2003 -- H 5600 SUBSTITUTE A
RELATING TO WORKERS' COMPENSATION -- BENEFITS
Introduced By: Representatives T Brien, Schadone, and Gallison
Date Introduced: February 11, 2003
It is enacted by the General Assembly as follows:
SECTION 1. Section 28-29-6.1 of the General Laws in Chapter 28-29 entitled "Workers'
Compensation - General Provisions" is hereby amended to read as follows:
28-29-6.1. Secondary provision of workers' compensation insurance. -- (a) Whenever
a general contractor or a construction manager enters into a contract with a subcontractor for
work to be performed in Rhode Island, the general contractor or construction manager shall at all
times require written documentation evidencing that the subcontractor carries workers'
compensation insurance with no indebtedness for its employees for the term of the contract or is
an independent contractor pursuant to the provisions of section 28-29-17.1. In the event that the
general contractor or construction manager fails to obtain the written documentation from the
subcontractor, the general contractor or construction manager is deemed to be the employer
pursuant to provisions of section 28-29-2.
(b) For the purposes of this section, "construction manager" means an individual
corporation, partnership, or joint venture or other legal entity responsible for supervising and
controlling all aspects of construction work to be performed on the construction project, as
designated in the project documents, in addition to the possibility of performing some of the
construction services itself. For the purposes of this section, the construction manager need have
no contractual involvement with any of the parties to the construction project other than the
owner, or may contract directly with the trade contractors pursuant to its agreement with the
(c) This section applies only to a general contractor, subcontractor, or construction
manager deemed an employer subject to the provisions of Chapters 29 -- 38 of this title, as
provided in section 28-29-6.
(d) Whenever the workers' compensation insurance carrier is obligated to pay workers'
compensation benefits to the employee of an uninsured subcontractor, the workers' compensation
insurance carrier shall have a complete right of indemnification to the extent benefits are paid
against either the uninsured subcontractor, uninsured general contractor or uninsured construction
SECTION 2. Section 28-30-13 of the General Laws in Chapter 28-30 entitled "Workers'
Compensation Court" is hereby amended to read as follows:
28-30-13. Controversies submitted to court. -- (a) Any controversy over which the
workers' compensation court has jurisdiction in accordance with chapters 29 -- 38 of this title,
including compensation, reasonableness of medical and hospital bills, degree of functional
impairment and/or disability, a dispute between an insurance carrier and an employer under a
workers' compensation insurance contract, except disputes under the jurisdiction of the workers'
compensation appeals board established pursuant to section 27-9-29, failure of an employer to
secure the payment of compensation under chapters 29-38 of this title and any controversy in
which the state or any political subdivision of the state may be a party, shall be submitted to the
court in the manner provided in chapters 33 and 35 of this title.
(b) In cases of disputes between an insurance carrier and an employer under a workers'
compensation insurance contract, these shall not be subject to a pretrial conference in accordance
with section 28-35-20 but shall be assigned consistent with the rules and regulations of the
workers' compensation court.
SECTION 3. Sections 28-33-7, 28-33-17.3, 28-33-18.3 and 28-33-34 of the General
Laws in Chapter 28-33 entitled "Workers' Compensation - Benefits" are hereby amended to read
28-33-7. Health service provider reimbursement. -- (a) Any dispute as to the
reasonableness of the amount of any charge and/or payment for medical, dental, or hospital
services or for medicines or appliances is determined by the workers' compensation court after a
hearing, and the decision is final; provided, that the director of the department of labor and
training, in consultation with the workers' compensation court, and representatives of all
appropriate medical disciplines practicing within the state of Rhode Island, shall establish a
schedule of rates of reimbursement for those medical and dental services, excluding non
physician hospital charges, which are most often provided to employees receiving workers'
compensation. The schedule shall be published by the director utilizing the Physician's Current
Procedure Terminology (CPT) coding system as published by the American Medical Association.
The director updates and revises the schedule as necessary. In setting the rate of reimbursement
for any service or procedure, the director determines, based upon available data, the ninetieth
(90th) percentile of the usual and customary fee charged by health care providers in the state of
Rhode Island and the immediate surrounding area, and in no case may the rate of reimbursement
exceed that amount. The liability of the employer or insurer for any charges and/or payment is
limited to the rates of reimbursement set forth in this schedule including, but not limited to,
charges for opinions on loss of use and maximum medical improvement; provided, that petitions
may be filed in cases where the reasonableness of a particular rate is questioned, but the court is
limited to a determination as to whether the rate, as applied in that particular case, is reasonable.
