Bill Summary – FastDemocracy

-- S 0937 SUBSTITUTE A
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     LC002928/SUB A
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                      STATE              OF         RHODE                ISLAND
                                         IN GENERAL ASSEMBLY
                                       JANUARY SESSION, A.D. 2021
                                             ____________
                                                AN ACT
       RELATING TO LABOR AND LABOR RELATIONS -- WORKERS COMPENSATION --
                                  BENEFITS
               Introduced By: Senators Ciccone, F Lombardi, and McCaffrey
               Date Introduced: May 27, 2021
               Referred To: Senate Labor
     It is enacted by the General Assembly as follows:
         SECTION 1. Sections 28-33-20.1 and 28-33-25.1 of the General Laws in Chapter 28-33
 entitled "Workers' Compensation - Benefits" are hereby amended to read as follows:
         28-33-20.1. Computation of earnings for recurrence -- Burden of employee to
 establish recurrence.
         (a) In the event a person collecting benefits under this chapter, regardless of the date of
 injury, has returned to employment for a period of twenty-six (26) weeks or more and suffers a
 recurrence of the injury which precipitated the person collecting benefits under this chapter, the
 average weekly wage shall be ascertained by dividing the gross wages earned by the injured worker
 in employment by the employer in whose service he or she is injured during by applying the same
 formula of § 28-33-20 to the thirteen (13) calendar weeks immediately preceding the week in which
 he or she suffered the recurrence, by the number of calendar weeks during which, or any portion of
 which, the worker was actually employed by that employer. 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.
         (b) For all petitions filed to prove recurrence of incapacity to work, regardless of the date
 of injury, the employee must document that the incapacity has increased or returned without the
 need for the employee to document a comparative change of condition.
         28-33-25.1. Settlement of disputed cases.
         Notwithstanding the provisions of §§ 28-33-25 and 28-33-26, in cases where liability of
 the employer for payment of workers' compensation benefits has not been finally established, the
 parties may submit a settlement proposal to the workers' compensation court for approval. If, upon
 consideration, a judge of the workers' compensation court deems the settlement proposal to be in
 the best interest of the parties, including the employee, employer, and the insurance carrier, and
 where applicable the Centers for Medicare and Medicaid Services (CMS) as their interests may
 apply, the judge may approve the settlement. Payment by the employer or insurer shall not be
 deemed to be the payment of workers' compensation benefits, but shall be considered a compromise
 payment of a disputed claim. The settlement and payment pursuant to it shall not be subject to liens
 set forth in § 28-33-27(b) and must be paid within fourteen (14) days of entry of an order to pay or
 the date(s) upon which payment(s) is/are due pursuant to a court order, and a penalty of one hundred
 dollars ($100) shall be assessed for every day the payment is delinquent. Upon payment, the
 employer and insurer shall be entitled to a duly executed release that fully and finally absolves and
 discharges the employer and insurer from any and all liability arising out of the claimed injury.
         SECTION 2. Sections 28-33-17 and 28-33-18 of the General Laws in Chapter 28-33
 entitled "Workers' Compensation - Benefits" are hereby amended to read as follows:
         28-33-17. Weekly compensation for total incapacity -- Permanent total disability --
 Dependents' allowances.
         (a)(1) While For all injuries on or after January 1, 2022, 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%) sixty-two percent (62%) of his or her average
 weekly spendable base wages, earnings, or salary, as computed pursuant to the provisions of § 28-
 33-20. For all injuries on or before December 31, 2021, 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, as computed pursuant to the provisions of § 28-33-20. The amount may not exceed 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 § 28-44-6(a). Effective September 1, 1974, the maximum rate for weekly
 compensation for total disability shall not exceed sixty-six and two-thirds percent (662/3%) of the
 state average weekly wage, as computed and established under the provisions of § 28-44-6(a).
 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
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 established under the provisions of § 28-44-6(a). Effective September 1, 2007, the maximum rate
 for weekly compensation for total disability shall not exceed one hundred fifteen percent (115%)
 of the state average weekly wage, as computed and established under the provisions of § 28-44-
 6(a). Effective October 1, 2016, the maximum rate for weekly compensation for total disability
 shall not exceed one hundred twenty percent (120%) of the state average weekly wage as computed
 and established under the provisions of § 28-44-6(a), and effective October 1, 2017, the maximum
 rate for weekly compensation for total disability shall not exceed one hundred twenty-five percent
 (125%) of the state average weekly wage, as computed and established under the provisions of §
 28-44-6(a). 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 § 28-44-6(a) is applicable
 to injured employees whose injury occurred on or after September 1, 2000, and shall be applicable
 for the full period during which compensation is payable.
         (3)(i) "Spendable earnings" means the employee's gross, average weekly wages, earnings,
 or salary, including any gratuities reported as income, reduced by an amount determined to reflect
 amounts that 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. § 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 year, 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 May 10. 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 parties by order of the family court pursuant to § 8-10-3 and funds
 designated for payment of liens pursuant to § 28-33-27 upon submission of supporting evidence.
         (b)(1) In the following cases, it shall, for the purpose of this section, be 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
 (1/10th) 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 hand and one foot;
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         (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, 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 forty dollars ($40.00) shall be added for those receiving benefits under § 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 § 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, 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
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 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, also includes any children of the injured
 employee conceived but not born at the time of the employee's injury, and the compensation
 provided for in this section shall be payable on account of any such children from the date of their
 birth.
          (d) "Dependents," as provided in this section, does not include the spouse of the injured
 employee except as provided in paragraphs (c)(3)(i) and (ii) of this section. 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 of its judges, 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 § 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 of May after that as 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) If the employee is subsequently 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) "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 computations in this section 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
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 becomes due, whichever is later, there shall be added to the unpaid payment an amount equal to
 twenty percent (20%) of that amount, which shall be paid at the same time as, but in addition to,
 the payment.
         (6) This section applies only to payment of weekly indemnity benefits to employees as
 described in subdivision (1) of this subsection, and does 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.
         (7) Notwithstanding any other provision of the general law or public laws to the contrary,
 any employee of the state of Rhode Island who is receiving workers' compensation benefits for
 total incapacity, as a result of brain injury due to a violent assault, on or before July 19, 2005, shall
 be entitled to receive the health insurance benefit he or she was entitled to at the time of the injury
 for the duration of the total incapacity or until said employee and his or her spouse are both eligible
 for Medicare.
         28-33-18. Weekly compensation for partial incapacity.
         (a) While For all injures on or after January 1, 2022 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%) sixty-two (62%) of the difference between his or her spendable
 average weekly base wages, earnings, or salary before the injury as computed pursuant to the
 provisions of § 28-33-20, and his or her spendable weekly wages, earnings, salary, or earnings
 capacity after that, but not more than the maximum weekly compensation rate for total incapacity
 as set forth in § 28-33-17. For all injuries on or before December 31, 2021, 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, as computed pursuant to the
 provisions of § 28-33-20, and his or her spendable weekly wages, earnings, salary, or earnings
 capacity after that, but not more than the maximum weekly compensation rate for total incapacity,
 as set forth in § 28-33-17. The provisions of this section are subject to the provisions of § 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) of this section. The court may, in its discretion, take
 into consideration the performance of the employee's duty to actively seek employment in
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 scheduling the implementation of the reduction. The provisions of this subsection are subject to the
 provisions of § 28-33-18.2.
         (c)(1) Earnings capacity determined from degree o