2016 -- S 2617

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LC004862

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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 Lombardo, Conley, and Archambault

     Date Introduced: February 25, 2016

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 28-29-2 of the General Laws in Chapter 28-29 entitled "Workers'

Compensation - General Provisions" is hereby amended to read as follows:

     28-29-2. Definitions. -- In chapters 29 -- 38 of this title, unless the context otherwise

requires:

      (1) "Department" means the department of labor and training.

      (2) "Director" means the director of labor and training or his or her designee unless

specifically stated otherwise.

      (3) (i) "Earnings capacity" means the weekly straight time earnings which an employee

could receive if the employee accepted an actual offer of suitable alternative employment.

Earnings capacity can also be established by the court based on evidence of ability to earn,

including, but not limited to, a determination of the degree of functional impairment and/or

disability, that an employee is capable of employment. The court may, in its discretion, take into

consideration the performance of the employee's duty to actively seek employment in scheduling

the implementation of the reduction. The employer need not identify particular employment

before the court can direct an earnings capacity adjustment. In the event that an employee returns

to light duty employment while partially disabled, an earnings capacity shall not be set based

upon actual wages earned until the employee has successfully worked at light duty for a period of

at least thirteen (13) weeks.

      (ii) As used under the provisions of this title, "functional impairment" means an

anatomical or functional abnormality existing after the date of maximum medical improvement as

determined by a medically or scientifically demonstrable finding and based upon the Sixth (6th)

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

or comparable publications of the American Medical Association.

      (iii) In the event that an employee returns to employment at an average weekly wage

equal to the employee's pre-injury earnings exclusive of overtime, the employee will be presumed

to have regained his/her earning capacity.

      (4) "Employee" means any person who has entered into the employment of or works

under contract of service or apprenticeship with any employer, except that in the case of a city or

town other than the city of Providence it shall only mean that class or those classes of employees

as may be designated by a city, town, or regional school district in a manner provided in this

chapter to receive compensation under chapters 29 -- 38 of this title. Any person employed by the

state of Rhode Island, except for sworn employees of the Rhode Island State Police, or by the

Rhode Island Airport Corporation who is otherwise entitled to the benefits of chapter 19 of title

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

procedures and dispute resolution for all benefits. The term "employee" does not include any

individual who is a shareholder or director in a corporation, general or limited partners in a

general partnership, a registered limited liability partnership, a limited partnership, or partners in

a registered limited liability limited partnership, or any individual who is a member in a limited

liability company. These exclusions do not apply to shareholders, directors and members who

have entered into the employment of or who work under a contract of service or apprenticeship

within a corporation or a limited liability company. The term "employee" also does not include a

sole proprietor, independent contractor, or a person whose employment is of a casual nature, and

who is employed other than for the purpose of the employer's trade or business, or a person

whose services are voluntary or who performs charitable acts, nor shall it include the members of

the regularly organized fire and police departments of any town or city except for appeals from an

order of the retirement board filed pursuant to the provisions of Rhode Island general law § 45-

21.2-9; provided, however, that it shall include the members of the police and aircraft rescue and

firefighting (ARFF) units of the Rhode Island Airport Corporation. Whenever a contractor has

contracted with the state, a city, town, or regional school district any person employed by that

contractor in work under contract shall not be deemed an employee of the state, city, town, or

regional school district as the case may be. Any person who on or after January 1, 1999, was an

employee and became a corporate officer shall remain an employee, for purposes of these

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chapters, unless and until coverage under this act is waived pursuant to subsection 28-29-8(b) or §

28-29-17. Any person who is appointed a corporate officer between January 1, 1999 and

December 31, 2001, and was not previously an employee of the corporation, will not be

considered an employee, for purposes of these chapters, unless that corporate officer has filed a

notice pursuant to subsection 28-29-19(b). In the case of a person whose services are voluntary or

who performs charitable acts, any benefit received, in the form of monetary remuneration or

otherwise, shall be reportable to the appropriate taxation authority but shall not be deemed to be

wages earned under contract of hire for purposes of qualifying for benefits under chapters 29 --

38 of this title. Any reference to an employee who had been injured shall, where the employee is

dead, include a reference to his or her dependents as defined in this section, or to his or her legal

representatives, or, where he or she is a minor or incompetent, to his or her conservator or

guardian. A "seasonal occupation" means those occupations in which work is performed on a

seasonal basis of not more than sixteen (16) weeks.

