DEFINITIONS

Employer

Includes any person, partnership, corporation, or voluntary association, and the legal representative of a deceased employer; it includes the state, and city of providence. It also includes each city, town, and regional school district in the state that votes or accepts the provisions of chapter 29-38 of this title in the manner provided in this chapter or is a party to an appeal from an order of the retirement board filed pursuant to the provisions of Rhode Island General Law 45-21.2-9

Statutory Employer

Not specifically defined in the Act

Employee

Any person who has entered into the employment of or works under a contract of service or apprenticeship with any employer.

Borrowed Employee

Included in general employer; not limited to temporary help or employee leasing companies; is a person, in the regular course of business and for consideration, gives an employee with or without a vehicle to another person.

Independent Contractor

A person who has filed a notice designation as independent contractor with the director pursuant to 28-29-17.1 or as otherwise found by the workers’ compensation court. They are not an employee under the Workers Compensation Act because they are hired for a special purpose. There is no direct control over independent contractor from the employer on the matter of the independent employers employment.

EXCLUSIVE REMEDY

General Rule

The Workers’ Compensation Act allows employees to waive their rights under the act and pursue their common law rights.

Exceptions Recognized

(a) Contractual indemnification exception- This type of action is not barred by the statue because the commitment is not affiliated with any duty that the employer owes an employee

(b) Equitable rights- Third party tortfeasor cannot obtain indemnity from the employer of the injured claimant with the contractual right to do so.

(c) Civil rights- Employees may sue for civil rights violations and sexual harassment even if they are receiving compensation benefits.

(d) Defamation- Can cause mental stress that is work related and bring upon lost wages. This may be a compensable claim under the Act.

Stacking of Uninsured Motorist Coverage

Proof Required

Pursuant to R.I. Gen. Laws § 27-7-2.1(i), the proof required for authorization of intra-policy stacking is that the insured has paid two (2) or more separate premiums for uninsured motorist coverage in a single policy of insurance or under several policies of insurance with the same insurance company, the insured shall be permitted to collect up to the aggregate amount of coverage for all the vehicle insured, regardless of any language in the policy to the contrary. Under the clear and unambiguous language of this section, an insured is not entitled to intrapolicy stacking if he or she has only paid a single premium to insure two or more vehicles. Cardoso v. Nationwide Mutual Insurance Company, 659 A.2d 1097 (R.I. 1995). Also, § 27-7-2.1(i) does not apply to policies issued prior to the section’s effective date. Anderson v. Liberty Mutual Insurance Company, 635 A.2d 1194 (R.I. 1994).

Furthermore, The ability of an insured to stack the individual coverage of each vehicle in the fleet will depend upon the status of the insured. See John C. Finch v. Centennial Insurance Company, 650 A.2d 495 (R.I. 1995). “The insured who pays the premiums on uninsured-motorist coverage[, the named insured,] and members of his household [are] class-I insureds …” Id. at 498. Occupants of an insured vehicle are considered class-II insureds. Id. at 497.

“By its very own terms R.I. Gen. Laws § 27-7-2.1(i) confers the right to stack uninsured-motorist coverage only upon class-I insureds, that is, premium-paying or otherwise specifically named insureds.” Finch, 650 A.2d at 498. Class-II insureds do “not gain a stacking benefit and could not possibly have … any reasonable expectation that [they could] … stack coverages for [an] entire fleet of vehicles.” Id. In limiting the ability to stack coverages in fleet context to class-I insureds, the Rhode Island Supreme Court noted that to do otherwise would be “an absurdity”. Id.

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

The Provisions of the chapters 29-38 of this title shall apply to any and all employees, as defined in 28-29-2(4), who are injured or hired in the state of Rhode Island

Extraterritorial Jurisdiction

If an employee is exposed to the same occupational disease and works in the same industry in several states then the out of state employer is most likely not subject to Rhode Island law and contribution claims therein.

Time Limitation

An employee must wait 21 days after an injury before filing an original petition for benefits.

Discovery Rule

R.I.G.L. states that time is measured from when the employee claiming benefits knew, or through reasonable diligence should have known of the impairments existence and its causal relationship to their employer after disablement or whichever is later.

Notice of Injury

The Employee must give notice within 30 days to the employer or the employee’s claim is barred. There is a 90 day notice regarding occupational disease cases.

