2018 -- S 2924 SUBSTITUTE B

========

LC005772/SUB B

========

     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2018

____________

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- WORKERS' COMPENSATION

     Introduced By: Senator P Fogarty

     Date Introduced: May 17, 2018

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 28-29-19 and 28-29-30 of the General Laws in Chapter 28-29

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

     28-29-19. Waiver of claim of common law rights.

     (a) Any employee, or corporate officer, or manager, managing member or member of a

limited liability company, or the parent or guardian of any minor employee, who has given notice

to the employer that he or she claimed his or her right of action at common law may waive that

claim by filing a notice in writing with the director and the employer or his or her agent which

shall take effect five (5) days after the filing with the director.

     (b) Any corporate officer, or manager, managing member or member of a limited liability

company who has given notice to the employer and its workers' compensation insurance carrier

that they claimed their right of action at common law may waive that claim by filing a notice in

writing with the director and the employer or their agent and its workers' compensation insurance

carrier which shall take effect five (5) days after the filing with the director. The insurance carrier

shall keep a copy of the notice consistent with the rules and regulations of the department.

     (b)(c) 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 may elect to become

subject to chapters 29 -- 38 of this title upon filing a notice in writing with the director and his or

her employer and its workers' compensation insurance carrier which notice takes effect five (5)

days after the filing of his or her notice.

     28-29-30. Advisory council.

     (a) There is created a workers' compensation advisory council consisting of sixteen (16)

seventeen (17) members as follows:

     (1) The chief judge of the workers' compensation court and one two (2) additional judge

judges of the workers' compensation court and one member of the Bar who primarily represents

injured workers before the workers' compensation court, both to be selected by the chief judge;

     (2) The director of business regulation;

     (3) The director of administration;

     (4) Three (3) representatives from labor appointed by the governor, one of whom shall be

an injured worker;

     (5) Three (3) representatives from business appointed by the governor, one of whom shall

be a self-insured employer, and one of whom shall represent cities and towns;

     (6) One representative from the general public appointed by the governor;

     (7) The chairperson of the senate labor committee or his or her designee;

     (8) The chairperson of the house labor committee or his or her designee;

     (9) The director of labor and training; and

     (10) The chief executive officer of the workers' compensation insurance fund or his or her

designee.

     (b) It shall be the duty of the council to advise the governor and the general assembly, on

an annual basis, on the administration of the workers' compensation system.

     SECTION 2. Section 28-30-4 of the General Laws in Chapter 28-30 entitled "Workers'

Compensation Court" is hereby amended to read as follows:

     28-30-4. Workers' compensation administrator -- Appointment -- Powers and

duties.

     (a) There shall be a workers' compensation administrator who shall be appointed by the

chief judge of the workers' compensation court with the advice and consent of the senate. The

chief judge of the workers' compensation court, with the advice and consent of the senate, shall

appoint a workers' compensation administrator to serve for a period of five (5) years, and

thereafter until his or her successor is appointed and qualified.

     (b) The administrator shall:

     (1) Supervise the preparation of an annual budget for the workers' compensation court;

     (2) Formulate procedures governing the administration of workers' compensation court

services;

     (3) Make recommendations to the workers' compensation court for improvement in court

LC005772/SUB B - Page 2 of 12

services;

     (4) Collect necessary statistics and prepare the annual report of the work of the workers'

compensation court;

     (5) Provide supervision and consultation to the staff of the workers' compensation court

concerning administration of court services, training and supervision of personnel, and fiscal

management;

     (6) Perform any other duties that the workers' compensation court specifies.

     (7) Have the power to act as a notary public as provided in § 42-30-14.

     SECTION 3. Section 28-36-15 of the General Laws in Chapter 28-36 entitled "Workers'

Compensation – Insurance" is hereby amended to read as follows:

     28-36-15. Penalty for failure to secure compensation -- Personal liability of

corporate officers.

