A N     A C T

RELATING TO LABOR AND LABOR RELATIONS -- WORKERS' COMPENSATION

Introduced By: Senators Badeau, Ruggerio and Irons

Date Introduced : June 3, 1998

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, the term "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 most recent edition of the American Medical Association's Guide to the Evaluation of Permanent Impairment or comparable publications of the American Medical Association.

{ADD (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. ADD}

(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 Providence it shall only mean those class or classes of employees as may be designated by a city, town, or regional school district in manner herein provided to receive compensation under chapters 29 -- 38 of this title. It shall not include any partner or sole proprietor, or a person whose employment is of a casual nature, and who is employed otherwise 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; and 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. 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 hereinafter defined, 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" shall include any person, copartnership, corporation, or voluntary association, and the legal representative of a deceased employer; it shall include the state, and the city of Providence. It shall include also each city, town, and regional school district therein that shall vote or accept the provisions of chapters 29 -- 38 of this title in the manner herein provided.

(6) "General or special employer":

(i) A general employer shall include but shall not be limited to temporary help companies and employee leasing companies and shall mean a person who for consideration and as the regular course of its business supplies an employee with or without vehicle to another person.

(ii) A special employer shall mean a person who contracts for services with a general employer for the use of an employee, a vehicle, or both.

(iii) Whenever there be 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 and in that event, notwithstanding the fact that direction and control shall be in the special employer and not the general employer, the general employer, if it be 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) and both the general and special employer shall be the employer for purposes of sections 28-29-17 and 28-29-18.

(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 therewith and referable thereto.

(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 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, however, that the foregoing 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 shall preclude 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" shall mean medical doctor, surgeon, dentist, licensed psychologist, chiropractor, osteopath, podiatrist, and 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.

SECTION 2. Sections 28-33-8, 28-33-17, 28-33-17.1, 28-33-17.3, 28-33-18, 28-33-18.3, 28-33-20, and 28-33-41 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) 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 filed with the director of business regulation a preferred provider network approved 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. 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 herein contained 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.

(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 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 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), but only if filed timely. 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 thereof. 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, {ADD until maximum medical improvement, ADD} 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 and the medical advisory board. A ten percent (10%) discount may be taken on the itemized bill affidavits not filed timely 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) The type of medical treatment provided to date, including type and frequency of treatment(s);

(iii) 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) 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) An "itemized bill", as referred to herein, shall mean 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 immediately when an employee is able to return to full or modified work.

(f) (1) Compensation for medical expenses and other services under sections 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 subsection (f)(1) 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.

28-33-17. 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, {DEL exclusive of overtime pay, provided, however, that bonuses shall be averaged over the length of employment but not in excess of the preceding fifty-two (52) weeks of employment; DEL} {ADD as computed pursuant to the provisions of section 28-33-20; ADD} but not 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); provided, that 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); and provided, further, that 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); and, also, provided, 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) shall be applicable to injured employees whose injury occurred on or after September 1, 1975 and shall be applicable for the full period during which compensation is payable.

(3) (i) Spendable earnings shall be 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 November 1 and March 1, 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 the following January 1. 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 (3rd) 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 conclusively presumed 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 ( 1/10) 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 (1) hand and one (1) 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, however, 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.

(c) (1) Where the employee has persons conclusively presumed to be dependent upon 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 twenty dollars ($20.00) 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, however, 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, shall also include any children of the injured employee conceived but not born at the time of the employee's injury, and the compensation herein provided for shall be payable on account of any such children from the date of their birth.

(d) "Dependents" as provided in this section shall not include the spouse of the injured employee except as provided above in subdivisions (c)(3)(i) and (ii). 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 judge thereof 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 (10th) of May thereafter so 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) Provided, however, that if the employee thereafter is 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) The word "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 above computations 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%) thereof, which shall be paid at the same time as, but in addition to the payment.

(6) This section shall apply only to payment of weekly indemnity benefits to employees as described in subsection (f)(1), and shall 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.

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 {DEL that DEL} {ADD the pre-injury average weekly wage, exclusive of overtime, ADD} which he or she was earning at the time of his or her injury, notwithstanding an existing agreement or decree to the contrary.

(b) In the event that any employer or insurer shall have made payment of compensation benefits to an employee during any period during which the employee was not entitled to be paid in accordance with subsection (a), then in that event, the employer shall be entitled to credit for any payment of compensation made during that period of employment against future compensation benefits payable directly to the employee.