Statute of Limitations

Two years from the date of injury or date of incapacity.

Special Rules for Death Claims

No special rules

Occupational Disease Death Claims

Two years from the date of disablement.

Occupational Disease Claims

These injuries develop over time and there is no single event that causes the injury. There may be cases where symptoms of the disease do not appear until after the employee has left the employment of the owner. Rhode Island General Laws 28-34-2 lists thirty-six occupational diseases that are described as arising from any cause connected with the peculiar characteristics of the employee’s employment. The employee in these cases has the burden to establish by a fair preponderance of the evidence that his or her disability is caused by the occupational disease condition and that his or her incapacity is the probable result of his or her employment.

Extension of Limitation Period

Based on when the employee knew or should have known.

COMPENSABILITY

General Rule

Rhode Island’s workers’ compensation system is a no fault system where for an injury to be compensable, the employee must prove entitlement to a benefit.

“Injury”Defined

Means and refers to personal injury to an employee arising out of and in the course of his or her employment, connected and referable to the employment

Types of Injuries

Accident Not Required

An accident is not required in RI.

Infectious Diseases

Causal relationship is not relaxed.

Heart

If the employee suffers a heart attack, then the employee must prove that the heart attack was caused by overexertion from work.

Psychological Injury

(a) Physical-Mental- Employee suffers a physical injury but then develops a mental or emotional injury due to the physical injury.

(b) Mental-Physical-When a mental inducement causes an injury and it causes a physical injury

(c) Mental-Mental- If the work related stress is more than the day to day stress which other employees face, then the claim may compensable.

Occupational Diseases

Benefits are available to employees who suffer from occupational disease claims

EXCLUSIONS AND DEFENSES

Course of Employment

Employee must show that the injury is from a risk of that type of employment. Employee must show “nexus”; that the injury came out of the scope and within the course of employment.

Engaged in the Furtherance of Employer’s Business

Either the employee is fulfilling his or her employment duties at the time of the injury or performing an assignment reasonably incidental to the conditions under which those assignments were to be performed.

Not in Furtherance of Employer’s Business

if an employee is injured during a personal errand or a deviation from his duties then the injury is not compensable.

Traveling Employees

Within the employees employment, the injury must occur and the employee must be at a place where the he would reasonably be expect to be by the employer. Also the employee must be fulfilling employment duties or performing a work task reasonably related to the conditions in which those tasks are performed when the injury occurs.

Commuting

If the employee has a company car as a perk and suffers an injury in an accident going to or from work then it maybe compensable.

No Fixed Place of Work Exception

If the questioned area is within the employers control then the injuries which occurred there are compensable.

Transportation Included In Employment Exception

If the employee is injured in a company car, then the injury is compensable if going to or from work or using the company car on the business of the employer.

Special Missions, Assignments, or Circumstances Exception

A compensable injury must arise not only within the time and space limits of the employment, but also in the courseof an activity related to the employment. An activity is related to the employment if it carries out the employer's purposes or advances his interests directly or indirectly. Under the modern trend of decisions, even if the activity cannot be said in any sense to advance the employer's interest, it may still be in the course of employment if, in view of the nature of the employment environment, the characteristics of human nature, and the customs or practices of the particular employment, the activity is in fact an inherent part of the conditions of that employment.

The court determined that in certain situations, an employee's deviation from duties in the scope of employment does not in and of itself destroy the causal nexus. The court stated that such deviation "must be substantially motivated by influences that originated in the employment." Martone v. State/Registry of Motor Vehicles, 611 A.2d 384, 1992 R.I. LEXIS 165

In order to determine whether a nexus or causal connection exists between the injury sustained and the employment, the particular facts and circumstances surrounding the accident in light of three criteria: whether the injury occurred within the period of the employee's employment, the situs of the injury is examined to determine whether it occurred at a place where the employee might reasonably have been expected to be, and whether the employee was reasonably fulfilling the duties of his or her job at the time of the injury or was performing some task incidental to those conditions under which those duties were to be performed. Toolin v. Aquidneck Island Medical Resource, 668 A.2d 639, 1995 R.I. LEXIS 301

Premises and Parking Lot Cases

If the parking lot is owned or maintained by the employer, and affirmatively directs the employee’s route of travel then the injury is compensable. An employer who leases a parking area for the exclusive use of its employees is liable for employee injuries if the employer requires the employees to park there.

