Chapter
403
2005 -- H 5858 SUBSTITUTE A AS AMENDED
Enacted 07/19/05
A N A C T
RELATING TO LABOR AND
LABOR RELATIONS - WORKERS' COMPENSATION -
BENEFITS
Introduced By: Representative Norman L. Landroche
Date Introduced: March 01, 2005
It is
enacted by the General Assembly as follows:
SECTION
1. Sections 28-29-2, 28-29-17 and 28-29-19 of the General Laws in Chapter
28-29
entitled "Workers' Compensation - General Provisions" are hereby
amended to read as
follows:
28-29-2.
Definitions. -- In chapters 29 -- 38 of this title, unless the context
otherwise
requires:
(1) "Department" means the department of labor and training.
(2) "Director" means the director of labor and training or his or her
designee unless
specifically
stated otherwise.
(3) (i) "Earnings capacity" means the weekly straight time earnings
which an employee
could
receive if the employee accepted an actual offer of suitable alternative
employment.
Earnings
capacity can also be established by the court based on evidence of ability to
earn,
including,
but not limited to, a determination of the degree of functional impairment
and/or
disability,
that an employee is capable of employment. The court may, in its discretion,
take into
consideration
the performance of the employee's duty to actively seek employment in
scheduling
the
implementation of the reduction. The employer need not identify particular
employment
before
the court can direct an earnings capacity adjustment. In the event that an
employee returns
to light
duty employment while partially disabled, an earnings capacity shall not be set
based
upon
actual wages earned until the employee has successfully worked at light duty
for a period of
at least
thirteen (13) weeks.
(ii) As used under the provisions of this title, "functional
impairment" means an
anatomical
or functional abnormality existing after the date of maximum medical
improvement as
determined
by a medically or scientifically demonstrable finding and based upon the most
recent
edition
of the American Medical Association's Guide to the Evaluation of Permanent
Impairment
or comparable
publications of the American Medical Association.
(iii) In the event that an employee returns to employment at an average weekly
wage
equal to
the employee's pre-injury earnings exclusive of overtime, the employee will be
presumed
to have
regained his/her earning capacity.
(4) "Employee" means any person who has entered into the employment
of or works
under
contract of service or apprenticeship with any employer, except that in the
case of a city or
town
other than the city of Providence it shall only mean that class or those
classes of employees
as may
be designated by a city, town, or regional school district in a manner provided
in this
chapter
to receive compensation under chapters 29 -- 38 of this title. Any person employed
by the
state of
Rhode Island, except for sworn employees of the Rhode Island State Police, who
is
otherwise
entitled to the benefits of chapter 19 of title 45 shall be subject to the
provisions of
chapters
29 -- 38 of this title for all case management procedures and dispute
resolution for all
benefits.
It The term "employee" does not include any partner,
individual who is a shareholder or
director
in a corporation, general or limited partners
in a general partnership, or any partner in a
registered
limited liability partnership, a limited partnership, or partners in
a registered limited
liability
limited partnership, or any nonmanager
individual who is a member in a limited liability
company.
These exclusions do not apply to shareholders, directors and members who have
entered
into the employment of or who work under a contract of service or
apprenticeship within
a
corporation or a limited liability company. The term "employee" also
does not include a
member
of a limited liability company, sole
proprietor, independent contractor, or a person whose
employment
is of a casual nature, and who is employed other than for the purpose of the
employer's
trade or business, or a person whose services are voluntary or who performs
charitable
acts, nor
shall it include the members of the regularly organized fire and police
departments of
any town
or city. Whenever a contractor has contracted with the state, a city, town, or
regional
school
district any person employed by that contractor in work under contract shall
not be
deemed
an employee of the state, city, town, or regional school district as the case
may be. Any
person
who on or after January 1, 1999, was an employee and became a corporate officer
shall
remain
an employee, for purposes of these chapters, unless and until coverage under
this act is
waived
pursuant to subsection 28-29-8(b) or section 28-29-17. Any person who is
appointed a
corporate
officer between January 1, 1999 and December 31, 2001, and was not previously
an
employee
of the corporation, will not be considered an employee, for purposes of these
chapters,
unless
that corporate officer has filed a notice pursuant to section 28-29-19(b). In
the case of a
person
whose services are voluntary or who performs charitable acts, any benefit
received, in the
form of
monetary remuneration or otherwise, shall be reportable to the appropriate
taxation
authority
but shall not be deemed to be wages earned under contract of hire for purposes
of
qualifying
for benefits under chapters 29 -- 38 of this title. Any reference to an
employee who had
been
injured shall, where the employee is dead, include a reference to his or her
dependents as
defined
in this section, or to his or her legal representatives, or, where he or she is
a minor or
incompetent,
to his or her conservator or guardian. A "seasonal occupation" means
those
occupations
in which work is performed on a seasonal basis of not more than sixteen (16)
weeks.
