Chapter 121
2010 -- H 8114 SUBSTITUTE A
Enacted 06/22/10
A N A C T
RELATING TO
LABOR AND LABOR RELATIONS -- WORKERS' COMPENSATION
Introduced By: Representative Anastasia P. Williams
Date Introduced: May 11, 2010
It is enacted by the
General Assembly as follows:
SECTION 1. Section 28-29-2 of the General Laws in Chapter
28-29 entitled "Workers'
Compensation - General
Provisions" is hereby amended to read as follows:
28-29-2.
Definitions. -- In chapters 29 -- 38 of this
title, unless the context otherwise
requires:
(1)
"Department" means the department of labor and training.
(2)
"Director" means the director of labor and training or his or her
designee unless
specifically stated otherwise.
(3) (i) "Earnings capacity"
means the weekly straight time earnings which an employee
could receive if the employee accepted an actual offer of
suitable alternative employment.
Earnings capacity can also be established by the court
based on evidence of ability to earn,
including, but not limited to, a determination of the degree of
functional impairment and/or
disability, that an employee is capable of employment. The court
may, in its discretion, take into
consideration the performance of the employee's duty to actively
seek employment in scheduling
the implementation of the reduction. The employer need
not identify particular employment
before the court can direct an earnings capacity adjustment.
In the event that an employee returns
to light duty employment while partially disabled, an
earnings capacity shall not be set based
upon actual wages earned until the employee has
successfully worked at light duty for a period of
at least thirteen (13) weeks.
(ii) As used under the
provisions of this title, "functional impairment" means an
anatomical or functional abnormality existing after the date of
maximum medical improvement as
determined by a medically or scientifically demonstrable finding
and based upon the Fifth (5th)
Sixth (6th)
edition of the American Medical Association's Guide to the Evaluation of
Permanent
Impairment or comparable
publications of the American Medical Association.
(iii) In the event that
an employee returns to employment at an average weekly wage
equal to the employee's pre-injury earnings exclusive of
overtime, the employee will be presumed
to have regained his/her earning capacity.
(4)
"Employee" means any person who has entered into the employment of or
works
under contract of service or apprenticeship with any
employer, except that in the case of a city or
town other than the city of
as may be designated by a city, town, or regional school
district in a manner provided in this
chapter to receive compensation under chapters 29 -- 38 of
this title. Any person employed by the
state of
Rhode Island Airport Corporation who is otherwise
entitled to the benefits of chapter 19 of title
45 shall be subject to the provisions of chapters 29
-- 38 of this title for all case management
procedures and dispute resolution for all benefits. The term
"employee" does not include any
individual who is a shareholder or director in a corporation,
general or limited partners in a
general partnership, a registered limited liability
partnership, a limited partnership, or partners in
a registered limited liability limited partnership, or
any individual who is a member in a limited
liability company. These exclusions do not apply to
shareholders, directors and members who
have entered into the employment of or who work under a
contract of service or apprenticeship
within a corporation or a limited liability company. The
term "employee" also does not include a
sole proprietor, independent contractor, or a person whose
employment is of a casual nature, and
who is employed other than for the purpose of the
employer's trade or business, or a person
whose services are voluntary or who performs charitable
acts, nor shall it include the members of
the regularly organized fire and police departments of
any town or city; provided, however, that it
shall include the members of the police and aircraft rescue
and firefighting (ARFF) units of the
Rhode Island Airport Corporation. Whenever a
contractor has contracted with the state, a city,
town, or regional school district any person employed by
that contractor in work under contract
shall not be deemed an employee of the state, city, town,
or regional school district as the case
may be. Any person who on or after January 1, 1999, was
an employee and became a corporate
officer shall remain an employee, for purposes of these
chapters, unless and until coverage under
this act is waived pursuant to subsection 28-29-8(b) or
section 28-29-17. Any person who is
appointed a corporate officer between January 1, 1999 and December
31, 2001, and was not
previously an employee of the corporation, will not be
considered an employee, for purposes of
these chapters, unless that corporate officer has filed a
notice pursuant to subsection 28-29-19(b).
In the case of a person whose services are voluntary
or who performs charitable acts, any benefit
received, in the form of monetary remuneration or otherwise,
shall be reportable to the
appropriate taxation authority but shall not be deemed to be
wages earned under contract of hire
for purposes of qualifying for benefits under chapters 29
-- 38 of this title. Any reference to an
employee who had been injured shall, where the employee is
dead, include a reference to his or
her dependents as defined in this section, or to his or
her legal representatives, or, where he or she
is a minor or incompetent, to his or her conservator or
guardian. A "seasonal occupation" means
those occupations in which work is performed on a seasonal
basis of not more than sixteen (16)
weeks.
(5) "Employer"
includes any person, partnership, corporation, or voluntary association,
and the legal representative of a deceased employer; it
includes the state, and the city of
accepts the provisions of chapters 29 -- 38 of this title in
the manner provided in this chapter.
(6) "General or
special employer":
(i)
"General employer" includes but is not limited to temporary help
companies and
employee leasing companies and means a person who for
consideration and as the regular course
of its business supplies an employee with or without
vehicle to another person.
