2012 -- H 7616

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LC01620

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO LABOR AND LABOR RELATIONS - RE-EMPLOYMENT OF WORKERS

WHO BECOME DISABLED

     Introduced By: Representatives Ehrhardt, Naughton, Savage, Martin, and Morgan

     Date Introduced: February 16, 2012

     Referred To: House Labor

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 28-31-5 of the General Laws in Chapter 28-31 entitled "Workers'

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Compensation - State and Municipal Employees" is hereby amended to read as follows:

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     28-31-5. Payment of benefits for state employees. -- (a) The expenses incurred for and

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in behalf of the state under the provisions of sections 28-31-3, 28-33-5, 28-33-12, 28-33-16, 28-

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33-17, 28-33-18, 28-33-19, 28-33-34, 28-33-35, 28-33-36, 28-33-37, and 28-33-39 and for

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benefits similar to the benefits provided for employees of employers other than the state under the

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provisions of section 28-37-8 as determined by a prior agreement or settled as provided by

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section 28-31-4 or by the department's preliminary determination or decree of the workers'

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compensation court, shall be paid out of any money in the state treasury not otherwise

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appropriated and the state controller shall draw his or her order or orders upon the general

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treasurer for the payment of the claim in accordance with the provisions of the agreement,

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preliminary determination, or decree upon receipt by the controller of a copy of the agreement or

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preliminary determination certified by the director or of a copy of the decree certified by the

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administrator of the workers' compensation court.

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      (b) Payments for continuing total incapacity until the employee's total incapacity has

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ended or until his or her death similar to the payments which are provided for employees of

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employers other than the state by section 28-37-8 shall in the case of an employee of the state be

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paid out of any money in the state treasury not otherwise appropriated.

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      (c) Benefits similar to the provisions of section 28-37-8 shall be paid to employees of the

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state whose final payment attaining the maximum limit for compensation for total incapacity as

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provided by section 28-33-17 is paid subsequent to January 1, 1969 and who continue to be

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totally incapacitated for work due to an injury sustained while employed by the state.

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      (d) The provisions of this section are subject to the provisions of section 28-33-18.2.

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suitable alternative employment, and section 28-33-47, reinstatement of injured worker.

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     SECTION 2. Sections 36-4-23.1, 36-4-25 and 36-4-39 of the General Laws in Chapter

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36-4 entitled "Merit System" are hereby amended to read as follows:

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     36-4-23.1. Reemployment lists. – (a) Any person who holds full status in the classified

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service and resigns in good standing shall be entitled to have his or her name placed on an

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appropriate reemployment list, provided that the person so requests in writing within three (3)

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years of the date of his or her termination from the state service.

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     (b) Any person with full status who has resigned and whose appointing authority has

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failed to certify that he or she has resigned in good standing or any person with full status who

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has been dismissed from the classified service may request in writing within three (3) years of the

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date of his or her termination that his or her name be placed on the appropriate reemployment list

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and the request may be granted at the discretion of the personnel administrator. Each name placed

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on a reemployment list shall be stricken therefrom at the expiration of three (3) years from the

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official termination date.

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     (c) Any person who holds full status in the classified service and who has sustained a

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compensable injury under the provisions of chapter 28-31 and/or sections 16-16-14, 16-16-16,

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16-16-17, 36-10-12, 36-10-14, 36-10-15, 45-21-20, 45-21-21, 45-21.2-7, and/or 45-21.2-9, upon

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written demand for reinstatement pursuant to section 28-33-47 shall be entitled to have his or her

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name placed on an appropriate reemployment list.

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     36-4-25. Designation of appropriate list for filling of vacancies. -- The preferred

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reemployment list shall have precedence over all other lists for the filling of vacancies of

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comparable or less comparable positions in state service until the list is exhausted. Vacancies in

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positions in the classified service shall be filled as far as practicable by promotional

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appointments. Whenever a vacancy does exist in any position in the classified service, the

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appointing authority may choose to shall use either the employment, promotion, or reemployment

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list to fill the vacancy and shall request the personnel administrator to certify the names of

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persons eligible for appointment from the designated reemployment list; provided, however, that

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in the event of the reorganization of a department or division, or the abolishment of a position or

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positions in state service, any classified employee with permanent status affected thereby shall be

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placed in a comparable position within the department or division. If, however, placement within

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the department or division is not possible, then the affected employee shall be placed in a

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comparable position elsewhere in state service. Whenever a position is allocated or reallocated

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upward, the classified employee with permanent status holding that position shall be given an

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opportunity to qualify for the allocated or reallocated position by taking a qualifying examination

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and shall be placed on leave of absence from the old position until the employee has gained status

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or failed to qualify for the position.

