2013 -- S 0951

=======

LC02602

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

____________

A N A C T

RELATING TO LABOR AND LABOR RELATIONS -- WORKERS' COMPENSATION

     Introduced By: Senators P Fogarty, Ruggerio, Goodwin, McCaffrey, and Ciccone

     Date Introduced: May 16, 2013

     Referred To: Senate Labor

It is enacted by the General Assembly as follows:

1-1

     SECTION 1. Sections 28-33-5, 28-33-11, 28-33-16, 28-33-18.3 and 28-33-31 of the

1-2

General Laws in Chapter 28-33 entitled "Workers' Compensation - Benefits" are hereby amended

1-3

to read as follows:

1-4

     28-33-5. Medical services provided by employer. -- The employer shall, subject to the

1-5

choice of the employee as provided in section 28-33-8, promptly provide for an injured employee

1-6

any reasonable medical, surgical, dental, optical, or other attendance or treatment, nurse and

1-7

hospital service, medicines, crutches, and apparatus for such period as is necessary, in order to

1-8

cure, rehabilitate or relieve the employee from the effects of his injury; provided, that no fee for

1-9

major surgery shall be paid unless permission for it in writing is first obtained from the workers'

1-10

compensation court, the employer, or the insurance carrier involved, except where compliance

1-11

with it may prove fatal or detrimental to the employee. Irrespective of the date of injury, the

1-12

liability of the employer for hospital service rendered under this section to the injured employee

1-13

shall be the cost to the hospital of rendering the service at the time the service is rendered. The

1-14

director, after consultations with representatives of hospitals, employers, and insurance

1-15

companies, shall establish administrative procedures regarding the furnishing and filing of data

1-16

and the time and method of billing and may accept as representing the costs for both routine and

1-17

special services to patients, costs as computed for the federal Medicare program. Each hospital

1-18

licensed under chapter 16 of title 23 which renders services to injured employees under the

1-19

Workers' Compensation Act, chapters 29 -- 38 of this title, shall submit and certify to the director,

1-20

in accordance with requirements of the administrative procedures established by him or her, its

2-1

costs for those services. The employer shall also provide all medical, optical, dental, and surgical

2-2

appliances and apparatus required to cure or relieve the employee from the effects of the injury,

2-3

including but not being limited to the following: ambulance and nursing service, eyeglasses,

2-4

dentures, braces and supports, artificial limbs, crutches, and other similar appliances; provided,

2-5

that the employer shall not be liable to pay for or provide hearing aids or other amplification

2-6

devices.

2-7

     28-33-11. Notice of hearings -- Time of decision. -- No hearing shall be held by the

2-8

workers' compensation court or any judge of that court under sections 28-33-5 -- 28-33-10 unless

2-9

written notice of the hearing is mailed sent to the employer and employee five (5) days before the

2-10

time of the hearing. The decision shall be rendered within seventy-two (72) hours after the

2-11

hearing, unless the parties agree otherwise.

2-12

     28-33-16. Burial expenses. -- If the employee dies as a result of the injury, the employer

2-13

shall pay in addition to any compensation provided for in this chapter, the sum of fifteen thousand

2-14

dollars ($15,000) twenty thousand dollars ($20,000). This sum shall be paid under the provisions

2-15

of section 28-33-23.

2-16

     28-33-18.3. Continuation of benefits -- Partial incapacity. -- (a)(1) For all injuries

2-17

occurring on or after September 1, 1990, in those cases where the employee has received a notice

2-18

of intention to terminate partial incapacity benefits pursuant to section 28-33-18, the employee or

2-19

his or her duly authorized representative may file with the workers' compensation court a petition

2-20

for continuation of benefits on forms prescribed by the workers' compensation court. In any

2-21

proceeding before the workers' compensation court on a petition for continuation of partial

2-22

incapacity benefits, where the employee demonstrates by a fair preponderance of the evidence

2-23

that his or her partial incapacity poses a material hindrance to obtaining employment suitable to

2-24

his or her limitation, partial incapacity benefits shall continue. For injuries on and after July 1,

2-25

2012 2016, "material hindrance" is defined to include only compensable injuries causing a greater

2-26

than sixty-five percent (65%) degree of functional impairment and/or disability. Any period of

2-27

time for which the employee has received benefits for total incapacity shall not be included in the

2-28

calculation of the three hundred and twelve (312) week period.

