§ 28-33-18 - Weekly compensation for partial incapacity.
SECTION 28-33-18
§ 28-33-18 Weekly compensation for partialincapacity. – (a) While the incapacity for work resulting from the injury is partial, theemployer shall pay the injured employee a weekly compensation equal toseventy-five percent (75%) of the difference between his or her spendableaverage weekly base wages, earnings, or salary before the injury as computedpursuant to the provisions of § 28-38-20, and his or her spendable weeklywages, earnings, salary, or earnings capacity after that, but not more than themaximum 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 theincapacity for work resulting from the injury is partial, while the incapacityfor work resulting from the injury is partial, the employer shall pay theinjured employee a weekly compensation equal to seventy percent (70%) of theweekly compensation rate as set forth in subsection (a) of this section. Thecourt may, in its discretion, take into consideration the performance of theemployee's duty to actively seek employment in scheduling the implementation ofthe reduction. The provisions of this subsection are subject to the provisionsof § 28-33-18.2.
(c) Earnings capacity determined from degree of functionalimpairment pursuant to § 28-29-2(3) shall be determined as a percentage ofthe whole person based on the Fifth (5th) edition of the American MedicalAssociation Guides To The Value Of Permanent Impairment. Earnings capacityshall be calculated from the percentage of impairment as follows:
(i) For impairment of five percent (5%) or less, earningscapacity shall be calculated so as to extinguish one hundred percent (100%) ofweekly benefits.
(ii) For impairment of twenty-five percent (25%) or less, butgreater than five percent (5%), earnings capacity shall be calculated so as toextinguish one hundred percent (100%) less the percent of impairment of weeklybenefits.
(iii) For impairment of fifty percent (50%) or less, butgreater than twenty-five percent (25%), earnings capacity shall be calculatedso as to extinguish one hundred percent (100%) less one point two five (1.25)times the percent of impairment of weekly benefits.
(iv) For impairment of sixty-five percent (65%) or less, butgreater than fifty percent (50%), earnings capacity shall be calculated so asto extinguish one hundred percent (100%) less one point five (1.5) times thepercent of impairment of weekly benefits.
(2) An earnings capacity adjustment under this section shallbe applicable only when the employee's condition has reached maximum medicalimprovement under § 28-29-2(3)(ii) and benefits are subject to adjustmentpursuant to subsection (b) of this section.
(d) In the event partial compensation is paid, in no caseshall the period covered by the compensation be greater than three hundred andtwelve (312) weeks. In the event that compensation for partial disability ispaid under this section for a period of three hundred and twelve (312) weeks,the employee's right to continuing weekly compensation benefits shall bedetermined pursuant to the terms of § 28-33-18.3. At least twenty-six (26)weeks prior to the expiration of the period, the employer or insurer shallnotify the employee and the director of its intention to terminate benefits atthe expiration of three hundred and twelve (312) weeks and advise the employeeof the right to apply for a continuation of benefits under the terms of §28-33-18.3. In the event that the employer or insurer fails to notify theemployee and the director as prescribed, the employer or insurer shall continueto pay benefits to the employee for a period equal to twenty-six (26) weeksafter the date the notice is served on the employee and the director.