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     Whenever a vacancy does exist in any position in the classified service, the appointing

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authority may choose to use either the employment or promotion list to fill the vacancy and shall

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request the personnel administrator to certify the names of persons eligible for appointment from

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the designated list provided there are no persons eligible for appointment on the reemployment

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list.

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     36-4-39. Retirement or transfer to light duty. – (a) When an employee has become

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physically or mentally incapable of or unfit for the efficient performance of the duties of his or

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her position with or without reasonable accommodation by reason of infirmities due to advanced

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age or other disability, it shall be the duty of the appointing authority to transfer the employee to

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less arduous duties or to order his or her retirement. The appeal procedure established for

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dismissals shall apply to retirements ordered under authority of this section.

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     (b) The provisions of this section are subject to the provisions of section 28-33-18.2

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suitable alternative employment and section 28-33-47 reinstatement of injured worker.

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     SECTION 3. Sections 16-16-14, 16-16-16 and 16-16-19 of the General Laws in Chapter

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16-16 entitled "Teachers' Retirement" are hereby amended to read as follows:

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     16-16-14. Retirement for ordinary disability. -- (a) Application for ordinary disability

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may be made by a teacher, his or her department head, or a person acting in the teacher's behalf,

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while in active service or on leave of absence for illness, provided that the teacher has had five

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(5) or more years of total service of which at least three (3) consecutive years shall have been as a

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teacher, and the teacher is not entitled to a regular service retirement allowance. A statement from

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a physician shall accompany the application stating that the teacher is physically or mentally

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incapacitated for the performance of duty and that he or she should be retired.

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      (b) A medical examination of the teacher shall be made by three (3) physicians engaged

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by the retirement board for this purpose, and should the medical examination show that the

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teacher is physically or mentally incapacitated for the performance of duty duties of the position

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with or without reasonable accommodation and ought to be retired, the physicians shall so report

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and certify to the retirement board and the retirement board, may retire the teacher for ordinary

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disability.

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      (c) The retirement board shall establish uniform eligibility requirements, standards, and

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criteria for ordinary disability which shall apply to all members who make application for

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retirement for ordinary disability.

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     (d) The provisions of this section are subject to the provisions of section 28-33-18.2

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suitable alternative employment and section 28-33-47 reinstatement of injured worker.

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     16-16-16. Retirement for accidental disability. -- (a) Medical examination of an active

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teacher or a member on leave of absence for illness or injury for accidental disability, and

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investigation of all statements and certificates by him or her or in his or her behalf in connection

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with the accidental disability, shall be made upon the application of the head of the department in

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which the teacher is employed or upon application of the teacher, or of a person acting in his or

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her behalf, stating that the teacher is physically or mentally incapacitated for the performance of

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service as a natural and proximate result of an accident, while in the performance of duty, and

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certify the definite time, place, and conditions of the duty performed by the teacher resulting in

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the alleged disability, and that the alleged disability is not the result of willful negligence or

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misconduct on the part of the teacher, and is not the result of age or length of service, and that the

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teacher is physically or mentally incapacitated for the performance of duties of the position with

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or without reasonable accommodation and should, therefore, be retired.

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      (b) The application shall be made within five (5) years of the alleged accident from

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which the injury has resulted in the teacher's present disability, and shall be accompanied by an

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accident report and a physician's report certifying to the disability; provided, that, if the teacher

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was able to return to his or her employment and subsequently reinjures or aggravates the same

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injury, the application shall be made within the later of five (5) years of the alleged accident or

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three (3) years of the reinjury or aggravation. The application may shall also state that the teacher

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is permanently and totally disabled from any employment with or without reasonable

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accommodation.

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      (c) If a medical examination conducted by three (3) physicians engaged by the retirement

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board, and any investigation that the retirement board may desire to make, shall show that the

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teacher is physically or mentally incapacitated for the performance of service as a natural and

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proximate result of an accident, while in the performance of duty, and that the disability is not the

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result of willful negligence or misconduct on the part of the teacher, and is not the result of age or

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length of service, and that the teacher has not attained the age of sixty-five (65) years, and that the

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teacher should be retired, the physicians who conducted the examination shall so certify to the

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retirement board stating the time, place, and conditions of service performed by the teacher

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resulting in the disability, and the retirement board may grant the teacher an accidental disability

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benefit.