(5) "Employer" includes any person, partnership, corporation, or
voluntary association,
and the
legal representative of a deceased employer; it includes the state, and the
city of
Providence.
It also includes each city, town, and regional school district in the state
that votes or
accepts
the provisions of chapters 29 -- 38 of this title in the manner provided in
this chapter.
(6) "General or special employer":
(i) "General employer" includes but is not limited to temporary help
companies and
employee
leasing companies and means a person who for consideration and as the regular
course
of its
business supplies an employee with or without vehicle to another person.
(ii) "Special employer" means a person who contracts for services
with a general
employer
for the use of an employee, a vehicle, or both.
(iii) Whenever there is a general employer and special employer wherein the
general
employer
supplies to the special employer an employee and the general employer pays or
is
obligated
to pay the wages or salaries of the supplied employee, then, notwithstanding
the fact
that
direction and control is in the special employer and not the general employer,
the general
employer,
if it is subject to the provisions of the Workers' Compensation Act or has
accepted that
Act,
shall be deemed to be the employer as set forth in subdivision (5) of this
section and both the
general
and special employer shall be the employer for purposes of sections 28-29-17
and 28-29-
18.
(iv) Effective January 1, 2003, whenever a general employer enters into a
contract or
arrangement
with a special employer to supply an employee or employees for work, the
special
employer
shall require an insurer generated insurance coverage certification, on a
form prescribed
by
the department, demonstrating Rhode Island workers' compensation and employer's
liability
coverage written documentation evidencing that the
general employer carries workers'
compensation
insurance with that insurer with no indebtedness for its employees for
the term of
the
contract or arrangement. In the event that the special employer fails to obtain
and maintain at
policy
renewal and thereafter this insurer generated insurance coverage certification
demonstrating
Rhode Island workers' compensation and employer's liability coverage the written
documentation from the general employer, the special employer is
deemed to be the employer
pursuant
to the provisions of this section. Upon the cancellation or failure to
renew, the insurer
having
written the workers' compensation and employer's liability policy shall notify
the
certificate
holders and the department of the cancellation or failure to renew and upon
notice, the
certificate
holders shall be deemed to be the employer for the term of the contact or
arrangement
unless
or until a new certification is obtained.
(7) (i) "Injury" means and refers to personal injury to an employee
arising out of and in
the
course of his or her employment, connected and referable to the employment.
(ii) An injury to an employee while voluntarily participating in a private,
group, or
employer-sponsored
carpool, vanpool, commuter bus service, or other rideshare program, having
as its
sole purpose the mass transportation of employees to and from work shall not be
deemed to
have
arisen out of and in the course of employment. Nothing in the foregoing
provision shall be
held to
deny benefits under chapters 29 -- 38 and chapter 47 of this title to employees
such as
drivers,
mechanics, and others who receive remuneration for their participation in the
rideshare
program.
Provided, that the foregoing provision shall not bar the right of an employee
to recover
against
an employer and/or driver for tortious misconduct.
(8) "Maximum medical improvement" means a point in time when any
medically
determinable
physical or mental impairment as a result of injury has become stable and when
no
further
treatment is reasonably expected to materially improve the condition. Neither
the need for
future
medical maintenance nor the possibility of improvement or deterioration
resulting from the
passage
of time and not from the ordinary course of the disabling condition, nor the
continuation
of a
pre-existing condition precludes a finding of maximum medical improvement. A
finding of
maximum
medical improvement by the workers' compensation court may be reviewed only
where it
is established that an employee's condition has substantially deteriorated or
improved.
(9) "Physician" means medical doctor, surgeon, dentist, licensed
psychologist,
chiropractor,
osteopath, podiatrist, or optometrist, as the case may be.
(10) "Suitable alternative employment" means employment or an actual
offer of
employment
which the employee is physically able to perform and will not exacerbate the
employee's
health condition and which bears a reasonable relationship to the employee's
qualifications,
background, education, and training. The employee's age alone shall not be
considered
in determining the suitableness of the alternative employment.
(11) "Independent contractor" means a person who has filed a notice
of designation as
independent
contractor with the director pursuant to section 28-29-17.1 or as otherwise
found by
the
workers' compensation court.
28-29-17.