2-29

      (2) The provisions of this subsection apply to all injuries from Sept. 1, 1990, to July 1,

2-30

2012 2016.

2-31

      (b)(1) Where any employee's incapacity is partial and has extended for more than three

2-32

hundred and twelve (312) weeks and the employee has proved an entitlement to continued

2-33

benefits under subsection (a) of this section, payments made to these incapacitated employees

2-34

shall be increased annually on the tenth (10th) day of May thereafter so long as the employee

3-1

remains incapacitated. The increase shall be by an amount equal to the total percentage increase

3-2

in the annual consumer price index, United States city average for urban wage earners and

3-3

clerical workers, as formulated and computed by the Bureau of Labor Statistics of the United

3-4

States Department of Labor for the period of March 1 to February 28 each year.

3-5

      (2) "Index" as used in this section refers to the consumer price index, United States city

3-6

average for urban wage earners and clerical workers, as that index was formulated and computed

3-7

by the Bureau of Labor Statistics of the United States Department of Labor.

3-8

      (3) The annual increase shall be based upon the percentage increase, if any, in the

3-9

consumer price index for the month of a given year, over the index for February, the previous

3-10

year. Thereafter, increases shall be made on May 10 annually, based upon the percentage

3-11

increase, if any, in the consumer price index for the period of March 1 to February 28.

3-12

      (4) The computations in this section shall be made by the director of labor and training

3-13

and promulgated to insurers and employers making payments required by this section. Increases

3-14

shall be paid by insurers and employers without further order of the court. If payment payable

3-15

under this section is not mailed within fourteen (14) days after the employer or insurer has been

3-16

notified by publication in a newspaper of general circulation in the state it becomes due, there

3-17

shall be added to the unpaid payment an amount equal to twenty percent (20%) of it, to be paid at

3-18

the same time as but in addition to the payment.

3-19

      (5) This section applies only to payment of weekly indemnity benefits to employees as

3-20

described in subdivision (1) of this subsection, and does not apply to specific compensation

3-21

payments for loss of use or disfigurement or payment of dependency benefits or any other

3-22

benefits payable under the Workers' Compensation Act.

3-23

      (c) No petitions for commutation shall be allowed or entertained in those cases where an

3-24

employee is receiving benefits pursuant to this section.

3-25

     28-33-31. Contents of notice to employer. -- Notice as required by section 28-33-30

3-26

shall be in writing and shall state in ordinary language the nature, time, place, and cause of the

3-27

injury, and the name and address of the person injured, and shall be signed by the injured person,

3-28

or by a person in his or her behalf, or, in the event of his or her death, by his or her legal

3-29

representative, or by a person in behalf of either.

3-30

     SECTION 2. Sections 28-35-12, 28-35-14, 28-35-15, 28-35-16, 28-35-20, 28-35-27, 28-

3-31

35-28, 28-35-28.1 and 28-35-37 of the General Laws in Chapter 28-35 entitled "Workers'

3-32

Compensation - Procedure" are hereby amended to read as follows:

3-33

     28-35-12. Petition for determination of controversy -- Contents and filing. -- (a) In all

3-34

disputes between an employer and employee in regard to compensation or any other obligation

4-1

established under chapters 29 -- 38 of this title, and when death has resulted from the injury and

4-2

the dependents of the deceased employee entitled to compensation are, or its apportionment

4-3

among them is, in dispute, any person in interest or his or her duly authorized representative may

4-4

file with the administrator of the workers' compensation court a petition and as many copies of it

4-5

as there are respondent parties to the dispute upon forms prescribed and furnished by the court,

4-6

setting forth the names and residences of the parties, the facts relating to employment at the time