      (5) "Employer" includes any person, partnership, corporation, or voluntary association,

and the legal representative of a deceased employer; it includes the state, and the city of

Providence. It also includes each city, town, and regional school district in the state that votes or

accepts the provisions of chapters 29 -- 38 of this title in the manner provided in this chapter or is

a party to an appeal from an order of the retirement board filed pursuant to the provisions of

Rhode Island general law § 45-21.2-9.

      (6) "General or special employer":

      (i) "General employer" includes but is not limited to temporary help companies and

employee leasing companies and means a person who for consideration and as the regular course

of its business supplies an employee with or without vehicle to another person.

      (ii) "Special employer" means a person who contracts for services with a general

employer for the use of an employee, a vehicle, or both.

      (iii) Whenever there is a general employer and special employer wherein the general

employer supplies to the special employer an employee and the general employer pays or is

obligated to pay the wages or salaries of the supplied employee, then, notwithstanding the fact

that direction and control is in the special employer and not the general employer, the general

employer, if it is subject to the provisions of the Workers' Compensation Act or has accepted that

Act, shall be deemed to be the employer as set forth in subdivision (5) of this section and both the

general and special employer shall be the employer for purposes of §§ 28-29-17 and 28-29-18.

      (iv) Effective January 1, 2003, whenever a general employer enters into a contract or

arrangement with a special employer to supply an employee or employees for work, the special

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employer shall require an insurer generated insurance coverage certification, on a form prescribed

by the department, demonstrating Rhode Island workers' compensation and employer's liability

coverage evidencing that the general employer carries workers' compensation insurance with that

insurer with no indebtedness for its employees for the term of the contract or arrangement. In the

event that the special employer fails to obtain and maintain at policy renewal and thereafter this

insurer generated insurance coverage certification demonstrating Rhode Island workers'

compensation and employer's liability coverage from the general employer, the special employer

is deemed to be the employer pursuant to the provisions of this section. Upon the cancellation or

failure to renew, the insurer having written the workers' compensation and employer's liability

policy shall notify the certificate holders and the department of the cancellation or failure to

renew and upon notice, the certificate holders shall be deemed to be the employer for the term of

the contract or arrangement unless or until a new certification is obtained.

      (7) (i) "Injury" means and refers to personal injury to an employee arising out of and in

the course of his or her employment, connected and referable to the employment.

      (ii) An injury to an employee while voluntarily participating in a private, group, or

employer-sponsored carpool, vanpool, commuter bus service, or other rideshare program, having

as its sole purpose the mass transportation of employees to and from work shall not be deemed to

have arisen out of and in the course of employment. Nothing in the foregoing provision shall be

held to deny benefits under chapters 29 -- 38 and chapter 47 of this title to employees such as

drivers, mechanics, and others who receive remuneration for their participation in the rideshare

program. Provided, that the foregoing provision shall not bar the right of an employee to recover

against an employer and/or driver for tortious misconduct.

      (8) "Maximum medical improvement" means a point in time when any medically

determinable physical or mental impairment as a result of injury has become stable and when no

further treatment is reasonably expected to materially improve the condition. Neither the need for

future medical maintenance nor the possibility of improvement or deterioration resulting from the

passage of time and not from the ordinary course of the disabling condition, nor the continuation

of a pre-existing condition precludes a finding of maximum medical improvement. A finding of

maximum medical improvement by the workers' compensation court may be reviewed only

where it is established that an employee's condition has substantially deteriorated or improved.

      (9) "Physician" means medical doctor, surgeon, dentist, licensed psychologist,

chiropractor, osteopath, podiatrist, or optometrist, as the case may be.

