Chapter 06-605

Chapter 605

2006 -- H 7042 SUBSTITUTE A AS AMENDED

Enacted 07/14/06

A N A C T

RELATING TO LABOR AND LABOR RELATIONS -- WORKERS' COMPENSATION

Introduced By: Representatives Jacquard, San Bento, and Schadone

Date Introduced: February 01, 2006

It is enacted by the General Assembly as follows:

SECTION 1. Sections 28-33-17 and 28-33-18.3 of the General Laws in Chapter 28-33

entitled "Workers' Compensation - Benefits" are hereby amended to read as follows:

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 section 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 section 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

section 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 section 28-44-6(a). Effective September 1,

~~2000~~ 2007, the maximum rate for weekly compensation for total disability shall not exceed one

hundred ~~ten~~ fifteen percent ~~(110%)~~ (115%) of the state average weekly wage as computed and

established under the provisions of section 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 section 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 which 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.

section 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 section 8-10-3

and funds designated for payment of liens pursuant to section 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.

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 section 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 section 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 section 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.

SECTION 2. Section 28-33-18.3 of the General Laws in Chapter 28-33 entitled

"Workers' Compensation - Benefits" is hereby amended to read as follows:

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

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

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

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

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

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

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

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

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

~~2005~~ 2007, "material hindrance" is defined to include only compensable injuries causing a greater

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

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

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

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

~~2005~~ 2007.

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

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

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

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

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

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

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

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

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

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

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

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

(4) 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 mailed within fourteen (14) days after the employer or insurer has been

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

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

the same time as but in addition to the payment.

(5) 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.

employee is receiving benefits pursuant to this section.

SECTION 3. This act shall take effect upon passage.

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LC00965/4

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