Related to Employment

Injury must be related to and within the scope of employment

Intentionally Self-Inflicted Injury or Death

If the employee intentionally causes an injury to himself/herself then it is not compensable

Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs

Generally, an employee’s injury that is sustained while doing something illegal while working is not compensable; however, if the employer knew of the illegal activity and allows it to continue, any resulting injury maybe compensable.

Employee’s Violation of Positive Orders of Employer

Where an employee performs a permitted act in an improper manner, injuries arising therefrom are compensable. Conversely, if he performs an act which is itself forbidden, compensation will be denied., De Nardo v. Fairmount Foundries Cranston, 121 R.I. 440, 399 A.2d 1229; 1979 R.I. LEXIS 1797

Deviation from the duties of employment does not in and of itself destroy the causal nexus required for an injury to be compensable by workers' compensation. However, the deviation must be substantially motivated by influences that originated in the employment. Lomba v. Providence Gravure, 465 A.2d 186, 1983 R.I. LEXIS 1079,

Personal Animosity

Treated similar to hostile actions.

Hostile Actions

It is important to focus on why the employees were fighting. If it is a personal matter and an injury occurs then it is not compensable. If it is work related and an injury occurs then it is compensable. If the fight is personal and injury occurs while the employer knowingly allowed the fight to continue for a period of time then injuries are compensable. If the aggressor is fighting in a matter related to work then his or her injuries may be compensable.

Retirement

General Rule

(A). If an injured employee retires prior to disability, the employee voluntarily waives their earning capacity and isn’t given a disability benefit weekly.

(B). An employee shall not collect any indemnity benefits after his or her retirement for an injury sustained less than two years prior to the retirement.

Proof of Voluntary Retirement

The form DWC-36 must be filed with the Rhode Island Department of Labor once the offset is taken.

BENEFITS

Calculation of Average Weekly Wage

For full-time employees, first divide the gross wages earned by the employee from the employer where he or she was injured during the thirteen calendar weeks immediately preceding the week of incapacity and any overtime or bonuses are added too but are divided over a period of 52 weeks.

Total Disability

He or she cannot engage in any type of gainful employment.

Partial Disability

Is not specifically defined in the Workers’ Compensation Act but is rather defined by default based on the statutory definition of total disability. Partial disability describes a situation where the employee cannot perform the requirements of the full-duty job but can function in some modified-duty position, whether or not that type of position exists or is available with the employer

Impairment Rating

See "Amputation Or Loss Of Use" below

Vocational Rehabilitation

In cases where the employee has received compensation for longer than three months, an employee can obtain a rehabilitation evaluation by a rehabilitation counselor, the counselor must be certified by the Director of Labor and Training. The employer must pay for the consultation fees incurred by the rehabilitation counselor for the first assessment per the Medical Advisory Board.

Return to Work with Loss of Earnings

If a work related injury is compensable then all related and subsequent injuries are also compensable. Employee must prove that the second injury is related to the first and that he or she returned to that employer.

Earning Power Assessment

Can set earning capacity for refusal of suitable alternative employment. 28-33-18.2

Employer Job Offer

Suitable Alternative Employment (28-33-18.2)- meaningful employment, or an actual offer of employment which the employee is physically able to perform and which bears a reasonable relationship to the employee’s qualifications, background, education and training”.

Vocational Expert

An evaluation is paid by employer per the Medical Advisory Board fee schedule.

Amputation or Loss of Use

“When any bodily member or portion thereof has been rendered permanently stiff or useless, compensation in accordance with the statute shall be made as if the member or portion thereof had been severed completely; provided, however, that if the stiffness or uselessness is less than total, then compensation shall be paid for that period of weeks in proportion to the period applicable in the event that member or portion thereof has been severed completely as the instant percentage of stiffness or uselessness bears to the total stiffness or total uselessness of the bodily member or portion thereof.” Compensation up to 312 weeks at a maximum of $90.00 or $180.00 per week depending if the injury was before or after 11/1/2012.

Disfigurement/Scarring

Scarring must be visible to the naked eye. Disfigurement is any permanent condition that upsets the beauty and symmetry of the body, including a crooked arm or a limp. Payment is at the rate of a maximum of $90.00 per week up to a limit of 500 weeks per injury.

