2019 -- S 0505

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LC001804

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS - WORKERS' COMPENSATION

BENEFITS

     

     Introduced By: Senators Lombardi, Archambault, Conley, Lynch Prata, and McCaffrey

     Date Introduced: February 27, 2019

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 28-33-2, 28-33-19, 28-33-20.1, 28-33-22 and 28-33-44 of the

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General Laws in Chapter 28-33 entitled "Workers' Compensation - Benefits" are hereby amended

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to read as follows:

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     28-33-2. Injuries occasioned by willful intent or intoxication.

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     No compensation shall be allowed for the injury or death of an employee occasioned by

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his or her willful intention to bring about the injury or death of himself or herself or another,

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where it is proved that his or her injury or death was occasioned by that conduct, or that the injury

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or death resulted from his or her intoxication or unlawful use of controlled substances as defined

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in chapter 28 of title 21. If the employer shows that, at the time of the injury or death or

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immediately following the injury or death, the employee had positive test results reflecting the

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presence of alcohol, or another controlled substance as defined in chapter 28 of title 21, which

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was not prescribed by an authorized medical practitioner or was not used in accordance with the

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prescribed use of the drug, it shall be presumed that the employee was intoxicated at the time of

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the injury and that intoxication occasioned the injury. Once the employer has made a showing of

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such positive test results, the burden of proof shall be on the employee to overcome the

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presumption by establishing that the employee was not intoxicated at the time of the injury, or

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that intoxication did not occasion the injury or death.

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     28-33-19. Additional compensation for specific injuries.

 

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     (a)(1) In case of the following specified injuries there shall be paid in addition to all other

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

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

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dollars ($90.00) nor less than forty-five dollars ($45.00) per week. In case of the following

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specified injuries that occur on or after January 1, 2012, there shall be paid in addition to all other

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

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

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hundred eighty dollars ($180) nor less than ninety dollars ($90.00) per week. Payment made

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under this section shall be made in a one time payment unless the parties otherwise agree.

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

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the parties:

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

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

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

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

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

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

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

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

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

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

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

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hundred forty-four (244) weeks;

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

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

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one hundred sixty (160) weeks;

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

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hundred five (205) weeks;

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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portion of them.

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

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

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

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

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

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

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

 

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

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

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this section wherever it is applicable.

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

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

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

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noise means sound capable of producing occupational deafness.

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

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

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

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subject to § 28-33-5.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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effective upon passage.

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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employer for whom compensation is claimed.

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

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

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time during the employment exposed to harmful noise.

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

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

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

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

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

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

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

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

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environment.

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

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

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

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

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

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

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

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

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disfigurement pursuant to this section.

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     28-33-20.1. Computation of earnings for recurrence -- Burden of employee to

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establish recurrence.

 

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     (a) In the event a person collecting benefits under this chapter, regardless of the date of

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injury, has returned to employment for a period of twenty-six (26) weeks or more and suffers a

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recurrence of the injury which precipitated the person collecting benefits under this chapter, the

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average weekly wage shall be ascertained by dividing the gross wages earned by the injured

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

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(13) calendar weeks immediately preceding the week in which he or she suffered the recurrence,

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

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employed by that employer. In making this computation, absence for seven (7) consecutive

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calendar days, although not in the same calendar week, shall be considered as absence for a

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calendar week.

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     (b) For all petitions filed to prove recurrence or decrease of incapacity to work, regardless

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of the date of injury, the employee must document that the incapacity has increased or returned

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without the need for the employee neither party shall be required to document a comparative

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change of condition.

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     28-33-22. Minors employed in violation of law.

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     (a) If, at the time of the injury, the injured employee is a minor employed in violation of

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any law of this state or of the United States relating to the employment of minors, then the

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compensation payable shall be treble the amount which would have been payable if that minor

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had been legally employed; provided, however, notwithstanding any law to the contrary, such

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additional compensation shall be paid solely by the employer as a penalty and not by or through

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coverage under a policy of workers' compensation insurance, and no policy of workers'

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compensation insurance shall be deemed to provide coverage for such additional compensation.

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     (b) In fixing the amount of any compensation under chapters 29 -- 38 of this title due

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allowance shall be made for any sum which the employer may have paid to any injured minor

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employee or to his dependents on account of the injury, except those sums that the employer may

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have expended or directed to be expended for medical, surgical, or hospital service.

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     28-33-44. Continuation of health insurance benefits.

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     (a) No employer shall cancel but shall be obligated to continue to provide any employee's

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health insurance benefits for a period of two (2) years from the date of the employee's receiving

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weekly compensation benefits pursuant to a preliminary determination or a decision of the

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workers' compensation court, or the filing at the department of a memorandum of agreement or

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notice of direct payment for injuries occurring on or before February 28, 1986. The provisions of

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this section shall not apply if:

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     (1) The employee is no longer receiving compensation pursuant to a preliminary

 

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determination or a decision of the workers' compensation court;

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     (2) Has accepted suitable alternative employment;

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     (3) Fails to pay any contribution toward the health care benefits that he or she was

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required to pay prior to the injury;

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     (4) A petition for a commutation or a structured settlement, as defined in § 28-33-25, is

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granted;

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     (5) The employee is a beneficiary of an equivalent health insurance policy of his or her

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spouse; or

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     (6) The employee is employed in the construction industry and is a participant in a multi-

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employer welfare plan as defined in the Employee Retirement Income Security Act of 1974, 29

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U.S.C. § 1002 et seq., and which the Internal Revenue Service has determined under the Internal

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Revenue Code, 26 U.S.C. § 101 et seq., is tax exempt as to contributions received and as to

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benefits received by its participants.

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     (b) In the event any employer fails to comply with the provisions of this section, then the

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employer, and not its workers' compensation insurance carrier, shall be liable for hospital and

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medical costs that would have been paid by the hospital or medical insurance plan afforded the

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employee had he or she been covered by the plan.

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     (c) The provisions of this section shall only apply to claims for injuries sustained on or

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after July 1, 1984.

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     SECTION 2. Section 28-36-5 of the General Laws in Chapter 28-36 entitled "Workers'

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

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     28-36-5. Policy provisions as to liability of employer and insurer.

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     Every policy shall cover the entire liability of the employer under chapters 29 -- 38 of this

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title, except for appeals from an order of the retirement board filed pursuant to the provisions of

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Rhode Island General Law § 45-21.2-9 and for the penalty provisions contained in § 28-33-22

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and the provisions of §§ 28-33-47 and 28-33-44, and shall contain an agreement by the insurer to

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the effect that the insurer shall be directly and primarily liable to the employee and, in the event

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of his or her death, to his or her dependents, to pay to him, her, or them the compensation, if any,

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for which the employer is liable.

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     SECTION 3. This act shall take effect upon passage.

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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 allow in workers' compensation actions for employers to shift the legal

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burden to employees to prove they were not intoxicated at the time of injury or death after a

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showing by the employer that the employee had a positive test for intoxicating substance at or

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immediately following the injury or death. This act would also allow for employers or insurers to

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recover overpayments made for indemnity benefits by set-off payments for loss of use or

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disfigurement. Finally it would also require that employers bear sole responsibility for treble

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damages if the injured employee is a minor employed in violation of any law.

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     This act would take effect upon passage.

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