(c) An employee shall also not be entitled to compensation under chapters 29 -- 38 of this title for any period during which the employee was imprisoned as a result of a conviction of a criminal offense.

28-33-17.3. Fraud and abuse. -- (a) (1) The workers' compensation court is authorized and directed to impose sanctions and penalties necessary to maintain the integrity of and to maintain the high standards of professional conduct in the workers' compensation system. All pleadings related to proceedings under chapters 29 -- 38 of this title shall be considered an attestation by counsel that valid grounds exist for the position taken and that the pleading is not interposed for delay.

(2) If any judge determines that any proceedings have been brought, prosecuted, or defended by an employer, insurer, or their counsel without reasonable grounds, then:

(i) The whole cost of the proceedings shall be assessed upon the employer, insurer, or counsel, whoever is responsible; and

(ii) If a subsequent order requires that additional compensation be paid, a penalty of double the amount of retroactive benefits ordered shall be paid to the employee and the penalty shall not be included in any formula utilized to establish premium rates for workers' compensation insurance.

(3) If any judge determines that any proceedings have been brought or defended by an employee or his or her counsel without reasonable grounds, the whole cost of the proceedings shall be assessed against the employee or counsel, whoever is responsible.

(4) The court shall determine whether an action or defense is frivolous or conduct giving rise to the action or defense was unreasonable. Where the amount at issue is less than the actual attorneys' fees of the parties combined, the court shall exercise particular vigilance. Nothing in this subsection, however, is intended to discourage prompt payment in full of all amounts required to be paid.

(5) The appropriate body with professional disciplinary authority over the attorney shall be notified of the action.

(b) (1) It is unlawful to do any of the following:

(i) Make or cause to be made any knowingly false or fraudulent material statement or material representation for the purpose of obtaining or denying any compensation;

(ii) Present or cause to be presented any knowingly false or fraudulent written or oral material statement in support of, or in opposition to, any claim for compensation or petition regarding the continuation, termination, or modification of benefits;

(iii) Knowingly assist, aid and abet, solicit, or conspire with any person who engages in an unlawful act under this section;

(iv) Make or cause to be made any knowingly false or fraudulent statements with regard to entitlement to benefits with the intent to discourage an injured worker from claiming benefits or pursuing a claim;

(v) Wilfully misrepresent or fail to disclose any material fact in order to obtain workers' compensation insurance at less than the proper rate for the insurance including, but not limited to, intentionally misleading or failing to disclose information to an insurer regarding the appropriate rate classification of an employee; or

(vi) Willfully fail to provide a lower rate adjustment favorable to an employer as required by an approved experience rating plan or regulations promulgated by the insurance commissioners; or

(vii) Wilfully fail to report or provide false or misleading information regarding ownership changes as required by an approved experience rating plan or regulations promulgated by the insurance commissioner.

(2) For the purposes of this section, "statement" includes, but is not limited to, any endorsement of a benefit check, application for insurance coverage, oral or written statement, proof of injury, bill for services, diagnosis, prescription, hospital or provider records, x-rays, test results, or other documentation offered as proof of, or in the absence of, a loss, injury, or expense.

(3) If it is determined that any person concealed or knowingly failed to disclose that which is required by law to be revealed, knowingly gave or used perjured testimony or false evidence, knowingly made a false statement of fact, participated in the creation or presentation of evidence which he or she knows to be false, or otherwise engaged in conduct in violation of subsection (b)(1), that person shall be subject in criminal proceedings to a fine and/or penalty not exceeding fifty thousand dollars ($50,000), or double the value of the fraud, whichever is greater, or by imprisonment up to five (5) years in state prison or both.

(4) There shall be a general amnesty until July 1, 1992 for any person receiving compensation under chapters 29 -- 38 of this title, to the extent compensation has been voluntarily reduced or relinquished by the employee prior to that date.

(c) The director of labor and training shall establish a form, in consultation with the attorney general, to be sent to all workers who are presently receiving benefits and those for whom first reports of injury are filed in the future which shall give the employee notice that the endorsement of a benefit check sent pursuant to section 28-35-39 is the employee's affirmation that he or she is qualified to receive benefits under the Workers' Compensation Act. The insurers and self-insured employers are directed to send the form to all workers receiving benefits as of May 18, 1992.