The burden is upon the petitioner seeking payment of the medical bill to establish by a
preponderance of the evidence that the rate, as applied, is unreasonable in light of the peculiar
nature of the services performed or other circumstances requiring a greater than normal expertise
or expenditure of time or effort in providing the service.
(b) Subject to the provisions of subsection (a), disputes other than those covered in
section 28-33-9 pertaining to hospitalizations, medical services, appliances, or medicine are heard
and determined by the workers' compensation court in accordance with guidelines and protocols
established by the medical advisory board.
(c) With respect to all complaints and charges of unprofessional conduct including, but
not limited to, unnecessary or inappropriate treatment and any overcharges against any medical
care provider brought to the attention of the workers' compensation court in the performance of
their duties under this title, the court shall report all complaints and charges to the appropriate
board of licensure and discipline.
(d) The chief judge is authorized to establish a health care fee arbitration panel and to
establish rules and procedure for the panel to make binding decisions in any dispute as to the
value of health care services rendered under this title, and to compensate its members in an
amount not to exceed two hundred dollars ($200) per day. The panel consists of one physician
appointed by the president of the Rhode Island Medical Society, one physician who is a member
of the Rhode Island Medical Society appointed by the manager of the state workers'
compensation insurance fund, and one physician who is a member of the Rhode Island Medical
Society appointed by the chief judge of the workers' compensation court.
28-33-17.3. Fraud and abuse. -- (a) (1) The workers' compensation court is authorized
and directed to impose sanctions and penalties necessary to maintain the integrity of and to
maintain the high standards of professional conduct in the workers' compensation system. All
pleadings related to proceedings under chapters 29 -- 38 of this title are considered an attestation
by counsel that valid grounds exist for the position taken and that the pleading is not interposed
(2) If any judge determines that any proceedings have been brought, prosecuted, or
defended by an employer, insurer, or their counsel without reasonable grounds:
(i) The whole cost of the proceedings shall be assessed upon the employer, insurer, or
counsel, whoever is responsible; and
(ii) If a subsequent order requires that additional compensation be paid, a penalty of
double the amount of retroactive benefits ordered shall be paid to the employee and the penalty is
not included in any formula utilized to establish premium rates for workers' compensation
(3) If any judge determines that any proceedings have been brought or defended by an
employee or his or her counsel without reasonable grounds, the whole cost of the proceedings
shall be assessed against the employee or counsel, whoever is responsible.
(4) The court determines whether an action or defense is frivolous or conduct giving rise
to the action or defense was unreasonable. Where the amount at issue is less than the actual
attorneys' fees of the parties combined, the court shall exercise particular vigilance. Nothing in
this subsection, however, is intended to discourage prompt payment in full of all amounts
required to be paid.
(5) The appropriate body with professional disciplinary authority over the attorney is
notified of the action.
(b) (1) It is unlawful to do any of the following:
(i) Make or cause to be made any knowingly false or fraudulent material statement or
material representation for the purpose of obtaining or denying any compensation;
(ii) Present or cause to be presented any knowingly false or fraudulent written or oral
material statement in support of, or in opposition to, any claim for compensation or petition
regarding the continuation, termination, or modification of benefits;
(iii) Knowingly assist, aid and abet, solicit, or conspire with any person who engages in
an unlawful act under this section;
(iv) Make or cause to be made any knowingly false or fraudulent statements with regard
to entitlement to benefits with the intent to discourage an injured worker from claiming benefits
or pursuing a claim;
(v) Willfully misrepresent or fail to disclose any material fact in order to obtain workers'
compensation insurance at less than the proper rate for the insurance including, but not limited to,
intentionally misleading or failing to disclose information to an insurer regarding the appropriate
rate classification of an employee; or
(vi) Willfully fail to provide a lower rate adjustment favorable to an employer as
required by an approved experience rating plan or regulations promulgated by the insurance
(vii) Willfully fail to report or provide false or misleading information regarding
ownership changes as required by an approved experience rating plan or regulations promulgated
by the insurance commissioner.
