2013 -- S 0951 SUBSTITUTE A

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LC02602/SUB A

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO LABOR AND LABOR RELATIONS -- WORKERS' COMPENSATION

     Introduced By: Senators P Fogarty, Ruggerio, Goodwin, McCaffrey, and Ciccone

     Date Introduced: May 16, 2013

     Referred To: Senate Labor

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 28-33-5, 28-33-11 and 28-33-31 of the General Laws in Chapter

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28-33 entitled "Workers' Compensation - Benefits" are hereby amended to read as follows:

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     28-33-5. Medical services provided by employer. -- The employer shall, subject to the

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choice of the employee as provided in section 28-33-8, promptly provide for an injured employee

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any reasonable medical, surgical, dental, optical, or other attendance or treatment, nurse and

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hospital service, medicines, crutches, and apparatus for such period as is necessary, in order to

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cure, rehabilitate or relieve the employee from the effects of his injury; provided, that no fee for

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major surgery shall be paid unless permission for it in writing is first obtained from the workers'

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compensation court, the employer, or the insurance carrier involved, except where compliance

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with it may prove fatal or detrimental to the employee. Irrespective of the date of injury, the

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liability of the employer for hospital service rendered under this section to the injured employee

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shall be the cost to the hospital of rendering the service at the time the service is rendered. The

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director, after consultations with representatives of hospitals, employers, and insurance

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companies, shall establish administrative procedures regarding the furnishing and filing of data

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and the time and method of billing and may accept as representing the costs for both routine and

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special services to patients, costs as computed for the federal Medicare program. Each hospital

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licensed under chapter 16 of title 23 which renders services to injured employees under the

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Workers' Compensation Act, chapters 29 -- 38 of this title, shall submit and certify to the director,

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in accordance with requirements of the administrative procedures established by him or her, its

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costs for those services. The employer shall also provide all medical, optical, dental, and surgical

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appliances and apparatus required to cure or relieve the employee from the effects of the injury,

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including but not being limited to the following: ambulance and nursing service, eyeglasses,

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dentures, braces and supports, artificial limbs, crutches, and other similar appliances; provided,

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that the employer shall not be liable to pay for or provide hearing aids or other amplification

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devices.

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     28-33-11. Notice of hearings -- Time of decision. -- No hearing shall be held by the

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workers' compensation court or any judge of that court under sections 28-33-5 -- 28-33-10 unless

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written notice of the hearing is mailed sent to the employer and employee five (5) days before the

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time of the hearing. The decision shall be rendered within seventy-two (72) hours after the

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hearing, unless the parties agree otherwise.

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     28-33-31. Contents of notice to employer. -- Notice as required by section 28-33-30

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shall be in writing and shall state in ordinary language the nature, time, place, and cause of the

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injury, and the name and address of the person injured, and shall be signed by the injured person,

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or by a person in his or her behalf, or, in the event of his or her death, by his or her legal

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representative, or by a person in behalf of either.

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     SECTION 2. Sections 28-33-16 and 28-33-18.3 of the General Laws in Chapter 28-33

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

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     28-33-16. Burial expenses. -- If the employee dies as a result of the injury, the employer

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shall pay in addition to any compensation provided for in this chapter, the sum of fifteen thousand

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dollars ($15,000) twenty thousand dollars ($20,000). This sum shall be paid under the provisions

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of section 28-33-23.

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

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

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

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

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

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

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

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

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

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2012 2016, "material hindrance" is defined to include only compensable injuries causing a greater

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

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

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

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

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2012 2016.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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the same time as but in addition to the payment.

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

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

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

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benefits payable under the Workers' Compensation Act.

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

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employee is receiving benefits pursuant to this section.