{ADD (d) Any employer, or in any case where the employer is a corporation, the president, vice-president, secretary, and treasurer thereof, previously determined through civil or criminal adjudication in the last ten years to have violated this section or section 28-36-15, shall be guilty of a felony for any subsequent knowingly failing to secure compensation, and upon conviction, shall be subject to imprisonment of up to one (1) year, a fine not exceeding ten thousand dollars ($10,000), or both. In any case where the employer is a corporation, the president, vice-president, secretary, and treasurer thereof, shall be severally liable for the fine or subject to imprisonment, provided they had knowledge of the prior violation. ADD}

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 {DEL exclusive of overtime pay, provided, however, that bonuses shall be averaged over the length of employment but not in excess of the preceding fifty-two (52) week period, DEL} {ADD as computed pursuant to the provisions of section 28-38-20, ADD} and his or her spendable weekly wages, earnings, salary, or earnings capacity thereafter, 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). 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 most recent addition 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 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 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.

28-33-18.3. Continuation of benefits -- Partial incapacity. -- (a) 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 hinderance to obtaining employment suitable to his or her limitation, partial incapacity benefits shall continue. {ADD For injuries on and after July 1, 1993, the ADD} {DEL The DEL} term "material hinderance" is hereby 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.

{ADD The provisions of this subsection shall apply to all injuries from Sept. 1, 1990 to July 1, 1993. ADD}

(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), payments made to all such incapacitated employees shall be increased as of May 10, 1991, and 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) The word "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 above computations 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%) thereof, which shall be paid at the same time as but in addition to the payment.

(5) This section shall apply only to payment of weekly indemnity benefits to employees as described in subsection (b)(1), and shall 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.

28-33-20. Computation of earnings. -- (a) For the purposes of this chapter, the average weekly wage shall be ascertained as follows:

(1) For full-time or regular employees, by dividing the gross wages, {DEL exclusive DEL} {ADD inclusive ADD} of overtime pay, provided, however, that bonuses {ADD and overtime ADD} shall be averaged over the length of employment but not in excess of the preceding fifty-two (52) week period, earned by the injured worker in employment by the employer in whose service he or she is injured during the thirteen (13) calendar weeks immediately preceding the week in which he or she was injured, by the number of calendar weeks during which, or any portion of which, the worker was actually employed by that employer, including any paid vacation time; but, in making this computation, absence for seven (7) consecutive calendar days, although not in the same calendar week, shall be considered as absence for a calendar week. When the employment commenced otherwise than the beginning of a calendar week, the calendar week and wages earned during that week shall be excluded in making the above computation. When the employment previous to injury as provided above is computed to be less than a net period of two (2) calendar weeks, his or her weekly wage shall be considered to be equivalent to the average weekly wage prevailing in the same or similar employment at the time of injury except that, when an employer has agreed to pay a certain hourly wage to the worker, then the hourly wage so agreed upon shall be the hourly wage for the injured worker and his or her average weekly wage shall be computed by multiplying that hourly wage by the number of weekly hours scheduled for full-time work by full-time employees regularly employed by the employer. Where the injured employee has worked for more than one employer during the thirteen (13) weeks immediately preceding his or her injury, his or her average weekly wages shall be calculated upon the basis of wages earned from all those employers in the period involved by totaling the gross earnings from all the employers and dividing by the number of weeks in which he or she was actually employed by any employer, in the same manner as if the employee had worked for a single employer and, except in the case of apportionment of liability among successive employers as provided in section 28-34-8, the employer in whose employ the injury was sustained shall be liable for all benefits provided by chapters 29 -- 38 of this title. A schedule of the computation of the average weekly wage in compliance with this section shall be a necessary part of the memorandum of agreement required by section 28-35-1. Where the employer has been accustomed to paying the employee a sum to cover any special expense incurred by the employee by the nature of his or her employment, the sum so paid shall not be reckoned as part of the employee's wages, earnings, or salary. The fact that an employee has suffered a previous injury or received compensation therefor shall not preclude compensation for a later injury or for death; but in determining the compensation for the later injury or death, his or her average weekly wages shall be such sum as will reasonably represent his or her weekly earning capacity at the time of the later injury, in the employment in which he or she was working at that time, and shall be arrived at according to, and subject to the limitations of, the provisions of this section; provided, that in computing the average weekly wages earned subsequent to the first injury, the time worked and wages earned prior to that injury shall be excluded.

(2) In occupations that are seasonal, the average weekly wage shall be taken to be one-fifty second ( 1/52) of the total wages which the employee has earned during the twelve (12) calendar months immediately preceding the injury.