4-7

of injury, the cause, extent, and character of the injury, the amount of wages, earnings, or salary

4-8

received at the time of the injury, and the knowledge of the employer of notice of the occurrence

4-9

of the injury, and any other facts that may be necessary and proper for the information of the

4-10

court, and shall state the matter in dispute and the claims of the petitioner with reference to it;

4-11

provided, that no petition shall be filed within twenty-one (21) days of the date of the injury and

4-12

no petition regarding any other obligation established under chapters 29 -- 38 of this title shall be

4-13

filed until twenty-one (21) days after written demand for payment upon the employer or insurer

4-14

or written notice to the employer or insurer of failure to fulfill the obligation, except that any

4-15

petition alleging the non-payment or late payment of weekly compensation benefits, attorneys'

4-16

fees, and costs, may be filed after fourteen (14) days from the date the payment is due as set forth

4-17

in sections 28-35-42, 28-35-43, and 28-35-20(c). Medical bills for services ordered paid by

4-18

decree or pretrial order shall be paid within fourteen (14) days of the entry of the decree or order.

4-19

In the event that the bills are not paid within the fourteen (14) day period, a petition may be filed

4-20

to enforce said order or decree without any additional written notice to the employer or insurer.

4-21

      (b)(1) If one or more claims are filed for an injury and there are two (2) or more insurers,

4-22

any one of which may be held to be liable to pay compensation, and the judge determines that the

4-23

injured employee would be entitled to receive compensation but for the existence of a controversy

4-24

as to which one of the insurers is liable to pay compensation, one of the insurers shall be selected

4-25

by a judge of the workers' compensation court, to pay to the injured employee the compensation,

4-26

pending a final decision of the workers' compensation court as to the matter in controversy, and

4-27

that decision shall require that the amount of compensation paid shall be deducted from the award

4-28

if made against another insurer and shall be paid by that other insurer to the insurer selected by

4-29

the judge.

4-30

      (2) The workers' compensation court shall award compensation, costs, and attorneys'

4-31

fees in its discretion if one of the insurers is held to be liable following the hearing.

4-32

      (c) If any determination of the workers' compensation court entitles an employee to

4-33

retroactive payment of weekly benefits, the court shall award to the employee interest at the rate

4-34

per annum provided in section 9-21-10 on that retroactive weekly payment from six (6) months

5-1

subsequent to the date that the employee first filed a petition for benefits to the time when that

5-2

retroactive payment is actually made. If the proceedings are unduly delayed by or at the request

5-3

of the employee or his or her attorney, the judge may reduce or eliminate interest on retroactive

5-4

payment; provided, that the provisions of this section as they relate to interest shall apply only to

5-5

petitions filed on or after July 1, 1984.

5-6

      (d) Any fine, penalty, or interest expense incurred by an insurer under this section may

5-7

not be used as an expense for the purpose of seeking a rate increase before the department of

5-8

business regulation.

5-9

     28-35-14. Copies of petition to respondents. -- Upon filing with the administrator of

5-10

any petition in writing, stating the general nature of any claim as to which any dispute or

5-11

controversy may have arisen, the petitioner administrator shall mail serve a copy of the petition to

5-12

on the respondent or respondents named in it in accordance with the workers' compensation court

5-13

rules of practice. Service by mail to an employee is adequate if mailed postage prepaid to the

5-14

address to which compensation benefits are mailed.

5-15

     28-35-15. Service on parties outside state. -- In case an interested party is located out of

5-16

the state, and has no post office address within this state, a copy of the petition and copies of all

5-17

notices shall be filed by the petitioner in the office of the insurance commissioner and shall also

5-18

be sent by registered or certified mail to the last known post office address of that party. This

5-19

filing and mailing shall constitute sufficient service, with the same force and effect as if served

5-20

upon a party located within the state.

