Chapter 218 |
2019 -- H 6134 Enacted 07/15/2019 |
A N A C T |
RELATING TO LABOR AND LABOR RELATIONS - WORKERS' COMPENSATION |
Introduced By: Representatives Williams, Fellela, Alzate, Millea, and McKiernan |
Date Introduced: May 22, 2019 |
It is enacted by the General Assembly as follows: |
SECTION 1. Sections 28-33-18, 28-33-22, 28-33-25 and 28-33-44 of the General Laws |
in Chapter 28-33 entitled "Workers' Compensation - Benefits" are hereby amended to read as |
follows: |
28-33-18. Weekly compensation for partial incapacity. |
(a) While the incapacity for work resulting from the injury is partial, the employer shall |
pay the injured employee a weekly compensation equal to seventy-five percent (75%) of the |
difference between his or her spendable average weekly base wages, earnings, or salary before |
the injury as computed pursuant to the provisions of § 28-38-20 § 28-33-20, and his or her |
spendable weekly wages, earnings, salary, or earnings capacity after that, but not more than the |
maximum weekly compensation rate for total incapacity as set forth in § 28-33-17. The |
provisions of this section are subject to the provisions of § 28-33-18.2. |
(b) For all injuries occurring on or after September 1, 1990, where an employee's |
condition has reached maximum medical improvement and the incapacity for work resulting from |
the injury is partial, while the incapacity for work resulting from the injury is partial, the |
employer shall pay the injured employee a weekly compensation equal to seventy percent (70%) |
of the weekly compensation rate as set forth in subsection (a) of this section. 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 provisions of this subsection |
are subject to the provisions of § 28-33-18.2. |
(c)(1) Earnings capacity determined from degree of functional impairment pursuant to § |
28-29-2(3) shall be determined as a percentage of the whole person based on the Sixth (6th) |
edition of the American Medical Association Guides To The Value Of to the Value of Permanent |
Impairment. Earnings capacity shall be calculated from the percentage of impairment as follows: |
(i) For impairment of five percent (5%) or less, earnings capacity shall be calculated so as |
to extinguish one hundred percent (100%) of weekly benefits. |
(ii) For impairment of twenty-five percent (25%) or less, but greater than five percent |
(5%), earnings capacity shall be calculated so as to extinguish one hundred percent (100%) less |
the percent of impairment of weekly benefits. |
(iii) For impairment of fifty percent (50%) or less, but greater than twenty-five percent |
(25%), earnings capacity shall be calculated so as to extinguish one hundred percent (100%) less |
one point two five (1.25) times the percent of impairment of weekly benefits. |
(iv) For impairment of sixty-five percent (65%) or less, but greater than fifty percent |
(50%), earnings capacity shall be calculated so as to extinguish one hundred percent (100%) less |
one point five (1.5) times the percent of impairment of weekly benefits. |
(2) An earnings capacity adjustment under this section shall be applicable only when the |
employee's condition has reached maximum medical improvement under § 28-29-2(3)(ii) and |
benefits are subject to adjustment pursuant to subsection (b) of this section. |
(d) In the event partial compensation is paid, in no case shall the period covered by the |
compensation be greater than three hundred and twelve (312) weeks. In the event that |
compensation for partial disability is paid under this section for a period of three hundred and |
twelve (312) weeks, the employee's right to continuing weekly compensation benefits shall be |
determined pursuant to the terms of § 28-33-18.3. At least twenty-six (26) weeks prior to the |
expiration of the period, the employer or insurer shall notify the employee and the director of its |
intention to terminate benefits at the expiration of three hundred and twelve (312) weeks and |
advise the employee of the right to apply for a continuation of benefits under the terms of § 28- |
33-18.3. In the event that the employer or insurer fails to notify the employee and the director as |
prescribed, the employer or insurer shall continue to pay benefits to the employee for a period |
equal to twenty-six (26) weeks after the date the notice is served on the employee and the |
director. |
28-33-22. Minors employed in violation of law. |
(a) If, at the time of the injury, the injured employee is a minor employed in violation of |
any law of this state or of the United States relating to the employment of minors, then the |
compensation payable shall be treble the amount which that would have been payable if that |
minor had been legally employed. |
(b) In fixing the amount of any compensation under chapters 29 -- 38 of this title due |
allowance shall be made for any sum which that the employer may have paid to any injured |
minor employee or to his dependents on account of the injury, except those sums that the |
employer may have expended or directed to be expended for medical, surgical, or hospital |
service. |
(c) Whenever the workers' compensation insurance carrier for the employer is obligated |
to pay treble the amount which that would have been payable if that minor had been legally |
employed, the workers' compensation insurance carrier shall have a complete right of |
indemnification to the extent the additional benefits are paid against the employer for the |
additional benefits paid above and beyond the usual workers' compensation indemnity benefit. |
28-33-25. Settlement for lump sum or structured-type payment. |
(a)(1) In case payments have continued for not less than six (6) months, the The parties |