(3) Wages of an employee working part-time shall be taken to be the gross wages earned during the number of weeks so employed, or of weeks in which the employee worked, up to a maximum of twenty-six (26) calendar weeks immediately preceding the date of injury, divided by the number of weeks employed, or by twenty-six (26), as the case may be. "Part-time" means working by custom and practice under the verbal or written employment contract in force at the time of the injury, where the employee agrees to work or is expected to work on a regular basis less than twenty (20) hours per week. Wages shall be calculated as follows:

(i) For part-time employees, by dividing the gross wages, {DEL exclusive DEL} {ADD inclusive ADD} of overtime pay, provided, however, any bonuses {ADD and overtime ADD} shall be averaged over the length of employment but not in excess of the preceding fifty-two (52) week period, earned by the injured worker in employment by the employer in whose service he or she is injured during the twenty-six (26) consecutive calendar weeks immediately preceding the week in which he or she was injured, by the number of calendar weeks during which, or any portion of which, the worker was actually employed by that employer, including any paid vacation time; but, in making this computation, absence for seven (7) consecutive calendar days, although not in the same calendar week, shall be considered as absence for a calendar week. When the employment commenced otherwise than the beginning of a calendar week, the calendar week and wages earned during that week shall be excluded in making the above computation. When the employment previous to injury as provided above is computed to be less than a net period of two (2) weeks, the weekly wage shall be considered to be equivalent to the average weekly wage prevailing in the same or similar employment at the time of injury except that when an employer has agreed to pay a certain hourly wage to the worker, then the hourly wage so agreed upon shall be the hourly wage for the injured worker and his or her average weekly wage shall be computed by multiplying that hourly wage by the number of weekly hours agreed upon in the contract of hire.

(ii) In the event the injured employee had concurrent employment with one or more additional employers at the time of injury, the average weekly wage shall be calculated for the twenty-six (26) calendar weeks preceding the week in which the employee was injured upon the basis of wages earned from all those employers in the period involved by totaling the gross earnings from all the employers and dividing by the number of usable weeks the employee actually was employed by that employer, in the same manner as if the employee had worked for a single employer; provided, in the case of apportionment of liability among successive employers pursuant to section 28-34-8, the employer in whose employ the injury was sustained shall be liable for all benefits provided by chapters 29 -- 38 of this title. In the case that the injured employee's other employer is a full-time employer, the average weekly wage shall be calculated according to subdivision (1) for the thirteen (13) calendar weeks immediately preceding the week in which he or she was injured. Calculations for part-time employment shall be calculated separately for the twenty-six (26) calendar weeks immediately preceding the week of injury. A schedule of computation of the average weekly wage in compliance with this section shall be a necessary part of the memorandum of agreement required by section 28-35-1.

(iii) Where the employer is accustomed to paying the employee a sum to cover any special expense incurred by the employee by the nature of the employment, the sum so paid shall not be reckoned as part of the employee's wages, earnings, or salary. The fact that an employee has suffered a previous injury or received compensation therefor shall not preclude compensation for a later injury or for death; but in determining the compensation for the later injury or death, the average weekly wage shall be such sum as will reasonably represent the employee's earning capacity at the time of the later injury, in the employment in which he or she was working at that time, and shall be derived according to, and subject to, the limitations of the provisions of this section; provided, that in computing the average weekly wages earned subsequent to the first injury, the time worked and wages earned prior to that injury shall be excluded.

28-33-41. Rehabilitation of injured persons -- Panel of rehabilitation advisors -- Reports required. -- (a) (1) The department and the workers' compensation court shall expedite the rehabilitation of and the return to remunerative employment of all disabled employees injured subject to chapters 29 -- 38 of this title.

(2) Rehabilitation means the prompt provision of appropriate services necessary to restore an occupationally injured or diseased employee to his or her optimum physical, mental, vocational, and economic usefulness. This may require medical, vocational, and/or reemployment services to restore an occupationally disabled employee as nearly as possible to his or her pre-injury status. As a procedure, rehabilitation may include three (3) overlapping and interrelated components:

(i) Medical restorative services.. - (A) Medical treatment and related services needed to restore the occupationally disabled employee to a state of health as near as possible to that which existed prior to the occupational injury or disease. These services may include, but are not limited to, the following: medical, surgical, hospital, nursing services, attendant care, chiropractic care, physical therapy, occupational therapy, medicines, prostheses, orthoses, other physical rehabilitation services, including psychosocial services, and reasonable travel expenses incurred in procuring the services.