     (a) Any employer required to secure the payment of compensation under chapters 29 --

38 of this title who knowingly fails to secure that compensation shall be guilty of a felony and

shall be subject to imprisonment for up to two (2) years. In addition to the foregoing, the

employer shall be subject to a civil penalty punished by a fine not to exceed one thousand dollars

($1,000) for each day of noncompliance with the requirements of this title. The director shall

institute any and all reasonable measures to comprehensively monitor, investigate, and otherwise

discover all employer noncompliance with this section and shall establish rules and regulations

governing these measures. Each day shall constitute a separate and distinct offense for calculation

of the penalty. Where that employer is a corporation the president, vice president, secretary,

treasurer, and other officers of the corporation, shall be severally liable for the fine, penalty or

imprisonment as provided in this section for the failure of that corporation to secure the payment

of compensation. The president, vice president, secretary, treasurer, and other officers of the

corporation shall also be severally personally liable, jointly with the corporation for any

compensation or other benefit which may accrue under those chapters in respect to any injury

which may occur to any employee of that corporation while it fails to secure the payment of

compensation as required by those chapters.

     (b) Where the employer is a limited liability company, the managers and managing

members who knowingly fail to secure the payment of compensation under chapters 29 -- 38 of

this title shall be guilty of a felony and shall be subject to imprisonment for up to two (2) years.

The managers and managing members shall also be severally liable for the fine, penalty or

imprisonment as provided in this section for the failure of that company to secure the payment of

compensation. The managers and managing members shall be severally personally liable, jointly

LC005772/SUB B - Page 3 of 12

with the company, for any compensation or other benefit which may accrue under those chapters

in respect to any injury which may occur to any employee of that company while it fails to secure

the payment of compensation as required by those chapters.

     (c) Where the employer is a partnership, or a registered limited liability partnership, the

partners who knowingly fail to secure the payment of compensation under chapters 29 -- 38 of

this title shall be guilty of a felony and shall be subject to imprisonment for up to two (2) years.

The partners shall also be severally liable for the fine, penalty, or imprisonment as provided in

this section for the failure of that partnership to secure the payment of compensation. The partners

shall be severally personally liable, jointly with the partnership, for any compensation or other

benefit which may accrue under those chapters in respect to any injury which may occur to any

employee of that partnership while it fails to secure the payment as required by those chapters.

     (d) Where the employer is a limited partnership or a registered limited liability limited

partnership, the general partners who knowingly fail to secure the payment of compensation

under chapters 29 -- 38 of this title shall be guilty of a felony and shall be subject to

imprisonment for up to two (2) years. The general partners shall also be severally liable for the

fine, penalty or imprisonment as provided in this section for the failure of that limited partnership

to secure the payment of compensation. The general partners shall be severally personally liable,

jointly with the limited partnership, for any compensation or other benefit which may accrue

under those chapters in respect to any injury which may occur to any employee of that partnership

while it fails to secure the payment of compensation as required by those chapters.

     (e) All criminal actions for any violation of this section shall be prosecuted by the

attorney general. The attorney general shall prosecute actions to enforce the payment of penalties

and fines at the request of the director. The workers' compensation court shall have jurisdiction

over all civil actions filed pursuant to this section.

     The court shall consider the following factors in assessing a civil penalty: gravity of

offense, resources of the employer, effect of the penalty on employees of the company, the reason

for the lapse in coverage, and the recommendation of the director. Following a review of the

factors set forth above, the court may suspend all or a part of a civil penalty or shall establish a

time table for compliance with any court order.

     (f) (1) As soon as practicable after the director receives notice of noncompliance under

this section, the director shall determine whether cause exists for the imposition of a civil penalty.

Unless the director determines that the noncompliance was unintentional or the result of a clerical

error and subject to the administrative proceedings under subsection (g) of this section, the

director shall commence an action in the workers' compensation court to assess a civil penalty

LC005772/SUB B - Page 4 of 12

against the employer as set forth in subsection (a) of this section and shall refer the matter to the

attorney general for prosecution of criminal charges.