Waiver of common law rights -- Notice of claim of common law right. --
An eEmployees or corporate officers
of an employer, or managers, managing members or
members of a limited liability company subject to or who has
have elected to become subject to
the
provisions of chapters 29 -- 38 of this title as provided in section 28-29-8
shall be held to have
waived
his or her right of action at common law to recover damages for personal
injuries if he or
she has
not given his or her employer at the time of the contract of hire or
appointment notice in
writing
that he or she claims that right and within ten (10) days after that has filed
a copy of the
notice
with the director, or, if the contract of hire or appointment was made before
the employer
became
subject to or elected to become subject to the provisions of those chapters, if
the
employee,
or corporate officer, or manager, managing member or member of a
limited liability
company shall
not must have given the notice and filed it with the director
within ten (10) days
after
the filing by the employer who is subject to or who has elected to become
subject to the
provisions
of those chapters of the written statement as provided. That waiver shall
continue in
force
for the term of one year, and after that, without further act on his or her
part, for successive
terms of
one year each, unless the employee, or corporate officer, or
manager, managing member
or
member of a limited liability company,
at least sixty (60) days prior to the expiration of the
first or
any succeeding year files with the director a notice in writing to the effect
that he or she
desires
to claim his or her right of action at common law and within ten (10) days
thereafter gives
notice
of this to his or her employer.
28-29-19.
Waiver of claim of common law rights. -- (a) Any employee, or corporate
officer,
or manager, managing member or member of a limited liability company, or
the parent or
guardian
of any minor employee, who has given notice to the employer that he or she
claimed his
or her
right of action at common law may waive that claim by filing a notice in
writing with the
director
and the employer or his or her agent which shall take effect five (5) days
after the filing
with the
director.
(b) Any person who is appointed a corporate officer between January 1, 1999 and
December
31, 2001 and was not previously an employee of the corporation may elect to
become
subject
to chapters 29 -- 38 of this title upon filing a notice in writing with the
director which
notice
takes effect five (5) days after the filing of his or her notice.
SECTION
2. Section 28-33-17.3 of the General Laws in Chapter 28-33 entitled
"Workers'
Compensation - Benefits" is hereby amended to read as follows:
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 shall be
considered an
attestation
by counsel that valid grounds exist for the position taken and that the pleading
is not
interposed
for delay.
(2) If any judge determines that any proceedings have been brought, prosecuted,
or
defended
by an employer, insurer, or their counsel without reasonable grounds, then:
(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
shall
not be included in any formula utilized to establish premium rates for workers'
compensation
insurance.
(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 shall determine 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 shall
be
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;
(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
commissioners;
(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; or
(viii) Knowingly assist, aid and abet, solicit or conspire to coerce an
employee to
willfully
misrepresent an employee's status as a shareholder, director or officer president,
one
vice
president, secretary and/or treasurer
of a corporation, or as a member or manager of a limited
liability
company, or as a partner, in a general or partnership,
limited partnership, registered
limited
liability partnership or a registered
limited liability limited partnership, or as an
independent
contractor for the purpose of avoiding the inclusion of that or other employees
in a
workers'
compensation insurance application, renewal or both.
(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
subdivision
(1) of this subsection, that person shall be 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, and other officers of the corporation,
or in any case where the
employer
is a limited liability company, the managers, and the managing members or
in any case
where
the employer is a general partnership, or a registered
limited liability partnership, or in the
case
where the employer is a limited liability
partnership or a registered limited liability limited
partnership, the partners, that is are found to
have violated this section or section 28-36-15, shall
be
guilty of a felony for failure to secure and maintain compensation, and upon
conviction, shall
be
subject to imprisonment of up to two (2) years, a fine not exceeding ten
thousand dollars
($10,000),
or both. In any case where the employer is a corporation, the president, vice
president,
secretary,
and treasurer, and other officers of the corporation, shall be
severally liable for the fine
or
subject to imprisonment, or both. In any case where the employer is a limited
liability
company,
the managers and managing members shall be severally liable for the fine
or subject to
imprisonment,
or both. In any case where the employer is a partnership, or a general
partnership,
or a registered
limited liability partnership, the partners shall be severally liable for the
fine or
subject
to imprisonment, or both. In any case where the employer is a limited partnership or a
registered limited liability limited partnership, the general
partners shall be severally liable for the
fine or
subject to imprisonment, or both.
SECTION
3. Section 28-36-15 of the General Laws in Chapter 28-36 entitled
"Workers'
Compensation
- Insurance" is hereby amended to read as follows:
28-36-15.
Penalty for failure to secure compensation -- Personal liability of
corporate
officers. -- (a) Any employer
required to secure the payment of compensation under
chapters
29 -- 38 of this title who knowingly fails to secure that compensation shall be
guilty of a
felony
and shall be subject to imprisonment for up to two (2) years. In addition to
the foregoing,
the
employer shall be subject to a civil penalty punished by a fine 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 noncompliance with
this section
and shall establish rules and regulations governing these measures. Each day
shall
constitute
a separate and distinct offense for calculation of the penalty. Where that
employer is a
corporation
or a limited liability company or general or limited partnership, the
president, vice
president,
secretary, and treasurer, and other officers of the corporation, or
member or manager of
a
limited liability company or general or limited partner in a registered limited
liability
partnership shall be also severally liable for the fine,
penalty or imprisonment as provided in this
section
for the failure of that corporation to secure the payment of compensation. The
president,
vice
president, secretary, and treasurer, and other officers of the
corporation or member or
manager
or general or limited partner shall also
be severally personally liable, jointly with the
corporation
or company or partnership, for any compensation or other benefit which
may accrue
under
those chapters in respect to any injury which may occur to any employee of that
corporation
while it fails to secure the payment of compensation as required by those
chapters.