may petition the workers' compensation court for an order approving a settlement of the future |
liability for a lump sum or structured-type periodic payment over a period of time. |
(2)(i) In considering the petition, a judge shall give due weight to the fact that it is the |
policy of this chapter that compensation be paid weekly. |
(ii) The petition shall be considered by a judge of the court and may be granted where it |
is shown to the satisfaction of the court that the payment of a lump sum or structured-type |
payment in lieu of future weekly payments will be in the best interest of all parties including the |
employee, employer, insurance carrier, and where applicable, the workers' compensation |
administrative fund and the center Center for Medicare and Medicaid services (CMS) as their |
interests may appear. Any proposed settlement that exceeds one hundred four (104) weeks of |
compensation for partial incapacity may be rejected by the chief judge in his or her discretion. |
The employee shall be entitled to a finding amortizing the net settlement over his or her life |
expectancy. |
(iii) In determining whether the settlement is in the best interest of all parties, the judge |
may refer the employee for a rehabilitation evaluation pursuant to the provisions of § 28-33-41. |
(3) Upon payment, the employer and insurer shall be entitled to a duly executed release, |
which fully and finally absolves and discharges the employer and insurer from any and all |
liability arising out of the injury. |
(b) The provisions of this section shall be strictly construed and all hearings for |
commutation shall be conducted in open session. |
(c) No case may be settled to a lump sum or structured-type periodic payment while the |
Rhode Island temporary disability insurance fund and/or the department of social and |
rehabilitative department of human services has a claim for payments made under chapter 41 of |
this title unless agreement is made to pay any claim from the lump sum or structured-type |
periodic payments. |
(d) Attorneys' Attorney’s fees shall be fixed by the court, but in no event shall any |
attorney's fee for representing an employee in connection with a petition brought pursuant to this |
section exceed a sum equal to twenty percent (20%) of the lump sum or twenty percent (20%) of |
the structured-type periodic payment reduced to present day value. |
(e) No case shall be settled for a lump sum or structured-type periodic payment unless it |
is placed upon the record in open session, that the employer, if insured, has been advised by the |
insurer or its agent of the potential effect of the settlement on its workers' compensation premium, |
and has the opportunity to appear and state its disapproval of the settlement. |
(f) Settlements must be paid within fourteen (14) days of entry of an order to pay or the |
date(s) upon which payment(s) is/are due pursuant to a court order, and a penalty of one hundred |
dollars ($100) shall be assessed for every day payment is delinquent. |
28-33-44. Continuation of health insurance benefits. |
(a) No employer shall cancel but shall be obligated to continue to provide any employee's |
health insurance benefits for a period of two (2) years from the date of the employee's receiving |
weekly compensation benefits pursuant to a preliminary determination or a decision of the |
workers' compensation court, or the filing at the department of a memorandum of agreement or |
notice of direct payment for injuries occurring on or before February 28, 1986. The provisions of |
this section shall not apply if: |
(1) The employee is no longer receiving compensation pursuant to a preliminary |
determination or a decision of the workers' compensation court; |
(2) Has accepted suitable alternative employment; |
(3) Fails to pay any contribution toward the health care healthcare benefits that he or she |
was required to pay prior to the injury; |
(4) A petition for a commutation or a structured settlement, as defined in § 28-33-25, is |
granted; |
(5) The employee is a beneficiary of an equivalent health insurance policy of his or her |
spouse; or |
(6) The employee is employed in the construction industry and is a participant in a multi- |
employer welfare plan as defined in the Employee Retirement Income Security Act of 1974, 29 |
U.S.C. § 1002 et seq., and which the Internal Revenue Service has determined under the Internal |
Revenue Code, 26 U.S.C. § 101 et seq., is tax exempt as to contributions received and as to |
benefits received by its participants. |
(b) In the event any employer fails to comply with the provisions of this section, and not |
its workers' compensation insurance carrier, then the employer shall be liable for hospital and |
medical costs that would have been paid by the hospital or medical insurance plan afforded the |
employee had he or she been covered by the plan. |
(c) The provisions of this section shall only apply to claims for injuries sustained on or |
after July 1, 1984. |
SECTION 2. Section 28-35-14 of the General Laws in Chapter 28-35 entitled "Workers' |
Compensation - Procedure" is hereby amended to read as follows: |
28-35-14. Copies of petition to respondents. |
Upon filing with the workers' compensation court of any petition, stating the general |
nature of any claim as to which any dispute or controversy may have arisen, the petitioner shall |
serve a copy of the petition and its attachments on the respondent or respondents in accordance |
with the workers' compensation court rules of practice. |
SECTION 3. Sections 28-35-46, 28-35-47, 28-35-48, 28-35-49, 28-35-50 and 28-35-51 |