(ii) "Special
employer" means a person who contracts for services with a general
employer for the use of an employee, a vehicle, or both.
(iii) Whenever there is
a general employer and special employer wherein the general
employer supplies to the special employer an employee and the
general employer pays or is
obligated to pay the wages or salaries of the supplied
employee, then, notwithstanding the fact
that direction and control is in the special employer and
not the general employer, the general
employer, if it is subject to the provisions of the Workers'
Compensation Act or has accepted that
Act, shall be deemed to be the employer as set forth
in subdivision (5) of this section and both the
general and special employer shall be the employer for
purposes of sections 28-29-17 and 28-29-
18.
(iv)
Effective January 1, 2003, whenever a general employer enters into a
contract or
arrangement with a special employer to supply an employee or
employees for work, the special
employer shall require an insurer generated insurance coverage
certification, on a form prescribed
by the department, demonstrating
coverage evidencing that the general employer carries workers'
compensation insurance with that
insurer with no indebtedness for its employees for the term
of the contract or arrangement. In the
event that the special employer fails to obtain and
maintain at policy renewal and thereafter this
insurer generated insurance coverage certification
demonstrating
compensation and employer's liability coverage from the general
employer, the special employer
is deemed to be the employer pursuant to the provisions
of this section. Upon the cancellation or
failure to renew, the insurer having written the workers'
compensation and employer's liability
policy shall notify the certificate holders and the
department of the cancellation or failure to
renew and upon notice, the certificate holders shall be
deemed to be the employer for the term of
the contract or arrangement unless or until a new
certification is obtained.
(7) (i) "Injury" means and
refers to personal injury to an employee arising out of and in
the course of his or her employment, connected and
referable to the employment.
(ii) An injury to an
employee while voluntarily participating in a private, group, or
employer-sponsored carpool, vanpool, commuter bus service, or other
rideshare program, having
as its sole purpose the mass transportation of employees
to and from work shall not be deemed to
have arisen out of and in the course of employment.
Nothing in the foregoing provision shall be
held to deny benefits under chapters 29 -- 38 and chapter
47 of this title to employees such as
drivers, mechanics, and others who receive remuneration for
their participation in the rideshare
program. Provided, that the foregoing provision shall not bar
the right of an employee to recover
against an employer and/or driver for tortious
misconduct.
(8) "Maximum medical
improvement" means a point in time when any medically
determinable physical or mental impairment as a result of injury
has become stable and when no
further treatment is reasonably expected to materially
improve the condition. Neither the need for
future medical maintenance nor the possibility of
improvement or deterioration resulting from the
passage of time and not from the ordinary course of the
disabling condition, nor the continuation
of a pre-existing condition precludes a finding of
maximum medical improvement. A finding of
maximum medical improvement by the workers' compensation
court may be reviewed only
where it is established that an employee's condition has
substantially deteriorated or improved.
(9)
"Physician" means medical doctor, surgeon, dentist, licensed
psychologist,
chiropractor, osteopath, podiatrist, or optometrist, as the case
may be.
(10) "Suitable
alternative employment" means employment or an actual offer of
employment which the employee is physically able to perform and
will not exacerbate the
employee's health condition and which bears a reasonable
relationship to the employee's
qualifications, background, education, and training. The employee's
age alone shall not be
considered in determining the suitableness of the alternative
employment.
(11) "Independent
contractor" means a person who has filed a notice of designation as
independent contractor with the director pursuant to section
28-29-17.1 or as otherwise found by
the workers' compensation court.
SECTION 2. Sections 28-33-8, 28-33-18, 28-33-18.3, 28-33-19
and 28-33-34.1 of the
General Laws in Chapter
28-33 entitled "Workers' Compensation - Benefits" are hereby amended
to read as follows:
28-33-8. Employee's
choice of physician, dentist, or hospital -- Payment of charges --
Physician reporting schedule. -- (a)
(1) An injured employee shall have freedom of choice
to
obtain health care, diagnosis, and treatment from any
qualified health care provider initially. The
initial health care provider of record may, without prior
approval, refer the injured employee to
any qualified specialist for independent consultation or
assessment, or specified treatment. If the
insurer or self-insured employer has a preferred provider
network approved and kept on record by
the medical advisory board, any change by the employee
from the initial health care provider of
record shall only be to a health care provider listed in the
approved preferred provider network;
provided, however, that any contract proffered or maintained
which restricts or limits the health
care provider's ability to make referrals pursuant to the
provisions of this section, restricts the
injured employee's first choice of health care provider,
substitutes or overrules the treatment
protocols maintained by the medical advisory board or attempts
to evade or limit the jurisdiction
of the workers' compensation court shall be void as
against public policy. If the
employee seeks
to change to a health care provider not in the approved
preferred provider network, the employee
must obtain the approval of the insurer or self-insured
employer. Nothing contained in this
section shall prevent the treatment, care, or rehabilitation
of an employee by more than one
physician, dentist, or hospital. The employee's first visit to
any facility providing emergency care
or to a physician or medical facility under contract
with or agreement with the employer or
insurer to provide priority care shall not constitute the
employee's initial choice to obtain health
care, diagnosis or treatment.