All
criminal actions for any violation of this section shall be prosecuted by the
attorney general.
The
attorney general shall prosecute actions to enforce the payment of penalties
and fines at the
request
of the director. The workers' compensation court shall have jurisdiction over
all civil
actions
filed pursuant to this section.
(b)
(1) As soon as practicable after the director receives notice of noncompliance
under
this
section, the director shall determine whether cause exists for the imposition
of a civil penalty.
Unless
the director determines that the noncompliance was unintentional or the result
of a clerical
error
and subject to the administrative proceedings under subsection (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) of this section and shall refer the
matter to the
attorney
general for prosecution of criminal charges.
(2) The director shall bring a civil action in the workers' compensation court
to collect all
payments
and penalties ordered and not paid. All civil actions for any violations of
this chapter or
of
any of the rules or regulations promulgated by the director, or for the
collection of payments in
accordance
with section 28-37-13, 28-33-17.3(a)(2) or 28-33-17.3(a)(3) or civil penalties
under
this
chapter, shall be prosecuted by any qualified member of the Rhode Island bar
whom the
director
may designate, in the name of the director, and the director is exempt from
giving surety
for costs
in any proceedings.
(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
section 28-35-30.
(d) The director shall collect all payments under this chapter under the rules
and
regulations
that may be set forth by the director. All fines collected pursuant to this
section shall
be
deposited to a restricted receipt account to be administered by the director of
the department of
labor
and training in his or her sole discretion to carry out chapters 29 -- 38 of
this title.
(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 section 9-21-10.
(b)
Where the employer is a limited liability company, the managers and managing
members
who knowingly fail to secure the payment of compensation under chapters 29--38
of
this
title shall be guilty of a felony and shall be subject to imprisonment for up
to two (2) years.
The
managers and managing members shall also be severally liable for the fine,
penalty or
imprisonment
as provided in this section for the failure of that company to secure the
payment of
compensation.
The managers and managing members shall be severally personally liable, jointly
with the
company, for any compensation or other benefit which may accrue under those
chapters
in
respect to any injury which may occur to any employee of that company while it
fails to secure
the
payment of compensation as required by those chapters.
(c)
Where the employer is a partnership, or a registered limited liability
partnership, the
partners
who knowingly fail to secure the payment of compensation under chapters 29--38
of this
title
shall be guilty of a felony and shall be subject to imprisonment for up to two
(2) years. The
partners
shall also be severally liable for the fine, penalty, or imprisonment as
provided in this
section
for the failure of that partnership to secure the payment of compensation. The
partners
shall
be severally personally liable, jointly with the partnership, for any
compensation or other
benefit
which may accrue under those chapters in respect to any injury which may occur
to any
employee
of that partnership while it fails to secure the payment as required by those chapters.
(d)
Where the employer is a limited partnership or a registered limited liability
limited
partnership,
the general partners who knowingly fail to secure the payment of compensation
under
chapters 29--38 of this title shall be guilty of a felony and shall be subject
to imprisonment
for
up to two (2) years. The general partners shall also be severally liable for
the fine, penalty or
imprisonment
as provided in this section for the failure of that limited partnership to
secure the
payment
of compensation. The general partners shall be severally personally liable,
jointly with
the
limited partnership, for any compensation or other benefit which may accrue
under those
chapters
in respect to any injury which may occur to any employee of that partnership
while it
fails
to secure the payment of compensation as required by those chapters.
(e)
All criminal actions for any violation of this section shall be prosecuted by
the
attorney
general. The attorney general shall prosecute actions to enforce the payment of
penalties
and
fines at the request of the director. The workers' compensation court shall
have jurisdiction
over
all civil actions filed pursuant to this section.
(b)(f)
(1) As soon as practicable after the director receives notice of noncompliance
under
this
section, the director shall determine whether cause exists for the imposition
of a civil penalty.
Unless
the director determines that the noncompliance was unintentional or the result
of a clerical
error
and subject to the administrative proceedings under subsection (c)(g)
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) of this section and shall refer the
matter to the
attorney
general for prosecution of criminal charges.
(2) The director shall bring a civil action in the workers' compensation court
to collect all
payments
and penalties ordered and not paid. All civil actions for any violations of
this chapter or
of any
of the rules or regulations promulgated by the director, or for the collection
of payments in
accordance
with section 28-37-13, 28-33-17.3(a)(2) or 28-33-17.3(a)(3) or civil penalties
under
this
chapter, shall be prosecuted by any qualified member of the Rhode Island bar
whom the
director
may designate, in the name of the director, and the director is exempt from
giving surety
for
costs in any proceedings.