5-21

     28-35-16. Filing of answer -- Additional parties. -- Within ten (10) days of the filing of

5-22

the petition, the respondent or respondents shall file an answer to the petition with the workers'

5-23

compensation court and mail send a copy of it to the petitioner, identifying the specific issues

5-24

disputed by the respondent or respondents with reference to the matter in dispute as disclosed by

5-25

the petition. No pleadings other than the petition and answer shall be required to bring the matter

5-26

to a final determination. If the respondent or respondents does not file an answer, the matter shall

5-27

proceed as though the allegations of the petition had been denied. The workers' compensation

5-28

court may bring in additional parties by service of a copy of the petition by registered or certified

5-29

mail.

5-30

     28-35-20. Informal pretrial conference. -- (a) Before any case shall proceed to a trial,

5-31

the judge shall conduct a mandatory pretrial conference within twenty-one (21) days of the date

5-32

of filing with a view to expediting the case and reducing the issues in dispute to a minimum,

5-33

notice of which shall be sent by the administrator to the parties or to their attorneys of record. The

5-34

conference shall be informal and no oral testimony shall be offered or taken. Any statement then

6-1

made by either party shall in the absence of agreement be without prejudice, but any agreement

6-2

then made shall be binding.

6-3

      (b) Within a reasonable time of receipt, all medical reports and documentary evidence

6-4

which the parties possess and which the parties intend to present as evidence at the pretrial

6-5

conference shall be provided to the opposing party.

6-6

      (c) At the pretrial conference, the judge shall make every effort to resolve any

6-7

controversies or to plan for any subsequent trial of the case. The judge shall render a pretrial order

6-8

immediately at the close of the pretrial conference. The pretrial order shall be set forth in a

6-9

simplified manner on forms prescribed by the workers' compensation court. It may reflect any

6-10

agreements reached between the parties, but shall grant or deny, in whole or in part, the relief

6-11

sought by the petitioner. Subject to the provisions of subsection 45-21.2-9(j), the The pretrial

6-12

order shall be effective upon entry. Any payments ordered by it including, but not limited to,

6-13

weekly benefits, medical expenses, costs, and attorneys' fees, shall be paid within fourteen (14)

6-14

days of the entry of the order.

6-15

      (d) Any party aggrieved by the entry of the order by the judge may claim a trial on any

6-16

issue that was not resolved by agreement at the pretrial conference by filing with the

6-17

administrator of the workers' compensation court within five (5) days of the date of the entry of

6-18

the order, exclusive of Saturdays, Sundays and holidays, a claim for a trial on forms prescribed by

6-19

the administrator of the workers' compensation court. If no timely claim for a trial is filed or is

6-20

filed and withdrawn, the pretrial order shall become, by operation of law and without further

6-21

action by any party, a final decree of the workers' compensation court.

6-22

      (e) All trials shall be assigned for hearing and decision to the same judge who presided

6-23

over the pretrial of the matter. Notice of the trial shall be sent by the administrator to the parties

6-24

and to their attorneys of record. All trials shall be de novo, except that issues resolved by

6-25

agreement at the pretrial conference may not be reopened. Any other case or dispute under

6-26

chapters 29 -- 38 of this title that arises during the pendency of this trial, shall be forwarded

6-27

immediately to the same judge for pretrial in accordance with this section and for any subsequent

6-28

trial.

6-29

      (f) If after trial and the entry of a final decree, it is determined that the employee or

6-30

medical services provider was not entitled to the relief sought in the petition, the employer or

6-31

insurer shall be reimbursed from the workers' compensation administrative fund, described in

6-32

chapter 37 of this title, to the extent of any payments made pursuant to the pretrial order to which

6-33

there is no entitlement.

7-34

     28-35-27. Decision of controversies -- Decree. -- (a) In any controversy over which the

7-35

workers' compensation court has jurisdiction pursuant to this chapter and Rhode Island general

7-36

law section 45-21.2-9, any judge of that court shall, pursuant to sections 28-35-11 -- 28-35-28,

7-37

and the procedural rules of the court, hear all questions of law and fact involved in the

7-38

controversy and presented by any party in interest, and he or she shall within ten (10) days after

7-39

the hearing, unless the parties otherwise agree, decide the merits of the controversy pursuant to

7-40

the law and the fair preponderance of the evidence and notify the administrator of the court of the

7-41

decision, who shall immediately notify the parties by mail.

