Chapter IV
Work-Related Injuries and Diseases
The Bureau of Labor Statistics reports that slightly more than one out of every twenty workers in private industry suffered a non-fatal occupational injury or illness during 2002 and more than 5,500 workers died from occupational injuries. Every day Rhode Island citizens are injured on the job or suffer from occupational diseases. Under Rhode Island law there are three possible paths of relief to the employee: Workers' Compensation , Social Security Disability Benefits , and, in certain instances, a common-law right to sue. Depending on the situation an employee may be eligible for all three paths or may have no relief at all.
What is Workers' Compensation ?
Workers' Compensation is the primary source of benefits for injured workers. (See Title 28, Chapters 28 - 38) Essentially a no-fault insurance system, the law is designed to provide compensation for injured employees. In most instances, the law functions as a complete bar to any suit against the employer brought by the injured employee or his representatives. Employers, in turn, cannot defend against compensation to an injured employee by asserting that the employee was somehow responsible for the injury or that the employee had assumed the risk of injury except for injuries occasioned by the employee's willful intent, intoxication or substance abuse. R.I.G.L. §28-33-2.
While the Workers' Compensation laws will bar suits against employers in most instances, as mentioned above, the laws do not bar suits against third parties (such as negligent manufacturers). The third party recovery, however, entitles the employer to be repaid by the employee under the Workers' Compensation subrogation statute. R.I.G.L. §28-35-58.
Who administers the Workers' Compensation system?
The Rhode Island Department of Labor and Training administers the Workers' Compensation system . For questions about Workers' Compensation , call the Rhode Island Department of Labor and Training, Education Unit Information Line at (401) 462-8125.
Where does the money come from that funds the program?
Workers' Compensation benefits are funded primarily through private insurance companies who contract with Rhode Island employers. (Some employers may have their own self-insured workers' compensation system.) There is no cost to the employee for this coverage.
Benefits are established by law and further defined through evolving legal decisions made by the Workers' Compensation Court and the Rhode Island Supreme Court. Therefore, it is particularly important to consult knowledgeable authorities about Workers' Compensation benefits and the current state of the law.
Whom does Worker's Compensation cover?
Workers' Compensation covers virtually all employees in Rhode Island - public and private - as well as those who are either injured or hired in Rhode Island. Employers with one or more employees are required to carry Workers' Compensation coverage for their employees.
Who is not covered by Workers' Compensation ?
The Workers' Compensation laws specify which workers are not covered. Those not covered include:
• persons engaged in domestic services,
• agricultural workers,
• regularly organized police and fire department employees,
• independent contractors and casual employees,
• employees of municipalities (other than Providence) and school districts (unless otherwise designated) who have elected not to participate,
• licensed real estate brokers,
• salespeople and appraisers who work on commission,
• voluntary and charitable workers,
• partners and sole proprietors,
• and, any person who is appointed a corporate officer between January 1, 1999 and December 31, 2001 , and was not previously an employee of the corporation, unless that officer has filed a notice with the Department of Labor and Training.
If Rhode Island's Workers' Compensation statutes do not cover a worker, might the worker be covered by other laws?
Yes. In some instances workers not covered by state law may be covered by federal laws. Covered occupations include:
• railroad workers (Federal Employer Liability Act, 45 U.S.C. §51, et seq. ),
• non-military federal employees (Federal Employees' Compensation Act, 5 U.S.C. §8101, et seq. ),
• specified employees of private maritime employers (Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §901, et seq. ),
• sailors (the Merchant Marine Act, a.k.a. the Jones Act, 46 U.S.C. §688, et seq. ) and miners (Black Lung Benefits Act, 30 U.S.C. §901, et seq. )
Shipyard employees may have an option of coming under the coverage of the Rhode Island Workers' Compensation Act or the Longshore and Harbor Workers' Compensation Act .
How are employees different from independent contractors?
The difference between being deemed an employee or an independent contractor is a significant one when it comes to Workers' Compensation benefits. Employees are covered and independent contractors are not. Where a worker's status was unclear, the court used the following factors to determine a worker's status:
• Who controls and directs the work?
• How is the worker paid? Is it weekly? Are taxes and social security deductions made?