(c)(g)
In the case of unintentional noncompliance or noncompliance resulting from
clerical
error where the uninsured period is less than one year from the date of
discovery and
there
were no employees injured during the uninsured period and the employer has not
been
subject
to any other findings of noncompliance with these chapters, the director shall
assess an
administrative
penalty of not less than the estimated annual workers' compensation insurance
premium
for that employer and not more than triple that amount. Any party has the right
to appeal
the
orders of the director. Such appeal shall be to the workers' compensation court
in the first
instance
and thereafter from the workers' compensation court to the Rhode Island supreme
court
in
accordance with section 28-35-30.
(d)(h)
The director shall collect all payments under this chapter under the rules and
regulations
that may be set forth by the director. All fines collected pursuant to this
section shall
be
deposited to a restricted receipt account to be administered by the director of
the department of
labor
and training in his or her sole discretion to carry out chapters 29 -- 38 of
this title.
(e)(i)
(1) In that the operation of a commercial enterprise without the required
workers'
compensation
insurance is a crime and creates a clear and present danger of irreparable harm
to
employees
who are injured while the employer is uninsured, the director shall suspend the
operation
of the business immediately and until workers' compensation and employers'
liability
insurance
is secured consistent with these chapters. The director shall lift the
suspension upon
receipt
of satisfactory proof of insurance and evidence sufficient to satisfy the
director that the
employer
is in full compliance with these chapters. Any party has the right to appeal
the
suspension
to the workers' compensation court where the matter shall proceed pursuant to
the
workers'
compensation court rules of procedure.
(2) In the event that the employer shall fail to comply with the director's
order of
suspension,
the director may apply immediately to the workers' compensation court for an
order
directing
the employer to comply with the director's prior orders.
(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) (4) Interest shall accrue on unpaid penalties during the
pendency of any appeal at the
rate per
annum provided in section 9-21-10.
These
provisions shall take effect upon passage except section 28-29-2 (6) (iv) which
shall
take effect on January 1, 2006.
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 duly 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,
2003 2005, "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 shall not be
included in the
calculation
of the three hundred and twelve (312) week period.
(2) The provisions of this subsection apply to all injuries from Sept. 1, 1990,
to July 1,
2003 2005.
(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) of this section, payments made to these incapacitated
employees
shall be
increased annually on the tenth (10th) day of May thereafter so long as the
employee
remains
incapacitated. The increase shall be 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) "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 shall be 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 shall be 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) The computations in this section shall be made by the director of labor and
training
and promulgated
to insurers and employers making payments required by this section. Increases
shall be
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, there
shall be
added to the unpaid payment an amount equal to twenty percent (20%) of it, to
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 subdivision (1) of this subsection, 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 shall be allowed or entertained in those cases
where an
employee
is receiving benefits pursuant to this section.
SECTION 4. Section 28-30-4 of
the General Laws in Chapter 28-30 entitled "Workers'
Compensation Court.
28-30-4.
Workers' compensation administrator -- Appointment -- Powers and
duties. -- (a) There
shall be a workers' compensation administrator who shall be appointed by the
governor with the advice and consent of
the senate. Upon May 6, 1982, and every twelfth year
thereafter in the month of January, the
governor, with the advice and consent of the senate, shall
appoint a workers' compensation
administrator to serve for a period of twelve (12) years, and
thereafter until his or her successor
is appointed and qualified.
(b) The
administrator shall:
(1)
Supervise the preparation of an annual budget for the workers' compensation
court;
(2)
Formulate procedures governing the administration of workers' compensation
court
services;
(3) Make
recommendations to the workers' compensation court for improvement in court
services;
(4)
Collect necessary statistics and prepare the annual report of the work of the
workers'
compensation court;
(5)
Provide supervision and consultation to the staff of the workers' compensation
court
concerning administration of court
services, training and supervision of personnel, and fiscal
management;
(6)
Perform any other duties that the workers' compensation court specifies.
SECTION
5. Section 28-30-19 of the General Laws in Chapter 28-30 entitled
"Workers'
Compensation Court" is hereby
repealed.
28-30-19.
Annual report to general assembly. -- The workers' compensation court
shall
annually report in the month of March
to the general assembly on its activities of the previous
year.
SECTION
4. Section 28-37-13
of the General Laws in Chapter 28-37 entitled "Workers'
Compensation
Administrative Fund.
28-37-13.