7-42

      (b) Within seventy-two (72) hours of the mailing of the notice, exclusive of Sundays and

7-43

holidays, the judge shall enter a decree upon the decision, which shall contain findings of fact, but

7-44

within that time any party may appear and present a form of decree for consideration.

7-45

     28-35-28. Appeal to appellate division. -- (a) Any person aggrieved by the entry of a

7-46

decree by a judge may appeal to the appellate division established pursuant to this section by

7-47

filing with the administrator of the court within five (5) days of the date of the entry of a decree,

7-48

exclusive of Saturdays, Sundays, and holidays, a claim of appeal and, subject to the rules of the

7-49

court, by filing a written request for a transcript of the testimony and ruling or any part thereof

7-50

desired. Within any time that a judge shall fix, either by an original fixing or otherwise, the

7-51

appellant shall file with the administrator of the court reasons of appeal stating specifically all

7-52

matters determined adversely to him or her which he or she desires to appeal, together with so

7-53

much of the transcript of testimony and rulings as he or she deems pertinent, and within ten (10)

7-54

days after that the parties may file with the administrator of the court those briefs and memoranda

7-55

that they may desire concerning the appeal. The chief judge shall appoint appellate panels of three

7-56

(3) members of the court to hear any claim of appeal and the decision of the appellate panel shall

7-57

be binding on the court. The three (3) members of the appellate panel shall immediately review

7-58

the decree upon the record of the case and shall file a decision pursuant to the law and the fair

7-59

preponderance of the evidence within ten (10) days of the expiration of the time within which the

7-60

parties may file briefs and memoranda. Upon consideration of the appeal, the appellate panel

7-61

shall affirm, reverse, or modify the decree appealed from, and may itself take any further

7-62

proceedings that are just, or may remand the matter to the trial judge for further consideration of

7-63

any factual issue that the appellate division may raise, including the taking of additional evidence

7-64

or testimony by the trial judge. It shall be within the prerogative of the appellate panel to remand

7-65

a matter to the trial judge. If the decision requires the entry of a new decree, notice shall be given

7-66

the parties, and the new decree shall be entered in the same manner as the original decree, but if

7-67

the decision of two (2) appellate panel judges does not require the entry of a new decree, the

7-68

decree shall be affirmed. Any member of the appellate panel may, for cause, disqualify himself or

8-1

herself from hearing any appeal that may come before the appellate panel.

8-2

      (b) The findings of the trial judge on factual matters shall be final unless an appellate

8-3

panel finds them to be clearly erroneous. The court may award costs, including reasonable

8-4

attorney fees, to the prevailing party when the appellate panel finds there was complete absence

8-5

of a justiciable issue of either law or fact.

8-6

     28-35-28.1. Reports of hearings -- Transcripts. -- (a) Hearings reporters, or electronic

8-7

court reporters, shall report stenographically, or electronically, the proceedings in the trial of

8-8

every action or proceeding in the workers' compensation court. Electronic court reporting shall be

8-9

used only when hearings reporters are unavailable for any reason.

8-10

      (b) Each hearings reporter, or electronic court reporter, shall also, upon the order of any

8-11

judge in the court, transcribe his or her report to be filed with the judge in the case. He or she

8-12

shall also make a transcript of the whole or any part of that report upon the written request, filed

8-13

with the administrator, by either party to the action or proceeding, and when completed and

8-14

within the time limited by the court for filing the transcript, shall immediately deliver it to the

8-15

party ordering it, or to the attorney of record of that party. For this service, the reporter shall be

8-16

paid a reasonable compensation, not less than five dollars ($5.00), and not exceeding three dollars

8-17

($3.00) per page for originals and one dollar and fifty cents ($1.50) per page for copies of it, to be

8-18

allowed by the court. If the transcript is used in subsequent proceedings in the cause, the cost of it

8-19

may be allowed as a part of the costs.