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     SECTION 3. Sections 28-35-12, 28-35-14, 28-35-15, 28-35-16, 28-35-27, 28-35-28, 28-

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35-28.1 and 28-35-37 of the General Laws in Chapter 28-35 entitled "Workers' Compensation -

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Procedure" are hereby amended to read as follows:

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     28-35-12. Petition for determination of controversy -- Contents and filing. -- (a) In all

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disputes between an employer and employee in regard to compensation or any other obligation

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established under chapters 29 -- 38 of this title, and when death has resulted from the injury and

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the dependents of the deceased employee entitled to compensation are, or its apportionment

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among them is, in dispute, any person in interest or his or her duly authorized representative may

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file with the administrator of the workers' compensation court a petition and as many copies of it

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as there are respondent parties to the dispute upon forms prescribed and furnished by the court,

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setting forth the names and residences of the parties, the facts relating to employment at the time

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of injury, the cause, extent, and character of the injury, the amount of wages, earnings, or salary

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received at the time of the injury, and the knowledge of the employer of notice of the occurrence

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of the injury, and any other facts that may be necessary and proper for the information of the

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court, and shall state the matter in dispute and the claims of the petitioner with reference to it;

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provided, that no petition shall be filed within twenty-one (21) days of the date of the injury and

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no petition regarding any other obligation established under chapters 29 -- 38 of this title shall be

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filed until twenty-one (21) days after written demand for payment upon the employer or insurer

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or written notice to the employer or insurer of failure to fulfill the obligation, except that any

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petition alleging the non-payment or late payment of weekly compensation benefits, attorneys'

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fees, and costs, may be filed after fourteen (14) days from the date the payment is due as set forth

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in sections 28-35-42, 28-35-43, and 28-35-20(c). Medical bills for services ordered paid by

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decree or pretrial order shall be paid within fourteen (14) days of the entry of the decree or order.

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In the event that the bills are not paid within the fourteen (14) day period, a petition may be filed

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to enforce said order or decree without any additional written notice to the employer or insurer.

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      (b)(1) If one or more claims are filed for an injury and there are two (2) or more insurers,

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any one of which may be held to be liable to pay compensation, and the judge determines that the

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injured employee would be entitled to receive compensation but for the existence of a controversy

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as to which one of the insurers is liable to pay compensation, one of the insurers shall be selected

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by a judge of the workers' compensation court, to pay to the injured employee the compensation,

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pending a final decision of the workers' compensation court as to the matter in controversy, and

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that decision shall require that the amount of compensation paid shall be deducted from the award

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if made against another insurer and shall be paid by that other insurer to the insurer selected by

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the judge.

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      (2) The workers' compensation court shall award compensation, costs, and attorneys'

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fees in its discretion if one of the insurers is held to be liable following the hearing.

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      (c) If any determination of the workers' compensation court entitles an employee to

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retroactive payment of weekly benefits, the court shall award to the employee interest at the rate

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per annum provided in section 9-21-10 on that retroactive weekly payment from six (6) months

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subsequent to the date that the employee first filed a petition for benefits to the time when that

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retroactive payment is actually made. If the proceedings are unduly delayed by or at the request

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of the employee or his or her attorney, the judge may reduce or eliminate interest on retroactive

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payment; provided, that the provisions of this section as they relate to interest shall apply only to

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petitions filed on or after July 1, 1984.

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      (d) Any fine, penalty, or interest expense incurred by an insurer under this section may

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not be used as an expense for the purpose of seeking a rate increase before the department of

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business regulation.

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     28-35-14. Copies of petition to respondents. -- Upon filing with the administrator of

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any petition in writing, stating the general nature of any claim as to which any dispute or

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controversy may have arisen, the petitioner administrator shall mail serve a copy of the petition to

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on the respondent or respondents named in it in accordance with the workers' compensation court

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rules of practice. Service by mail to an employee is adequate if mailed postage prepaid to the

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address to which compensation benefits are mailed.

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     28-35-15. Service on parties outside state. -- In case an interested party is located out of

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the state, and has no post office address within this state, a copy of the petition and copies of all

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notices shall be filed by the petitioner in the office of the insurance commissioner and shall also

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be sent by registered or certified mail to the last known post office address of that party. This

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filing and mailing shall constitute sufficient service, with the same force and effect as if served

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upon a party located within the state.

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     28-35-16. Filing of answer -- Additional parties. -- Within ten (10) days of the filing of

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the petition, the respondent or respondents shall file an answer to the petition with the workers'

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compensation court and mail send a copy of it to the petitioner, identifying the specific issues

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disputed by the respondent or respondents with reference to the matter in dispute as disclosed by

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the petition. No pleadings other than the petition and answer shall be required to bring the matter

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to a final determination. If the respondent or respondents does not file an answer, the matter shall

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proceed as though the allegations of the petition had been denied. The workers' compensation

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court may bring in additional parties by service of a copy of the petition by registered or certified

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mail.