     (2) The director shall bring a civil action in the workers' compensation court to collect all

payments and penalties ordered and not paid. All civil actions for any violations of this chapter or

of any of the rules or regulations promulgated by the director, or for the collection of payments in

accordance with § 28-37-13, 28-33-17.3(a)(2) or 28-33-17.3(a)(3) or civil penalties under this

chapter, shall be prosecuted by any qualified member of the Rhode Island bar whom the director

may designate, in the name of the director, and the director is exempt from giving surety for costs

in any proceedings.

     (g) In the case of unintentional noncompliance or noncompliance resulting from clerical

error where the uninsured period is less than one year from the date of discovery and there were

no employees injured during the uninsured period and the employer has not been subject to any

other findings of noncompliance with these chapters, the director shall assess an administrative

penalty of not less than the estimated annual workers' compensation insurance premium for that

employer and not more than triple that amount. Any party has the right to appeal the orders of the

director. Such appeal shall be to the workers' compensation court in the first instance and

thereafter from the workers' compensation court to the Rhode Island supreme court in accordance

with § 28-35-30.

     (h) The director shall collect all payments under this chapter under the rules and

regulations that may be set forth by the director. All fines collected pursuant to this section shall

be deposited to a restricted receipt account to be administered by the director of the department of

labor and training in his or her sole discretion to carry out chapters 29 -- 38 of this title.

     (i) (1) In that the operation of a commercial enterprise without the required workers'

compensation insurance is a crime and creates a clear and present danger of irreparable harm to

employees who are injured while the employer is uninsured, the director shall suspend the

operation of the business immediately and until workers' compensation and employers' liability

insurance is secured consistent with these chapters. The director shall lift the suspension upon

receipt of satisfactory proof of insurance and evidence sufficient to satisfy the director that the

employer is in full compliance with these chapters. Any party has the right to appeal the

suspension to the workers' compensation court where the matter shall proceed pursuant to the

workers' compensation court rules of procedure.

     (2) In the event that the employer shall fail to comply with the director's order of

suspension, the director may apply immediately to the workers' compensation court for an order

directing the employer to comply with the director's prior orders.

LC005772/SUB B - Page 5 of 12

     (3) Actions filed with the workers' compensation court pursuant to this section shall not

be subject to a pretrial conference in accordance with § 28-35-20 but and shall be assigned

consistent with the workers' compensation court rules of practice.

     (4) Interest shall accrue on unpaid penalties during the pendency of any appeal at the rate

per annum provided in § 9-21-10.

     (j) These provisions shall take effect upon passage except § 28-29-2(6)(iv) which shall

take effect on January 1, 2006.

     SECTION 4. The title of Chapter 28-53 of the General Laws entitled "Rhode Island

Uninsured Employers Fund" is hereby amended to read as follows:

CHAPTER 28-53

Rhode Island Uninsured Employers Fund

CHAPTER 28-53

RHODE ISLAND UNINSURED PROTECTION FUND

     SECTION 5. Sections 28-53-1, 28-53-2, 28-53-3, 28-53-7, 28-53-8 and 28-53-9 of the

General Laws in Chapter 28-53 entitled "Rhode Island Uninsured Employers Fund" are hereby

amended to read as follows:

     28-53-1. Preamble and legislative findings.

     WHEREAS, The system of workers' compensation in the state of Rhode Island was once

in a state of acute crisis until legislative intervention and oversight produced what is now a

nationally recognized model of a well-managed economical program that provides injured

workers with appropriate compensation, health care and rehabilitative services without unduly

burdening employers, insurers and the citizens of Rhode Island; and

     WHEREAS, Legislative and policy changes have corrected the abuses and misuse of the

workers' compensation system while assisting injured workers, restoring fiscal stability, and

eliminating waste and unnecessary costs; and

     WHEREAS, Professionals providing services covered under the provisions of the

Workers' Compensation Act have taken into account, in the performance of their service, the

important public policy benefit of a sound and properly functioning workers' compensation

system in this state, and have tirelessly committed themselves to protect and maintained maintain

the integrity of this system; and

     WHEREAS, Abuse and misuse of the workers' compensation system by non-complying

employers has been reduced through the state's mandatory requirement that employers subject to

the law either self-insure or maintain a policy of workers' compensation insurance to ensure that

legitimately injured workers receive all the rights and benefits provided in the Workers'

