2022 -- H 7934

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LC005437

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- WORKERS' COMPENSATION --

PROCEDURE

     

     Introduced By: Representative Jacquelyn M. Baginski

     Date Introduced: March 07, 2022

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Section 28-35-58 of the General Laws in Chapter 28-35 entitled "Workers'

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

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     28-35-58. Liability of third person for damages.

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     (a) Where the injury for which compensation is payable under chapters 29 -- 38 of this title

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was caused under circumstances creating a legal liability in some person other than the employer

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to pay damages in respect of the injury, the employee may take proceedings, both against that

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person to recover damages and against any person liable to pay compensation under those chapters

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for that compensation, and the employee shall be entitled to receive both damages and

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compensation. The employee, in recovering damages either by judgment or settlement from the

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person so liable to pay damages, shall reimburse the person by whom the compensation was paid

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to the extent of the compensation paid as of the date of the judgment or settlement and the receipt

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of those damages by the employee shall not bar future compensation. An insurer shall be entitled

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to suspend the payment of compensation benefits payable to the employee when the damages

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recovered by judgment or settlement from the person so liable to pay damages exceeds the

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compensation paid as of the date of the judgment or settlement. The suspension paid shall be that

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number of weeks which are equal to the excess damages paid divided by the employee's weekly

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compensation rate; however, during the period of suspension the employee shall be entitled to

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receive the benefit of all medical and hospital payments on his or her behalf. If the employee has

 

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been paid compensation under those chapters, the person by whom the compensation was paid shall

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be entitled to indemnity from the person liable to pay damages, and to the extent of that indemnity

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shall be subrogated to the rights of the employee to recover those damages. When money has been

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recovered either by judgment or by settlement by an employee from the person liable to pay

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damages, by suit or settlement, and the employee is required to reimburse the person by whom the

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compensation was paid, the employee or his or her attorney shall be entitled to withhold from the

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amount to be reimbursed that proportion of the costs, witness expenses, and other out-of-pocket

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expenses and attorney fees which the amount which the employee is required to reimburse the

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person by whom compensation was paid bears to the amount recovered from the third party.

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     (b) Any money recovered by judgment, award, or settlement that includes damages for past

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or future pain and suffering, loss of consortium, loss of society, loss of wages and/or earning

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capacity or other damages not fully compensated by workers' compensation, shall not be

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reimbursed. The amount to be reimbursed shall also be reduced by any percentage of the employee's

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comparative negligence. Any dispute regarding the appropriate apportionment of the amount to be

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reimbursed by the employee shall be heard in the court having jurisdiction of the underlying third-

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party claim.

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     (b)(c) In any case in which the employee or, in case of death, the administrator of the

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employee's estate neglects to exercise the employee's right of action by failing to file a lawsuit

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against such third person within two (2) years and eight (8) months after the injury, the self-insured

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employer or the employer's insurance carrier may so proceed and shall be subrogated to the rights

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of the injured employee or, in case of death, to the rights of the administrator to recover against

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such person; provided, that no subrogation action shall commence unless at least twenty-six (26)

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weeks prior to the expiration of the two (2) years and eight (8) months the self-insured employer

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or the employer's insurance carrier has notified the employee or in the case of death, the

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administrator of the employee's estate, in writing by personal service or certified mail, that failure

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to commence such action within two (2) years and eight (8) months after the injury will operate as

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an assignment of the right of action to the self-insured employer or the employer's insurance carrier.

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Upon filing the lawsuit the attorney for the self-insured employer or the employer's insurance

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carrier shall notify the employee in writing by personal service or certified mail of the action and

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the name of the court where it was filed and the employee may join as a plaintiff in the action within

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thirty days after the notification, and, if the employee fails to join, the right of joinder shall abate.

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The right of the employee, or in case of death, the administrator of the employee's estate, to be fully

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compensated for the damages sustained shall be fully preserved as outlined in subsection (a) of this

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section.

 

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     (c)(d) If the self-insured employer or the employer's insurance carrier recovers from these

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other personal damages or benefits, after expenses and costs of action have been paid, in excess of

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the amount of the lien as defined in this section, then that excess shall be paid to the injured

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employee or, in the case of death, to the administrator of the employee's estate for distribution.

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     SECTION 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 --

PROCEDURE

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     This act would, for purposes of liability of third persons for damages relating to claims for

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workers compensation, provide that reimbursement not be provided for certain damages, and would

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reduce any award by any percentage of the employees comparative negligence.

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     This act would take effect upon passage.

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