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     28-35-27. Decision of controversies -- Decree. -- (a) In any controversy over which the

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workers' compensation court has jurisdiction pursuant to this chapter and Rhode Island general

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law section 45-21.2-9, any judge of that court shall, pursuant to sections 28-35-11 -- 28-35-28,

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and the procedural rules of the court, hear all questions of law and fact involved in the

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controversy and presented by any party in interest, and he or she shall within ten (10) days after

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the hearing, unless the parties otherwise agree, decide the merits of the controversy pursuant to

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the law and the fair preponderance of the evidence and notify the administrator of the court of the

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decision, who shall immediately notify the parties by mail.

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      (b) Within seventy-two (72) hours of the mailing of the notice, exclusive of Sundays and

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holidays, the judge shall enter a decree upon the decision, which shall contain findings of fact, but

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within that time any party may appear and present a form of decree for consideration.

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     28-35-28. Appeal to appellate division. -- (a) Any person aggrieved by the entry of a

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decree by a judge may appeal to the appellate division established pursuant to this section by

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filing with the administrator of the court within five (5) days of the date of the entry of a decree,

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exclusive of Saturdays, Sundays, and holidays, a claim of appeal and, subject to the rules of the

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court, by filing a written request for a transcript of the testimony and ruling or any part thereof

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desired. Within any time that a judge shall fix, either by an original fixing or otherwise, the

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appellant shall file with the administrator of the court reasons of appeal stating specifically all

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matters determined adversely to him or her which he or she desires to appeal, together with so

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much of the transcript of testimony and rulings as he or she deems pertinent, and within ten (10)

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days after that the parties may file with the administrator of the court those briefs and memoranda

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that they may desire concerning the appeal. The chief judge shall appoint appellate panels of three

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(3) members of the court to hear any claim of appeal and the decision of the appellate panel shall

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be binding on the court. The three (3) members of the appellate panel shall immediately review

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the decree upon the record of the case and shall file a decision pursuant to the law and the fair

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preponderance of the evidence within ten (10) days of the expiration of the time within which the

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parties may file briefs and memoranda. Upon consideration of the appeal, the appellate panel

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shall affirm, reverse, or modify the decree appealed from, and may itself take any further

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proceedings that are just, or may remand the matter to the trial judge for further consideration of

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any factual issue that the appellate division may raise, including the taking of additional evidence

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or testimony by the trial judge. It shall be within the prerogative of the appellate panel to remand

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a matter to the trial judge. If the decision requires the entry of a new decree, notice shall be given

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the parties, and the new decree shall be entered in the same manner as the original decree, but if

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the decision of two (2) appellate panel judges does not require the entry of a new decree, the

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decree shall be affirmed. Any member of the appellate panel may, for cause, disqualify himself or

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herself from hearing any appeal that may come before the appellate panel.

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      (b) The findings of the trial judge on factual matters shall be final unless an appellate

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panel finds them to be clearly erroneous. The court may award costs, including reasonable

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attorney fees, to the prevailing party when the appellate panel finds there was complete absence

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of a justiciable issue of either law or fact.

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     28-35-28.1. Reports of hearings -- Transcripts. -- (a) Hearings reporters, or electronic

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court reporters, shall report stenographically, or electronically, the proceedings in the trial of

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every action or proceeding in the workers' compensation court. Electronic court reporting shall be

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used only when hearings reporters are unavailable for any reason.

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      (b) Each hearings reporter, or electronic court reporter, shall also, upon the order of any

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judge in the court, transcribe his or her report to be filed with the judge in the case. He or she

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shall also make a transcript of the whole or any part of that report upon the written request, filed

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with the administrator, by either party to the action or proceeding, and when completed and

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within the time limited by the court for filing the transcript, shall immediately deliver it to the

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party ordering it, or to the attorney of record of that party. For this service, the reporter shall be

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paid a reasonable compensation, not less than five dollars ($5.00), and not exceeding three dollars

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($3.00) per page for originals and one dollar and fifty cents ($1.50) per page for copies of it, to be

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allowed by the court. If the transcript is used in subsequent proceedings in the cause, the cost of it

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may be allowed as a part of the costs.

