2014 -- H 7770

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LC004935

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS - WORKERS' COMPENSATION -

BENEFITS

     Introduced By: Representatives Nunes, and Jacquard

     Date Introduced: February 27, 2014

     Referred To: House Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 28-33-20 of the General Laws in Chapter 28-33 entitled "Workers'

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

     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, inclusive of

overtime pay; provided, that bonuses and overtime 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. 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 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 for a previous injury 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 any sum that 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. 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" means 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" means 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, inclusive of overtime pay;

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provided, any bonuses and overtime 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. 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, that sum shall not be

reckoned as part of the employee's wages, earnings, or salary. The fact that an employee has

LC004935 - Page 3 of 5

suffered a previous injury or received compensation for a previous injury shall not preclude

compensation for a later injury or for death. In determining the compensation for the later injury

or death, the average weekly wage shall be any sum that 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.

     (b) "Wages" as used in this section means earnings actually paid to employees for work

performed and shall not include any amounts included in those earnings relating to benefits such

as earnings based upon the prevailing wage rate applicable to state and/or federal contracts.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS - WORKERS' COMPENSATION -

BENEFITS

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     This act would define wages for the purpose of calculating weekly workers'

compensation benefits as earnings paid to employees for work performed exclusive of any

amounts included reflecting benefits such as earnings based upon the prevailing wage rate

applicable to state and/or federal contracts.

     This act would take effect upon passage.

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