2012 -- S 2588

=======

LC01877

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

____________

A N A C T

RELATING TO WORKERS' COMPENSATION - BENEFITS

     Introduced By: Senator Juan M. Pichardo

     Date Introduced: February 28, 2012

     Referred To: Senate Labor

It is enacted by the General Assembly as follows:

1-1

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

1-2

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

1-3

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

1-4

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

1-5

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

1-6

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

1-7

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

1-8

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

1-9

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

1-10

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

1-11

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

1-12

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

1-13

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

1-14

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

1-15

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

1-16

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

1-17

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

1-18

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

1-19

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

1-20

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

2-1

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

2-2

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

2-3

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

2-4

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

2-5

hundred forty-four (244) weeks;

2-6

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

2-7

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

2-8

one hundred sixty (160) weeks;

2-9

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

2-10

hundred five (205) weeks;

2-11

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

2-12

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

2-13

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

2-14

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

2-15

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

2-16

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

2-17

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

2-18

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

2-19

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

2-20

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

2-21

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

2-22

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

2-23

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

2-24

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

2-25

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

2-26

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

2-27

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

2-28

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

2-29

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

2-30

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

2-31

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

2-32

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

2-33

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

3-34

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

3-35

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

3-36

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

3-37

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

3-38

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

3-39

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

3-40

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

3-41

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

3-42

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

3-43

portion of them.

3-44

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

3-45

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

3-46

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

3-47

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

3-48

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

3-49

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

3-50

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

3-51

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

3-52

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

3-53

this section wherever it is applicable.

3-54

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

3-55

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

3-56

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

3-57

noise means sound capable of producing occupational deafness.

3-58

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

3-59

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

3-60

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

3-61

subject to section 28-33-5.

3-62

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

3-63

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

3-64

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

3-65

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

3-66

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

3-67

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

3-68

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

4-1

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

4-2

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

4-3

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

4-4

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

4-5

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

4-6

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

4-7

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

4-8

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

4-9

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

4-10

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

4-11

effective upon passage.

4-12

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

4-13

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

4-14

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

4-15

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

4-16

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

4-17

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

4-18

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

4-19

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

4-20

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

4-21

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

4-22

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

4-23

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

4-24

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

4-25

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

4-26

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

4-27

employer for whom compensation is claimed.

4-28

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

4-29

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

4-30

time during the employment exposed to harmful noise.

4-31

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

4-32

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

4-33

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

4-34

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

5-1

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

5-2

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

5-3

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

5-4

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

5-5

environment.

5-6

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

5-7

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

5-8

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

5-9

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

5-10

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

5-11

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

5-12

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

5-13

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

5-14

disfigurement pursuant to this section.

5-15

     SECTION 2. This act shall take effect upon passage.

=======

LC01877

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO WORKERS' COMPENSATION - BENEFITS

***

6-1

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

6-2

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

6-3

disfigurement pursuant to this section.

6-4

     This act would take effect upon passage.

=======

LC01877

=======