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     28-35-37. Delay of process for execution of decree. -- No process for the execution of

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any decree of the workers' compensation court from which an appeal may be taken shall issue

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until the expiration of the appeal period, unless all parties against whom the decree is made,

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waive an appeal by a writing filed with the administrator or by causing an entry thereof to be

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made on the docket.

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     SECTION 4. Section 28-35-20 of the General Laws in Chapter 28-35 entitled "Workers'

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

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     28-35-20. Informal pretrial conference. -- (a) Before any case shall proceed to a trial,

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the judge shall conduct a mandatory pretrial conference within twenty-one (21) days of the date

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of filing with a view to expediting the case and reducing the issues in dispute to a minimum,

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notice of which shall be sent by the administrator to the parties or to their attorneys of record. The

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conference shall be informal and no oral testimony shall be offered or taken. Any statement then

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made by either party shall in the absence of agreement be without prejudice, but any agreement

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then made shall be binding.

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      (b) Within a reasonable time of receipt, all medical reports and documentary evidence

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which the parties possess and which the parties intend to present as evidence at the pretrial

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conference shall be provided to the opposing party.

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      (c) At the pretrial conference, the judge shall make every effort to resolve any

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controversies or to plan for any subsequent trial of the case. The judge shall render a pretrial order

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immediately at the close of the pretrial conference. The pretrial order shall be set forth in a

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simplified manner on forms prescribed by the workers' compensation court. It may reflect any

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agreements reached between the parties, but shall grant or deny, in whole or in part, the relief

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sought by the petitioner. Subject to the provisions of subsection 45-21.2-9(j), the The pretrial

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order shall be effective upon entry. Any payments ordered by it including, but not limited to,

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weekly benefits, medical expenses, costs, and attorneys' fees, shall be paid within fourteen (14)

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days of the entry of the order.

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      (d) Any party aggrieved by the entry of the order by the judge may claim a trial on any

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issue that was not resolved by agreement at the pretrial conference by filing with the

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administrator of the workers' compensation court within five (5) days of the date of the entry of

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the order, exclusive of Saturdays, Sundays and holidays, a claim for a trial on forms prescribed by

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the administrator of the workers' compensation court. If no timely claim for a trial is filed or is

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filed and withdrawn, the pretrial order shall become, by operation of law and without further

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action by any party, a final decree of the workers' compensation court.

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      (e) All trials shall be assigned for hearing and decision to the same judge who presided

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over the pretrial of the matter. Notice of the trial shall be sent by the administrator to the parties

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and to their attorneys of record. All trials shall be de novo, except that issues resolved by

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agreement at the pretrial conference may not be reopened. Any other case or dispute under

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chapters 29 -- 38 of this title that arises during the pendency of this trial, shall be forwarded

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immediately to the same judge for pretrial in accordance with this section and for any subsequent

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trial.

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      (f) If after trial and the entry of a final decree, it is determined that the employee or

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medical services provider was not entitled to the relief sought in the petition, the employer or

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insurer shall be reimbursed from the workers' compensation administrative fund, described in

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chapter 37 of this title, to the extent of any payments made pursuant to the pretrial order to which

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there is no entitlement.

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     SECTION 5. Section 28-35-59 of the General Laws in Chapter 28-35 entitled "Workers'

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Compensation - Procedure" is hereby repealed.

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     28-35-59. Records of proceedings. -- The proceedings in all cases before the workers'

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compensation court under chapters 29 -- 38 of this title are deemed matters of record, but they are

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not required to be recorded at large, but are filed and numbered in the office of the administrator

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of the workers' compensation court, and a docket only, or short memorandum of the cases, shall

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be kept by the administrator in books provided for the purpose.

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     SECTION 6. Sections 28-53-2 and 28-53-7 of the General Laws in Chapter 28-53

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

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

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

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

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

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

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30, 2013 2015, the legislature may appropriate up to two million dollars ($2,000,000) in general

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

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

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

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

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

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

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

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

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

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

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

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

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limitations set forth herein.

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

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

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

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payment of benefits from the fund.