(2) In addition to the
treatment of qualified health care providers, the employee shall
have the freedom to obtain a rehabilitation evaluation by
a rehabilitation counselor certified by
the director pursuant to section 28-33-41 in cases where
the employee has received compensation
for a period of more than three (3) months, and the
employer shall pay the reasonable fees
incurred by the rehabilitation counselor for the initial
assessment.
(b) Within three (3)
days of an initial visit following an injury, the health care provider
shall provide to the insurer or self-insured employer, and
the employee and his or her attorney a
notification of compensable injury form to be approved by the
administrator of the medical
advisory board. Within three (3) days of the injured
employee's release or discharge, return to
work, and/or recovery from an injury covered by chapters
29 -- 38 of this title, the health care
provider shall provide a notice of release to the insurer or
self-insured employer and the employee
and his or her attorney on a form approved by the
division. A twenty dollar ($20.00) fee may be
charged by the health care provider to the insurer or
self-insured employer for the notification of
compensable injury forms or notice of release forms or for
affidavits filed pursuant to subsection
(c) of this section, but only
if filed in a timely manner. No claim for care or treatment by a
physician, dentist, or hospital chosen by an employee shall be
valid and enforceable as against his
or her employer, the employer's insurer, or the
employee, unless the physician, dentist, or hospital
gives written notice of the employee's choice to the
employer/insurance carrier within fifteen (15)
days after the beginning of the services or treatment. The
health care provider shall in writing
present to the employer or insurance carrier a final itemized
bill for all unpaid services or
treatment within three (3) months after the conclusion of the
treatment. The employee shall not be
personally liable to pay any physician, dentist, or hospital
bills in cases where the physician,
dentist, or hospital has forfeited the right to be paid by
the employer or insurance carrier because
of noncompliance with this section.
(c) (1) Every six (6) weeks, At six (6) weeks from
the date of injury, then every twelve
(12) weeks thereafter until maximum medical improvement, any qualified
physician or other
health care professional providing medical care or treatment
to any person for an injury covered
by chapters 29 -- 38 of this title shall file an
itemized bill and an affidavit with the insurer, the
employee and his or her attorney, and the medical advisory
board. A ten percent (10%) discount
may be taken on the itemized bill affidavits not filed in
a timely manner and received by the
insurer one week or more late. The affidavit shall be on a
form designed and provided by the
administrator of the medical advisory board and shall state:
(i)
The nature of the injury being treated;
(ii)(i) The type of medical treatment provided to date,
including type and frequency of
treatment(s);
(iii)(ii)
Anticipated further treatment including type, frequency, and duration of
treatment(s), whether or not maximum medical improvement has been
reached or when it is
expected to be reached,
and the anticipated date of discharge;
(iv)(iii)
Whether the employee can return to the former position of employment or is
capable of other work, specifying work restrictions and work
capabilities and the degree of
functional impairment and/or disability of the employee;
(v) Any ownership
interest in any ancillary facility to which the patient has been referred
for treatment of a compensable injury.
(2) The affidavit shall
be admissible as an exhibit of the workers' compensation court
with or without the appearance of the affiant.
(d) "Itemized
bill", as referred to in this section, means a statement of charges, on a
form
HCFA 1500 or other form suitable to the insurer, which
includes, but is not limited to, an
enumeration of specific types of care provided, facilities or
equipment used, services rendered,
and appliances or medicines prescribed, for purposes of
identifying the treatment given the
employee with respect to his or her injury.
(e) (1) The treating physician shall furnish to the employee, or to
his or her legal
representative, a copy of his or her medical report within ten (10)
days of the examination date.
(2) The treating
physician shall notify the employer, and the employee and his or her
attorney immediately when an employee is able to return to
full or modified work.
(3) There shall be no
charge for a health record when that health record is necessary to
support any appeal or claim under the Workers' Compensation
Act section 23-17-19.1(16). The
treating physician shall furnish to the employee, or to his or
her legal representative, a medical
report, within ten (10) days of the request, stating the
diagnosis, disability, loss of use, end result
and/or causal relationship of the employee's condition
associated with the work related injury.
The physician shall be entitled to charge for these
services only as enunciated in the State of
(f) (1) Compensation
for medical expenses and other services under section 28-33-5, 28-
33-7 or 28-33-8 is due and payable within twenty-one
(21) days from the date a request is made
for payment of these expenses by the provider of the
medical services. In the event payment is not
made within twenty-one (21) days from the date a request
is made for payment, the provider of
medical services may add, and the insurer or self-insurer
shall pay, interest at the per annum rate
as provided in section 9-21-10 on the amount due. The
employee or the medical provider may file
a petition with the administrator of the workers'
compensation court which petition shall follow
the procedure as authorized in chapter 35 of this title.
(2) The twenty-one (21)
day period in subdivision (1) of this subsection shall begin on
the date the insurer receives a request with appropriate
documentation required to determine
whether the claim is compensable and the payment requested is
due.
28-33-18.