(B) Treatment by spiritual means.. - (I) Nothing in this chapter shall be construed to require an employee who in good faith relies on or is treated by prayer or spiritual means by a duly accredited practitioner of a well recognized church to undergo any medical or surgical treatment, and weekly compensation benefits may not be suspended or terminated on the grounds that the employee refuses to accept recommended medical or surgical benefits. The employee shall submit to all physical examinations as required by chapters 29 -- 38 of this title.

(II) However, a private employer, insurer, self-insurer or group self-insurer may pay or reimburse an employee for any costs associated with treatment by prayer or spiritual means.

(ii) Vocational restorative services.. - Vocational services needed to return the disabled employee to his or her pre-injury employment or, if that is not possible, to a state of employability in suitable alternative employment. These services may include, but are not limited to, the following: psychological and vocational evaluations, counseling, and training.

(iii) Reemployment services.. - Services used to return the occupationally disabled employee to suitable, remunerative employment as adjudged by his or her functional and vocational ability at that time.

(3) To this end, there is hereby created a panel of workers' compensation medical advisors consisting of physicians, psychologists, ergonomists, and physical and vocational rehabilitation specialists who shall be appointed by the director as provided in subsection (f). Upon request, members of the panel shall advise the director in matters pertaining to rehabilitation of injured workers whose condition is reported to the director as provided herein.

(b) (1) Any employer or any injured employee with total disability or permanent partial disability to whom the insurance carrier or certificated employer has paid compensation for a period of three (3) months or more, and to whom compensation is still being paid, or his or her employer or insurer may submit a proposal for a rehabilitation program to the director for approval.

(2) Action shall be taken as in the judgment of the director shall seem practicable and likely to speed the recovery and rehabilitation of injured workers; provided, however, that rehabilitative services shall be appropriate to the needs and capabilities of injured workers.

(3) Prior to the approval of any rehabilitation program by the director, the insurance carrier or self-insured employer and the injured worker must be notified of the contents of the proposed program and provided an opportunity to respond to it.

(c) Compensation payments shall not be diminished or terminated while the employee is participating in a rehabilitation program approved by the director, or while a proposal for approval of a rehabilitation plan has been filed with the department of labor and training prior to the date on which an employer's petition to reduce or terminate benefits has been filed, while the plan is pending approval by the director. Provided, however, that compensation payments shall be suspended while an injured employee wilfully refuses to participate in a rehabilitation program approved by the director. When the employee has completed an approved rehabilitation program, the rehabilitation provider shall recommend, in the instance of vocational rehabilitation, an earnings capacity, or in the instance of physical rehabilitation provided or prescribed by a physician, a degree of functional impairment, and the employee shall be referred to the court for an earnings capacity adjustment to benefits, unless the employee has returned to gainful employment.

(d) Entry by an employee to the Donley Rehabilitation Center or any other rehabilitative program approved by the director after an employer's petition or notice of intention to discontinue, suspend, or reduce payments has been filed and is pending shall only be by order of the workers' compensation court after notice and opportunity to be heard.

(e) The employer shall bear the expense of rehabilitative services agreed to or ordered pursuant to this section. If those rehabilitative services require residence at or near or travel to a rehabilitative facility, the employer shall pay the employee's reasonable expense for board, lodging, and/or travel.

(f) The director shall appoint as many members of the panel of advisors as shall be necessary.

(g) Except for the provisions of this section, the provisions of section 28-33-8 shall remain in full force and effect.

(h) For the purposes of this section, the director shall promulgate rules and regulations pursuant to chapter 35 of title 42 for certifying rehabilitation providers, evaluators, and counselors, and the director shall maintain a registry of those persons so certified. No plan of rehabilitation submitted to the director requiring the services of a rehabilitation counselor shall be approved unless the counselor is certified by the director.