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      (d) The retirement board shall establish uniform eligibility requirements, standards, and

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criteria for accidental disability which shall apply to all members who make application for

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accidental disability benefits.

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     (e) The provisions of this section are subject to the provisions of section 28-33-18.2

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suitable alternative employment and section 28-33-47 reinstatement of injured worker.

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     16-16-19. Reexamination of disability beneficiaries -- Reduction of benefit --

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Reinstatement to active service. – (a) Once each year the retirement board may, and upon his or

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her application shall, require any disability beneficiary under the minimum age of service

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retirement to undergo a medical examination, the examination to be made at the place of

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residence of the beneficiary, or other place mutually agreed upon, by a physician or physicians

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engaged by the retirement board. If the examination indicates that the beneficiary is able to

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engage in a gainful occupation, with or without reasonable accommodations, his or her name

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shall be placed on appropriate reemployment lists of candidates prepared for appointment to

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positions in his or her department or agency for which he or she is stated to be qualified, of a

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salary grade not exceeding that from which he or she was last retired. Should the beneficiary be

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engaged in a gainful occupation or should he or she be offered service as a result of the placing of

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his or her name on a list of candidates, the retirement board shall adjust, and, from time to time

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readjust, the amount of his or her disability benefit to an amount which shall not exceed the rate

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of benefit upon which he or she was originally retired, and which, when added to the amount then

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earnable by him or her, shall not exceed his or her rate of annual compensation currently for the

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classification that the disability annuitant held prior to retirement. Should any disability

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beneficiary under the minimum age of service retirement refuse to submit to one medical

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examination in any year by a physician or physicians designated by the retirement board, his or

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her benefit shall be discontinued until his or her withdrawal of the refusal, and should his or her

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refusal continue for one year, all his or her rights in and to the benefit shall be revoked by the

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retirement board. A disability beneficiary, reinstated to active service, shall be reinstated as a

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member and participate in the rights of the retirement system, to the same extent as any other

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teacher.

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     (b) The provisions of this section are subject to the provisions of section 28-33-18.2

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suitable alternative employment and section 28-33-47 reinstatement of injured worker.

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     SECTION 4. Sections 36-10-12, 36-10-14 and 36-10-17 of the General Laws in Chapter

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36-10 entitled "Retirement System-Contributions and Benefits" are hereby amended to read as

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follows:

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     36-10-12. Retirement for ordinary disability. -- (a) Application for ordinary disability

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may be made by a member, his or her department head, or a person acting in the member's behalf,

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while in active service or on leave of absence for illness, provided that the member has had five

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(5) or more years of total service of which at least three (3) consecutive years shall have been as

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an employee of the state or as a teacher as defined in chapter 16 of title 16 and the member is not

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entitled to a regular service retirement allowance. A statement from a physician shall accompany

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the application stating that the member is physically or mentally incapacitated for the

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performance of duty duties of the position with or without reasonable accommodations and that

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he or she should be retired.

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      (b) A medical examination of the member shall be made by three (3) physicians engaged

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by the retirement board for this purpose, and should the medical examination show that the

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member is physically or mentally incapacitated for the performance of duty and ought to be

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retired, the physicians shall so report and certify to the retirement board, and the retirement board

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may retire the member for ordinary disability.

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      (c) The retirement board shall establish uniform eligibility requirement standards and

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criteria for ordinary disability which shall apply to all members who make application for

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retirement for ordinary disability.

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     (d) The provisions of this section are subject to the provisions of section 28-33-18.2

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suitable alternative employment and section 28-33-47 reinstatement of injured worker.

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     36-10-14. Retirement for accidental disability. -- (a) Medical examination of an active

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member or a member on leave of absence for illness or injury for accidental disability and

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investigation of all statements and certificates by him or her or in his or her behalf in connection

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therewith shall be made upon the application of the head of the department in which the member

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is employed or upon application of the member, or of a person acting in his or her behalf, stating

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that the member is physically or mentally incapacitated for the performance of service as a

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natural and proximate result of an accident while in the performance of duty, and certify the

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definite time, place, and conditions of the duty performed by the member resulting in the alleged

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disability, and that the alleged disability is not the result of willful negligence or misconduct on

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the part of the member, and is not the result of age or length of service, and that the member is

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mentally or physically incapacitated for the performance of duties of the position with or without

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reasonable accommodation and should, therefore, be retired.