LC005772/SUB B - Page 6 of 12

Compensation Act; and

     WHEREAS, Substantive efforts have already been undertaken by the general assembly,

the workers' compensation court and the department of labor and training to eliminate the illegal,

irresponsible and unscrupulous behavior of employers who openly and deliberately operate

businesses in Rhode Island without workers' compensation insurance for their employees; and

     WHEREAS, The actions of non-complying employers are illegal and deprive not only

injured employees of the workers' compensation benefits to which they are entitled but also cause

greater social and financial costs to all citizens of Rhode Island including employers and health

care providers who incur uncompensated expenses in treating the victims of the uninsured

employer; and

     WHEREAS, Additional reform is required to provide appropriate compensation, health

care and rehabilitative services payments to employees who are injured while in the service of

uninsured employers and to eliminate the flagrant abuse of the system by illegally uninsured

employers by requiring them to accept their legal responsibility to pay the appropriate benefits to

their insured employees; now, therefore be it

     RESOLVED, That it is declared to be the intent of the legislature that an uninsured

employers protection fund be created to ensure that injured workers who are employed by

illegally uninsured employers are not deprived of workers' compensation benefits payments. The

fund shall have enforcement mechanisms as are necessary to induce illegally uninsured

employers to acknowledge their malfeasance, provide legally mandated benefits payments for

injured workers; and to assure that all participants in the system recognize their obligation to

conduct themselves in a manner consistent with the overall integrity of the compensation system.

All amounts owed to the uninsured employers protection fund from illegally uninsured employers

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

favor of a determination that such assessments are excise taxes.

     28-53-2. Establishment -- Sources -- Administration.

     (a)(1) There shall be established within the department of labor and training a special

restricted receipt account to be known as the Rhode Island uninsured employers protection fund.

The department shall maintain the fund for the exclusive purpose of making payments to an

injured employee otherwise entitled to benefits pursuant to chapters 29 through 38 of title 28, or

in the case of death of the injured employee, to person(s) presumed wholly dependent for support

upon the deceased employee, as defined in § 28-33-13, and any costs specifically associated

therewith, where the employer required to secure payment of such compensation failed to insure

or self-insure its liability at the time the injury took place as determined by the director and the

LC005772/SUB B - Page 7 of 12

workers' compensation court.

     (2) The fund shall be capitalized from excise taxes assessed against uninsured employers

pursuant to the provisions of § 28-53-9 and from general revenues appropriated by the legislature.

Beginning in state fiscal year ending June 30, 2018 June 30, 2019, the legislature may appropriate

up to two million dollars ($2,000,000) in general revenue funds annually for deposit into the

Rhode Island uninsured employers protection fund.

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

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

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

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

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

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

     28-53-3. Powers and duties of the fund.

     The fund shall:

     (a) Be obligated authorized to pay covered claims as determined by the director or and

the workers' compensation court pursuant to the provisions of this section and promulgate all

rules and regulations necessary to effectuate the provisions and overall purpose of this chapter.

The rules and regulations shall be promulgated in accordance with the administrative procedures

act, chapter 35 of title 42, and shall include, but not be limited to, the filing of claim forms and

other documentation supporting the claim, and proof of dependency, if relevant. All claims must

contain a release necessary to allow the director to investigate the claim;

     (b) Investigate claims brought against the fund and adjust, compromise, settle and pay

covered claims to the extent of the fund's allocation;

     (c) Establish procedures for managing the assets of the fund;

     (d) Sue or be sued; and

     (e) Perform any and all acts necessary to effectuate the humanitarian purposes of this

chapter.

     28-53-7. Payments to employees of uninsured employers.

