2019 -- S 0909

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LC002641

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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

     

     Introduced By: Senators Ciccone, Lombardo, Gallo, Lombardi, and Nesselbush

     Date Introduced: May 22, 2019

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 28-33-18, 28-33-22, 28-33-25 and 28-33-44 of the General Laws

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in Chapter 28-33 entitled "Workers' Compensation - Benefits" are hereby amended to read as

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follows:

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     28-33-18. Weekly compensation for partial incapacity.

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     (a) While the incapacity for work resulting from the injury is partial, the employer shall

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pay the injured employee a weekly compensation equal to seventy-five percent (75%) of the

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difference between his or her spendable average weekly base wages, earnings, or salary before

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the injury as computed pursuant to the provisions of § 28-38-20 § 28-33-20, and his or her

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

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maximum weekly compensation rate for total incapacity as set forth in § 28-33-17. The

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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the percent of impairment of weekly benefits.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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director.

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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.

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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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     (c) Whenever the workers' compensation insurance carrier for the employer is obligated

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to pay treble the amount which would have been payable if that minor had been legally

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employed, the workers' compensation insurance carrier shall have a complete right of

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indemnification to the extent the additional benefits are paid against the employer for the

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additional benefits paid above and beyond the usual workers' compensation indemnity benefit.

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     28-33-25. Settlement for lump sum or structured-type payment.

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     (a)(1) In case payments have continued for not less than six (6) months, the The parties

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may petition the workers' compensation court for an order approving a settlement of the future

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liability for a lump sum or structured-type periodic payment over a period of time.

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     (2)(i) In considering the petition, a judge shall give due weight to the fact that it is the

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policy of this chapter that compensation be paid weekly.

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     (ii) The petition shall be considered by a judge of the court and may be granted where it

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is shown to the satisfaction of the court that the payment of a lump sum or structured-type

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payment in lieu of future weekly payments will be in the best interest of all parties including the

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employee, employer, insurance carrier, and where applicable, the workers' compensation

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administrative fund and the center for Medicare and Medicaid services (CMS) as their interests

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may appear. Any proposed settlement that exceeds one hundred four (104) weeks of

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compensation for partial incapacity may be rejected by the chief judge in his or her discretion.

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The employee shall be entitled to a finding amortizing the net settlement over his or her life

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expectancy.

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     (iii) In determining whether the settlement is in the best interest of all parties, the judge

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may refer the employee for a rehabilitation evaluation pursuant to the provisions of § 28-33-41.

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     (3) Upon payment, the employer and insurer shall be entitled to a duly executed release,

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which fully and finally absolves and discharges the employer and insurer from any and all

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liability arising out of the injury.

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     (b) The provisions of this section shall be strictly construed and all hearings for

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commutation shall be conducted in open session.

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     (c) No case may be settled to a lump sum or structured-type periodic payment while the

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Rhode Island temporary disability insurance fund and/or the department of social and

 

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rehabilitative services has a claim for payments made under chapter 41 of this title unless

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agreement is made to pay any claim from the lump sum or structured-type periodic payments.

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     (d) Attorneys' fees shall be fixed by the court, but in no event shall any attorney's fee for

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representing an employee in connection with a petition brought pursuant to this section exceed a

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sum equal to twenty percent (20%) of the lump sum or twenty percent (20%) of the structured-

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type periodic payment reduced to present day value.

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     (e) No case shall be settled for a lump sum or structured-type periodic payment unless it

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is placed upon the record in open session, that the employer, if insured, has been advised by the

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insurer or its agent of the potential effect of the settlement on its workers' compensation premium,

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and has the opportunity to appear and state its disapproval of the settlement.

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     (f) Settlements must be paid within fourteen (14) days of entry of an order to pay or the

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date(s) upon which payment(s) is/are due pursuant to a court order, and a penalty of one hundred

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dollars ($100) shall be assessed for every day payment is delinquent.

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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, and not

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its workers' compensation insurance carrier, then the employer 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 28-35-14 of the General Laws in Chapter 28-35 entitled "Workers'

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

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     28-35-14. Copies of petition to respondents.

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     Upon filing with the workers' compensation court of any petition, stating the general

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nature of any claim as to which any dispute or controversy may have arisen, the petitioner shall

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serve a copy of the petition and its attachments on the respondent or respondents in accordance

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with the workers' compensation court rules of practice.

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     SECTION 3. Sections 28-35-46, 28-35-47, 28-35-48, 28-35-49, 28-35-50 and 28-35-51

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of the General Laws in Chapter 28-35 entitled "Workers' Compensation - Procedure" are hereby

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repealed.

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     28-35-46. Notice of intent to discontinue, suspend, or reduce payments -- Filing --

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Form.