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      (b) The application shall be made within five (5) years of the alleged accident from

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which the injury has resulted in the members present disability and shall be accompanied by an

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accident report and a physicians report certifying to the disability; provided that if the member

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was able to return to his or her employment and subsequently reinjures or aggravates the same

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injury, the application shall be made within the later of five (5) years of the alleged accident or

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three (3) years of the reinjury or aggravation. The application may shall also state the member is

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permanently and totally disabled from any employment with or without reasonable

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accommodation.

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      (c) If a medical examination conducted by three (3) physicians engaged by the retirement

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board and such investigation as the retirement board may desire to make shall show that the

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member is physically or mentally incapacitated for the performance of service as a natural and

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proximate result of an accident, while in the performance of duty, and that the disability is not the

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result of willful negligence or misconduct on the part of the member, and is not the result of age

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or length of service, and that the member has not attained the age of sixty-five (65), and that the

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member should be retired, the physicians who conducted the examination shall so certify to the

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retirement board stating the time, place, and conditions of service performed by the member

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resulting in the disability and the retirement board may grant the member an accidental disability

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benefit.

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      (d) The retirement board shall establish uniform eligibility requirements, standards, and

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criteria for accidental disability which shall apply to all members who make application for

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accidental disability benefits.

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     (e) The provisions of this section are subject to the provisions of section 28-33-18.2

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suitable alternative employment and section 28-33-47 reinstatement of injured worker.

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     36-10-17. Reexamination of disability beneficiaries -- Reduction of benefit --

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Reinstatement to active service. – (a) Once each year the retirement board may, and upon his or

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her application shall, require any disability beneficiary under the minimum age of service

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retirement to undergo a medical examination. The examination to be made at the place of

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residence of the beneficiary or other place mutually agreed upon by a physician or physicians

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engaged by the retirement board. If the examination indicates that the beneficiary is able to

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engage in a gainful occupation, with or without reasonable accommodation, his or her name shall

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be placed on such appropriate reemployment lists of candidates as are prepared for appointment

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to positions in his or her department or agency for which he or she is stated to be qualified and for

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a salary grade not exceeding that from which he or she was last retired. Should the beneficiary be

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engaged in a gainful occupation or should he or she be offered service as a result of the placing of

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his or her name on a list of candidates, the retirement board shall adjust and from time to time

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readjust, the amount of his or her disability benefit to an amount which shall not exceed the rate

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of benefit upon which he or she was originally retired, and which, when added to the amount then

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earnable by him or her, shall not exceed his or her rate of annual compensation currently for the

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classification that the disability annuitant held prior to retirement. Should any disability

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beneficiary under the minimum age of service retirement refuse to submit to one medical

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examination in any year by a physician or physicians designated by the retirement board, his or

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her benefit shall be discontinued until his or her withdrawal of the refusal and should his or her

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refusal continue for one year, all his or her rights in and to disability benefit shall be revoked by

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the retirement board. A disability beneficiary, reinstated to active service, shall be reinstated as a

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member and participate in the rights of the retirement system to the same extent as any other

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member.

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     (b) The provisions of this section are subject to the provisions of section 28-33-18.2

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suitable alternative employment and section 28-33-47 reinstatement of injured worker.

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     SECTION 5. Sections 45-21-19, 45-21-21 and 45-21-23 of the General Laws in Chapter

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45-21 entitled "Retirement of Municipal Employees" are hereby amended to read as follows:

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     45-21-19. Retirement for ordinary disability. -- (a) Any member who has had five (5)

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or more years of total service, may, upon the member's own application or upon application of the

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employer, or some person acting in the member's behalf, while in active service or on leave of

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absence for illness, apply for ordinary disability retirement; provided, that the member is not

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entitled to a regular service retirement allowance and; provided, that the member has at least three

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(3) consecutive years of service as an employee of a participating municipality within the five (5)

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years needed to be eligible under this section.

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      (b) A statement from a physician shall accompany the application stating that the

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member is physically or mentally incapacitated for the performance of duty duties of the position

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with or without reasonable accommodation and that the member ought to be retired.