Weekly compensation for partial incapacity. -- (a)
While the incapacity for
work resulting from the injury is partial, the employer
shall pay the injured employee a weekly
compensation equal to seventy-five percent (75%) of the difference
between his or her spendable
average weekly base wages, earnings, or salary before the
injury as computed pursuant to the
provisions of section 28-38-20, and his or her spendable weekly
wages, earnings, salary, or
earnings capacity after that, but not more than the maximum
weekly compensation rate for total
incapacity as set forth in section 28-33-17. The provisions of
this section are subject to the
provisions of section 28-33-18.2.
(b) For all injuries
occurring on or after September 1, 1990, where an employee's
condition has reached maximum medical improvement and the
incapacity for work resulting from
the injury is partial, while the incapacity for work
resulting from the injury is partial, the
employer shall pay the injured employee a weekly compensation
equal to seventy percent (70%)
of the weekly compensation rate as set forth in subsection
(a) of this section. The court may, in its
discretion, take into consideration the performance of the
employee's duty to actively seek
employment in scheduling the implementation of the reduction.
The provisions of this subsection
are subject to the provisions of section 28-33-18.2.
(c) (1) Earnings
capacity determined from degree of functional impairment pursuant to
section 28-29-2(3) shall be determined as a percentage of the
whole person based on the Fifth
(5th) Sixth
(6th) edition of the American Medical Association Guides To
The Value Of Permanent
Impairment. Earnings capacity shall be calculated from the
percentage of impairment as follows:
(i)
For impairment of five percent (5%) or less, earnings capacity shall be
calculated so
as to extinguish one hundred percent (100%) of weekly
benefits.
(ii) For impairment of
twenty-five percent (25%) or less, but greater than five percent
(5%), earnings capacity shall be calculated so as to
extinguish one hundred percent (100%) less
the percent of impairment of weekly benefits.
(iii) For impairment of
fifty percent (50%) or less, but greater than twenty-five percent
(25%), earnings capacity shall be calculated so as to
extinguish one hundred percent (100%) less
one point two five (1.25) times the percent of impairment
of weekly benefits.
(iv)
For impairment of sixty-five percent (65%) or less, but greater than
fifty percent
(50%), earnings capacity shall be calculated so as to
extinguish one hundred percent (100%) less
one point five (1.5) times the percent of impairment of
weekly benefits.
(2) An earnings
capacity adjustment under this section shall be applicable only when the
employee's condition has reached maximum medical improvement
under section 28-29-2(3)(ii)
and benefits are subject to adjustment pursuant to
subsection (b) of this section.
(d) In the event
partial compensation is paid, in no case shall the period covered by the
compensation be greater than three hundred and twelve (312) weeks.
In the event that
compensation for partial disability is paid under this section for
a period of three hundred and
twelve (312) weeks, the employee's right to continuing
weekly compensation benefits shall be
determined pursuant to the terms of section 28-33-18.3. At least
twenty-six (26) weeks prior to
the expiration of the period, the employer or insurer
shall notify the employee and the director of
its intention to terminate benefits at the expiration of
three hundred and twelve (312) weeks and
advise the employee of the right to apply for a continuation
of benefits under the terms of section
28-33-18.3. In the event that the employer or insurer
fails to notify the employee and the director
as prescribed, the employer or insurer shall continue to
pay benefits to the employee for a period
equal to twenty-six (26) weeks after the date the notice is
served on the employee and the
director.
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,
2010 2012,
"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,
2010 2012.
(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,
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,
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.
(c) No petitions for
commutation shall be allowed or entertained in those cases where an
employee is receiving benefits pursuant to this section.
28-33-19.
Additional compensation for specific injuries. --
(a) (1) In case of the
following specified injuries there shall be paid in addition to
all other compensation provided for
in chapters 29 to 38 of this title a weekly payment
equal to one-half (1/2) of the average weekly
earnings of the injured employee, but in no case more than
ninety dollars ($90.00) nor less than
forty-five dollars ($45.00) per week. In case of the
following specified injuries that occur on or
after January 1, 2012, there shall be paid in addition to
all other compensation provided for in
chapters 29 to 38 of this title a weekly payment equal to
one-half (1/2) of the average weekly
earnings of the injured employee, but in no case more than one
hundred eighty dollars ($180) nor
less than ninety dollars ($90.00) per week. Payment made under this section shall be made in a
one time payment unless the parties otherwise agree.