     (a) Where it is determined that the employee was injured in the course of employment

while working for an employer who fails to maintain a policy of workers' compensation insurance

as required by § 28-36-1 et seq., in accordance with the provisions of this chapter, the uninsured

employers protection fund shall is authorized to pay the benefits to which the injured employee

would be entitled pursuant to chapters 29 to 38 of this title subject to the limitations set forth

herein.

LC005772/SUB B - Page 8 of 12

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

pursuant to § 28-30-1 et seq.; provided, however, that the uninsured employers protection fund

and the employer shall be named as parties to any petition seeking payment of benefits from the

fund.

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

protection fund, the fund shall pay benefits for disability and medical expenses incapacity as

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

to receive benefits for medical expenses pursuant to the provisions of § 28-33-5 or loss of

function and disfigurement pursuant to the provisions of § 28-33-19.

     (d) The fund shall pay costs, counsel, and witness fees, as provided in § 28-35-32, to any

employee who successfully prosecutes any petitions for compensation; petitions for medical

expenses payment; petitions to amend a pretrial order or memorandum of agreement; and all

other employee petitions; and to employees who successfully defend, in whole or in part,

proceedings seeking to reduce or terminate any and all workers' compensation benefits payments;

provided, however, that the attorney's fees awarded to counsel who represent the employee in

petitions for lump-sum commutation filed pursuant to § 28-33-25, or in the settlement of disputed

cases pursuant to § 28-33-25.1, shall be limited to the maximum amount paid to counsel who

serve as court-appointed attorneys in workers' compensation proceedings as established by rule or

order of the Rhode Island supreme court. Any payment ordered by the court or due under this

section shall not be subject to liens set forth in § 28-33-27(b), nor shall such payments be

assignable or subject to assignment in any way.

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

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

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

future benefits payable directly to the employee The fund shall be entitled to full reimbursement

from the uninsured employer for any and all payments made to employee as well as all costs,

counsel and witness fees paid out by the fund in connection with any claim and/or petition plus

any and all costs and attorney fees associated with collection and reimbursement of the fund.

     (f) This section shall apply to injuries that occur on or after July 1, 2018 February 1,

2019.

     28-53-8. Limitations on payments to injured employees.

     (a) Where the director determines by experience or other appropriate accounting and

actuarial methods that the reserves in the fund are insufficient to pay all claims presented or

pending, the director shall petition the workers' compensation court for an order to make

LC005772/SUB B - Page 9 of 12

appropriate, proportionate reductions in the payments being made to injured employees by the

fund or to suspend all payments to injured employees until such time as the reserves maintained

by the fund are sufficient to resume the payment of benefits. The matter shall be heard by the

chief judge. If the court determines that the monies held by the fund are insufficient to fully pay

all claims make payments as they fall due, the court shall issue an order directing that a

proportionate reduction be made in the payments made to those employees receiving benefits

payments from the fund. In considering the fund's request for relief, the court shall give due

weight to the policy of the workers' compensation act that benefits payments are to be paid

weekly and that the unwarranted reduction or interruption in the employee's weekly

compensation benefit payment will impose financial hardship upon the injured worker.

     (b) The chief judge shall hear the director's petition within twenty-one (21) days of the

date the matter is filed with the court. The petition shall set forth the names and addresses of each

employee who may be affected by the reduction in benefits and the court shall provide notice to

each employee. The attorney general shall appear on behalf of the employees receiving benefits

from the fund and shall take such action as he or she feels is necessary to protect the rights of the

injured employees.

     (c) In the event that the court determines that a reduction or suspension of payments is

necessary to maintain the fiscal integrity of the fund, the court shall schedule a mandatory review

date to determine whether the financial status of the fund warrants a continuation of the order

reducing such payments and shall reinstitute payments only upon finding that the reserves

maintained by the fund are sufficient to pay all future claims as they fall due.

     (d) Payments under this chapter shall not be awarded to any injured employee or

dependent if the award would directly or indirectly inure to the benefit of the uninsured employer.

