasonably compensate attorneys who successfully secure relief for injured workers pursuant to

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sections 28-35-1, 28-35-5, 28-35-6 and 28-35-7.1.

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     28-35-57. Limitation of claims for compensation. -- (a) An employee's claim for

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compensation under chapters 29 -- 38 of this title shall be barred unless payment of weekly

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compensation has commenced, or a petition, as provided for in this chapter, has been filed within

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two (2) years after the occurrence or manifestation of the injury or incapacity, or in case of the

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death of the employee, or in the event of his or her physical or mental incapacity, within two (2)

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years after the death of the employee or the removal of the physical or mental incapacity.

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      (b) The time for filing shall not begin to run in cases of latent or undiscovered physical

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or mental impairment due to injury including disease until:

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      (1) The person claiming benefits knew, or by exercise of reasonable diligence should

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have known, of the existence of the impairment and its causal relationship to his or her

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employment; or

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      (2) After disablement, whichever is later.

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      (c) In any case in which weekly compensation benefits have been paid, pursuant to

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section 28-35-8, in which the employer or insurer has failed to file the required notices, or has

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failed to comply with the requirements thereof regarding the mailing of documents required to be

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sent to the employee, the claimant's right to file a petition for compensation benefits shall be

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preserved without time limitation.

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     SECTION 4. This act shall take effect upon passage.

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LC00971

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR AND LABOR RELATIONS - WORKERS' COMPENSATION

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     This act would amend certain statutes applicable to workers' compensation.

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     This act would take effect upon passage.

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LC00971

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