Payment shall be mailed within fourteen
(14) days of the entry of a
decree, order, or agreement of the parties:
(i)
For the loss by severance of both hands at or above the wrist, or for the loss
of the
arm at or above the elbow or for the loss of the leg at
or above the knee, or both feet at or above
the ankle, or of one hand and one foot, or the entire and
irrecoverable loss of the sight of both
eyes, or the reduction to one-tenth (1/10) or less of
normal vision with glasses, for a period of
three hundred twelve (312) weeks; provided, that for the
purpose of this chapter the Snellen chart
reading 20/200 shall equal one-tenth (1/10) of normal vision
or a reduction of ninety percent
(90%) of the vision. Additionally, any loss of visual performance
including, but not limited to,
loss of binocular vision, other than direct visual acuity
may be considered in evaluating eye loss;
(ii) For the loss by
severance of either arm at or above the elbow, or of either leg at or
above the knee, for a period of three hundred twelve (312)
weeks;
(iii) For the loss by
severance of either hand at or above the wrist for a period of two
hundred forty-four (244) weeks;
(iv)
For the entire and irrecoverable loss of sight of either eye, or the
reduction to one-
tenth (1/10) or less of normal vision with glasses, or for
loss of binocular vision for a period of
one hundred sixty (160) weeks;
(v) For the loss by
severance of either foot at or above the ankle, for a period of two
hundred five (205) weeks;
(vi)
For the loss by severance of the entire distal phalange of either thumb
for a period of
thirty-five (35) weeks; and for the loss by severance at or
above the second joint of either thumb,
for a period of seventy-five (75) weeks;
(vii) For the loss by
severance of one phalange of either index finger, for a period of
twenty-five (25) weeks; for the loss by severance of at least
two (2) phalanges of either index
finger, for a period of thirty-two (32) weeks; for the loss
by severance of at least three (3)
phalanges of either index finger, for a period of forty-six
(46) weeks;
(viii) For the loss by
severance of one phalange of the second finger of either hand, for a
period of sixteen (16) weeks; for the loss by severance of
two (2) phalanges of the second finger
of either hand, for a period of twenty-two (22) weeks;
for the loss by severance of three (3)
phalanges of the second finger on either hand, for a period of
thirty (30) weeks;
(ix) For the loss by
severance of one phalange of the third finger of either hand, for a
period of twelve (12) weeks; for the loss by severance of
two (2) phalanges of the third finger of
either hand, for a period of eighteen (18) weeks; for the
loss by severance of three (3) phalanges
of a third finger of either hand, for a period of
twenty-five (25) weeks;
(x) For the loss by
severance of one phalange of the fourth finger of either hand, for a
period of ten (10) weeks; for the loss by severance of two
(2) phalanges of the fourth finger of
either hand, for a period of fourteen (14) weeks; for the
loss by severance of three (3) phalanges
of a fourth finger of either hand, for a period of
twenty (20) weeks;
(xi) For the loss by
severance of one phalange of the big toe on either foot, for a period
of twenty (20) weeks; for the loss by severance of two
(2) phalanges of the big toe of either foot,
for a period of thirty-eight (38) weeks; for the loss by
severance at or above the distal joint of any
other toe than the big toe, for a period of ten (10) weeks
for each such toe;
(xii) For the
complete loss of hearing of either ear sixty (60) weeks; for the complete loss
of hearing of both ears two hundred (200) weeks;
provided, that the loss shall be due to external
trauma.
For partial loss by
severance for any of the injuries specified in paragraphs (1)(i) through
(1)(xi) of this subsection,
proportionate benefits shall be paid for the period of time that the
partial loss by severance bears to the total loss by
severance.
(2) Where any bodily
member or portion of it has been rendered permanently stiff or
useless, compensation in accordance with the above schedule
shall be paid as if the member or
portion of it had been completely severed; provided, that if
the stiffness or uselessness is less than
total, then compensation shall be paid for that period of
weeks in proportion to the applicable
period where the member or portion of it has been completely
severed as the instant percentage of
stiffness or uselessness bears to the total stiffness or total
uselessness of the bodily members or
portion of them.
(3) In case of the
following specified injuries there shall be paid in addition to all other
compensation provided for in chapters 29 - 38 under this title a
weekly payment equal to one-half
(1/2) of the average weekly earnings of the injured
employee, but in no case more than ninety
dollars ($90.00) nor less than forty-five dollars ($45.00)
per week. Payment under this subsection
shall be made in a one time payment unless the parties
otherwise agree. Payment shall be mailed
within fourteen (14) days of the entry of a decree, order,
or agreement of the parties:
(i)
For partial loss by severance for any of the injuries specified in paragraphs
(1)(i) --
(1)(xii) of this subsection,
proportionate benefits shall be paid for the period of time that the
partial loss by severance bears to the total loss by
severance.
(ii)(i) For permanent disfigurement of the body the number
of weeks may not exceed
five hundred (500) weeks, which sum shall be payable in a
one time payment within fourteen (14)
days of the entry of a decree, order, or agreement of the
parties in addition to all other sums under
this section wherever it is applicable.
(4) (i) Loss of hearing due to
industrial noise is recognized as an occupational disease for
purposes of chapters 29 - 38 of this title and occupational
deafness is defined to be a loss of
hearing in one or both ears due to prolonged exposure to
harmful noise in employment. Harmful
noise means sound capable of producing occupational
deafness.
(ii) Hearing loss shall
be evaluated pursuant to protocols established by the workers'
compensation medical advisory board. All treatment consistent with
this subsection shall be
consistent with the protocols established by the workers'
compensation medical advisory board
subject to section 28-33-5.
(iii) If the employer
has conducted baseline screenings within one (1) year of exposure to
harmful noise to evaluate the extent of an employee's
pre-existing hearing loss, the causative
factor shall be apportioned based on the employee's
pre-existing hearing loss and subsequent
occupational hearing loss, and the compensation payable to the
employee shall only be that
portion of the compensation related to the present
work-related exposure.
