Introduced By: Representative Faria
Date Introduced : March 10, 1998
It is enacted by the General Assembly as follows:
SECTION 1. Sections 28-29-2, 28-29-5, 28-29-6, 28-29-7, 28-29-8 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, the term "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.
(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 those class or
classes of employees as may be designated by a city, town, or
regional school district in manner herein provided to receive
compensation under chapters 29 -- 38 of this title. It shall not
include any partner {ADD , ADD} {DEL or DEL} sole proprietor,
{ADD or the president, one (1) vice president, secretary and/or
treasurer of a corporation, ADD} or a person whose employment is
of a casual nature, and who is employed otherwise 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; and 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. 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 hereinafter defined, 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" shall include any person, copartnership, corporation, or voluntary association, and the legal representative of a deceased employer; it shall include the state, and the city of Providence. It shall include also each city, town, and regional school district therein that shall vote or accept the provisions of chapters 29 -- 38 of this title in the manner herein provided.
(6) "General or special employer":
(i) A general employer shall include but shall not be limited to temporary help companies and employee leasing companies and shall mean a person who for consideration and as the regular course of its business supplies an employee with or without vehicle to another person.
(ii) A special employer shall mean a person who contracts for services with a general employer for the use of an employee, a vehicle, or both.
(iii) Whenever there be 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 and in that event, notwithstanding the fact that direction and control shall be in the special employer and not the general employer, the general employer, if it be 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) and both the general and special employer shall be the employer for purposes of sections 28-29-17 and 28-29-18.
(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 therewith and referable thereto.
(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 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, however, that the foregoing 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 shall preclude 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" shall mean medical doctor, surgeon, dentist, licensed psychologist, chiropractor, osteopath, podiatrist, and 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.
28-29-5. Employers exempt. -- The provisions of
chapters 29 -- 38 of this title shall not apply to employers {DEL who
employ three (3) or less workers or operatives regularly in the
same business or to employers DEL} of employees engaged in
domestic service or subject to the provisions of section 28-29-7.2
or agriculture, except for employers engaged in occupations which
the director shall declare hazardous, but employers not engaged
in hazardous occupations may, by complying with the provisions
of section 28-29-8, become subject to the provisions of those
chapters.
28-29-6. Employers subject to law. -- Every person,
firm, and private corporation, including any public service corporation,
including the state, that employs {DEL four (4) or more DEL}
{DEL workers or operatives (which for purposes of determining
jurisdiction under chapters 29 -- 38 of this title shall include
partners and sole proprietors) DEL} {ADD employees ADD} regularly
in the same business or in or about the same establishment under
any contract of hire, express or implied, and a city or town in
this state that shall vote to accept the provisions of those chapters
in the manner provided shall constitute an employer subject to
the provisions of chapters 29 -- 38 of this title.
28-29-7. Domestic and farm laborers -- Small employers.
-- Domestic servants, farmers, farm laborers {ADD ,
except as defined in 28-29-7.2 ADD}, {DEL or employers of less
than four (4) workers or operatives DEL} are not subject to
the provisions of chapters 29 -- 38 of this title {ADD . ADD} {DEL unless
their occupations have been declared hazardous by the director
under section 28-29-5, after giving due notice and opportunity
for hearing to parties concerned. DEL}
28-29-8. Election by exempt employers to be subject to law. -- {ADD (a) ADD} Employers exempted by section 28-29-7 may come within chapters 29 -- 38 of this title by election. The election on the part of the employer shall be made by filing with the director a written statement to the effect that he or she accepts the provisions of those chapters, the filing of which statement shall operate to subject the employer to the provisions of those chapters and all acts amendatory thereof for the term of one year from the date of the filing of the statement, and thereafter, without further act on his or her part, for successive terms of one year each, unless the employer shall, at least sixty (60) days prior to the expiration of that first or any succeeding year file with the director a notice in writing to the effect that he or she withdraws his or her election to be subject to the provisions of those chapters and shall give reasonable notice thereof to his workers; provided, however, that any employer now subject to the provisions of those chapters shall not be required to file a further written statement of acceptance or hereafter post notices of his or her acceptance.
{ADD (b) Any employer, including any corporation officer, who is on January 1, 1999 subject to the provisions of chapters 29-38 of this title by election, shall continue to be so subject to the provisions of those chapters and all acts amendatory thereof unless or until he or she withdraws his or her election to be subject to the provisions of those chapters pursuant to the provisions of subsection 28-29-8(a). ADD}
28-29-19. Waiver of claim of common law rights. -- {ADD (a) ADD} Any employee, 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 a notice in writing which shall take effect five (5) days after the delivery to the employer or his or her agent.
{ADD (b) Any corporation officer may elect to become subject to the provisions of chapters 29 through 38 of this title upon filing a notice in writing with the director which notice shall take effect five (5) days after the filing of his or her notice. ADD}
SECTION 2. This act shall take effect January 1, 1999.
