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:

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

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

to read as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

that intoxication did not occasion the injury or death.

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

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

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

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

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

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

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

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

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

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

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

the parties:

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

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

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

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

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

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

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

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

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

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

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

hundred forty-four (244) weeks;

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

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

one hundred sixty (160) weeks;

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

hundred five (205) weeks;

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

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

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

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

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

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;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

portion of them.

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

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

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

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

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

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

     (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)

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

this section wherever it is applicable.

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

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

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

noise means sound capable of producing occupational deafness.

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

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

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

subject to § 28-33-5.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

effective upon passage.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

employer for whom compensation is claimed.

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

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

time during the employment exposed to harmful noise.

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

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

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

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

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

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

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

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

environment.

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

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

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

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

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

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

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

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

disfigurement pursuant to this section.

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

establish recurrence.

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

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

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

average weekly wage shall be ascertained by dividing the gross wages 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 suffered the recurrence,

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

employed by that employer. 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.

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

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

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

change of condition.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

this section shall not apply if:

     (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;

     (2) Has accepted suitable alternative employment;

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

required to pay prior to the injury;

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

granted;

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

spouse; or

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

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

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

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

benefits received by its participants.

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

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

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

employee had he or she been covered by the plan.

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

after July 1, 1984.

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

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

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

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

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

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

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

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

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

for which the employer is liable.

     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

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

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

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

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

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

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

     This act would take effect upon passage.

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