2021 -- S 0937 | |
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LC002928 | |
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STATE OF RHODE ISLAND | |
IN GENERAL ASSEMBLY | |
JANUARY SESSION, A.D. 2021 | |
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A N A C T | |
RELATING TO LABOR AND LABOR RELATIONS -- WORKERS COMPENSATION -- | |
BENEFITS | |
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Introduced By: Senators Ciccone, F Lombardi, and McCaffrey | |
Date Introduced: May 27, 2021 | |
Referred To: Senate Labor | |
It is enacted by the General Assembly as follows: | |
1 | SECTION 1. Sections 28-33-17, 28-33-20.1 and 28-33-25.1 of the General Laws in |
2 | Chapter 28-33 entitled "Workers' Compensation - Benefits" are hereby amended to read as follows: |
3 | 28-33-17. Weekly compensation for total incapacity -- Permanent total disability -- |
4 | Dependents' allowances. |
5 | (a)(1) For all injuries on or after January 1, 2022, While while the incapacity for work |
6 | resulting from the injury is total, the employer shall pay the injured employee a weekly |
7 | compensation equal to seventy-five percent (75%) sixty-two percent (62%) of his or her average |
8 | weekly spendable base wages, earnings, or salary, as computed pursuant to the provisions of § 28- |
9 | 33-20. For all injuries on or before December 31, 2021, while the incapacity for work resulting |
10 | from the injury is total, the employer shall pay the injured employee a weekly compensation equal |
11 | to seventy-five percent (75%) of his or her average weekly spendable base wages, earnings, or |
12 | salary, as computed pursuant to the provisions of § 28-33-20. The amount may not exceed more |
13 | than sixty percent (60%) of the state average weekly wage of individuals in covered employment |
14 | under the provisions of the Rhode Island employment security act as computed and established by |
15 | the Rhode Island department of labor and training, annually, on or before May 31 of each year, |
16 | under the provisions of § 28-44-6(a). Effective September 1, 1974, the maximum rate for weekly |
17 | compensation for total disability shall not exceed sixty-six and two-thirds percent (662/3%) of the |
18 | state average weekly wage, as computed and established under the provisions of § 28-44-6(a). |
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1 | Effective September 1, 1975, the maximum rate for weekly compensation for total disability shall |
2 | not exceed one hundred percent (100%) of the state average weekly wage, as computed and |
3 | established under the provisions of § 28-44-6(a). Effective September 1, 2007, the maximum rate |
4 | for weekly compensation for total disability shall not exceed one hundred fifteen percent (115%) |
5 | of the state average weekly wage, as computed and established under the provisions of § 28-44- |
6 | 6(a). Effective October 1, 2016, the maximum rate for weekly compensation for total disability |
7 | shall not exceed one hundred twenty percent (120%) of the state average weekly wage as computed |
8 | and established under the provisions of § 28-44-6(a), and effective October 1, 2017, the maximum |
9 | rate for weekly compensation for total disability shall not exceed one hundred twenty-five percent |
10 | (125%) of the state average weekly wage, as computed and established under the provisions of § |
11 | 28-44-6(a). If the maximum weekly benefit rate is not an exact multiple of one dollar ($1.00), then |
12 | the rate shall be raised to the next higher multiple of one dollar ($1.00). |
13 | (2) The average weekly wage computed and established under § 28-44-6(a) is applicable |
14 | to injured employees whose injury occurred on or after September 1, 2000, and shall be applicable |
15 | for the full period during which compensation is payable. |
16 | (3)(i) "Spendable earnings" means the employee's gross, average weekly wages, earnings, |
17 | or salary, including any gratuities reported as income, reduced by an amount determined to reflect |
18 | amounts that would be withheld from the wages, earnings, or salary under federal and state income |
19 | tax laws, and under the Federal Insurance Contributions Act (FICA), 26 U.S.C. § 3101 et seq., |
20 | relating to Social Security and Medicare taxes. In all cases, it is to be assumed that the amount |
21 | withheld would be determined on the basis of expected liability of the employee for tax for the |
22 | taxable year in which the payments are made without regard to any itemized deductions but taking |
23 | into account the maximum number of personal exemptions allowable. |
24 | (ii) Each year, the director shall publish tables of the average weekly wage and seventy- |
25 | five percent (75%) of spendable earnings that are to be in effect on May 10. These tables shall be |
26 | conclusive for the purposes of converting an average weekly wage into seventy-five percent (75%) |
27 | of spendable earnings. In calculating spendable earnings, the director shall have discretion to |
28 | exempt funds assigned to third parties by order of the family court pursuant to § 8-10-3 and funds |
29 | designated for payment of liens pursuant to § 28-33-27 upon submission of supporting evidence. |
30 | (b)(1) In the following cases, it shall, for the purpose of this section, be that the injury |
31 | resulted in permanent total disability: |
32 | (i) The total and irrecoverable loss of sight in both eyes or the reduction to one-tenth |
33 | (1/10th) or less of normal vision with glasses; |