of the General Laws in Chapter 28-35 entitled "Workers' Compensation - Procedure" are hereby |
repealed. |
28-35-46. Notice of intent to discontinue, suspend, or reduce payments -- Filing -- |
Form. |
Before an employer may discontinue, suspend, or reduce compensation payments |
whether they are being received under an agreement, memorandum of agreement, award, order, |
finding, or decree, or when suitable alternative employment has been offered to the employee |
pursuant to § 28-33-18.2, the employer shall notify the court and the employee of his or her |
intention to discontinue, suspend, or reduce payments and the reason for doing so by filing with |
the court an affidavit setting forth the factual basis for filing the petition to review along with a |
copy of the medical reports upon which the employer seeks to justify the discontinuance, |
suspension, or reduction in payments. A copy of the affidavit and medical report shall be |
forwarded to the employee. The notice of intention to discontinue, suspend, or reduce payments |
must be given fifteen (15) days prior to the proposed date of discontinuance, suspension, or |
reduction; provided, that where an employee has returned to work at an average weekly wage |
equal to or in excess of that which he or she was earning at the time of his or her injury, not |
including overtime, the notice of intention to discontinue, suspend, or reduce the payments |
provided for in this section may be given five (5) days prior to the proposed date of |
discontinuance. Notices shall be in substantially the following form: |
Notice to Workers' Compensation Court and Employee of Intention to Discontinue, |
Suspend, or Reduce Payment |
You are hereby notified that the undersigned employer intends on the ……........ day of |
.................... 20......, to discontinue, suspend, or reduce the payments of compensation to the |
above-named employee for the following reasons, to wit: |
(1) Employee has returned to work at an average weekly wage equal to or in excess of |
that which he or she was earning at the time of his or her injury, not including overtime. |
(2) Employee has returned to work and is earning wages in the sum of .......... dollars |
weekly. |
(3) Employee has been discharged by his or her treating physician on the ……........ day |
of ……........ 20..... |
28-35-47. Wage transcript supporting allegation of return to work. |
Where the notice of intention to discontinue, suspend, or reduce payments of |
compensation alleges that the employee has returned to work at an average weekly wage equal to |
or in excess of that which he or she was earning at the time of his or her injury, not including |
overtime, or has returned to work for wages less than he or she was earning at the time of the |
injury, the notice shall contain a signed wage transcript signed by the treasurer of the employer, |
or other appropriate official, setting forth the number of hours worked, the rate of pay, and the |
wages earned during the period relied upon corroborating the allegation. Provided, that indemnity |
benefits may be discontinued if the employer files with the department of labor and training a |
wage transcript showing that the employee has returned to work for at least two (2) consecutive |
weeks at a salary equal to or in excess of that which he or she was earning, not including |
overtime, at the time of his or her injury. Notice of the filing shall be sent to the employee and/or |
the employee's legal representative. If the employee files an objection within two (2) weeks, the |
matter shall be referred to the court for disposition pursuant to § 28-35-51, and the court may |
order benefits reinstated. |
28-35-48. Medical report on ability to return to work. |
Where the notice of intention to discontinue, suspend, or reduce payments of |
compensation alleges that the employee is able to return to work, the notice shall be supported by |
a report of a treating physician. |
28-35-49. Medical examination on ability to return to light work. |
Where the notice of intention to discontinue, suspend, or reduce payments of |
compensation alleges that the employee is able to return to light selected work, the notice shall be |
supported by a report of a treating physician. |
28-35-50. Resumption of payments on change of status. |
If subsequent to the filing of any notice provided for in this chapter there is any change of |
status of the employee which would affect the right to discontinue, reduce, or suspend |
compensation payments under §§ 28-35-39 -- 28-35-53, such as, the unwarranted discharge of the |
employee, a reduction of wages suffered by an employee while he or she is still unable to perform |
the work which he or she did at the time of his or her injury, or the inability of the employee to |
continue work due to his or her injury, between the time of the filing of the notice and the time of |
suspension under the notice, or the time of rendering of a decision following a hearing before the |
workers' compensation court, payments in accordance with the existing agreement, award, |
finding, or decree shall be resumed or continued. |
28-35-51. Review of discontinuance, suspension, or reduction -- Disputed cases. |
Upon receipt of notice of intention to discontinue, suspend, or reduce compensation |
payments, the court shall notify the employee that he or she has a right to dispute the claim of the |
employer or insurance carrier and assign the matter for a mandatory pre-trial conference on the |
date set forth in the notice pursuant to § 28-35-20. |
SECTION 4. This act shall take effect upon passage. |
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LC002640 |
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