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      (c) A medical examination of the member shall be made by three (3) physicians engaged

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by the retirement board for this purpose, and should the medical examination show that the

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member is physically or mentally incapacitated for the performance of duty and ought to be

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retired, the physicians shall so report and certify to the retirement board and the retirement board

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may retire the member for ordinary disability.

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      (d) The retirement board shall establish uniform eligibility requirement standards and

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criteria for ordinary disability which apply to all members who make application for retirement

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for ordinary disability.

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     (e) The provisions of this section are subject to the provisions of section 28-33-18.2

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suitable alternative employment and section 28-33-47 reinstatement of injured worker.

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     45-21-21. Retirement for accidental disability. -- (a) Any member in active service, or

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on leave of absence due to injury or illness, regardless of length of service, is entitled to an

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accidental disability retirement allowance. Application for the allowance shall be made by the

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member or on the member's behalf, stating that the member is physically or mentally

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incapacitated for further service as the result of an injury sustained while in the performance of

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duty and certifying the time, place, and conditions of the duty performed by the member which

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resulted in the alleged disability, and that the alleged disability was not the result of the willful

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negligence or misconduct on the part of the member, and was not the result of age or length of

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service, and that the member has not attained the age of sixty-five (65). The application shall be

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made within five (5) years of the alleged accident from which the injury has resulted in the

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member's present disability and that the member is physically or mentally incapacitated for the

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performance of duties of the position with or without reasonable accommodation and shall be

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accompanied by an accident report and a physician's report certifying the disability. If a medical

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examination made by three (3) physicians engaged by the retirement board, and other

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investigations as the board may make, confirm the statements made by the member, the board

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may grant the member an accidental disability retirement allowance.

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      (b) The retirement board shall establish uniform eligibility requirements, standards and

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criteria for accidental disability which apply to all members who make application for accidental

9-52

disability benefits.

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     45-21-23. Periodical examination of disability annuitants -- Placement on

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employment lists. -- (a) At least once each year the retirement board may, and upon application

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shall, require any disability annuitant under the minimum age for service retirement, whether in

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receipt of an ordinary disability retirement allowance or an accidental disability retirement

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allowance, to undergo a medical examination, the examination to be made at the place of

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residence of the annuitant, or other place mutually agreed upon, by a physician or physicians

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engaged by the retirement board.

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      (b) If the examination indicates that the annuitant is able to engage in a gainful

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occupation, with or without reasonable accommodation, the annuitant's name shall be placed on

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appropriate lists of candidates that are prepared for appointment to positions in the annuitant's

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department for which the annuitant is stated to be qualified, of a salary grade not less than that

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from which the annuitant was last retired.

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     (c) The provisions of this section are subject to the provisions of section 28-33-18.2

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suitable alternative employment and section 28-33-47 reinstatement of injured worker.

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     SECTION 6. Sections 45-21.2-7 and 45-21.2-9 of the General Laws in Chapter 45-21.2

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entitled "Optional Retirement for Members of Police Force and Fire Fighters" are hereby

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amended to read as follows:

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     45-21.2-7. Retirement for ordinary disability. – (a) Any member in active service who

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has five (5) years or more of total service and who is not otherwise eligible for retirement may,

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upon the member's application or upon application of the employer, be retired on an ordinary

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disability retirement allowance, subject to the restrictions set forth in sections 45-21-19, 45-21-

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20, 45-21-23, and 45-21-24.

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     (b) The provisions of this section are subject to the provisions of section 28-33-18.2

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suitable alternative employment and section 28-33-47 reinstatement of injured worker.

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     45-21.2-9. Retirement for accidental disability. -- (a) Any member in active service, or

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on leave of absence due to injury or illness regardless of length of service, is entitled to an

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accidental disability retirement allowance. Application for the allowance is made by the member

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or on the member's behalf, stating that the member is physically or mentally incapacitated for

10-13

further service as the result of an injury sustained while in the performance of duty and certifying

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to the time, place, and conditions of the duty performed by the member which resulted in the

10-15

alleged disability and that the alleged disability was not the result of the willful negligence or

10-16

misconduct on the part of the member, and was not the result of age or length of service, and that

10-17

the member has not attained the age of sixty-five (65). The application shall be made within