34 | (ii) The loss of both feet at or above the ankle; |
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1 | (iii) The loss of both hands at or above the wrist; |
2 | (iv) The loss of one hand and one foot; |
3 | (v) An injury to the spine resulting in permanent and complete paralysis of the legs or arms; |
4 | and |
5 | (vi) An injury to the skull resulting in incurable imbecility or insanity. |
6 | (2) In all other cases, total disability shall be determined only if, as a result of the injury, |
7 | the employee is physically unable to earn any wages in any employment; provided, that in cases |
8 | where manifest injustice would otherwise result, total disability shall be determined when an |
9 | employee proves, taking into account the employee's age, education, background, abilities, and |
10 | training, that he or she is unable, on account of his or her compensable injury, to perform his or her |
11 | regular job and is unable to perform any alternative employment. The court may deny total |
12 | disability under this subsection without requiring the employer to identify particular alternative |
13 | employment. |
14 | (c)(1) Where the employee has persons conclusively presumed to be dependent upon him |
15 | or her, or in fact so dependent, the sum of fifteen dollars ($15.00) shall be added to the weekly |
16 | compensation payable for total incapacity for each person wholly dependent on the employee, |
17 | except that the sum of forty dollars ($40.00) shall be added for those receiving benefits under § 28- |
18 | 33-12, but in no case shall the aggregate of those amounts exceed eighty percent (80%) of the |
19 | average weekly wage of the employee, except that there shall be no limit for those receiving |
20 | benefits under § 28-33-12. |
21 | (2) The dependency allowance shall be in addition to the compensation benefits for total |
22 | disability otherwise payable under the provisions of this section. The dependency allowance shall |
23 | be increased if the number of persons dependent upon the employee increases during the time that |
24 | weekly compensation benefits are being received. |
25 | (3) For the purposes of this section, the following persons shall be conclusively presumed |
26 | to be wholly dependent for support upon an employee: |
27 | (i) A wife upon a husband with whom she is living at the time of his injury, but only while |
28 | she is not working for wages during her spouse's total disability. |
29 | (ii) A husband upon a wife with whom he is living at the time of her injury, but only while |
30 | he is not working for wages during his spouse's total disability. |
31 | (iii) Children under the age of eighteen (18) years, or over that age but physically or |
32 | mentally incapacitated from earning, if living with the employee, or, if the employee is bound or |
33 | ordered by law, decree, or order of court, or by any other lawful requirement, to support the |
34 | children, although living apart from them. Provided, that the payment of dependency benefits to a |
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1 | dependent child over the age of eighteen (18) years shall continue as long as that child is |
2 | satisfactorily enrolled as a full-time student in an educational institution or an educational facility |
3 | duly accredited or approved by the appropriate state educational authorities at the time of |
4 | enrollment. Those payments shall not be continued beyond the age of twenty-three (23) years. |
5 | "Children," within the meaning of this paragraph, also includes any children of the injured |
6 | employee conceived but not born at the time of the employee's injury, and the compensation |
7 | provided for in this section shall be payable on account of any such children from the date of their |
8 | birth. |
9 | (d) "Dependents," as provided in this section, does not include the spouse of the injured |
10 | employee except as provided in paragraphs (c)(3)(i) and (ii) of this section. In all other cases |
11 | questions of dependency shall be determined in accordance with the facts as the facts may be at the |
12 | time of the injury. |
13 | (e) The court, or any of its judges, may, in its or his or her discretion, order the insurer or |
14 | self-insurer to make payment of the nine dollars ($9.00) or fifteen dollars ($15.00) for those |
15 | receiving benefits under § 28-33-12 directly to the dependent. |
16 | (f)(1) Where any employee's incapacity is total and has extended beyond fifty-two (52) |
17 | weeks, regardless of the date of injury, payments made to all totally incapacitated employees shall |
18 | be increased as of May 10, 1991, and annually on the tenth of May after that as long as the employee |
19 | remains totally incapacitated. The increase shall be by an amount equal to the total percentage |
20 | increase in annual Consumer Price Index, United States City Average for Urban Wage Earners and |
21 | Clerical Workers, as formulated and computed by the Bureau of Labor Statistics of the United |
22 | States Department of Labor for the period of March 1 to February 28 each year. |
23 | (2) If the employee is subsequently found to be only partially incapacitated, the weekly |
24 | compensation benefit paid to the employee shall be equal to the payment in effect prior to his or |
25 | her most recent cost of living adjustment. |
26 | (3) "Index" as used in this section refers to the consumer price index, United States City |
27 | Average for Urban Wage Earners, Clerical Workers, as that index is formulated and computed by |