Loss of Sight

Any loss which is not correctable is given specific compensation however glasses and lenses can reduce the compensation.

Loss of Hearing

The law does not apply to age related loss suffered by employees. A noisy work environment is considered 90 decibels over 8 hours. An employer can limit liability by conducting hearing tests. Employers are not liable to pay for hearing aids and award for loss of hearing is not affected by hearing aids. 75 weeks of specific compensation is awarded for total deafness in one ear. 244 weeks of specific compensation for total deafness in both ears. If there is deafness in one or both ears it is paid proportionally. Employer defenses are as follows: 1. Level of noise does not meet statutory minimum, 2. Duration of noise does not meet statutory minimum, 3. Hearing loss is not attributed to work, 4. Heredity/Genetics, 5. Age, 6. Employee hasn’t been away from his or her job for 6 months.

Penalties

An employer who fails to comply with the Act is liable and maybe required to pay up to 20% penalty on any indemnity benefit in arrears more than 14 days and may be held in contempt of court.

Interest

R.I.G.L 28-35-12(c) allows employees to receive “interest from 6 months subsequent to the date the employee first filed a petition for benefits to the point in time that the retroactive payment is actually made.”

Costs

Are refundable if employee wins at any stage of the proceedings.

Counsel Fees

Limited to 20% of the denial, dismissal, and continuations. Some judges may approve, based on the peculiarities of the case, a fee in excess of 20%.

Death Benefits

Where an employee’s injury results in his or her death, the employer is responsible for paying death benefits to the employee’s spouse and dependents if it was a result of a work related injury.

Widow/Widower

If the employee dies leaving a spouse then those benefits stop if the spouse remarries or dies. If the spouse leaves the employee due to the employees’ conduct at home, then the spouse will still get the benefit when the employee dies.

Death Benefits/Children

The children will be paid workers compensation benefits at a rate of total incapacity plus dependency allowance until the children no longer qualify if there is no surviving spouse. Children are entitled to collect dependency benefits until they turn 18 or 23, if they are a full time student.

Death Benefits/Parents and Siblings

If there is a deceased employee under 21 and the employee has no spouse, no dependent children but they have parents still alive then the parents are the presumed dependents for life. If deceased employee is over 21, parent must prove that he or she was wholly or partly dependent on the deceased employees’ earnings.

Death Benefits/Amounts of Benefits

If an employee’s death is work related then a burial allowance of $15,000.00 can be paid. If an incapacity results in death then the dependency per dependent child is $40.00 if surviving spouse receives an official COLA of 4%.

Medical Benefits

If the treatment given is reasonable and “necessary in order to cure, rehabilitate, or relieve” the work-related injury of the worker then it is payable by the employer, according to the Rhode Island Medical Advisory Board fee schedule. The medical expenses must be reasonable and necessary; if a qualified physician claims that the treatment is necessary for an injury, which is work related, then the worker has shown a prima facie case for that treatment.

Refusal of Medical Treatment

Medical treatment must be necessary to cure, rehabilitate, or relieve the employee from the effects of the work related injury.

SUBROGATION OR CREDIT

General Rule

The employee may take proceedings against both the person other than the employer and any person liable to pay compensation and damages.

Attorney’s Fee

Fixed by the court and cannot exceed 20% of the entire settlement. Attorney’s fees are subtracted from the total settlement. If the case is a structured settlement, then the attorney fees are based on present day value.

Motor Vehicle Accidents

Covered if within the scope of employment.

Health Benefits

The employer shall not cancel, but will continue any employee health insurance benefits for a period of 2 years from the date of the employee’s receiving weekly compensation benefits pursuant to a preliminary determination or a decision of the workers compensation court, or the filing at the department of a memorandum of agreement or notice of direct payment for injuries occurring on or before February 28,1986. Federal law preempts this section from any enforceability.

Credits

See General Rule above

ATTORNEYS

Members of the Rhode Island Bar Association and in good standing.

Certifying Organization

The Supreme Court of Rhode Island upon recommendation from the Board of Examiners

Required Documentation

No specific requirement is found

Additional Information

No employee's attorney shall accept any other or additional fees for his services for the particular petition for which the fees are awarded in each tribunal.

