§ 28-33-17 - Weekly compensation for total incapacity – Permanent total disability – Dependents' allowances.
SECTION 28-33-17
§ 28-33-17 Weekly compensation for totalincapacity – Permanent total disability – Dependents' allowances.– (a) While the incapacity for work resulting from the injury is total, theemployer shall pay the injured employee a weekly compensation equal toseventy-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 averageweekly wage of individuals in covered employment under the provisions of theRhode Island Employment Security Act as computed and established by the RhodeIsland department of labor and training, annually, on or before May 31 of eachyear, under the provisions of § 28-44-6(a). Effective September 1, 1974,the maximum rate for weekly compensation for total disability shall not exceedsixty-six and two-thirds percent (66 2/3%) of the state average weekly wage ascomputed and established under the provisions of § 28-44-6(a). EffectiveSeptember 1, 1975, the maximum rate for weekly compensation for totaldisability shall not exceed one hundred percent (100%) of the state averageweekly wage as computed and established under the provisions of §28-44-6(a). Effective September 1, 2007, the maximum rate for weeklycompensation for total disability shall not exceed one hundred fifteen percent(115%) of the state average weekly wage as computed and established under theprovisions of § 28-44-6(a). If the maximum weekly benefit rate is not anexact multiple of one dollar ($1.00), then the rate shall be raised to the nexthigher 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 onor after September 1, 2000, and shall be applicable for the full period duringwhich compensation is payable.
(3) "Spendable earnings" means the employee's gross averageweekly wages, earnings, or salary, including any gratuities reported as income,reduced by an amount determined to reflect amounts which would be withheld fromthe wages, earnings, or salary under federal and state income tax laws, andunder the Federal Insurance Contributions Act (FICA), 26 U.S.C. § 3101 etseq., relating to social security and Medicare taxes. In all cases, it is to beassumed that the amount withheld would be determined on the basis of expectedliability of the employee for tax for the taxable year in which the paymentsare made without regard to any itemized deductions but taking into account themaximum number of personal exemptions allowable.
(ii) Each year, the director shall publish tables of theaverage weekly wage and seventy-five percent (75%) of spendable earnings thatare to be in effect on May 10. These tables shall be conclusive for thepurposes of converting an average weekly wage into seventy-five percent (75%)of spendable earnings. In calculating spendable earnings the director shallhave discretion to exempt funds assigned to third parties by order of thefamily court pursuant to § 8-10-3 and funds designated for payment ofliens pursuant to § 28-33-27 upon submission of supporting evidence.
(b) In the following cases, it shall for the purpose of thissection be that the injury resulted in permanent total disability:
(i) The total and irrecoverable loss of sight in both eyes orthe 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;
(v) An injury to the spine resulting in permanent andcomplete paralysis of the legs or arms; and
(vi) An injury to the skull resulting in incurable imbecilityor insanity.
(2) In all other cases, total disability shall be determinedonly if, as a result of the injury, the employee is physically unable to earnany wages in any employment; provided, that in cases where manifest injusticewould otherwise result, total disability shall be determined when an employeeproves, taking into account the employee's age, education, background,abilities, and training, that he or she is unable on account of his or hercompensable injury to perform his or her regular job and is unable to performany alternative employment. The court may deny total disability under thissubsection without requiring the employer to identify particular alternativeemployment.
(c) Where the employee has persons conclusively presumed tobe dependent upon him or her or in fact so dependent, the sum of fifteendollars ($15.00) shall be added to the weekly compensation payable for totalincapacity for each person wholly dependent on the employee, except that thesum 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 exceedeighty percent (80%) of the average weekly wage of the employee, except thatthere shall be no limit for those receiving benefits under § 28-33-12.
(2) The dependency allowance shall be in addition to thecompensation benefits for total disability otherwise payable under theprovisions of this section. The dependency allowance shall be increased if thenumber of persons dependent upon the employee increases during the time thatweekly compensation benefits are being received.
(3) For the purposes of this section the following personsshall be conclusively presumed to be wholly dependent for support upon anemployee:
(i) A wife upon a husband with whom she is living at the timeof his injury, but only while she is not working for wages during her spouse'stotal disability.
(ii) A husband upon a wife with whom he is living at the timeof her injury, but only while he is not working for wages during his spouse'stotal disability.
(iii) Children under the age of eighteen (18) years, or overthat age but physically or mentally incapacitated from earning, if living withthe employee, or, if the employee is bound or ordered by law, decree, or orderof court, or by any other lawful requirement, to support the children, althoughliving apart from them. Provided, that the payment of dependency benefits to adependent child over the age of eighteen (18) years shall continue as long asthat child is satisfactorily enrolled as a full-time student in an educationalinstitution or an educational facility duly accredited or approved by theappropriate state educational authorities at the time of enrollment. Thosepayments shall not be continued beyond the age of twenty-three (23) years."Children," within the meaning of this paragraph, also includes any children ofthe injured employee conceived but not born at the time of the employee'sinjury, and the compensation provided for in this section shall be payable onaccount of any such children from the date of their birth.
(d) "Dependents," as provided in this section, does notinclude 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 dependencyshall be determined in accordance with the facts as the facts may be at thetime of the injury.
(e) The court or any of its judges may in its or his or herdiscretion order the insurer or self-insurer to make payment of the ninedollars ($9.00) or fifteen dollars ($15.00) for those receiving benefits under§ 28-33-12 directly to the dependent.
(f) Where any employee's incapacity is total and has extendedbeyond fifty-two (52) weeks, regardless of the date of injury, payments made toall totally incapacitated employees shall be increased as of May 10, 1991, andannually on the tenth of May after that as long as the employee remains totallyincapacitated. The increase shall be by an amount equal to the total percentageincrease in annual consumer price index, United States city average for urbanwage earners and clerical workers, as formulated and computed by the bureau oflabor statistics of the United States Department of Labor for the period ofMarch 1 to February 28 each year.
(2) If the employee is subsequently found to be onlypartially incapacitated, the weekly compensation benefit paid to the employeeshall be equal to the payment in effect prior to his or her most recent cost ofliving adjustment.
(3) "Index" as used in this section refers to the consumerprice index, United States city average for urban wage earners, clericalworkers, as that index is formulated and computed by the Bureau of LaborStatistics of the United States Department of Labor.
(4) The May 10, 1991 increase shall be based upon the totalpercentage increase, if any, in the annual consumer price index for the periodof March 1, 1990 to February 28, 1991. Thereafter, increases shall be made onMay 10 annually, based upon the percentage increase, if any, in the index forthe period March 1 to February 28.
(5) The computations in this section shall be made by thedirector of labor and training and promulgated to insurers and employers makingpayments required by this section. Increases shall be paid by insurers andemployers without further order of the court. If payment payable under thissection is not paid within fourteen (14) days after the employer or insurer hasbeen notified or it becomes due, whichever is later, there shall be added tothe 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 indemnitybenefits to employees as described in subdivision (1) of this subsection, anddoes not apply to specific compensation payments for loss of use ordisfigurement or payment of dependency benefits or any other benefits payableunder the Workers' Compensation Act.
(7) Notwithstanding any other provision of the general law orpublic laws to the contrary, any employee of the state of Rhode Island who isreceiving workers' compensation benefits for total incapacity, as a result ofbrain injury due to a violent assault, on or before July 19, 2005, shall beentitled to receive the health insurance benefit he or she was entitled to atthe time of the injury for the duration of the total incapacity or until saidemployee and his or her spouse are both eligible for Medicare.