Payments into fund by insurers and employers. -- (a) For the privilege
of
writing
or renewing workers' compensation insurance or employer's liability insurance
in this
state,
every mutual association or stock company so authorized, to be referred to as
"insurers",
and for
the privilege of being authorized, to make payments of workers' compensation
directly to
its
employees, and every employer so authorized, to be referred to as
"certified employers", shall
annually
make the following payments to the workers' compensation administrative fund:
(1) In the case of an insurer, an amount measured by four and one-quarter
percent
(4.25%),
or such other the percentage
of return as certified by the director pursuant to subsection
(c) of
this section of the gross premiums received for workers' compensation insurance
or
employer's
liability insurance written or renewed by it during the preceding calendar year
on risks
within
this state, but not less than fifty one hundred dollars ($50.00)($100);
and
(2) In the case of a certified employer, an amount measured by four and
one-quarter
percent
(4.25%), or any other the
percentage of return as certified by the director pursuant to
subsection
(c) of this section of the premium which the employer would have had to pay to
obtain
workers'
compensation insurance or employer's liability insurance for the preceding
calendar
year,
but not less than fifty one hundred dollars ($50.00)($100),
which amount shall be
determined
by the director.
(b) Every certified employer and every insurer shall also pay into the workers'
compensation
administrative fund the sum of seven thousand five hundred dollars ($7,500) for
every
case of injury causing death in which there is no person entitled to
compensation.
(c) The director is authorized obligated to determine on or
before July 15 of each year
except
for the period ending June 30, 2000, when such determination shall be made on
or before
November
15 by experience or by other means,
after taking into account projected expenditures
for the
current fiscal year and for the next fiscal year, what percentage of return,
referred to as the
"assessment",
is needed to provide sufficient funds, in conjunction with appropriations from
the
general
fund, if any, to fulfill the purposes enumerated in section 28-37-1(b) and
shall certify this
assessment
to the governor and the general assembly. This assessment may be separately
determined
for insurers and for certified employers. The payments, due within sixty (60)
days of
notice
each year pursuant to sections 28-37-15 and 28-37-16, shall be made based upon
the
certified
assessment. If the certified assessment in any given year is less than the
certified
assessment
for the prior year, the percentage of reduction shall be applied to reduce pro
rata
employer
payments and in accordance with this, the director shall require the insurance
carriers as
described
in subdivision (a)(1) of this section to reduce their premiums by a like
percentage of
premiums
paid. If an insured subsequently cancels his or her policy or otherwise allows
his or her
policy
to terminate, or the insured's policy is terminated, the insurance company
shall make a pro
rata
cash refund not later than sixty (60) days after the reduction has been
determined. The
insurance
company shall immediately certify to the director that the premium reductions
have
been
made.
(d) (1) In recognition of the continued utilization of the workers'
compensation system
by
insurers who have discontinued writing workers' compensation policies in the
state, if any
insurance insurer company, deemed by the director of the
department of business regulation to
have
been licensed on January 1, 1991 to write workers' compensation
policies, discontinues the
issuance
of workers' compensation policies, this company such insurer
shall be and remain
obligated
to pay the workers' compensation administrative fund assessment for a period of
six (6)
years after
that subsequent to its discontinuation of the issuance of such polices.
(2) In calculating the amount due by these insurance companies on the due date,
as
defined
in subsection (c) of this section, of the year after which it discontinues
writing policies in
this
state (the base year) the director of labor and training will calculate an
amount equal to the
assessment
in effect on the last date the insurer issued workers' compensation policies
multiplied
by the
gross premiums received for workers' compensation insurance or employers'
liability
insurance
written or renewed by it during the base year on risks within this state, but
not less than
fifty one hundred dollars ($50.00)($100)
each year.
(3) The basis for the calculation of the assessment in each succeeding year
shall be a
reduction
of the base year assessment by increments of sixteen and two-thirds percent (16
2/3%)
per each
succeeding year.
(e) All penalties collected for any violation under chapters 29 -- 38 of this
title shall be
paid
into this fund.
(f) Any employer, insurer, self-insurer, or group self-insurer who has not paid
assessments
or who is not current with payment of assessments into this fund shall not be
permitted
to place a claim against the fund. Reimbursement to any employer, insurer,
self-insurer,
or group
self-insurer who is not current with payment of assessments into this fund
shall be
suspended
immediately as of the first date of arrearage.
(g) To be eligible to use any of the services funded by the workers'
compensation
administrative
fund an employer, insurer, self-insurer, or group self-insurer shall pay a fee
of one
thousand
dollars ($1,000) per claim, per month into the fund until the arrearage is paid
in full in
addition
to any other interests or penalties.
SECTION
5. Section
42-16.1-12 of the General Laws in Chapter 42-16.1 entitled
"Department
of Labor and Training" is hereby amended to read as follows:
42-16.1-12.