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

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

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

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

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laws section 28-33-19.

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

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

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

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

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

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

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

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

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

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

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Rhode Island supreme court.

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

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

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

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benefits payable directly to the employee.

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      (f) This section shall apply to injuries that occur on or after January 1, 2013 2015.

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     SECTION 7. Chapter 42-16.1 of the General Laws entitled "Department of Labor and

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Training" is hereby amended by adding thereto the following section:

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     42-16.1-18. Confidentiality. -- (a) Except as provided in subsection (b) of this section,

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the department of labor and training shall not release information to any individual not connected

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with the department relative to any employee's workers' compensation claim, including, but not

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limited to, information obtained from the employee, records or reports of employers, insurers or

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the courts, or from permanent records of the department.

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     (b) The department of labor and training may release information to the individual

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workers' compensation claimant, employer, insurer or their attorney upon a written request,

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specific as to the information being requested, that identifies the parties involved in the dispute

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and that specifies the requestor's relationship to the parties and the reason why the records are

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being requested.

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     SECTION 8. Section 45-19-1 of the General Laws in Chapter 45-19 entitled "Relief Of

10-26

Injured And Deceased Fire Fighters And Police Officers" is hereby amended to read as follows:

10-28

     45-19-1. Salary payment during line of duty illness or injury. -- (a)  Whenever any

10-29

police officer of the Rhode Island Airport Corporation or whenever any police officer, fire

10-30

fighter, crash rescue crewperson, fire marshal, chief deputy fire marshal, or deputy fire marshal of

10-31

any city, town, fire district, or the state of Rhode Island is wholly or partially incapacitated by

10-32

reason of injuries received or sickness contracted in the performance of his or her duties or due to

10-33

their rendering of emergency assistance within the physical boundaries of the state of Rhode

10-34

Island at any occurrence involving the protection or rescue of human life which necessitates that

10-35

they respond in a professional capacity when they would normally be considered by their

11-1

employer to be officially off-duty, the respective city, town, fire district, state of Rhode Island or

11-2

Rhode Island Airport Corporation by which the police officer, fire fighter, crash rescue

11-3

crewperson, fire marshal, chief deputy fire marshal, or deputy fire marshal, is employed, shall,

11-4

during the period of the incapacity, pay the police officer, fire fighter, crash rescue crewperson,

11-5

fire marshal, chief deputy fire marshal, or deputy fire marshal, the salary or wage and benefits to

11-6

which the police officer, fire fighter, crash rescue crewperson, fire marshal, chief deputy fire

11-7

marshal, or deputy fire marshal, would be entitled had he or she not been incapacitated, and shall

11-8

pay the medical, surgical, dental, optical, or other attendance, or treatment, nurses, and hospital

11-9

services, medicines, crutches, and apparatus for the necessary period, except that if any city,

11-10

town, fire district, the state of Rhode Island or Rhode Island Airport Corporation provides the

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police officer, fire fighter, crash rescue crewperson, fire marshal, chief deputy fire marshal, or

11-12

deputy fire marshal, with insurance coverage for the related treatment, services, or equipment,

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then the city, town, fire district, the state of Rhode Island or Rhode Island Airport Corporation is

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only obligated to pay the difference between the maximum amount allowable under the insurance

11-15

coverage and the actual cost of the treatment, service, or equipment. In addition, the cities, towns,

11-16

fire districts, the state of Rhode Island or Rhode Island Airport Corporation shall pay all similar

11-17

expenses incurred by a member who has been placed on a disability pension and suffers a

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recurrence of the injury or illness that dictated his or her disability retirement, subject to the

11-19

provisions of subsection (j) herein.  

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     (b)  As used in this section, "police officer" means and includes any chief or other

11-21

member of the police department of any city or town regularly employed at a fixed salary or wage

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and any deputy sheriff, member of the fugitive task force, or capitol police officer, permanent

11-23

environmental police officer or criminal investigator of the department of environmental

11-24

management, or airport police officer.  

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     (c)  As used in this section, "fire fighter" means and includes any chief or other member

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of the fire department or rescue personnel of any city, town, or fire district, and any person

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employed as a member of the fire department of the town of North Smithfield, or fire department

11-28

or district in any city or town.  