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     Before an employer may discontinue, suspend, or reduce compensation payments

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whether they are being received under an agreement, memorandum of agreement, award, order,

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finding, or decree, or when suitable alternative employment has been offered to the employee

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pursuant to § 28-33-18.2, the employer shall notify the court and the employee of his or her

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intention to discontinue, suspend, or reduce payments and the reason for doing so by filing with

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the court an affidavit setting forth the factual basis for filing the petition to review along with a

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copy of the medical reports upon which the employer seeks to justify the discontinuance,

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suspension, or reduction in payments. A copy of the affidavit and medical report shall be

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forwarded to the employee. The notice of intention to discontinue, suspend, or reduce payments

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must be given fifteen (15) days prior to the proposed date of discontinuance, suspension, or

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reduction; provided, that where an employee has returned to work at an average weekly wage

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equal to or in excess of that which he or she was earning at the time of his or her injury, not

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including overtime, the notice of intention to discontinue, suspend, or reduce the payments

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provided for in this section may be given five (5) days prior to the proposed date of

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discontinuance. Notices shall be in substantially the following form:

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Notice to Workers' Compensation Court and Employee of Intention to Discontinue,

 

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Suspend, or Reduce Payment

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     You are hereby notified that the undersigned employer intends on the ……........ day of

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.................... 20......, to discontinue, suspend, or reduce the payments of compensation to the

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above-named employee for the following reasons, to wit:

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     (1) Employee has returned to work at an average weekly wage equal to or in excess of

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that which he or she was earning at the time of his or her injury, not including overtime.

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     (2) Employee has returned to work and is earning wages in the sum of .......... dollars

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weekly.

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     (3) Employee has been discharged by his or her treating physician on the ……........ day

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of ……........ 20.....

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     28-35-47. Wage transcript supporting allegation of return to work.

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     Where the notice of intention to discontinue, suspend, or reduce payments of

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compensation alleges that the employee has returned to work at an average weekly wage equal to

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or in excess of that which he or she was earning at the time of his or her injury, not including

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overtime, or has returned to work for wages less than he or she was earning at the time of the

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injury, the notice shall contain a signed wage transcript signed by the treasurer of the employer,

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or other appropriate official, setting forth the number of hours worked, the rate of pay, and the

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wages earned during the period relied upon corroborating the allegation. Provided, that indemnity

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benefits may be discontinued if the employer files with the department of labor and training a

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wage transcript showing that the employee has returned to work for at least two (2) consecutive

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weeks at a salary equal to or in excess of that which he or she was earning, not including

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overtime, at the time of his or her injury. Notice of the filing shall be sent to the employee and/or

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the employee's legal representative. If the employee files an objection within two (2) weeks, the

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matter shall be referred to the court for disposition pursuant to § 28-35-51, and the court may

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order benefits reinstated.

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     28-35-48. Medical report on ability to return to work.

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     Where the notice of intention to discontinue, suspend, or reduce payments of

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compensation alleges that the employee is able to return to work, the notice shall be supported by

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a report of a treating physician.

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     28-35-49. Medical examination on ability to return to light work.

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     Where the notice of intention to discontinue, suspend, or reduce payments of

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compensation alleges that the employee is able to return to light selected work, the notice shall be

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supported by a report of a treating physician.

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     28-35-50. Resumption of payments on change of status.

 

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     If subsequent to the filing of any notice provided for in this chapter there is any change of

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status of the employee which would affect the right to discontinue, reduce, or suspend

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compensation payments under §§ 28-35-39 -- 28-35-53, such as, the unwarranted discharge of the

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employee, a reduction of wages suffered by an employee while he or she is still unable to perform

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the work which he or she did at the time of his or her injury, or the inability of the employee to

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continue work due to his or her injury, between the time of the filing of the notice and the time of

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suspension under the notice, or the time of rendering of a decision following a hearing before the

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workers' compensation court, payments in accordance with the existing agreement, award,

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finding, or decree shall be resumed or continued.

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     28-35-51. Review of discontinuance, suspension, or reduction -- Disputed cases.

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     Upon receipt of notice of intention to discontinue, suspend, or reduce compensation

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payments, the court shall notify the employee that he or she has a right to dispute the claim of the

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employer or insurance carrier and assign the matter for a mandatory pre-trial conference on the

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date set forth in the notice pursuant to § 28-35-20.

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     SECTION 4. 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

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     This act would provide that, in the event an employee hires a minor who is injured in the

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course of his or her employment, that the insurance carrier would be liable only for the actual

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statutory amount of the benefits due and payable if the employer was not a minor, and that the

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employer would be responsible for the remainder of the punitive treble damage amount due and

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payable to the minor employee.

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     The act would also clarify that an employer, and not the insurance carrier, would be liable

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for the continuation of health benefits and costs relating to an injured employee, should the

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employer violate any provision of the general laws pertaining to such benefits and costs.

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     Finally, the act would repeal certain provisions of the general laws which are either

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obsolete or inapplicable to the current general laws governing workers' compensation benefits.

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     This act would take effect upon passage.

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