TITLE 28
Labor and Labor Relations

CHAPTER 28-33
Workers' Compensation – Benefits

SECTION 28-33-17


§ 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 § 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 § 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 § 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 § 28-44-6(a). Effective September 1, 2007, the maximum rate for weekly compensation for total disability shall not exceed one hundred fifteen percent (115%) of the state average weekly wage, as computed and established under the provisions of § 28-44-6(a). Effective October 1, 2016, the maximum rate for weekly compensation for total disability shall not exceed one hundred twenty percent (120%) of the state average weekly wage as computed and established under the provisions of § 28-44-6(a), and effective October 1, 2017, the maximum rate for weekly compensation for total disability shall not exceed one hundred twenty-five percent (125%) of the state average weekly wage, as computed and established under the provisions of § 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 § 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 that 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. § 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 § 8-10-3 and funds designated for payment of liens pursuant to § 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 (1/10th) 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 § 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 § 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 § 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, as a result of brain injury due to a violent assault, on or before July 19, 2005, 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 or until said employee and his or her spouse are both eligible for Medicare.

History of Section.
(P.L. 1912, ch. 831, art. 2, § 10; P.L. 1919, ch. 1795, § 1; P.L. 1921, ch. 2095, § 5; G.L. 1923, ch. 92, art. 2, § 10; P.L. 1936, ch. 2290, § 6; G.L. 1938, ch. 300, art. 2, § 10; P.L. 1942, ch. 1246, § 1; P.L. 1949, ch. 2269, § 1; P.L. 1954, ch. 3297, § 1; G.L. 1956, § 28-33-17; P.L. 1960, ch. 168, § 1; P.L. 1961, ch. 123, § 1; P.L. 1963, ch. 45, § 1; P.L. 1966, ch. 130, § 1; P.L. 1969, ch. 148, § 1; P.L. 1974, ch. 271, § 1; P.L. 1982, ch. 32, art. 1, § 6; P.L. 1986, ch. 372, § 1; P.L. 1986, ch. 507, § 7; P.L. 1987, ch. 305, § 1; P.L. 1989, ch. 60, § 1; P.L. 1990, ch. 332, art. 1, § 3; P.L. 1992, ch. 31, § 5; P.L. 1993, ch. 474, § 1; P.L. 1998, ch. 105, § 2; P.L. 1998, ch. 404, § 2; P.L. 2000, ch. 491, § 4; P.L. 2002, ch. 119, § 3; P.L. 2002, ch. 280, § 3; P.L. 2005, ch. 342, § 6; P.L. 2005, ch. 403, § 6; P.L. 2006, ch. 605, § 1; P.L. 2006, ch. 610, § 1; P.L. 2014, ch. 231, § 2; P.L. 2014, ch. 289, § 2.)