      (10) "Suitable alternative employment" means employment or an actual offer of

employment which the employee is physically able to perform and will not exacerbate the

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employee's health condition and which bears a reasonable relationship to the employee's

qualifications, background, education, and training. The employee's age alone shall not be

considered in determining the suitableness of the alternative employment. Notwithstanding any

provision to the contrary, an offer of suitable alternative employment may be made at any time

where an employee is claiming entitlement to weekly benefits, regardless of whether liability has

been established. Additionally, notwithstanding any provision to the contrary, an offer of suitable

alternative employment may be made by an employer other than the original employer (in whose

employ the person was injured).

      (11) "Independent contractor" means a person who has filed a notice of designation as

independent contractor with the director pursuant to § 28-29-17.1 or as otherwise found by the

workers' compensation court.

     SECTION 2. Section 28-33-18.2 of the General Laws in Chapter 28-33 entitled

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

     28-33-18.2. Suitable alternative employment. -- (a) When an employee has sustained

an injury which entitles the employee to receive benefits pursuant to § 28-33-18 or 28-34-3, the

employee may become capable of suitable alternative employment as determined by the workers'

compensation court, or may be offered suitable alternative employment as agreed to by the

employee and employer with written notice to the director. The employer or insurer shall pay an

injured employee that accepts suitable alternative employment a weekly compensation equal to

sixty-six and two-thirds percent (66 2/3%) of the difference between the employee's average

weekly wage, earnings or salary before the injury and his or her weekly wages, earnings or salary

from the suitable alternative employment.

      (b) The acceptance of suitable alternative employment shall not be mandatory if it results

in the inequitable forfeiture or loss of seniority with the employer or a monetary benefit or other

substantial benefit including, but not limited to, vested pension and/or profit sharing

contributions, arising from the employment relationship.

      (c) If suitable alternative employment as determined by the workers' compensation court

has been offered to the employee and the employee has refused to accept the employment, then

the workers' compensation court shall, in fixing the amount of compensation payable subsequent

to the refusal, treat earnings capacity as post injury earnings, requiring the employer or insurer to

pay the injured employee a weekly compensation equal to sixty-six and two-thirds percent (66

2/3%) of the difference between the employee's average weekly wage, earnings, or salary before

the injury and the weekly earning capacity. In no case shall increases in payments made to an

injured employee pursuant to § 28-33-18.3(b)(1) or 28-33-17(f) be considered in the calculation

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of the weekly compensation due pursuant to this section. The fact that the employee is

undergoing rehabilitation does not by itself exempt the employee from the provisions of this

subsection.

      (d) If the suitable alternative employment is terminated by the employer for reasons

other than misconduct by the employee, the injured employee shall be entitled to be compensated

from the employer in whose employ he or she was injured at the rate to which the employee was

entitled prior to acceptance of the employment after notice by the employee to the employer in

whose employ he or she was injured. The payments shall be made no later than fourteen (14) days

after the notice. If suitable alternative employment is terminated by the employer for misconduct

of the employee, or by the employee, the compensation payable to the employee shall not exceed

that payable during continuance of suitable alternative employment. Upon request to the workers'

compensation court, the employee shall have the right to a determination as to whether or not the

termination was justified. Any employee who accepts suitable alternative employment with his or

her employer of record shall continue to maintain the seniority status and all rights incidental to it

that the employee enjoyed prior to his or her injury, except that these rights shall not exceed the

current rights of a similar employee with equal seniority.

     (e) Notwithstanding any provision to the contrary, the workers' compensation court shall

have broad discretion to set an earnings capacity in all instances where there is finding that the

employee has the capability to earn, including, but not limited to:

     (1) Where an appropriate offer of alternative employment has been made, including an

offer by any employer, regardless of whether it was the original employer (in whose employ the

person was injured); or

     (2) Where it is established, based on a labor market survey or other evidence, that work is

available in the community, whether or not an actual job offer, of any kind, has been made.

     SECTION 3. This act shall take effect upon passage.

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LC004862

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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 broaden the definition of "suitable alternative employment." It would also

expand the circumstances under which an earning capacity can be set by the workers'

compensation court.

     This act would take effect upon passage.

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LC004862

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