(viii) Knowingly assist, aid and abet, solicit, or conspire to coerce an employee to
willfully misrepresent an employee's status as a president, one vice president, secretary, and/or
treasurer of a corporation or as an independent contractor for the purpose of avoiding the
inclusion of that or other employees in a workers' compensation insurance application, renewal,
(2) For the purposes of this section, "statement" includes, but is not limited to, any
endorsement of a benefit check, application for insurance coverage, oral or written statement,
proof of injury, bill for services, diagnosis, prescription, hospital or provider records, x-rays, test
results, or other documentation offered as proof of, or in the absence of, a loss, injury, or expense.
(3) If it is determined that any person concealed or knowingly failed to disclose that
which is required by law to be revealed, knowingly gave or used perjured testimony or false
evidence, knowingly made a false statement of fact, participated in the creation or presentation of
evidence which he or she knows to be false, or otherwise engaged in conduct in violation of
subsection (b)(1), that person is subject in criminal proceedings to a fine and/or penalty not
exceeding fifty thousand dollars ($50,000), or double the value of the fraud, whichever is greater,
or by imprisonment up to five (5) years in state prison or both.
(4) There shall be a general amnesty until July 1, 1992, for any person receiving
compensation under chapters 29 -- 38 of this title, to the extent compensation has been voluntarily
reduced or relinquished by the employee prior to that date.
(c) The director of labor and training shall establish a form, in consultation with the
attorney general, to be sent to all workers who are presently receiving benefits and those for
whom first reports of injury are filed in the future which shall give the employee notice that the
endorsement of a benefit check sent pursuant to section 28-35-39 is the employee's affirmation
that he or she is qualified to receive benefits under the Workers' Compensation Act. The insurers
and self-insured employers are directed to send the form to all workers receiving benefits.
(d) Any employer, or in any case where the employer is a corporation, the president, vice
president, secretary, and treasurer
of the corporation,
previously determined through civil or criminal adjudication in the
last ten (10) years that is found
to have violated this section or section
28-36-15, is guilty of a felony for
any subsequent knowingly failure to secure and maintain
compensation, and upon conviction,
is subject to imprisonment of up to
one two (2) years, a
not exceeding ten thousand dollars ($10,000), or both. Where the employer is a corporation, the
president, vice president, secretary, and treasurer of the corporation are severally liable for the
fine or subject to imprisonment
provided they had knowledge of the prior violation.
28-33-18.3. Continuation of benefits -- Partial incapacity. -- (a) (1) For all injuries
occurring on or after September 1, 1990, in those cases where the employee has received a notice
of intention to terminate partial incapacity benefits pursuant to section 28-33-18, the employee or
his or her authorized representative may file with the workers' compensation court a petition for
continuation of benefits on forms prescribed by the workers' compensation court. In any
proceeding before the workers' compensation court on a petition for continuation of partial
incapacity benefits, where the employee demonstrates by a fair preponderance of the evidence
that his or her partial incapacity poses a material hindrance to obtaining employment suitable to
his or her limitation, partial incapacity benefits shall continue. For injuries on and after July 1,
1998 2001, the term "material hindrance"
is defined to include only compensable injuries causing
a greater than sixty-five percent (65%) degree of functional impairment and/or disability. Any
period of time for which the employee has received benefits for total incapacity are not included
in the calculation of the three hundred and twelve (312) week period.
(2) The provisions of this subsection apply to all injuries from September 1, 1990 to July
(b) (1) Where any employee's incapacity is partial and has extended for more than three
hundred and twelve (312) weeks and the employee has proved an entitlement to continued
benefits under subsection (a), payments made to the incapacitated employee shall be increased
annually on the tenth (10th) day of May as long as the employee remains incapacitated. The
increase is by an amount equal to the total percentage increase in the annual consumer price
index, United States city average for urban wage earners and clerical workers, as formulated and
computed by the bureau of labor statistics of the United States department of labor for the period
of March 1 to February 28 each year.
(2) The word "index" as used in this section refers to the consumer price index, United
States city average for urban wage earners and clerical workers, as that index was formulated and
computed by the bureau of labor statistics of the United States department of labor.
(3) The annual increase is based upon the percentage increase, if any, in the consumer
price index for the month of a given year, over the index for February, the previous year.
Thereafter, increases are made on May 10 annually, based upon the percentage increase, if any, in
the consumer price index for the period of March 1 to February 28.