{ADD (i) Review of a director's determination; ADD}

{ADD (1) Any party aggrieved of a determination made by the director of the department of labor, or his or her designee, pursuant to this section, may institute proceedings to review said determination by filing a petition with the workers' compensation court. The petition shall set forth the date of the order, and a concise statement of the grounds upon which the appellant seeks relief. No responsive pleading need be filed unless required by statute or by order of the workers' compensation court. ADD}

{ADD (2) The appellant shall file the petition to review the director's order, together with a copy of the decision and order to be reviewed, within thirty (30) days of the date on which the order was entered. ADD}

{ADD (3) Upon receipt of the petition to review the order of the director, the workers' compensation court administrator's office shall assign the matter to a judge who shall fix a date upon which legal memoranda shall be filed with the workers' compensation court. In the event that either party seeks to rely upon evidence introduced before the director in support of their arguments, the party shall submit the necessary portions of the transcript of the hearing with their memoranda. ADD}

{ADD (4) The review proceeding shall be governed by the workers' compensation court rules of procedure and shall be confined to the record. In cases of alleged irregularities in procedure before the director, not shown in the record, proof and/or evidence thereon may be taken in the workers' compensation court. ADD}

{ADD (5) The workers' compensation court shall not substitute its judgment for that of the director as to the weight of the evidence on questions of fact. The workers' compensation court may affirm the decision of the director or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, conclusions, or decisions are: (i) in violation of constitutional or statutory provisions; (ii) in excess of the statutory authority of the director; (iii) made upon unlawful procedure; (iv) affected by other error of law; (v) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole records; or (iv) arbitrary or capricious of characterized by abuse of discretion or clearly unwarranted exercise of discretion. ADD}

{ADD (6) During the pendency of the appeal the determination made by the director of the department of labor, or his or her designee, shall be stayed. ADD}

SECTION 3. Sections 28-35-1, 28-35-46, and 28-35-47 of the General Laws in Chapter 28-35 entitled "Workers' Compensation--Procedure" are hereby amended to read as follows:

28-35-1. Filing of memorandum of agreement. -- (a) If the employer makes payments of compensation to an employee or those entitled to compensation on account of the death of an employee under chapters 29 -- 38 of this title, a memorandum of that agreement signed by the employer or the employer's insurer shall be filed with the department which shall forthwith docket it in a book kept for that purpose.

(b) The memorandum shall include:

(1) The names of the employee, employer and insurance carrier;

(2) The date, place, nature, and location of the injury on the employee's body;

(3) The names of the employee's other employers, if any, or a statement that there is no multiple employment, if that is the case;

(4) The rate upon which the compensation is based; {DEL and DEL}

(5) Any other information required by the director {DEL . DEL} {ADD ; and ADD}

{ADD (6) The average weekly straight time earnings earned by the employee for the thirteen (13) weeks prior to injury and the amount of overtime pay included in calculating the employee's average weekly wage. ADD}

(c) The employer shall send a copy of the memorandum and any amendments thereto to the employee and his or her attorney or the representative of the decedent and its attorney by certified mail, return receipt requested, at the same time as it is filed with the department.

(d) The employer shall file a memorandum pursuant to this section within ten (10) days of the initial payment by the employer or insurer.

(e) Upon the filing of the memorandum of agreement with the department, the memorandum shall be as binding upon the party filing the memorandum as a preliminary determination, order, or decree.

28-35-46. Notice of intent to discontinue, suspend, or reduce payments -- Filing -- Form. -- Before an employer may discontinue, suspend, or reduce compensation payments whether they are being received under an agreement, memorandum of agreement, award, order, finding, or decree, or when suitable alternative employment has been offered to the employee pursuant to section 28-33-18.2, the employer shall notify the court and the employee of his or her intention to discontinue, suspend, or reduce payments and the reason therefor by filing with the judge an affidavit setting forth the factual basis for filing the petition to review along with a copy of the medical reports upon which the employer seeks to justify the discontinuance, suspension, or reduction in payments. A copy of said affidavit and medical report shall be forwarded to the employee. The notice of intention to discontinue, suspend, or reduce payments must be given fifteen (15) days prior to the proposed date of discontinuance, suspension, or reduction; provided, however, that where an employee has returned to work at an average weekly wage equal to or in excess of that which he or she was earning at the time of his or her injury, {ADD not including overtime, ADD} the notice of intention to discontinue, suspend, or reduce payments herein provided for may be given five (5) days prior to the proposed date of discontinuance. Notices shall be in substantially the following form:Notice to Workers' Compensation Court and Employee of Intention to Discontinue, Suspend, or Reduce Payment You are hereby notified that the undersigned employer intends on the . . . . . . . . day of . . . . . . . . . . . . . . . . . . . . 19. . . . . . , to discontinue, suspend, or reduce the payments of compensation to the above-named employee for the following reasons, to wit: (1) Employee has returned to work at an average weekly wage equal to or in excess of that which he or she was earning at the time of his or her injury {DEL . DEL} {ADD , not including overtime. ADD} (2) Employee has returned to work and is earning wages in the sum of . . . . . . . . . . dollars weekly. (3) Employee has been discharged by his or her treating physician on the . . . . . . day of . . . . . . . . . . 19. . . . .