• Who supplies the materials and the tools for the work?
• Does the employer or the worker set the hours of work?
• Does the employer have the power to hire or fire the worker?
Where the characterization of the relationship was contested, the law was clear: The burden fell on the injured worker to prove that he or she was an employee when injured.
Independent contractors are required to file a Notice of Designation as Independent Contractor (DWC- 11-IC) with the Department of Labor and Training, Division of Workers' Compensation. The law is designed to protect an employee whose employer may be attempting to misrepresent the employment relationship. Filing the form will preserve the independent contractor status if litigated before the Workers' Compensation Court at a later time.
If the relationship changes and the independent contractor becomes an employee, he or she must file a Notice of Withdrawal of Designation of Independent Contractor (DWC-ICR) with the Department of Labor and Training.
What sort of injuries does Workers' Compensation cover?
Workers' Compensation covers those injuries "arising out of and in the course of employment," that is, work-related injuries. In addition to those injuries resulting from accidents at work or connected to work, Workers' Compensation will cover:
• certain occupational diseases, such as asbestosis and lead poisoning (for a complete list see R.I.G.L. §28-34-2)
• repetitive type injuries sustained over a long period, such as carpal tunnel syndrome, and
• emotional injuries, such as depression and anxiety
Example: A worker who has a pre-existing heart disease or congenital cardiac abnormality can be covered by the Workers' Compensation Act if the work activities or work environment precipitated a heart attack while the employee was at work.
When referring to injuries for Workers' Compensation purposes, how is incapacity measured?
Disability is measured both by the extent of the injury (total or partial) and duration of the injury (permanent or temporary). Compensation is based not only on the injury, but on the impairment of earnings that results.
What constitutes total disability ?
A worker is deemed totally disabled if he or she is unable to do any type of work as a result of the injury. A person may also be deemed totally disabled by the Workers' Compensation Court even though that person suffers from a partial disability, if, because of age, education, background, and training, that person is unable to perform any work at all.
The law states that permanent total incapacity is conclusively presumed to exist in the following cases:
• total and permanent loss of sight of both eyes;
• loss of both feet at or above the ankle;
• loss of both hands at or above the wrist;
• loss of one hand and one foot;
• an injury to the spine resulting in permanent and complete paralysis of the legs or arms; and,
• an injury to the skull resulting in incurable insanity or imbecility.
In all other instances, the Workers' Compensation Court is responsible for making a final determination regarding an injured worker's permanent and total incapacity based on the facts of each case.
What constitutes a partial disability ?
A partial disability is one which renders an individual unable to do the work that he or she did prior to the injury, though the individual can still do some work.
How are payments calculated?
Determining the dollar amount of benefits provided to a totally disabled worker involves a somewhat complicated formula. The calculation takes into consideration all wages, from all work performed, and includes vacation pay, holiday pay, bonuses and overtime. This figure is cross-referenced with a figure provided by the Department of Labor and Training (which establishes an annual maximum benefit) in order to determine the injured worker's spendable base. The worker is provided with 75% of his or her spendable base.
If the court finds that a permanent total incapacity exists, Workers' Compensation benefits have to be provided to the injured employee for the duration of their incapacity. Where the employee's total incapacity extends beyond fifty-two weeks the law provides for compensation to be increased annually. The cost of living adjustment is calculated and paid each May 10 th .
If a worker is partially disabled, the weekly compensation is 75 percent of the difference between the employee's spendable average weekly base wages before the injury (subject to the same limitations and exclusions noted above) and the employee's weekly wages thereafter, but not more than the maximum weekly compensation for total incapacity.
How long do benefits continue?
Partial compensation is limited to three hundred and twelve weeks, unless extended by the Workers' Compensation Court. Extended compensation is also increased annually.
Does the law provide for any additional monetary compensation?
Yes. Insurers may be required to pay for a specific loss. This additional compensation is paid to the injured employee in a single lump sum. The law (R.I.G.L. §28-33-19) addresses additional compensation for disfigurements of varying extent, loss of sight, and loss of hearing, and the partial loss of use of an employee's extremity.
Is there an additional allowance provided to the injured worker for dependents?