(4) These computations are made by the director of labor and training and promulgated
to insurers and employers making payments required by this section. Increases are paid by
insurers and employers without further order of the court. If payment payable under this section is
not mailed within fourteen (14) days after the employer or insurer has been notified by
publication in a newspaper of general circulation in the state it becomes due, an amount equal to
twenty percent (20%) of the payment shall be added to the unpaid payment, which shall be paid at
the same time as, but in addition to, the payment.
(5) This section applies only to payment of weekly indemnity benefits to employees as
described in subsection (b)(1), and does not apply to specific compensation payments for loss of
use or disfigurement or payment of dependency benefits or any other benefits payable under the
Workers' Compensation Act.
(c) No petitions for commutation are allowed or entertained in those cases where an
employee is receiving benefits pursuant to this section.
28-33-34. Physical examination by employer's physician -- Report. -- The employee
shall, after an injury, and at reasonable times during the continuance of his or her disability if
requested by his or her employer, submit him or herself to an examination by a physician, or
rehabilitation counselor certified by the director pursuant to section 28-33-41 in cases where the
employee has received compensation for a period of more than three (3) months, furnished and
paid for by the employer. The employee has the right to have a physician provided by the
employee and paid for by the employer present at the examination. The employee is entitled to a
full, exact, signed duplicate copy of the medical report of the examining physician, which is
mailed by the employer or carrier to the employee and his or her attorney upon receipt of the
original report by the employer or carrier. Failure to do so makes the report or evidence of the
examining physician inadmissible if objection is made by the employee to the admission of the
report or evidence; provided, that at the employee's or his or her attorney's request, a judge of the
workers' compensation court shall order the employer or carrier to furnish to the employee a full,
exact, and signed duplicate copy of the medical report of the examining physician. Nothing in this
section shall be construed to require the employee to be receiving benefits as a condition
precedent to the requirement of an examination.
SECTION 4. Sections 28-35-12 and 28-35-46.1 of the General Laws in Chapter 28-35
entitled "Workers' Compensation - Procedure" are hereby amended to read as follows:
28-35-12. Petition for determination of controversy -- Contents and filing. -- (a) In all
disputes between an employer and employee in regard to compensation or any other obligation
established under chapters 29 -- 38 of this title, and when death has resulted from the injury and
the dependents of the deceased employee entitled to compensation are, or the apportionment of
compensation among them is in dispute, any person in interest or his or her authorized
representative may file with the administrator of the workers' compensation court a petition and
as many copies of the petition as there are respondent parties to it upon forms prescribed and
furnished by the court, setting forth the names and residences of the parties, the facts relating to
employment at the time of injury, the cause, extent, and character of the injury, the amount of
wages, earnings, or salary received at the time of the injury, and the knowledge of the employer
of notice of the occurrence of the injury, and any other facts that may be necessary and proper for
the information of the court, and shall state the matter in dispute and the claims of the petitioner
with reference to the compensation; provided, that no petition shall be filed within twenty-one
(21) days of the date of the injury and no petition regarding any other obligation established under
chapters 29 -- 38 of this title shall be filed until twenty-one (21) days after written demand for
payment upon the employer or insurer or written notice to the employer or insurer of failure to
fulfill the obligation, except that any petition alleging the non-payment or late payment of weekly
compensation benefits, attorneys' fees, and costs, may be filed after fourteen (14) days from the
date the payment is due as set forth in sections 28-35-42, 28-35-43, and 28-35-20(c). Medical
bills for services ordered paid by decree or pretrial order shall be paid within fourteen (14) days
of the entry of the decree or order. In the event that the bills are not paid within the fourteen (14)
day period, a petition may be filed to enforce the order or decree without any additional written
notice to the employer or insurer.
(b) (1) If one or more claims are filed for an injury and there are two (2) or more
insurers, any one of which may be held to be liable to pay compensation, and the judge
determines that the injured employee would be entitled to receive compensation but for the
existence of a controversy as to which one of the insurers is liable to pay compensation, one of
the insurers shall be selected by a judge of the workers' compensation court to pay to the injured
employee the compensation, pending a final decision of the workers' compensation court as to the
matter in controversy, and that decision shall require that the amount of compensation paid is
deducted from the award if made against another insurer and is paid by that other insurer to the
agreed upon or selected
by the judge. If the insurers cannot agree that the employee would be entitled to compensation
irrespective of the existence of that controversy, a hearing to determine the question of
liability and the payment of compensation shall be held immediately by the workers' compensation court,
that hearing to take precedence over other pending matters.