28 | the Bureau of Labor Statistics of the United States Department of Labor. |
29 | (4) The May 10, 1991, increase shall be based upon the total percentage increase, if any, |
30 | in the annual consumer price index for the period of March 1, 1990, to February 28, 1991. |
31 | Thereafter, increases shall be made on May 10 annually, based upon the percentage increase, if |
32 | any, in the index for the period March 1 to February 28. |
33 | (5) The computations in this section shall be made by the director of labor and training and |
34 | promulgated to insurers and employers making payments required by this section. Increases shall |
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1 | be paid by insurers and employers without further order of the court. If payment payable under this |
2 | section is not paid within fourteen (14) days after the employer or insurer has been notified or it |
3 | becomes due, whichever is later, there shall be added to the unpaid payment an amount equal to |
4 | twenty percent (20%) of that amount, which shall be paid at the same time as, but in addition to, |
5 | the payment. |
6 | (6) This section applies only to payment of weekly indemnity benefits to employees as |
7 | described in subdivision (1) of this subsection, and does not apply to specific compensation |
8 | payments for loss of use or disfigurement or payment of dependency benefits or any other benefits |
9 | payable under the workers' compensation act. |
10 | (7) Notwithstanding any other provision of the general law or public laws to the contrary, |
11 | any employee of the state of Rhode Island who is receiving workers' compensation benefits for |
12 | total incapacity, as a result of brain injury due to a violent assault, on or before July 19, 2005, shall |
13 | be entitled to receive the health insurance benefit he or she was entitled to at the time of the injury |
14 | for the duration of the total incapacity or until said employee and his or her spouse are both eligible |
15 | for Medicare. |
16 | 28-33-20.1. Computation of earnings for recurrence -- Burden of employee to |
17 | establish recurrence. |
18 | (a) In the event a person collecting benefits under this chapter, regardless of the date of |
19 | injury, has returned to employment for a period of twenty-six (26) weeks or more and suffers a |
20 | recurrence of the injury which precipitated the person collecting benefits under this chapter, the |
21 | average weekly wage shall be ascertained by dividing the gross wages earned by the injured worker |
22 | in employment by the employer in whose service he or she is injured during by applying the same |
23 | formula of § 28-33-20 to the thirteen (13) calendar weeks immediately preceding the week in which |
24 | he or she suffered the recurrence, by the number of calendar weeks during which, or any portion of |
25 | which, the worker was actually employed by that employer. In making this computation, absence |
26 | for seven (7) consecutive calendar days, although not in the same calendar week, shall be |
27 | considered as absence for a calendar week. |
28 | (b) For all petitions filed to prove recurrence of incapacity to work, regardless of the date |
29 | of injury, the employee must document that the incapacity has increased or returned without the |
30 | need for the employee to document a comparative change of condition. |
31 | 28-33-25.1. Settlement of disputed cases. |
32 | Notwithstanding the provisions of §§ 28-33-25 and 28-33-26, in cases where liability of |
33 | the employer for payment of workers' compensation benefits has not been finally established, the |
34 | parties may submit a settlement proposal to the workers' compensation court for approval. If, upon |
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1 | consideration, a judge of the workers' compensation court deems the settlement proposal to be in |
2 | the best interest of the parties, including the employee, employer, and the insurance carrier, and |
3 | where applicable the Centers for Medicare and Medicaid Services (CMS) as their interests may |
4 | apply, the judge may approve the settlement. Payment by the employer or insurer shall not be |
5 | deemed to be the payment of workers' compensation benefits, but shall be considered a compromise |
6 | payment of a disputed claim. The settlement and payment pursuant to it shall not be subject to liens |
7 | set forth in § 28-33-27(b) and must be paid within fourteen (14) days of entry of an order to pay or |
8 | the date(s) upon which payment(s) is/are due pursuant to a court order, and a penalty of one hundred |
9 | dollars ($100) shall be assessed for every day the payment is delinquent. Upon payment, the |
10 | employer and insurer shall be entitled to a duly executed release that fully and finally absolves and |
11 | discharges the employer and insurer from any and all liability arising out of the claimed injury. |
12 | SECTION 2. Section 28-33-18 of the General Laws in Chapter 28-33 entitled "Workers' |
13 | Compensation - Benefits" is hereby amended to read as follows: |
14 | 28-33-18. Weekly compensation for partial incapacity. |
15 | (a) For all injures on or after January 1, 2022 While while the incapacity for work resulting |
16 | from the injury is partial, the employer shall pay the injured employee a weekly compensation equal |
17 | to seventy-five percent (75%) sixty-two (62%) of the difference between his or her spendable |
18 | average weekly base wages, earnings, or salary before the injury as computed pursuant to the |