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eighteen (18) months of the alleged accident from which the injury has resulted in the member's

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present disability and that the member is physically or mentally incapacitated for the performance

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of duties of the position with, or without reasonable accommodation and the application shall be

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accompanied by an accident report and a physician's report certifying to the disability. If the

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member was able to return to his or her employment and subsequently reinjures or aggravates the

10-23

same injury, the member shall make another application within eighteen (18) months of the

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reinjury or aggravation which shall be accompanied by a physician's report certifying to the

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reinjury or aggravation causing the disability. If a medical examination made by three (3)

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physicians engaged by the retirement board, and other investigations as the board may make,

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confirms the statements made by the member, the board may grant the member an accidental

10-28

disability retirement allowance.

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      (b) For the purposes of subsection (a), "aggravation" shall mean an intervening work-

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related trauma that independently contributes to a member's original injury that amounts to more

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than the natural progression of the preexisting disease or condition and is not the result of age or

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length of service. The intervening independent trauma causing the aggravation must be an

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identifiable event or series of work-related events that are the proximate cause of the member's

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present condition of disability.

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      (c) "Occupational cancer", as used in this section, means a cancer arising out of

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employment as a fire fighter, due to injury due to exposures to smoke, fumes, or carcinogenic,

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poisonous, toxic, or chemical substances while in the performance of active duty in the fire

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department.

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      (d) For purposes of subsection (a), "reinjury" shall mean a recurrence of the original

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work-related injury from a specific ascertainable event. The specific event must be the proximate

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cause of the member's present condition of disability.

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      (e) Any fire fighter, including one employed by the state, or a municipal firefighter

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employed by a municipality that participates in the optional retirement for police officers and fire

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fighters as provided in this chapter, who is unable to perform his or her duties in the fire

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department by reason of a disabling occupational cancer which develops or manifests itself

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during a period while the fire fighter is in the service of the department, and any retired member

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of the fire force of any city or town who develops occupational cancer, is entitled to receive an

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occupational cancer disability and he or she is entitled to all of the benefits provided for in this

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chapter, chapters 19, 19.1, and 21 of this title and chapter 10 of title 36 if the fire fighter is

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employed by the state.

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      (f) In the event that any party is aggrieved by the determination of the retirement board

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pursuant to section 45-19-1, for an injury occurring on or after July 1, 2011, the party may submit

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an appeal to the Rhode Island workers' compensation court. The appellant shall file a notice of

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appeal with the retirement board and shall serve a copy of the notice of appeal upon the opposing

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party.

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      (g) Within twenty (20) days of the receipt of the notice of appeal, the retirement board

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shall transmit the entire record of proceedings before it, together with its order, to the workers'

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compensation court.

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      (h) In the event that a party files a notice of appeal to the workers' compensation court,

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the order of the retirement board shall be stayed pending further action by the court pursuant to

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the provisions of Rhode Island general law section 28-35-20.

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      (i) Upon receipt of the record of proceedings before the retirement board, the court shall

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assign the matter to a judge and shall issue a notice at the time advising the parties of the judge to

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whom the case has been assigned and the date for pretrial conference in accordance with Rhode

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Island general law section 28-35-20.

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      (j) All proceedings filed with the workers' compensation court pursuant to this section

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shall be de novo and shall be subject to the provisions of chapters 29 to 38 of Title 28 for all case

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management procedures and dispute resolution processes, as provided under the rules of workers'

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compensation court. Where the matter has been heard and decided by the workers' compensation

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court, the court shall retain jurisdiction to review any prior orders or decrees entered by it. Such

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petitions to review shall be filed directly with the workers' compensation court and shall be

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subject to the case management and dispute resolution procedures set forth in chapters 29 through

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38 of title 28 ("Labor and Labor Relations").

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      (k) If the court determines that a member qualifies for accidental disability retirement,

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the member shall receive a retirement allowance equal to sixty-six and two-thirds percent (66

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2/3%) of the rate of the member's compensation at the date of the member's retirement, subject to

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the provisions of section 45-21-31.

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     SECTION 7. This act shall take effect on January 1, 2013.

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LC01620

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR AND LABOR RELATIONS - RE-EMPLOYMENT OF WORKERS

WHO BECOME DISABLED

***

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     This act would allow the reemployment of employees who suffer a disability while in

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government service.

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     This act would take effect on January 1, 2013.

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LC01620

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