(iv)
There shall be payable as permanent partial disability for total
occupational deafness
of one ear, seventy-five (75) weeks of compensation; for
total occupational deafness of both ears,
two hundred forty-four (244) weeks of compensation; for
partial occupational deafness in one or
both ears, compensation shall be paid for any periods that
are proportionate to the relation which
the hearing loss bears to the amount provided in this
subdivision for total loss of hearing in one or
both ears, as the case may be. For the complete loss of
hearing for either ear due to external
trauma or by other mechanism, acuity loss shall be paid
pursuant to this subsection. Acuity
hearing loss related to a single event, usually trauma (e.g.,
in association with a basal skull
fracture) or by other mechanism, shall be paid pursuant to
this subsection.
(v) No benefits shall
be granted for tinnitus, psychogenic hearing loss, congenital
hearing loss, recruitment or hearing loss above three
thousand (3,000) hertz.
(vi)
The provisions of this subsection and the amendments insofar as
applicable to
hearing loss shall be operative as to any occupational
hearing loss that occurs on or after
September 1, 2003, except for acuity hearing loss
related to a single event which shall become
effective upon passage.
(vii) If previous hearing
loss, whether occupational or not, is established by an
audiometric examination or other competent evidence, whether or
not the employee was exposed
to assessable noise exposure within one year preceding
the test, the employer is not liable for the
previous loss, nor is the employer liable for a loss for which
compensation has previously been
paid or awarded. The employer is liable only for the
difference between the percent of
occupational hearing loss determined as of the date of the
audiometric examination conducted by
a certified audiometric technician using an audiometer
which meets the specifications established
by the American National Standards Institute (ANSI
3.6-1969, ri973) used to determine
occupational hearing loss and the percentage of loss established
by the baseline audiometric
examination. An amount paid to an employee for occupational
hearing loss by any other
employer shall be credited against compensation payable by the
subject employer for the hearing
loss. The employee shall not receive in the aggregate
greater compensation from all employers
for occupational hearing loss than that provided in this
section for total occupational hearing loss.
A payment shall not be paid to an employee unless the
employee has worked in excessive noise
exposure employment for a total period of at least one hundred
eighty (180) days for the
employer for whom compensation is claimed.
(viii) No claim for
occupational deafness may be filed until six (6) months separation
from the type of noisy work for the last employer in whose
employment the employee was at any
time during the employment exposed to harmful noise.
(ix) The total
compensation due for hearing loss is recovered from the employer who last
employed the employee in whose employment the employee was
last exposed to harmful noise
and the insurance carrier, if any, on the risk when the
employee was last so exposed, and if the
occupational hearing loss was contracted while the employee was in
the employment of a prior
employer, and there was no baseline testing by the last
employer, the employer and insurance
carrier which is made liable for the total compensation as
provided by this section may petition
the worker's compensation court for an apportionment of
the compensation among the several
employers which since the contraction of the hearing loss have
employed the employee in a noisy
environment.
(b) Where payments are
required to be made under more than one clause of this section,
payments shall be made in a one time payment unless the
parties otherwise agree. Payment shall
be mailed within fourteen (14) days of the entry of a
decree, order, or agreement of the parties.
(c) Payments pursuant
to this section, except paragraph (a)(3)(ii) of this
section, shall be
made only after an employee's condition as relates to loss
of use has reached maximum medical
improvement as defined in section 28-29-2(8) and as found
pursuant to section 28-33-18(b).
28-33-34.1.
Schedule of medical review. -- (a) On or about
twenty-six (26) weeks from
the date of a compensable injury, any person obtaining
incapacity benefits shall may be examined
and their diagnosis and treatment reviewed by a
comprehensive independent health care review
team or an impartial medical examiner. The comprehensive
independent health care review team
or impartial medical examiner shall be selected through
a mechanism to be established by the
administrator of the medical advisory board. The results of the
examination and review shall be
provided to the employee and the insurer or self-insured
employer within fourteen (14) days of
the examination and a copy shall be filed with the
medical advisory board. The comprehensive
independent health care review team and/or impartial medical
examiner shall review the treating
physician's findings and diagnosis and make its own findings of
the extent and nature of the
claimed disability, the degree of functional impairment
and/or disability, the expectation of
further medical improvement, any further medical care,
treatment, and/or rehabilitation services
that may be required to reach maximum medical improvement,
type(s) of work that can be
performed within existing physical capacity, the degree of
disability expected at maximum
medical improvement, whether the employee can return to the
former position of employment,
and compliance of the treating physician with protocols
and standards of medical care established
by the medical advisory board. The report shall be
admissible as the court's exhibit. A party may
be permitted to cross-examine the author(s) of the
report with leave of the court.
(b) On or about
thirteen (13) weeks after any examination under this section or section
28-33-35, a comprehensive independent health care
review team or impartial medical examiner
shall perform a similar review. The same comprehensive
independent health care review team or
impartial medical examiner may not perform more than two (2)
consecutive reviews on a
particular employee.