Yes. Once again with certain limits, an additional allowance is provided for each dependent of a worker determined to have a total disability. Certain individuals are presumed to be wholly dependent upon the injured worker. In other cases, the court determines dependency.
Is there a minimum period of incapacitation in order to qualify for compensation?
Yes. There is no compensation for an injury that does not incapacitate for a minimum of three work-days. In which case, where the period of incapacity does extend beyond three days, compensation will commence on the fourth. Where a work-related injury does not result in incapacitation for three work days, the employee is, nonetheless, entitled to medical benefits and a Non Payment of Weekly Indemnity Agreement memorializing the work-related injury.
What medical benefits are available to an injured worker?
The law provides that covered injured workers are entitled to reasonable medical and dental services as necessary to cure, rehabilitate or relieve the injured employee from the effects of the injury. This means that not only medical treatment, ambulance service, emergency room treatment, and prescriptions, but appliances and apparatus (such as prosthesis) are provided so long as they are medical in nature. Necessary services rendered by a nurse or nurse's aide may also be compensable.
Treatment and appliance costs are subject to a large extent to a predetermined schedule and the Workers' Compensation Court determines disputes.
Can an injured worker determine who will provide medical care?
Yes and no. While the employee has the right to determine the health care provider initially , changes after the initial determination are subject to certain limits. However, injured workers need not worry that treatment at an emergency room by a company physician after an accident will count as the first medical care provider. It won't. Furthermore, an injured worker's first provider may refer the injured worker to a qualified specialist without prior approval for independent consultation or assessment, or specified treatment. If, however, the injured worker decided to change doctors, he or she must first find out if the employer/insurer has an approved list of physicians, otherwise known as the "preferred provider network." The list is available at the Medical Advisory Board at the Workers' Compensation Court.
Employees have the same free choice of a certified vocational expert licensed by the Department of Labor and Training.
Finally, an injured employee is required to have prior approval by the employer, the insurer, or the Workers' Compensation Court for all major surgeries (other than surgery to relieve the employee from imminent danger). If the employer's insurance company refuses to give permission for surgery and it is not an emergency situation, the employee is entitled to get an e x-parte (an order requested by and on behalf of only one party) Order from the Workers' Compensation Court.
Must an injured employee submit to an examination by the company doctor?
Yes, in certain instances and only if so directed by the employer or the employer's insurance carrier (who must assume the costs for the examination). Also, the company doctor may see an injured worker on anniversary reviews.
Workers must be cautious so that they do not find that they have inadvertently designated the company doctor as their own treating doctor. This may occur - again, inadvertently - in situations where an injured worker goes to a company doctor for an exam and returns for a follow-up exam.
In addition to cash payments and medical benefits, does Workers' Compensation provide any other benefits?
Yes. As noted above, injured workers may also receive vocational rehabilitation. Such vocational rehabilitation may include schooling, the costs of which are borne by the insurer. An injured employee is entitled to have a vocational assessment by a vocational expert of his or her choosing at it relates to his or her vocational evaluation.
Workers' Compensation benefits also include death benefits payable to dependents. The weekly payment to the dependents equals that which would have been paid to the deceased employee, with an additional $20 per week for each qualifying dependent child.
Benefits to a surviving spouse cease upon remarriage. And except where a dependent child is physically or mentally incapacitated from earning, payments of dependency benefits terminate when the child turns 18 (unless the child is enrolled in school full-time, in which case the benefits continue until the child turns 23). Currently, payments, whether to a surviving spouse, or if there is no surviving spouse, to dependent children, are increased annually by 4 percent to cover rises in the cost of living.
Finally, Workers' Compensation will pay $15,000 toward burial expenses.
How does an injured worker apply for benefits?
An injured employee should provide the employer with prompt notice of the injury. Failure to give prompt notice, however, will not bar a claim if the Workers' Compensation Court determines that good cause existed or that the employer was not mislead thereby.
Employers must report worker injuries to the Rhode Island Department of Labor and Training within ten days after an employee has informed them that the employee's work-related injury has resulted in three or more days of lost work time or required medical treatment. In cases where the injury is fatal, the employer's report must be made within 48 hours of death.