19 | provisions of § 28-33-20, and his or her spendable weekly wages, earnings, salary, or earnings |
20 | capacity after that, but not more than the maximum weekly compensation rate for total incapacity |
21 | as set forth in § 28-33-17. For all injuries on or before December 31, 2021, while the incapacity for |
22 | work resulting from the injury is partial, the employer shall pay the injured employee a weekly |
23 | compensation equal to seventy-five percent (75%) of the difference between his or her spendable |
24 | average weekly base wages, earnings, or salary before the injury, as computed pursuant to the |
25 | provisions of § 28-33-20, and his or her spendable weekly wages, earnings, salary, or earnings |
26 | capacity after that, but not more than the maximum weekly compensation rate for total incapacity, |
27 | as set forth in § 28-33-17. The provisions of this section are subject to the provisions of § 28-33- |
28 | 18.2. |
29 | (b) For all injuries occurring on or after September 1, 1990, where an employee's condition |
30 | has reached maximum medical improvement and the incapacity for work resulting from the injury |
31 | is partial, while the incapacity for work resulting from the injury is partial, the employer shall pay |
32 | the injured employee a weekly compensation equal to seventy percent (70%) of the weekly |
33 | compensation rate as set forth in subsection (a) of this section. The court may, in its discretion, take |
34 | into consideration the performance of the employee's duty to actively seek employment in |
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1 | scheduling the implementation of the reduction. The provisions of this subsection are subject to the |
2 | provisions of § 28-33-18.2. |
3 | (c)(1) Earnings capacity determined from degree of functional impairment pursuant to § |
4 | 28-29-2(3) shall be determined as a percentage of the whole person based on the Sixth (6th) edition |
5 | of the American Medical Association Guides to the Value of Permanent Impairment. Earnings |
6 | capacity shall be calculated from the percentage of impairment as follows: |
7 | (i) For impairment of five percent (5%) or less, earnings capacity shall be calculated so as |
8 | to extinguish one hundred percent (100%) of weekly benefits. |
9 | (ii) For impairment of twenty-five percent (25%) or less, but greater than five percent (5%), |
10 | earnings capacity shall be calculated so as to extinguish one hundred percent (100%) less the |
11 | percent of impairment of weekly benefits. |
12 | (iii) For impairment of fifty percent (50%) or less, but greater than twenty-five percent |
13 | (25%), earnings capacity shall be calculated so as to extinguish one hundred percent (100%) less |
14 | one point two five (1.25) times the percent of impairment of weekly benefits. |
15 | (iv) For impairment of sixty-five percent (65%) or less, but greater than fifty percent (50%), |
16 | earnings capacity shall be calculated so as to extinguish one hundred percent (100%) less one point |
17 | five (1.5) times the percent of impairment of weekly benefits. |
18 | (2) An earnings capacity adjustment under this section shall be applicable only when the |
19 | employee's condition has reached maximum medical improvement under § 28-29-2(3)(ii) and |
20 | benefits are subject to adjustment pursuant to subsection (b) of this section. |
21 | (d) In the event partial compensation is paid, in no case shall the period covered by the |
22 | compensation be greater than three hundred and twelve (312) weeks. In the event that compensation |
23 | for partial disability is paid under this section for a period of three hundred and twelve (312) weeks, |
24 | the employee's right to continuing weekly compensation benefits shall be determined pursuant to |
25 | the terms of § 28-33-18.3. At least twenty-six (26) weeks prior to the expiration of the period, the |
26 | employer or insurer shall notify the employee and the director of its intention to terminate benefits |
27 | at the expiration of three hundred and twelve (312) weeks and advise the employee of the right to |
28 | apply for a continuation of benefits under the terms of § 28-33-18.3. In the event that the employer |
29 | or insurer fails to notify the employee and the director as prescribed, the employer or insurer shall |
30 | continue to pay benefits to the employee for a period equal to twenty-six (26) weeks after the date |
31 | the notice is served on the employee and the director. |
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1 | SECTION 3. Section 2 of this act shall take effect on January 1, 2022. The remainder of |
2 | this act shall take effect upon passage. |
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EXPLANATION | |
BY THE LEGISLATIVE COUNCIL | |
OF | |
A N A C T | |
RELATING TO LABOR AND LABOR RELATIONS -- WORKERS COMPENSATION -- | |
BENEFITS | |
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1 | This act would create a new formula for determining a totally and partially disabled injured |
2 | worker's weekly benefit entitlement. It also eliminates the current ambiguity in an injured worker's |
3 | entitlement, when he or she suffers a recurrence of disability. Finally it creates an enforcement |
4 | mechanism for the payment of denial and dismissal settlements, approved by the Workers' |
5 | Compensation Court. |
6 | Section 2 of this act would take effect on January 1, 2022. The remainder of this act would |
7 | take effect upon passage. |
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