2016 -- S 2238

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LC004074

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2016

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- WORKERS' COMPENSATION--

BENEFITS

     Introduced By: Senators Doyle, and Ciccone

     Date Introduced: January 27, 2016

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 28-33-18 and 28-33-20 of the General Laws in Chapter 28-33

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

     28-33-18. Weekly compensation for partial incapacity. -- (a) While the incapacity for

work resulting from the injury is partial, the employer shall pay the injured employee a weekly

compensation equal to seventy-five percent (75%) eighty-five percent (85%) of the difference

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

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

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

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

subject to the provisions of § 28-33-18.2.

      (b) For all injuries occurring on or after September 1, 1990, where an employee's

condition has reached maximum medical improvement and the incapacity for work resulting from

the injury is partial, while the incapacity for work resulting from the injury is partial, the

employer shall pay the injured employee a weekly compensation equal to seventy percent (70%)

of the weekly compensation rate as set forth in subsection (a) of this section. The court may, in its

discretion, shall take into consideration the performance of the employee's duty to actively seek

employment in scheduling the implementation of the reduction. The provisions of this subsection

are subject to the provisions of § 28-33-18.2.

      (c) (1) Earnings capacity determined from degree of functional impairment pursuant to §

28-29-2(3) shall be determined as a percentage of the whole person based on the Sixth (6th)

edition of the American Medical Association Guides To The Value Of Permanent Impairment.

Earnings capacity shall be calculated from the percentage of impairment as follows:

      (i) For impairment of five percent (5%) or less, earnings capacity shall be calculated so

as to extinguish one hundred percent (100%) of weekly benefits.

      (ii) For impairment of twenty-five percent (25%) or less, but greater than five percent

(5%), earnings capacity shall be calculated so as to extinguish one hundred percent (100%) less

the percent of impairment of weekly benefits.

      (iii) For impairment of fifty percent (50%) or less, but greater than twenty-five percent

(25%), earnings capacity shall be calculated so as to extinguish one hundred percent (100%) less

one point two five (1.25) times the percent of impairment of weekly benefits.

      (iv) For impairment of sixty-five percent (65%) or less, but greater than fifty percent

(50%), earnings capacity shall be calculated so as to extinguish one hundred percent (100%) less

one point five (1.5) times the percent of impairment of weekly benefits.

      (2) An earnings capacity adjustment under this section shall be applicable only when the

employee's condition has reached maximum medical improvement under § 28-29-2(3)(ii) and

benefits are subject to adjustment pursuant to subsection (b) of this section.

      (d) In the event partial compensation is paid, in no case shall the period covered by the

compensation be greater than three hundred and twelve (312) weeks. In the event that

compensation for partial disability is paid under this section for a period of three hundred and

twelve (312) weeks, the employee's right to continuing weekly compensation benefits shall be

determined pursuant to the terms of § 28-33-18.3. At least twenty-six (26) weeks prior to the

expiration of the period, the employer or insurer shall notify the employee and the director of its

intention to terminate benefits at the expiration of three hundred and twelve (312) weeks and

advise the employee of the right to apply for a continuation of benefits under the terms of § 28-

33-18.3. In the event that the employer or insurer fails to notify the employee and the director as

prescribed, the employer or insurer shall continue to pay benefits to the employee for a period

equal to twenty-six (26) weeks after the date the notice is served on the employee and the

director.

     28-33-20. Computation of earnings. -- (a) For the purposes of this chapter, the average

weekly wage shall be ascertained as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

necessary part of the memorandum of agreement required by § 28-35-1. Where the employer has

been accustomed to paying the employee a sum to cover any special expense incurred by the

employee by the nature of his or her employment, the sum paid shall not be reckoned as part of

the employee's wages, earnings, or salary. The fact that an employee has suffered a previous

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

injury or for death; but in determining the compensation for the later injury or death, his or her

average weekly wages shall be any sum that will reasonably represent his or her weekly earning

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

time, and shall be arrived at according to, and subject to the limitations of, the provisions of this

section. In computing the average weekly wages earned subsequent to the first injury, the time

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

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

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

immediately preceding the injury.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

all benefits provided by chapters 29 -- 38 of this title. In the case that the injured employee's other

employer is a full-time employer, the average weekly wage shall be calculated according to

subdivision (1) for the thirteen (13) calendar weeks immediately preceding the week in which he

or she was injured. Calculations for part-time employment shall be calculated separately for the

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

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

of the memorandum of agreement required by § 28-35-1.

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

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

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

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

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

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

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

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

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

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

     SECTION 2. This act shall take effect upon passage and shall apply to those persons

receiving or eligible for weekly compensation for partial incapacity as of the date of passage.

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LC004074

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- WORKERS' COMPENSATION--

BENEFITS

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     This act would increase weekly compensation for partial incapacity, from seventy-five

percent (75%) to eighty-five percent (85%) of spendable base wage calculation before injury and

spendable base wage calculation after injury; it would also eradicate the calculations reducing

benefits of degrees of impairment and would mandate that overtime earnings in the twenty-six

(26) weeks preceding the injury, be averaged into the employees wage calculation.

     This act would take effect upon passage and would apply to those persons receiving or

eligible for weekly compensation for partial incapacity as of the date of passage.

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