Fraud prevention unit -- Appointment -- Duties -- Qualifications --
Annual
report. -- Fraud
prevention unit -- Appointment -- Duties – Qualifications. -- (a)
The director
of the department of labor and training shall maintain within the workers'
compensation
unit of the department of labor and training, a workers' compensation fraud
prevention
unit whose members shall be in the unclassified service and whose responsibility
it
shall be
to formulate an integrated state plan to reduce and prevent fraud arising out
of claims
made
pursuant to the workers' compensation laws of this state and to conduct
investigations as
authorized
by the director. The plan shall include a fraud prevention telephone hotline. The
workers'
compensation fraud prevention unit shall submit an annual report to the
director, the
attorney
general, the chief judge of the workers' compensation court and the general
assembly
fiscal
advisory staff, on or before February 15 of each year, describing its
activities and setting
forth
its findings, conclusions, and recommendations.
(b) To carry out the purposes of this section, the director, is authorized to
employ any
persons
that may be required, including an assistant attorney general position within
the
department
of attorney general to assist the unit in any hearing, investigation, action or
proceeding
taken or done in carrying out the purposes of this section. The director is
further
authorized
and directed to employ any investigative or other services that he or she deems
reasonable
and prudent to accomplish these purposes.
(c) The unit shall be funded by the workers' compensation administrative fund
established
in section 28-37-1, and any other funds or balances that the director deems
appropriate.
SECTION
6. Section 28-33-17
of the General Laws in Chapter 28-33 entitled "Workers'
Compensation
- Benefits" is hereby amended to read as follows:
28-33-17.
Weekly compensation for total incapacity -- Permanent total disability --
Dependents'
allowances. -- (a) (1) While the
incapacity for work resulting from the injury is
total,
the employer shall pay the injured employee a weekly compensation equal to
seventy-five
percent
(75%) of his or her average weekly spendable base wages, earnings, or salary,
as
computed
pursuant to the provisions of section 28-33-20. The amount may not exceed more
than
sixty
percent (60%) of the state average weekly wage of individuals in covered
employment
under
the provisions of the Rhode Island Employment Security Act as computed and
established
by the
Rhode Island department of labor and training, annually, on or before May 31 of
each year,
under the
provisions of section 28-44-6(a). Effective September 1, 1974, the maximum rate
for
weekly
compensation for total disability shall not exceed sixty-six and two-thirds
percent (66
2/3%) of
the state average weekly wage as computed and established under the provisions
of
section
28-44-6(a). Effective September 1, 1975, the maximum rate for weekly
compensation for
total
disability shall not exceed one hundred percent (100%) of the state average
weekly wage as
computed
and established under the provisions of section 28-44-6(a). Effective September
1,
2000,
the maximum rate for weekly compensation for total disability shall not exceed
one
hundred
ten percent (110%) of the state average weekly wage as computed and established
under
the
provisions of section 28-44-6(a). If the maximum weekly benefit rate is not an
exact multiple
of one
dollar ($1.00), then the rate shall be raised to the next higher multiple of
one dollar
($1.00).
(2) The average weekly wage computed and established under section 28-44-6(a)
is
applicable
to injured employees whose injury occurred on or after September 1, 2000, and
shall
be
applicable for the full period during which compensation is payable.
(3) (i) "Spendable earnings" means the employee's gross average weekly
wages,
earnings,
or salary, including any gratuities reported as income, reduced by an amount
determined
to
reflect amounts which would be withheld from the wages, earnings, or salary
under federal and
state
income tax laws, and under the Federal Insurance Contributions Act (FICA), 26
U.S.C.
section
3101 et seq., relating to social security and Medicare taxes. In all cases, it
is to be
assumed
that the amount withheld would be determined on the basis of expected liability
of the
employee
for tax for the taxable year in which the payments are made without regard to
any
itemized
deductions but taking into account the maximum number of personal exemptions
allowable.
(ii) Each year, the director shall publish tables of the average weekly wage and
seventy-
five
percent (75%) of spendable earnings that are to be in effect on May 10. These
tables shall be
conclusive
for the purposes of converting an average weekly wage into seventy-five percent
(75%) of
spendable earnings. In calculating spendable earnings the director shall have
discretion
to
exempt funds assigned to third parties by order of the family court pursuant to
section 8-10-3
and
funds designated for payment of liens pursuant to section 28-33-27 upon
submission of
supporting
evidence.
(b) (1) In the following cases, it shall for the purpose of this section be
that the injury
resulted
in permanent total disability:
(i) The total and irrecoverable loss of sight in both eyes or the reduction to
one-tenth (1
1/0) or less
of normal vision with glasses;
(ii) The loss of both feet at or above the ankle;
(iii) The loss of both hands at or above the wrist;
(iv) The loss of one hand and one foot;
(v) An injury to the spine resulting in permanent and complete paralysis of the
legs or
arms;
and
(vi) An injury to the skull resulting in incurable imbecility or insanity.