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     (d)  As used in this section, "crash rescue crewperson" means and includes any chief or

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other member of the emergency crash rescue section, division of airports, or department of

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transportation of the state of Rhode Island regularly employed at a fixed salary or wage.  

11-32

     (e)  As used in this section, "fire marshal," "chief deputy fire marshal", and "deputy fire

11-33

marshal" mean and include the fire marshal, chief deputy fire marshal, and deputy fire marshals

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regularly employed by the state of Rhode Island pursuant to the provisions of chapter 28.2 of title

12-1

23.  

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     (f)  Any person employed by the state of Rhode Island, except for sworn employees of

12-3

the Rhode Island State Police, who is otherwise entitled to the benefits of chapter 19 of this title

12-4

shall be subject to the provisions of chapters 29 - 38 of title 28 for all case management

12-5

procedures and dispute resolution for all benefits.  

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     (g)  In order to receive the benefits provided for under this section, a police officer or

12-7

firefighter must prove to their employer that he or she had reasonable grounds to believe that

12-8

there was an emergency which required an immediate need for their assistance for the protection

12-9

or rescue of human life.  

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     (h)  Any claims to the benefits provided for under this section resulting from the

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rendering of emergency assistance in the state of Rhode Island at any occurrence involving the

12-12

protection or rescue of human life while off-duty, shall first require those covered by this section

12-13

to submit a sworn declaration to their employer attesting to the date, time, place and nature of the

12-14

event involving the protection or rescue of human life causing the professional assistance to be

12-15

rendered and the cause and nature of any injuries sustained in the protection or rescue of human

12-16

life. Sworn declarations shall also be required from any available witness to the alleged

12-17

emergency involving the protection or rescue of human life.  

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     (i)  All declarations required under this section shall contain the following language:  

12-19

     "Under penalty of perjury, I declare and affirm that I have examined this declaration,

12-20

including any accompanying schedules and statements, and that all statements contained herein

12-21

are true and correct."  

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     (j)  Any person receiving injured on-duty benefits pursuant to this section, and subject to

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the jurisdiction of the state retirement board for accidental retirement disability, for an injury

12-24

occurring on or after July 1, 2011, shall be eligible to receive such benefits for a total period of

12-25

eighteen (18) months after the date of the person's injury that resulted in said person's injured on

12-26

duty status, except as provided for in subdivision 45-19-1(j)(2).  

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     (1) Within eighteen (18) months of being injured, the person shall apply for an accidental

12-28

disability retirement allowance from the state retirement board. A person who so applies shall

12-29

continue to receive injured on duty payments until the person's application for an accidental

12-30

disability retirement allowance has been allowed or denied, and if denied initially, then upon the

12-31

expiration of the appeal period from such decision to the workers' compensation court pursuant to

12-32

 45-21.2-9 of the general laws, or, if appealed, then upon a decision from the workers'

12-33

compensation court denying said appeal, whichever is applicable.  

13-34

13-35

     (2) If a person with injured on duty status fails to apply for an accidental disability

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retirement allowance from the state retirement board within the eighteen (18) month period set

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forth in this subsection, that person's injured on duty payments shall terminate, unless said person

13-38

provides to the applicable municipality a written opinion from a physician that states that it is the

13-39

physician's opinion, to a reasonable degree of medical certainty, that the person will be able to

13-40

return to work within six (6) months. In such event, the injured person may continue to receive

13-41

injured on duty payments for a period, not to exceed six (6) months, after the initial eighteen (18)

13-42

month period expires.  

13-43

     (j) Any person receiving injured on-duty benefits pursuant to this section, and subject to

13-44

the jurisdiction of the state retirement board for accidental retirement disability, for an injury

13-45

occurring on or after July 1, 2011, shall apply for an accidental disability retirement allowance

13-46

from the state retirement board not later than the later of eighteen (18) months after the date of the

13-47

person’s injury that resulted in said person’s injured on duty status or sixty (60) days from the

13-48

date on which the treating physician certifies that the person has reached maximum medical

13-49

improvement. Nothing herein shall be construed to limit or alter any and all rights of the parties

13-50

with respect to independent medical examination or otherwise, as set forth in the applicable

13-51

collective bargaining agreement. Notwithstanding the forgoing, any person receiving injured on

13-52

duty benefits as the result of a static and incapacitating injury whose permanent nature is readily

13-53

obvious and ascertainable shall be required to apply for an accidental disability retirement

13-54

allowance within sixty (60) days from the date on which the treating physician certifies that the

13-55

person’s injury is permanent, or sixty (60) days from the date on which such determination of

13-56

permanency is made in accordance with the independent medical examination procedures as set

13-57

forth in the applicable collective bargaining agreement.