8-20

     28-35-37. Delay of process for execution of decree. -- No process for the execution of

8-21

any decree of the workers' compensation court from which an appeal may be taken shall issue

8-22

until the expiration of the appeal period, unless all parties against whom the decree is made,

8-23

waive an appeal by a writing filed with the administrator or by causing an entry thereof to be

8-24

made on the docket.

8-25

     SECTION 3. Section 28-35-59 of the General Laws in Chapter 28-35 entitled "Workers'

8-26

Compensation - Procedure" is hereby repealed.

8-27

     28-35-59. Records of proceedings. -- The proceedings in all cases before the workers'

8-28

compensation court under chapters 29 -- 38 of this title are deemed matters of record, but they are

8-29

not required to be recorded at large, but are filed and numbered in the office of the administrator

8-30

of the workers' compensation court, and a docket only, or short memorandum of the cases, shall

8-31

be kept by the administrator in books provided for the purpose.

8-32

     SECTION 4. Sections 28-53-2 and 28-53-7 of the General Laws in Chapter 28-53

8-33

entitled "Rhode Island Uninsured Employers Fund" are hereby amended to read as follows:

9-34

     28-53-2. Establishment -- Sources -- Administration. -- (a) There shall be established

9-35

within the department of labor and training a special restricted receipt account to be known as the

9-36

Rhode Island uninsured employers fund. The fund shall be capitalized from excise taxes assessed

9-37

against uninsured employers pursuant to the provisions of section 28-53-9 of this chapter and

9-38

from general revenues appropriated by the legislature. Beginning in state fiscal year ending June

9-39

30, 2013 2015, the legislature may appropriate up to two million dollars ($2,000,000) in general

9-40

revenue funds annually for deposit into the Rhode Island uninsured employers fund.

9-41

      (b) All moneys in the fund shall be mingled and undivided. The fund shall be

9-42

administered by the director of the department of labor and training or his or her designee, but in

9-43

no case shall the director incur any liability beyond the amounts paid into and earned by the fund.

9-44

      (c) All amounts owed to the uninsured employers fund from illegally uninsured

9-45

employers are intended to be excise taxes and as such, all ambiguities and uncertainties are to be

9-46

resolved in favor of a determination that such assessments are excise taxes.

9-47

     28-53-7. Payments to employees of uninsured employers. -- (a) Where it is determined

9-48

that the employee was injured in the course of employment while working for an employer who

9-49

fails to maintain a policy of workers' compensation insurance as required by Rhode Island general

9-50

laws section 28-36-1, et seq., the uninsured employers fund shall pay the benefits to which the

9-51

injured employee would be entitled pursuant to chapters 29 to 38 of this title subject to the

9-52

limitations set forth herein.

9-53

      (b) The workers' compensation court shall hear all petitions for payment from the fund

9-54

pursuant to Rhode Island general laws section 28-30-1, et seq., provided, however, that the

9-55

uninsured employers fund and the employer shall be named as parties to any petition seeking

9-56

payment of benefits from the fund.

9-57

      (c) Where an employee is deemed to be entitled to benefits from the uninsured

9-58

employers fund, the fund shall pay benefits for disability and medical expenses as provided

9-59

pursuant to chapters 29 to 38 of this title except that the employee shall not be entitled to receive

9-60

benefits for loss of function and disfigurement pursuant to the provisions of Rhode Island general

9-61

laws section 28-33-19.

9-62

      (d) The fund shall pay cost, counsel and witness fees as provided in Rhode Island

9-63

general laws section 28-35-32 to any employee who successfully prosecutes any petitions for

9-64

compensation, petitions for medical expenses, petitions to amend a pretrial order or memorandum

9-65

of agreement and all other employee petitions and to employees who successfully defend, in

9-66

whole or in part, proceedings seeking to reduce or terminate any and all workers' compensation

9-67

benefits; provided, however, that the attorney's fees awarded to counsel who represent the

9-68

employee in petitions for lump sum commutation filed pursuant to Rhode Island general laws

10-1

section 28-33-25 or in the settlement of disputed cases pursuant to Rhode Island general laws

10-2

section 28-33-25.1 shall be limited to the maximum amount paid to counsel who serve as court

10-3

appointed attorneys in workers' compensation proceedings as established by rule or order of the

10-4

Rhode Island supreme court.