28-35-47. Wage transcript supporting allegation of return to work. -- Where the notice of intention to discontinue, suspend, or reduce payments of compensation alleges that the employee has returned to work at an average weekly wage equal to or in excess of that which he or she was earning at the time of his or her injury {ADD , not including overtime ADD}, or has returned to work for wages less than he or she was earning at the time of the injury, the notice shall contain a signed wage transcript signed by the treasurer of the employer, or other appropriate official, setting forth the number of hours worked, the rate of pay, and the wages earned during the period relied upon corroborating the allegation. Provided, however, that indemnity benefits may be discontinued if the employer files with the department of labor and training a wage transcript showing that the employee has returned to work for at least two (2) consecutive weeks at a salary equal to or in excess of that which he or she was earning {ADD , not including overtime, ADD} at the time of his or her injury. Notice of the filing shall be sent to the employee and/or the employee's legal representative. Provided, further, that if the employee files an objection within two (2) weeks, the matter shall be referred to the court for disposition pursuant to section 28-35-51, and the court may order benefits reinstated.

SECTION 4. Section 28-36-15 of the General Laws in Chapter 28-36 entitled "Workers' Compensation -- Insurance" is hereby amended to read as follows:

28-36-15. Penalty for failure to secure compensation -- Personal liability of corporate officers. -- (a) Any employer required to secure the payment of compensation under chapters 29 -- 38 of this title who {ADDknowinglyADD} fails to secure that compensation shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than {DEL one hundred dollars ($100) DEL} {ADD five hundred dollars ($500) ADD} and not more than {DEL five hundred dollars ($500) DEL} {ADD one thousand dollars ($1,000) ADD} for each day of noncompliance with the requirements of this title. {ADD The director shall institute any and all reasonable measures to comprehensibly monitor, investigate, and otherwise discover all employer non-compliance with this section. ADD} The director may in his or her discretion assess an administrative penalty {ADD of not less than five hundred dollars ($500) and not more than one thousand dollars ($1,000) per day for each day of non-compliance ADD} and/or bring a civil action in any court of competent jurisdiction, or to refer the matter to the attorney general for prosecution of criminal charges. {ADD The director shall also have the power to suspend the operation of the business ADD}. Each day shall constitute a separate and distinct offense for calculation of the fine. Provided, however, that in no case shall {DEL the fine exceed an amount determined to be three (3) times the payment of the premium as determined by the payroll audit for the time period in which the employer was required to secure the payment of compensation, or by DEL} imprisonment {ADD be ADD} for {DEL not DEL} more than one year, {DEL or by both fine and imprisonment; DEL} and in any case where that employer is a corporation, the president, vice president, secretary, and treasurer thereof shall be also severally liable to the fine or imprisonment as herein provided for the failure of that corporation to secure the payment of compensation; and the president, vice president, secretary, and treasurer shall be severally personally liable, jointly with the corporation, for any compensation or other benefit which may accrue under those chapters in respect to any injury which may occur to any employee of that corporation while it shall so fail to secure the payment of compensation as required by those chapters. All criminal actions for any violation of this section shall be prosecuted by the attorney general. The attorney general shall prosecute actions to enforce the payment of penalties and fines at the request of the director. The workers' compensation court shall have jurisdiction over all civil actions filed pursuant to this section.

(b) As soon as practicable after a complaint under this section is filed, the director shall examine the complaint to determine whether cause exists for further inquiry. Should the director find cause, the director shall thereupon give the parties to the complaint not less then ten (10) days' notice by mail of the time and place of hearing. After the hearing, parties to the complaint shall be given notice by mail by the director of his or her determination of the controversy, including the amount of the payment the director recommends as a bond or penalty. Any party shall have the right to appeal from any determination or order made under this chapter. Any appeal authorized under this chapter shall be made to the workers' compensation court in the first instance, and from the workers' compensation court to the supreme court in accordance with section 28-35-30. The director, in his or her discretion, may bring a civil action in any court of competent jurisdiction to collect all payments and penalties ordered. All civil actions for any violations of this chapter or of any of the rules or regulations promulgated by the director, or for the collection of payments in accordance with section 28-37-13 or penalties hereunder, shall be prosecuted by any qualified member of the Rhode Island bar whom the director may designate, in the name of the director, and the director shall be exempt from giving surety for costs in any proceedings.