13-58

     (1) If a person with injured on duty status fails to apply for an accidental disability

13-59

retirement allowance from the state retirement board within the time frame set forth above, that

13-60

person’s injured on duty payment shall terminate. Further, any person suffering a static and

13-61

incapacitating injury as set forth in subsection (j) above and who fails to apply for an accidental

13-62

disability benefit allowance as set forth in subsection (j) shall have his or her injured on duty

13-63

payment terminated.

13-64

     (2) A person who so applies shall continue to receive injured on duty payments, and the

13-65

right to continue to receive IOD payments of a person who so applies shall terminate in the event

13-66

of a final ruling of the workers compensation court allowing accidental disability benefits.

13-67

Nothing herein shall be construed to limit or alter any and all rights of the parties with respect to

13-68

independent medical examination or otherwise, as set forth in the applicable collective bargaining

14-1

agreement.

14-2

     SECTION 9. Section 45-21.2-9 of the General Laws in Chapter 45-21.2 entitled

14-3

"Optional Retirement for Members of Police Force and Fire Fighters" is hereby amended to read

14-4

as follows:

14-5

     45-21.2-9. Retirement for accidental disability. -- (a) Any member in active service,

14-6

regardless of length of service, is entitled to an accidental disability retirement allowance.

14-7

Application for the allowance is made by the member or on the member's behalf, stating that the

14-8

member is physically or mentally incapacitated for further service as the result of an injury

14-9

sustained while in the performance of duty and certifying to the time, place, and conditions of the

14-10

duty performed by the member which resulted in the alleged disability and that the alleged

14-11

disability was not the result of the willful negligence or misconduct on the part of the member,

14-12

and was not the result of age or length of service, and that the member has not attained the age of

14-13

sixty-five (65). The application shall be made within eighteen (18) months of the alleged

14-14

accident from which the injury has resulted in the member's present disability and shall be

14-15

accompanied by an accident report and a physician's report certifying to the disability. If the

14-16

member was able to return to his or her employment and subsequently reinjures or aggravates the

14-17

same injury, the member shall make another application within eighteen (18) months of the

14-18

reinjury or aggravation which shall be accompanied by a physician's report certifying to the

14-19

reinjury or aggravation causing the disability. If a medical examination made by three (3)

14-20

physicians engaged by the retirement board, and other investigations as the board may make,

14-21

confirms the statements made by the member, the board may grant the member an accidental

14-22

disability retirement allowance.

14-23

      (b) For the purposes of subsection (a), "aggravation" shall mean an intervening work-

14-24

related trauma that independently contributes to a member's original injury that amounts to more

14-25

than the natural progression of the preexisting disease or condition and is not the result of age or

14-26

length of service. The intervening independent trauma causing the aggravation must be an

14-27

identifiable event or series of work-related events that are the proximate cause of the member's

14-28

present condition of disability.

14-29

      (c) "Occupational cancer", as used in this section, means a cancer arising out of

14-30

employment as a fire fighter, due to injury due to exposures to smoke, fumes, or carcinogenic,

14-31

poisonous, toxic, or chemical substances while in the performance of active duty in the fire

14-32

department.

14-33

      (d) For purposes of subsection (a), "reinjury" shall mean a recurrence of the original

14-34

work-related injury from a specific ascertainable event. The specific event must be the proximate

15-1

cause of the member's present condition of disability.

15-2

      (e) Any fire fighter, including one employed by the state, or a municipal firefighter

15-3

employed by a municipality that participates in the optional retirement for police officers and fire

15-4

fighters as provided in this chapter, who is unable to perform his or her duties in the fire

15-5

department by reason of a disabling occupational cancer which develops or manifests itself

15-6

during a period while the fire fighter is in the service of the department, and any retired member

15-7

of the fire force of any city or town who develops occupational cancer, is entitled to receive an

15-8

occupational cancer disability and he or she is entitled to all of the benefits provided for in this

15-9

chapter, chapters 19, 19.1, and 21 of this title and chapter 10 of title 36 if the fire fighter is

15-10

employed by the state.