     (e) No payment shall be awarded when the director or the court, in its discretion,

determines that unjust enrichment to or on behalf of the illegally uninsured employer would

result.

     (f) No interest shall be included in or added to payments under this chapter.

     (g) No payments will be awarded under this chapter to an injured employee, or in the

case of death of the injured employee, to person(s) presumed wholly dependent for support upon

the deceased employee, as defined in § 28-33-13, in a total amount in excess of fifty thousand

dollars ($50,000) plus any attorneys' fees awarded in connection with petitions for payment from

the fund.

     (h) Applications for payment under this chapter shall be filed with the director within the

time limits set forth in § 28-35-57.

LC005772/SUB B - Page 10 of 12

     28-53-9. Penalties, taxes and assessments against non-complying employers.

     (a) Where it is determined that an employer has failed to maintain a policy of workers'

compensation insurance as required by Rhode Island general laws § 28-36-1 et seq. and that while

the employer was uninsured in violation of the statute, an employee suffered a compensable

injury, the uninsured employers protection fund shall commence the payment of weekly benefits

and medical expenses necessary to cure, relieve or rehabilitate the employee from the effects of

the work related injury payment to the employee as set forth herein, subject to fund availability.

The On behalf of the fund, the director shall acquire a lien against the goods and chattels of the

uninsured employer to the extent of any payments made by it to the injured employee. The lien(s)

shall arise and attach as of the date on which the fund makes payment to the injured employee

without further action by the fund or the court. The lien shall have priority over all subsequently

perfected liens and security interests.

     (b) Prior to the lien being filed with the office of the secretary of state, the employer shall

be notified by certified mail, return receipt requested that a lien will be filed against all goods

situated in the state if the outstanding tax is not paid within seven (7) business days of receipt of

the notice.

     (c) The liens shall become perfected at the time when a notice of lien is filed pursuant to

the filing provisions of Rhode Island general laws § 6A-9-501. The notice of lien shall include the

following:

     (1) The name of the debtor, as governed by Rhode Island general laws § 6A-9-503;

     (2) The name of the director of the department of labor and training as the party claiming

the lien; and

     (3) A description of the property so encumbered as governed by the Rhode Island general

laws § 6A-9-504.

     (d) The director shall be entitled to effectively file the lien and to amend the lien quarterly

as additional payments are made or terminate it as necessary.

     (e) No filing fee shall be charged for the filing of a lien authorized by this section.

     (f) Where the employer is a corporation, the president, vice president, secretary and

treasurer of the corporation shall be severally personally liable, jointly with a corporation for any

payments made to the injured employee by the fund, and the fund shall acquire a lien against the

goods and chattels of said president, vice president, secretary and treasurer to the extent of any

payments so made.

     (g) Where the employer is a limited liability company, the managers and managing

members shall be severally personally liable, jointly with the limited liability company for any

LC005772/SUB B - Page 11 of 12

payments made to the injured employee by the fund and the fund shall acquire a lien against the

goods and chattels of said manager and managing member to the extent of any payments so

made.

     (h) The liens and excise taxes levied against the non-complying party pursuant to this

section shall be in addition to any and all other fines, penalties and assessments, to which the

party would otherwise be liable in particular the penalties mandated by Rhode Island general laws

§ 28-36-15.

     SECTION 6. This act shall take effect upon passage.

========

LC005772/SUB B

========

LC005772/SUB B - Page 12 of 12

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- WORKERS' COMPENSATION

***

     This act would: (1) Allow all corporate and limited liability officers to waive their

previously claimed common law right of action; (2) Enlarge the advisory council from sixteen

(16) to seventeen (17) members; (3) Empower the administrator to act as a notary public; (4)

Rename the uninsured employees fund as the uninsured protection fund; (5) Impose certain

limitations on payments to injured employees; and (6) Authorize the fund to promulgate rules and

regulations necessary to effectuate the provisions and overall purpose of the uninsured protection

fund.

     This act would take effect upon passage.

========

LC005772/SUB B

========

LC005772/SUB B - Page 13 of 12