Introduced By: Senators Perry, Goodwin, Cicilline, Ruggerio and Nygaard
Date Introduced : February 3, 1998
Referred To: Senate Committee on Labor
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 {ADD medical ADD}
evidence {DEL 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. DEL} {ADD that an employee is capable
of performing suitable alternative employment and clear and convincing
evidence that work of that type is available in the community.
Provided, however, that if the employee proves by clear and convincing
evidence that he or she has made substantial efforts to find suitable
alternative employment and has been unsuccessful, then the court
can find that the employee has no earning capacity. ADD}
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.
{DEL (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. DEL}
(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. Section 28-33-18 of the General Laws in Chapter 28-33 entitled "Workers' Compensation--benefits" is hereby amended to read as follows:
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 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, 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.
{DEL (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: DEL}
{DEL (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. DEL}
{DEL (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. DEL}
{DEL (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. DEL}
{DEL (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. DEL}
{DEL (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. DEL}
(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.
SECTION 3. This act shall take effect upon passage.
This act would amend the definition of "earnings capacity" and provide for the reduction of weekly workers' compensation benefits based on post-injury earnings or earnings capacity, and for the further reduction by an additional thirty percent (30%) at maximum medical improvement without a further earnings capacity adjustment at maximum medical improvement.
This act would take effect upon passage.