(c) The director shall collect all payments under this chapter under such rules and regulations as may be set forth by the director. All fines collected pursuant to this section shall be deposited to a restricted receipt account to be administered by the director of the department of labor and training in his or her sole discretion to carry out chapters 29 -- 38 of this title.

SECTION 5. Section 28-37-4 of the General Laws in Chapter 28-37 entitled "Workers' Compensation Administrative Fund" is hereby repealed.

{DEL 28-37-4. Second injury payments. -- DEL}{DEL (a) It is the purpose of this section to encourage the employment of disabled employees by limiting the liability of employers for compensation and medical charges when an injury to an employee aggravates a preexisting condition to cause a greater disability or loss of earnings than would have resulted from the second injury alone. It is not the intent of this section to limit the liability of employers who hire, rehire, or retain in employment those employees who are disabled from non-work-related pre-existing conditions and who suffer an injury which aggravates a pre-existing condition to cause a greater disability or loss of earnings than would have resulted from the second injury alone. The director shall inform all employers of the existence and function of the fund and shall interpret eligibility requirements liberally. This section shall be construed to neither create or provide, nor limit or deny, any benefits for injured employees or their dependents not otherwise provided by chapters 29 -- 38 of this title. The entitlement of an injured employee or his or her dependents to compensation pursuant to chapters 29 -- 38 of this title shall be determined without regard to this section, the provisions of which shall be considered only in determining whether an employer who has paid compensation pursuant to chapters 29 -- 38 of this title, is entitled to reimbursement from the special fund. DEL}

{DEL (b) If an employee, who was previously disabled from any work-related cause or origin, aggravates the preexisting condition, any employer in whose employ the employee sustains this aggravation shall in the first instance pay all compensation payable pursuant to chapters 29 -- 38 of this title, but the employer shall be reimbursed from the special fund established pursuant to section 28-37-1 for all compensation payments subsequent to those payable for the first twenty-six (26) weeks of disability. DEL}

{DEL (c) If the subsequent injury of an employee shall result in the death of the employee and it shall be determined that the death would not have occurred except for the preexisting disability, the employer shall in the first instance pay the compensation payable pursuant to chapters 29 -- 38 of this title, but he or she shall be reimbursed from the special fund for all compensation payable in excess of twenty-six (26) weeks. DEL}

{DEL (d) In order to qualify under this section for reimbursement from the special fund, the employer either must establish by written records that it had knowledge of the preexisting disability at the time that the employee was hired, or if that employer has applied for and received a workers' compensation rating credit pursuant to subsection (h), and the employer has satisfied all other requirements of this section, the employer shall qualify for reimbursement under this section. DEL}

{DEL (e) As used in this section, "preexisting disability" means any disability, due to work-related injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed. DEL}

{DEL (f) For the purposes of this section, when an injured worker qualifies or is eligible to receive compensation under the special fund, the state accedes to the rights, responsibilities, and duties of an employer especially with regard to the provisions of section 28-33-18.2. DEL}

{DEL (g) While an employer or insurer seeks reimbursement under this section, any payments due to the employee must continue to be made by the employer or insurer.(h) When an employer knowingly employs an employee out of work due to a work-related injury or illness who is receiving workers' compensation payments, the employer will receive a workers' compensation rating credit for the following year to be determined by the department of business regulation for each and every partially incapacitated employee hired who remains in its employ for the length of partial incapacity. DEL}

SECTION 6. Chapter 42-29 of the General Laws entitled "Sheriffs " is hereby amended by adding thereto the following section:

{ADD 42-29-20.1. Attendance on workers' compensation court. -- ADD} {ADD Upon the request of the chief judge of the workers' compensation court, the sheriff of the county in which the court is held, or one of his or her deputies, shall attend the sessions of the court. ADD}

SECTION 7. Sections 1, 2, 3, 4, 6 and 7 of this act shall take effect upon passage.

Section 5 of this act shall take effect upon passage and shall apply to all claims for reimbursement against the fund in which the director of the department of labor and training has not accepted liability nor has been adjudged liable for reimbursement; provided, that the repeal shall not abrogate or impair any substantive rights or preexisting agreements, preliminary determinations, orders or decrees between the director and any employer, employee or insurer under which the director has accepted liability or has been adjudged liable under the terms of the repealed section.