10-5

      (e) In the event that the uninsured employer makes payment of any monies to the

10-6

employee to compensate the employee for lost wages or medical expenses, the fund shall be

10-7

entitled to a credit for all such monies received by or on behalf of the employee against any future

10-8

benefits payable directly to the employee.

10-9

      (f) This section shall apply to injuries that occur on or after January 1, 2013 2015.

10-10

     SECTION 5. Chapter 42-16.1 of the General Laws entitled "Department of Labor and

10-11

Training" is hereby amended by adding thereto the following section:

10-12

     42-16.1-18. Confidentiality. -- (a) Except as provided in subsection (b) of this section,

10-13

the department of labor and training shall not release information to any individual not connected

10-14

with the department relative to any employee's workers' compensation claim, including, but not

10-15

limited to, information obtained from the employee, records or reports of employers, insurers or

10-16

the courts, or from permanent records of the department.

10-17

     (b) The department of labor and training may release information to the individual

10-18

workers' compensation claimant, employer, insurer or their attorney upon a written request,

10-19

specific as to the information being requested, that identifies the parties involved in the dispute

10-20

and that specifies the requestor's relationship to the parties and the reason why the records are

10-21

being requested.

10-22

     SECTION 6. Section 45-21.2-9 of the General Laws in Chapter 45-21.2 entitled

10-23

"Optional Retirement for Members of Police Force and Fire Fighters" is hereby amended to read

10-24

as follows:

10-25

     45-21.2-9. Retirement for accidental disability. -- (a) Any member in active service,

10-26

regardless of length of service, is entitled to an accidental disability retirement allowance.

10-27

Application for the allowance is made by the member or on the member's behalf, stating that the

10-28

member is physically or mentally incapacitated for further service as the result of an injury

10-29

sustained while in the performance of duty and certifying to the time, place, and conditions of the

10-30

duty performed by the member which resulted in the alleged disability and that the alleged

10-31

disability was not the result of the willful negligence or misconduct on the part of the member,

10-32

and was not the result of age or length of service, and that the member has not attained the age of

10-33

sixty-five (65). The application shall be made within eighteen (18) months of the alleged

10-34

accident from which the injury has resulted in the member's present disability and shall be

11-1

accompanied by an accident report and a physician's report certifying to the disability. If the

11-2

member was able to return to his or her employment and subsequently reinjures or aggravates the

11-3

same injury, the member shall make another application within eighteen (18) months of the

11-4

reinjury or aggravation which shall be accompanied by a physician's report certifying to the

11-5

reinjury or aggravation causing the disability. If a medical examination made by three (3)

11-6

physicians engaged by the retirement board, and other investigations as the board may make,

11-7

confirms the statements made by the member, the board may grant the member an accidental

11-8

disability retirement allowance.

11-9

      (b) For the purposes of subsection (a), "aggravation" shall mean an intervening work-

11-10

related trauma that independently contributes to a member's original injury that amounts to more

11-11

than the natural progression of the preexisting disease or condition and is not the result of age or

11-12

length of service. The intervening independent trauma causing the aggravation must be an

11-13

identifiable event or series of work-related events that are the proximate cause of the member's

11-14

present condition of disability.

11-15

      (c) "Occupational cancer", as used in this section, means a cancer arising out of

11-16

employment as a fire fighter, due to injury due to exposures to smoke, fumes, or carcinogenic,

11-17

poisonous, toxic, or chemical substances while in the performance of active duty in the fire

11-18

department.

11-19

      (d) For purposes of subsection (a), "reinjury" shall mean a recurrence of the original

11-20

work-related injury from a specific ascertainable event. The specific event must be the proximate

11-21

cause of the member's present condition of disability.