(2) In all other cases, total disability shall be determined only if, as a
result of the injury,
the
employee is physically unable to earn any wages in any employment; provided,
that in cases
where
manifest injustice would otherwise result, total disability shall be determined
when an
employee
proves, taking into account the employee's age, education, background,
abilities, and
training,
that he or she is unable on account of his or her compensable injury to perform
his or her
regular
job and is unable to perform any alternative employment. The court may deny
total
disability
under this subsection without requiring the employer to identify particular
alternative
employment.
(c) (1) Where the employee has persons conclusively presumed to be dependent
upon
him or
her or in fact so dependent, the sum of fifteen dollars ($15.00) shall be added
to the
weekly
compensation payable for total incapacity for each person wholly dependent on
the
employee,
except that the sum of forty dollars ($40.00) shall be added for those
receiving benefits
under
section 28-33-12, but in no case shall the aggregate of those amounts exceed eighty
percent
(80%) of
the average weekly wage of the employee, except that there shall be no limit
for those
receiving
benefits under section 28-33-12.
(2) The dependency allowance shall be in addition to the compensation benefits
for total
disability
otherwise payable under the provisions of this section. The dependency
allowance shall
be
increased if the number of persons dependent upon the employee increases during
the time that
weekly
compensation benefits are being received.
(3) For the purposes of this section the following persons shall be
conclusively presumed
to be
wholly dependent for support upon an employee:
(i) A wife upon a husband with whom she is living at the time of his injury,
but only
while
she is not working for wages during her spouse's total disability.
(ii) A husband upon a wife with whom he is living at the time of her injury,
but only
while he
is not working for wages during his spouse's total disability.
(iii) Children under the age of eighteen (18) years, or over that age but
physically or
mentally
incapacitated from earning, if living with the employee, or, if the employee is
bound or
ordered
by law, decree, or order of court, or by any other lawful requirement, to
support the
children,
although living apart from them. Provided, that the payment of dependency
benefits to a
dependent
child over the age of eighteen (18) years shall continue as long as that child
is
satisfactorily
enrolled as a full-time student in an educational institution or an educational
facility
duly
accredited or approved by the appropriate state educational authorities at the
time of
enrollment.
Those payments shall not be continued beyond the age of twenty-three (23)
years.
"Children,"
within the meaning of this paragraph, also includes any children of the injured
employee
conceived but not born at the time of the employee's injury, and the
compensation
provided
for in this section shall be payable on account of any such children from the
date of their
birth.
(d) "Dependents," as provided in this section, does not include the
spouse of the injured
employee
except as provided in paragraphs (c)(3)(i) and (ii) of this section. In all
other cases
questions
of dependency shall be determined in accordance with the facts as the facts may
be at
the time
of the injury.
(e) The court or any of its judges may in its or his or her discretion order
the insurer or
self-insurer
to make payment of the nine dollars ($9.00) or fifteen dollars ($15.00) for those
receiving
benefits under section 28-33-12 directly to the dependent.
(f) (1) Where any employee's incapacity is total and has extended beyond
fifty-two (52)
weeks,
regardless of the date of injury, payments made to all totally incapacitated
employees shall
be
increased as of May 10, 1991, and annually on the tenth of May after that as
long as the
employee
remains totally incapacitated. The increase shall be by an amount equal to the
total
percentage
increase in 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) If the employee is subsequently found to be only partially incapacitated,
the weekly
compensation
benefit paid to the employee shall be equal to the payment in effect prior to
his or
her most
recent cost of living adjustment.
(3) "Index" as used in this section refers to the consumer price
index, United States city
average
for urban wage earners, clerical workers, as that index is formulated and
computed by the
Bureau
of Labor Statistics of the United States Department of Labor.
(4) The May 10, 1991 increase shall be based upon the total percentage
increase, if any,
in the
annual consumer price index for the period of March 1, 1990 to February 28,
1991.
Thereafter,
increases shall be made on May 10 annually, based upon the percentage increase,
if
any, in
the index for the period March 1 to February 28.
(5) The computations in this section shall be made by the director of labor and
training
and
promulgated to insurers and employers making payments required by this section.
Increases
shall be
paid by insurers and employers without further order of the court. If payment
payable
under
this section is not paid within fourteen (14) days after the employer or
insurer has been
notified
or it becomes due, whichever is later, there shall be added to the unpaid
payment an
amount
equal to twenty percent (20%) of that amount, which shall be paid at the same
time as,
but in
addition to the payment.
(6) This section applies only to payment of weekly indemnity benefits to
employees as
described
in subdivision (1) of this subsection, 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.
(7)
Notwithstanding any other provision of the general law or public laws to the
contrary,
any
employee of the state of Rhode Island who is receiving workers' compensation
benefits for
total
incapacity shall be entitled to receive the health insurance benefit he or she
was entitled to at
the
time of the injury for the duration of the total incapacity.
SECTION
7. This act shall
take effect upon passage with the exception of section 28-29-
2 (6) (iv) which shall take effect on January 1, 2006.
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LC02531/SUB A
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