law23206

Chapter 206

2023 -- S 1081
Enacted 06/21/2023

A N A C T

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

Introduced By: Senators Ciccone, and F. Lombardi

Date Introduced: May 25, 2023

It is enacted by the General Assembly as follows:

SECTION 1. Sections 28-33-5, 28-33-17.1 and 28-33-19 of the General Laws in Chapter

28-33 entitled "Workers’ Compensation — Benefits" are hereby amended to read as follows:

28-33-5. Medical services provided by employer.

The employer shall, subject to the choice of the employee as provided in § 28-33-8,

promptly provide for an injured employee any reasonable medical, surgical, dental, optical, or other

attendance or treatment, nurse and hospital service, medicines, crutches, and apparatus for such

period as is necessary, in order to cure, rehabilitate, or relieve the employee from the effects of the

employee’s injury; provided, that no fee for major surgery shall be paid unless permission for it is

first obtained from the workers’ compensation court, the employer, or the insurance carrier

involved, except where compliance with it may prove fatal or detrimental to the employee.

Irrespective of the date of injury, the liability of the employer for hospital service rendered under

this section to the injured employee shall be the cost to the hospital of rendering the service at the

time the service is rendered. The director, after consultations with representatives of hospitals,

employers, and insurance companies, shall establish administrative procedures regarding the

furnishing and filing of data and the time and method of billing and may accept as representing the

costs for both routine and special services to patients, costs as computed for the federal Medicare

program. Each hospital licensed under chapter 17 of title 23 that renders services to injured

employees under the workers’ compensation act, chapters 29 — 38 of this title, shall submit and

certify to the director, in accordance with requirements of the administrative procedures established

by him or her, its costs for those services. The employer shall also provide all medical, optical,

dental, and surgical appliances and apparatus required to cure or relieve the employee from the

effects of the injury, including, but not limited to, the following: ambulance and nursing service,

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

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

amplification devices.

28-33-17.1. Employees not entitled to compensation.

(a) An employee shall not be entitled to compensation under chapters 29 — 38 of this title

for any period during which the employee was gainfully employed or found capable of gainful

employment at an average weekly wage equal to or in excess of the pre-injury average weekly

wage, exclusive of overtime, that he or she the employee was earning at the time of his or her the

employee’s injury, notwithstanding an existing agreement or decree to the contrary.

(b) In the event that any employer or insurer makes payment of compensation benefits to

an employee for any period during which the employee was not entitled to be paid in accordance

with subsection (a) of this section, or in the event that an overpayment of weekly benefits was paid,

the employer shall be entitled to credit for any payment of compensation made during that period

of employment against future compensation benefits and/or specific compensation benefits

pursuant to § 28-33-19 payable directly to the employee, as agreed to by the parties, or determined

by the court.

title for any period during which the employee was imprisoned as a result of a conviction of a

criminal offense. Where the disposition of criminal charges results in a conviction and includes

credit for time-served, such that the time served becomes a period served as the result of a

conviction, the employee shall not be entitled to compensation for that period. If payments were

made to the employee for that period, prior to the disposition of the charges, the employer/insurer

shall be entitled to a credit for the payments as against any future entitlement to benefits.

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 — 38 of this title a weekly payment equal to one-half

(½) 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 — 38 of this title a weekly payment equal to one-half

(½) 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 partial loss by severance for any of the injuries specified in paragraphs (1)(i) —

(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 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 § 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 preexisting hearing loss, the causative factor

shall be apportioned based on the employee’s preexisting 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 that 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.

(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 that is made liable for the total compensation as provided by this section may petition the

workers’ compensation court for an apportionment of the compensation among the several

employers that 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 and

a penalty of one hundred dollars ($100) shall be assessed for every day that the payment is

delinquent.

made only after an employee’s condition as relates to loss of use has reached maximum medical

improvement as defined in § 28-29-2 and as found pursuant to § 28-33-18(b).

SECTION 2. This act shall take effect upon passage.

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LC003107

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