(c) The medical
reviews required by this section may be satisfied by summary review if:
(1) The employee is
receiving benefits for total incapacity, and the employee's condition
is so severe or permanent that examination and review is
clearly inappropriate or unnecessary;
(2) The employee's
return to work or a suspension of benefits for other reasons is
imminent;
(3) The employee is
under and following a rehabilitation program approved by the
director of labor and training;
(4) The employee's
condition has been previously reviewed by the attending physician,
comprehensive independent health care review team, or impartial
medical examiner, or in an
approved rehabilitation program report, and was then
determined to be and remains stable and at
maximum medical improvement, and the employee has had an
earnings capacity adjustment
appropriate to his or her present level of earnings capacity; or
(5) The employee is
receiving weekly compensation benefits from a self-insured
employer that has filed and received approval of a request for
exemption from the provisions of
this section.
(d)(c)
Failure to appear for examination under this section shall be grounds for
suspension or termination of benefits unless justified by good
cause. Residence outside the state
does not, by itself, constitute good cause for failure to
appear.
SECTION 3. Section 28-36-12 of the General Laws in Chapter
28-36 entitled "Workers'
Compensation -
Insurance" is hereby amended to read as follows:
28-36-12.
Notice of issuance, cancellation, or failure to renew policies.
-- (a) Every
insurance company having written a policy insuring against
liability for personal injuries to
employees shall notify the director of the issuance of the policy
within five (5) days of the
effective date of this policy in a manner determined by the
director. Upon the cancellation of the
policy or failure to renew it, every insurance company
having written the policy shall
immediately notify the director of the cancellation or failure to
renew. The director shall have
discretion to assess an administrative penalty of not more than
two hundred fifty dollars ($250)
per offense against any insurance company that fails to
notify the director as required in this
section. The director, in his or her discretion, may bring a
civil action to collect all assessed civil
penalties. The workers' compensation court shall have
jurisdiction to enforce compliance with
any order of the director made pursuant to this section.
Additionally, any insurance company that
willfully fails to notify the director as required in this
section shall be subject to prosecution for a
misdemeanor and upon conviction may be punished by a fine of not
more than two hundred fifty
dollars ($250) for each offense. All criminal actions for any
violation of this section shall be
prosecuted by the attorney general at the request of the
director.
(b) Cancellation of the
policy or non-renewal shall not be deemed effective until written
notice of the cancellation or non-renewal is received by the
director.
(c) All penalties and
fines collected pursuant to this section shall be deposited in the
general fund.
(d) Except for
workers' compensation insurance coverage verification, all information
required to be provided to the director under chapter 36 of
title 28 shall be considered confidential
under section 38-2-2(4)(B) of the general laws.
SECTION 4. Section 28-41-6 of the General Laws in Chapter
28-41 entitled "Temporary
Disability Insurance -
Benefits" is hereby amended to read as follows:
28-41-6. Effect on
waiting period credit and benefits of receipt of workers'
compensation payments. -- (a) No individual shall be entitled to receive waiting period credit
benefits or dependents' allowances with respect to which
benefits are paid or payable to that
individual under any workers' compensation law of this state,
any other state, or the federal
government, on account of any disability caused by accident or
illness. In the event that workers'
compensation benefits are subsequently awarded to an individual,
whether on a weekly basis or
as a lump sum, for a week or weeks with respect to which
that individual has received waiting
period credit, benefits, or dependents' allowances, under
chapters 39 - 41 of this title, the director,
for the temporary disability insurance fund, shall be
subrogated to that individual's rights in that
award to the extent of the amount of benefits and/or dependents'
allowances paid to him or her
under those chapters.
(b) (1) Whenever an employer or his or her insurance carrier has
been notified that an
individual has filed a claim for unemployment due to sickness
for any week or weeks under
chapters 39 -- 41 of this title for which week or weeks that
individual is or may be eligible for
benefits under chapters 29 -- 38 of this title, that notice
shall constitute a lien upon any pending
award, order, or settlement to that individual under
chapters 29 - 38 of this title.
(2) The employer or his
insurance carrier shall be required to reimburse the director, for
the temporary disability insurance fund, the amount of
benefits and/or dependents' allowances
received by the individual under chapters 39 - 41 of this
title, for any week or weeks for which
that award, order, or settlement is made.
(c) Whenever an
individual becomes entitled to or is awarded workers' compensation
benefits for the same week or weeks with respect to which he
has received benefits and/or
dependents' allowances under chapters 39 - 41 of this title, and
notice of that receipt has been
given to the division of workers' compensation of the
department of labor and training and/or the
workers' compensation court, the division or court is
required to and shall incorporate in the
award, order, or approval of settlement, an order requiring
the employer or his or her insurance
carrier to reimburse the director, for the temporary
disability insurance fund, the amount of any
disability benefits and/or dependents' allowances which may have
been paid to the employee for
unemployment due to sickness for those weeks under chapters 39 -
41 of this title. Nothing herein
shall be construed to deny benefits under this chapter to
individuals who receive a lump sum
settlement pursuant to section 28-33-25 and subsequently apply
for benefits under this chapter as
long as the sickness or illness is materially different
from the one for which the individual was
paid workers' compensation, is not affected by said injury
and/or the medical condition did not
result from the injury for which the employee was paid
workers' compensation benefits.
