TITLE 28
Labor and Labor Relations

CHAPTER 28-33
Workers' Compensation – Benefits

SECTION 28-33-18.2


§ 28-33-18.2 Suitable alternative employment.

(a) When an employee has sustained an injury which entitles the employee to receive benefits pursuant to § 28-33-18 or 28-34-3, the employee may become capable of suitable alternative employment as determined by the workers' compensation court, or may be offered suitable alternative employment as agreed to by the employee and employer with written notice to the director. The employer or insurer shall pay an injured employee that accepts suitable alternative employment a weekly compensation equal to sixty-six and two-thirds percent (66 2/3%) of the difference between the employee's average weekly wage, earnings or salary before the injury and his or her weekly wages, earnings or salary from the suitable alternative employment.

(b) The acceptance of suitable alternative employment shall not be mandatory if it results in the inequitable forfeiture or loss of seniority with the employer or a monetary benefit or other substantial benefit including, but not limited to, vested pension and/or profit sharing contributions, arising from the employment relationship.

(c) If suitable alternative employment as determined by the workers' compensation court has been offered to the employee and the employee has refused to accept the employment, then the workers' compensation court shall, in fixing the amount of compensation payable subsequent to the refusal, treat earnings capacity as post injury earnings, requiring the employer or insurer to pay the injured employee a weekly compensation equal to sixty-six and two-thirds percent (66 2/3%) of the difference between the employee's average weekly wage, earnings, or salary before the injury and the weekly earning capacity. In no case shall increases in payments made to an injured employee pursuant to § 28-33-18.3(b)(1) or 28-33-17(f) be considered in the calculation of the weekly compensation due pursuant to this section. The fact that the employee is undergoing rehabilitation does not by itself exempt the employee from the provisions of this subsection.

(d) If the suitable alternative employment is terminated by the employer for reasons other than misconduct by the employee, the injured employee shall be entitled to be compensated from the employer in whose employ he or she was injured at the rate to which the employee was entitled prior to acceptance of the employment after notice by the employee to the employer in whose employ he or she was injured. The payments shall be made no later than fourteen (14) days after the notice. If suitable alternative employment is terminated by the employer for misconduct of the employee, or by the employee, the compensation payable to the employee shall not exceed that payable during continuance of suitable alternative employment. Upon request to the workers' compensation court, the employee shall have the right to a determination as to whether or not the termination was justified. Any employee who accepts suitable alternative employment with his or her employer of record shall continue to maintain the seniority status and all rights incidental to it that the employee enjoyed prior to his or her injury, except that these rights shall not exceed the current rights of a similar employee with equal seniority.

History of Section.
(P.L. 1982, ch. 32, art. 1, § 7; P.L. 1984, ch. 142, art. 6, § 8; P.L. 1984 (s.s.), ch. 450, § 3; P.L. 1985, ch. 365, § 6; P.L. 1986, ch. 507, § 7; P.L. 1987, ch. 391, § 1; P.L. 1990, ch. 332, art. 1, § 3; P.L. 1992, ch. 31, § 5; P.L. 2001, ch. 256, § 4; P.L. 2001, ch. 355, § 4.)