11-22

      (e) Any fire fighter, including one employed by the state, or a municipal firefighter

11-23

employed by a municipality that participates in the optional retirement for police officers and fire

11-24

fighters as provided in this chapter, who is unable to perform his or her duties in the fire

11-25

department by reason of a disabling occupational cancer which develops or manifests itself

11-26

during a period while the fire fighter is in the service of the department, and any retired member

11-27

of the fire force of any city or town who develops occupational cancer, is entitled to receive an

11-28

occupational cancer disability and he or she is entitled to all of the benefits provided for in this

11-29

chapter, chapters 19, 19.1, and 21 of this title and chapter 10 of title 36 if the fire fighter is

11-30

employed by the state.

11-31

      (f) In the event that any party is aggrieved by the determination of the retirement board

11-32

pursuant to section 45-19-1, for an injury occurring on or after July 1, 2011, the party may submit

11-33

an appeal to the Rhode Island workers' compensation court. The appellant shall file a notice of

11-34

appeal with the retirement board and shall serve a copy of the notice of appeal upon the opposing

12-1

party.

12-2

      (g) Within twenty (20) days of the receipt of the notice of appeal, the retirement board

12-3

shall transmit the entire record of proceedings before it, together with its order, to the workers'

12-4

compensation court.

12-5

      (h) In the event that a party files a notice of appeal to the workers' compensation court,

12-6

the order of the retirement board shall be stayed pending further action by the court pursuant to

12-7

the provisions of Rhode Island general law section 28-35-20.

12-8

      (i) Upon receipt of the record of proceedings before the retirement board, the court shall

12-9

assign the matter to a judge and shall issue a notice at the time advising the parties of the judge to

12-10

whom the case has been assigned and the date for pretrial conference in accordance with Rhode

12-11

Island general law section 28-35-20.

12-12

      (j) All proceedings filed with the workers' compensation court pursuant to this section

12-13

shall be de novo and shall be subject to the provisions of chapters 29 to 38 of Title 28 for all case

12-14

management procedures and dispute resolution processes, as provided under the rules of workers'

12-15

compensation court. The workers' compensation court shall enter a pretrial order in accordance

12-16

with subsection 28-35-20(c) which grants or denies, in whole or in part, the relief sought by the

12-17

petitioner. The pretrial order shall be effective upon entry and any payments ordered by it shall be

12-18

paid within fourteen (14) days of the entry of the order. Provided, however, that in the event that

12-19

the retirement board files a claim for trial of the pretrial order entered by the court, the order of

12-20

the court shall be stayed until a final order or decree is entered by the court. If after trial and the

12-21

entry of a final decree, the court sustains the findings and orders entered in the pretrial order, the

12-22

retirement board shall reimburse the municipality all benefits paid by it from the time the pretrial

12-23

order was entered until the time the final decree is entered by the court. Where the matter has

12-24

been heard and decided by the workers' compensation court, the court shall retain jurisdiction to

12-25

review any prior orders or decrees entered by it. Such petitions to review shall be filed directly

12-26

with the workers' compensation court and shall be subject to the case management and dispute

12-27

resolution procedures set forth in chapters 29 through 38 of title 28 ("Labor and Labor

12-28

Relations").

12-29

      (k) If the court determines that a member qualifies for accidental disability retirement,

12-30

the member shall receive a retirement allowance equal to sixty-six and two-thirds percent (66

12-31

2/3%) of the rate of the member's compensation at the date of the member's retirement, subject to

12-32

the provisions of section 45-21-31.

12-34

SECTION 7. This act shall take effect upon passage.

=======

LC02602

=======

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR AND LABOR RELATIONS -- WORKERS' COMPENSATION

***

14-1

     This act would amend various procedural provisions in the general laws regarding

14-2

workers' compensation cases, including the notice requirements, would increase the amount paid

14-3

for burial expenses in cases or work-related injuries resulting in death, and would extend the

14-4

appropriation of two million dollars ($2,000,000) by the state to the uninsured employer fund to

14-5

2015.

14-6

     This act would take effect upon passage.

=======

LC02602

=======