CLAIMS PROFESSIONALS

Oversees the testing, licensing, discipline and registration of trade occupations.

LITIGATION AND APPEAL

Workers’ Compensation Judge Proceedings

The Workers’ Compensation Court adjudicates the workers’ compensation disputes. Upon filing, the case will be assigned to a Pre-Trial Hearing within 21 days. The judge hearing the case will listen to both parties, review medical records and enter a Pre-Trial Order denying or granting the petition. The party who is not satisfied with the order may appeal by claiming a trial within 5 business days. A hearing will be conducted before the same judge who heard the case at pre-trial. The parties are not required to appear for the Initial Hearing. The Pre-Trial Order remains binding on both the injured worker and the insurance company while the case is on appeal. The hearing process may require one or more hearings for the taking of testimony. At the conclusion of the hearings, the judge will render a decision. The party who is not satisfied with the decision may appeal to the Appellate Division.

Office of Adjudication

Lifetime tenure

Appointment of Workers’ Compensation Judges

As part of a major reform of the Rhode Island Workers’ Compensation Commission, the commissioners became judges. Legislatively they were given “the same authority and power to cite and punish for civil contempt as exist in Superior Court.” R.I.G.L. 20-30-1(b).

Qualifications of WCJ

Governor nominates any individual from the Judicial Nominating Commission and the Senate confirms, except Supreme Court Nominations in which both the House and Senate confirm any nominees.

Procedure

Pre-trial-Trial- 3 Member Appellate Division- Supreme Court

Investigatory Powers

The employee is given 21 minimum days to make a decision about compensability and to investigate claims for compensation.

Reasoned Decision

Statute mandates a written decision within 30 days.

Workers’ Compensation Appeal Board

General Rule

The appellant must file, with the Appellate Division, a statement of the case within ten days of filing the reasons for appeal. Ten days is given to the responding party and then the case is assigned to a settlement conference . If the case is not settled at conference then the judge in charge of the conference will review the file to determine whether or not the matter is appropriate for a show of cause hearing or if it would be appropriate for a full briefing and argument. If contested facts are involved or if the case is settled by law then a show cause order is maybe entered.

Scope of Review of WCAB

WCAB does not review any testimony but performs a review of the record. The Appellate Division can reverse the trial judge only if there has been clear factual errors or issues with the law.

Original Jurisdiction

Subject matter jurisdiction based on: 1. Where was the employee hired, 2. Where was the employee injured, 3. Does the employee have current jurisdiction with another state, 4. Which states’ Workers’ Compensation Act most favorably benefits the employee, and 5. In which state Should I file the employee’s claim.

Commonwealth Court and Supreme Court

Jurisdiction

The Supreme Court is the final arbiter of WCC decisions and the Supreme Court decides whether or not to accept review of any workers compensation matter

Appeal to Supreme Court

An Appellate Division decision can be appealed to the R.I. Supreme Court through a petition for Writ of Certiorari within 20 days after the decree is entered by the Appellate division. The attorneys must submit a joint filing that they met in good faith in order to settle the dispute.

SETTLEMENT

Only the Appellate Division requires mediation.

Mandatory Mediation

No specific authority is found for mandatory mediation

Voluntary Mediation

§ 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, insurance carrier, and where applicable the center for Medicare and Medicaid services (CMS) as their interests may apply, the judge may approve the settlement.

Informal Settlement Conferences

The court may order the parties, before an assignment to argument, to have the parties appear before a single judge. The goal is to “engage in meaningful discussion of the matter with the goal of achieving settlement of the dispute.

Compromise and Release

The statute allows a general release in resignation of employment on all settlements.

INSURANCE

General Rule

All nonexempt employers are required to maintain workers compensation insurance to protect themselves from industrial accidents regardless the size of the employer work force. Employers may elect to become self-insured workers compensation providers.

Particular Requirements

Rhode Island Department of Labor bond posting and documentation requirements.

General Rule Where Employer is Uninsured

An injured employee is maybe left without a remedy. Employee can maintain an action with WCC, though proceedings maybe lengthy.

Damages by Action at Law Where Employer is Uninsured

A fine not to exceed $1,000.00 each day of non-compliance.

Uninsured Employers Guaranty Fund

A fund that ensures the injured employees who work for uninsured employers are given their workers compensation benefits. The Fund is not yet fully funded.