(2) The workers' compensation court shall award compensation, costs, and attorneys'
fees in its discretion if one of the insurers is held to be liable following the hearing.
(c) If any determination of the workers' compensation court entitles an employee to
retroactive payment of weekly benefits, the court shall award to the employee interest at the rate
per annum provided in section 9-21-10 on that retroactive weekly payment from six (6) months
subsequent to the date that the employee first filed a petition for benefits to the time when that
retroactive payment is actually made; provided, that if the proceedings are unduly delayed by or
at the request of the employee or his or her attorney, the judge may reduce or eliminate interest on
retroactive payment; and provided, further, that the provisions of this section as they relate to
interest apply only to petitions filed on or after July 1, 1984.
(d) Any fine, penalty, or interest expense incurred by an insurer under this section may
not be used as an expense for the purpose of seeking a rate increase before the department of
28-35-46.1. Termination of payment -- Accounting. -- Within sixty (60) days after the
discontinuance or suspension of compensation payments under section 28-33-18(d), the employer
and/or insurer shall file with the director of labor and training, with a copy to the employee and
his or her attorney, and also to the employer if filed by the insurer, an itemized statement of the
total amount of compensation, medical expenses, and other expenses paid to or on behalf of the
employee. This itemized statement shall be on a form prepared by the director of labor and
training for that purpose.
SECTION 5. 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 is guilty of a
misdemeanor felony and , upon conviction, 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 of not less than five hundred dollars ($500) and not more than 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 non-compliance with this section and shall establish rules and
regulations governing these
The director may, in his
or her discretion, assess an administrative penalty of not
less than five hundred dollars ($500) and not more than one thousand dollars ($1,000) per
day for each day of non-compliance and/or bring a civil action in any court of competent
jurisdiction, or to refer the matter to the attorney general for prosecution of criminal charges. The
director also has the power to suspend the operation of the business.
Each day constitutes a separate and
distinct offense for calculation of the
fine; provided, that in no case may imprisonment be for
more than one year, and in any case where penalty. Where that
employer is a corporation, the president, vice president, secretary, and treasurer of the corporation
are also severally liable
for the fine, penalty or imprisonment as provided under chapters
38 for the failure of that corporation to secure the payment of compensation; and the president,
vice president, secretary, and treasurer are 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. All criminal actions for any violation
of this section is 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 has jurisdiction over all civil actions filed pursuant to this section.
As soon as practicable after
a complaint under this section is filed,
the director examines the complaint to
determine whether cause exists for further inquiry. Should the director find cause, the director at that
time shall give the parties to the complaint not less then ten (10) days' notice by mail of the time
and place of hearing. After the hearing, parties to the complaint shall be given notice by mail by
the director of his or her determination of the controversy, including the amount of the
payment the director recommends as a bond or penalty. Any party has the right to appeal from any
determination or order made under this chapter. Any appeal authorized under this chapter is
made to the workers' compensation court in the first instance, and from the workers' compensation
court to the supreme court in accordance with section 28-35-30. The director, in his or her
discretion, may bring a civil action in any court of competent jurisdiction to collect all
payments and penalties ordered. 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
section 28-37-13 or 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. 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 (c) of this section, the director shall commence an action in the
workers' compensation court to assess a civil penalty against the employer as set forth in
subsection (a) and shall refer the matter to the attorney general for prosecution of criminal
(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 sections 28-37-13, 28-33-17.3(2) or 28-33-17.3(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.
(c) 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 Rhode Island general laws section 28-35-30.
(d) The director collects all payments under this chapter under those
regulations that may be set forth by the director. All fines collected pursuant to this section are
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.
(e)(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.
(3) Actions filed with the workers' compensation court pursuant to this section shall not
be subject to a pretrial conference in accordance with section 28-35-20 but shall be assigned
consistent with the workers' compensation court rules of procedure.
(f) Interest shall accrue on unpaid penalties during the pendency of any appeal at the rate
per annum provided in Rhode Island general laws section 9-21-10.
SECTION 6. Section 28-37-12 of the General Laws in Chapter 28-37 entitled "Workers'
Compensation Administrative Fund" is hereby repealed.
Commutation of payments not allowed. -- No petition for
commutation of payments shall be entertained,
with the exception of payments made pursuant to section 28-37-4, where the workers' compensation
administrative fund is involved.
SECTION 7. This act shall take effect upon passage.