15-11

      (f) In the event that any party is aggrieved by the determination of the retirement board

15-12

pursuant to section 45-19-1, for an injury occurring on or after July 1, 2011, the party may submit

15-13

an appeal to the Rhode Island workers' compensation court. The appellant shall file a notice of

15-14

appeal with the retirement board and shall serve a copy of the notice of appeal upon the opposing

15-15

party.

15-16

      (g) Within twenty (20) days of the receipt of the notice of appeal, the retirement board

15-17

shall transmit the entire record of proceedings before it, together with its order, to the workers'

15-18

compensation court.

15-19

      (h) In the event that a party files a notice of appeal to the workers' compensation court,

15-20

the order of the retirement board shall be stayed pending further action by the court pursuant to

15-21

the provisions of Rhode Island general law section 28-35-20.

15-22

      (i) Upon receipt of the record of proceedings before the retirement board, the court shall

15-23

assign the matter to a judge and shall issue a notice at the time advising the parties of the judge to

15-24

whom the case has been assigned and the date for pretrial conference in accordance with Rhode

15-25

Island general law section 28-35-20.

15-26

      (j) All proceedings filed with the workers' compensation court pursuant to this section

15-27

shall be de novo and shall be subject to the provisions of chapters 29 to 38 of Title 28 for all case

15-28

management procedures and dispute resolution processes, as provided under the rules of workers'

15-29

compensation court. The workers' compensation court shall enter a pretrial order in accordance

15-30

with subsection 28-35-20(c) which grants or denies, in whole or in part, the relief sought by the

15-31

petitioner. The pretrial order shall be effective upon entry and any payments ordered by it shall be

15-32

paid within fourteen (14) days of the entry of the order. Provided, however, that in the event that

15-33

the retirement board files a claim for trial of the pretrial order entered by the court, the order of

15-34

the court shall be stayed until a final order or decree is entered by the court. If after trial and the

16-1

entry of a final decree, the court sustains the findings and orders entered in the pretrial order, the

16-2

retirement board shall reimburse the municipality all benefits paid by it from the time the pretrial

16-3

order was entered until the time the final decree is entered by the court. Where the matter has

16-4

been heard and decided by the workers' compensation court, the court shall retain jurisdiction to

16-5

review any prior orders or decrees entered by it. Such petitions to review shall be filed directly

16-6

with the workers' compensation court and shall be subject to the case management and dispute

16-7

resolution procedures set forth in chapters 29 through 38 of title 28 ("Labor and Labor

16-8

Relations").

16-9

      (k) If the court determines that a member qualifies for accidental disability retirement,

16-10

the member shall receive a retirement allowance equal to sixty-six and two-thirds percent (66

16-11

2/3%) of the rate of the member's compensation at the date of the member's retirement, subject to

16-12

the provisions of section 45-21-31.

16-13

     SECTION 10. Nothing contained in this act shall abrogate or affect substantive rights or

16-14

pre-existing agreements, preliminary determinations, orders or decrees.

16-15

     SECTION 11. Section 1 and Section 3 shall take effect on October 1, 2013.The

16-16

remainder of the act shall take effect upon passage.

=======

LC02602/SUB A

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR AND LABOR RELATIONS -- WORKERS' COMPENSATION

***

17-1

     This act would amend various procedural provisions in the general laws regarding

17-2

workers' compensation cases, including the notice requirements, would increase the amount paid

17-3

for burial expenses in cases or work-related injuries resulting in death, and would extend the

17-4

appropriation of two million dollars ($2,000,000) by the state to the uninsured employer fund to

17-5

2015.

17-6

     Nothing contained in the act would abrogate or affect substantive rights or pre-existing

17-7

agreements, preliminary determinations, orders or decrees.

17-8

     Section 1 and Section 3 would take effect on October 1, 2013. The remainder of the act

17-9

would take effect upon passage.

=======

LC02602/SUB A

=======