§ 28-33-18.2 - Suitable alternative employment.
SECTION 28-33-18.2
§ 28-33-18.2 Suitable alternativeemployment. – (a) When an employee has sustained an injury which entitles the employee toreceive benefits pursuant to § 28-33-18 or 28-34-3, the employee maybecome capable of suitable alternative employment as determined by the workers'compensation court, or may be offered suitable alternative employment as agreedto by the employee and employer with written notice to the director. Theemployer or insurer shall pay an injured employee that accepts suitablealternative employment a weekly compensation equal to sixty-six and two-thirdspercent (66 2/3%) of the difference between the employee's average weekly wage,earnings or salary before the injury and his or her weekly wages, earnings orsalary from the suitable alternative employment.
(b) The acceptance of suitable alternative employment shallnot be mandatory if it results in the inequitable forfeiture or loss ofseniority with the employer or a monetary benefit or other substantial benefitincluding, but not limited to, vested pension and/or profit sharingcontributions, arising from the employment relationship.
(c) If suitable alternative employment as determined by theworkers' compensation court has been offered to the employee and the employeehas refused to accept the employment, then the workers' compensation courtshall, in fixing the amount of compensation payable subsequent to the refusal,treat earnings capacity as post injury earnings, requiring the employer orinsurer to pay the injured employee a weekly compensation equal to sixty-sixand two-thirds percent (66 2/3%) of the difference between the employee'saverage weekly wage, earnings, or salary before the injury and the weeklyearning capacity. In no case shall increases in payments made to an injuredemployee pursuant to § 28-33-18.3(b)(1) or 28-33-17(f) be considered inthe calculation of the weekly compensation due pursuant to this section. Thefact that the employee is undergoing rehabilitation does not by itself exemptthe employee from the provisions of this subsection.
(d) If the suitable alternative employment is terminated bythe employer for reasons other than misconduct by the employee, the injuredemployee shall be entitled to be compensated from the employer in whose employhe or she was injured at the rate to which the employee was entitled prior toacceptance of the employment after notice by the employee to the employer inwhose employ he or she was injured. The payments shall be made no later thanfourteen (14) days after the notice. If suitable alternative employment isterminated by the employer for misconduct of the employee, or by the employee,the compensation payable to the employee shall not exceed that payable duringcontinuance of suitable alternative employment. Upon request to the workers'compensation court, the employee shall have the right to a determination as towhether or not the termination was justified. Any employee who accepts suitablealternative employment with his or her employer of record shall continue tomaintain the seniority status and all rights incidental to it that the employeeenjoyed prior to his or her injury, except that these rights shall not exceedthe current rights of a similar employee with equal seniority.