(d) If, through
inadvertence, error, or mistake, an individual has received benefit
payments and/or dependents' allowances for any week or weeks
under chapters 39 - 41 of this
title, and has also received payments for the same week or
weeks under any workers'
compensation law of this state, any other state, or of the federal
government, he or she shall, in
the discretion of the director of the department of labor
and training, be liable to have that sum
deducted from any benefits payable to him or her under
chapters 39 - 41 of this title, or shall be
liable to repay to the director, for the temporary
disability insurance fund, a sum equal to that
amount received, and that sum shall be collectible in the
manner provided in section 28-40-12 for
the collection of past due contributions.
(e) Notwithstanding any
other provision of this section, no individual who, prior to
September 1, 1969, has sustained an injury by reason
of which he or she may be eligible for
benefits under chapters 29-38 of this title shall be deprived
of any rights which he or she may
have under chapters 39 - 41 of this title.
SECTION 5. Sections 28-53-2 and 28-53-7 of the General Laws
in Chapter 28-53
entitled "Rhode Island Uninsured Employers Fund" are
hereby amended to read as follows:
28-53-2.
Establishment -- Sources -- Administration. -- (a)
There shall be established
within the department of labor and training a special
restricted receipt account to be known as the
Rhode Island uninsured employers fund. The fund shall
be capitalized from excise taxes assessed
against uninsured employers pursuant to the provisions of
section 28-53-9 of this chapter and
from general revenues appropriated by the legislature.
Beginning in state fiscal year ending June
30, 2010, June
30, 2012, the legislature may appropriate up to two million dollars
($2,000,000) in
general revenue funds annually for deposit into the
(b) All moneys in the
fund shall be mingled and undivided. The fund shall be
administered by the director of the department of labor and training
or his or her designee, but in
no case shall the director incur any liability beyond
the amounts paid into and earned by the fund.
(c) All amounts owed to
the uninsured employers fund from illegally uninsured
employers are intended to be excise taxes and as such, all
ambiguities and uncertainties are to be
resolved in favor of a determination that such assessments are
excise taxes.
28-53-7.
Payments to employees of uninsured employers. --
(a) Where it is determined
that the employee was injured in the course of employment
while working for an employer who
fails to maintain a policy of workers' compensation
insurance as required by
laws section 28-36-1, et seq., the uninsured employers
fund shall pay the benefits to which the
injured employee would be entitled pursuant to chapters 29 to
38 of this title subject to the
limitations set forth herein.
(b) The workers'
compensation court shall hear all petitions for payment from the fund
pursuant to Rhode Island general laws section 28-30-1,
et seq., provided, however, that the
uninsured employers fund and the employer shall be named as
parties to any petition seeking
payment of benefits from the fund.
(c) Where an employee
is deemed to be entitled to benefits from the uninsured
employers fund, the fund shall pay benefits for disability and
medical expenses as provided
pursuant to chapters 29 to 38 of this title except that the
employee shall not be entitled to receive
benefits for loss of function and disfigurement pursuant to
the provisions of
laws section 28-33-19.
(d) The fund shall pay
cost, counsel and witness fees as provided in
general laws section 28-35-32 to any employee who
successfully prosecutes any petitions for
compensation, petitions for medical expenses, petitions to amend a
pretrial order or memorandum
of agreement and all other employee petitions and to
employees who successfully defend, in
whole or in part, proceedings seeking to reduce or
terminate any and all workers' compensation
benefits; provided, however, that the attorney's fees awarded
to counsel who represent the
employee in petitions for lump sum commutation filed pursuant
to
section 28-33-25 or in the settlement of disputed cases
pursuant to
section 28-33-25.1 shall be limited to the maximum amount
paid to counsel who serve as court
appointed attorneys in workers' compensation proceedings as
established by rule or order of the
(e) In the event that
the uninsured employer makes payment of any monies to the
employee to compensate the employee for lost wages or medical
expenses, the fund shall be
entitled to a credit for all such monies received by or on
behalf of the employee against any future
benefits payable directly to the employee.
(f) This section shall
apply to injuries that occur on or after January 1, 2011 January 1,
2012.
SECTION 6. Section 45-21-31 of the General Laws in Chapter
45-21 entitled
"Retirement of
Municipal Employees" is hereby amended to read as follows:
45-21-31. Offset
of workers' compensation or personal injury recovery. -- Any
amounts paid or payable under the provisions of any workers'
compensation law, exclusive of
Medicare set aside allocation, specific compensation
benefits or any benefits due pursuant to the
terms of a collective bargaining agreement or as the result of any action for damages for personal
injuries against the municipality by which the member was
employed, on account of death or
disability of a member occurring while in the performance of
duty, are offset against and payable
in lieu of any benefits payable out of funds provided by
the municipality under the provisions of
this chapter on account of the death or disability of the
member. If the value of the total
commuted benefits under any workers' compensation law or
action is less than the actuarial
reserve on the benefits otherwise payable from funds provided
by the municipality under this
chapter, the value of the commuted payments is deducted from
the actuarial reserve, and the
benefits that may be provided by the actuarial reserve so
reduced are payable under the provisions
of this chapter.
SECTION 7. This act shall take effect upon passage with
paragraph 28-29-2(3)(ii) and
section 28-33-18 applicable to all injuries sustained on or
after January 1, 2011.
=======
LC02598/SUB A/3
=======