If the claim is accepted, the employer/insurer will file a Memorandum of Agreement ( MOA ) and the employee should start receiving weekly benefits within 14 days. The MOA is an acknowledgment of the employer's liability for Workers' Compensation purposes.
In other instances, however, an employer/insurer may file a Non-Prejudicial Agreement . A Non-Prejudicial Agreement allows the payment of Workers' Compensation benefits to begin without the company/insurer accepting liability for the injury or illness. Benefits paid under a Non-Prejudicial Agreement are limited to 13 weeks and can be stopped at any time by the employer or the insurer. If benefits continue past the 13 weeks, the employer or insurer must issue an MOA .
The distinction between the MOA and the Non-Prejudicial Agreement is significant, and an injured worker should determine as soon as possible which form it is that the employer or insurer has filed. R.I.G.L. §28-33-33.
If the injured worker has not been notified by the employer/insurer within 21 days from the date of the injury, the employee has a right to file a petition for weekly benefits at the Workers' Compensation Court, but must do so within two years. R.I.G.L. §28-35-57.
What if an injured worker is denied compensation?
If a worker is denied compensation after having exhausted all routes of appeal, the worker should investigate filing a Temporary Disability Insurance ( TDI ) claim. The employee may file for TDI at the time the employee files for Workers' Compensation benefits in contested matters. TDI will then pay the claim and have a lien against a subsequent Workers' Compensation Court order awarding the employee retroactive benefits.
What is Temporary Disability Insurance ?
Temporary Disability Insurance is a benefit administered by the Rhode Island Department of Labor and Training designed to protect workers against wage loss resulting from a non-work related injury or illness. The program is funded exclusively by deductions from the wages of Rhode Island workers. To be eligible for TDI workers must meet certain medical and earnings requirements. Workers can receive an application for TDI by calling 462-8420. Currently state employees are ineligible for TDI by statute.
Can a worker receive both Workers' Compensation and Social Security benefits?
Yes. A worker may receive both benefit payments; however, the Social Security benefit may be reduced during the period in which the worker is receiving Workers' Compensation payments. And if the employee and the employer settle the Workers' Compensation claim, the employee's Social Security status may require a restructuring of the settlement agreement.
Under what circumstances would an injured worker qualify for Social Security Disability Benefits ?
Workers disabled from any cause, work related or not, are eligible for Social Security Disability Benefits if they have worked long enough and recently enough under Social Security . The standards for eligibility are available at a regional office of the Social Security Administration. It is important to note, however, that Social Security Disability Benefit payments cannot begin before the sixth full month of disability.
When is a worker disabled as it pertains to Social Security Disability Benefits ?
Generally, a worker is disabled when:
• he or she has a mental or physical disability which prevents him or her from participating in substantial and gainful activity as determined through medical evidence and other factors such as age, education, training, and work experience, and,
• the disability must be expected to last at least twelve months or be expected to result in death.
Usually it is not enough that a worker can no longer do only his or her regular work. If the worker can do other substantial gainful activity, then that worker is not considered disabled. However, depending on age, education and past relevant work experience, an injured worker may be entitled to Social Security Disability Benefits if that person cannot do his or her regular job even if they can do some work.
Examples of disabling conditions: Cancer, loss of function of two major limbs, the kidneys, the digestive system, or the ability to speak. Sometimes diseases of the heart and lungs, severe arthritis, disabling back conditions, brain damage, and mental illness are included.
How does a disabled worker apply for Social Security Disability Benefits ?
Information and referral services can be obtained from the Social Security Administration by calling (800) 772-1213 (TTY 800-325-0778) between 7 a.m. and 7 p.m. on weekdays. For referrals to private attorneys call the National Organization of Social Security Claimants' Representatives at (800) 431-2804 between 9 a.m. and 5:30 p.m. on weekdays.
Does an injured worker have the right to reinstatement after a work injury?
Yes. A worker shall be reinstated to his or her former position on demand if the employer has more than nine employees, the position exists and is available and the worker is not disabled from performing the duties of the position with reasonable accommodation. A worker's former position is available even if a replacement worker has filled that position.
If an employee intends on returning to his or her former position, reinstatement must be requested within:
• one year from the date of injury,
• within ten days from the time period of release of return to work by the employee's treating physician, or,
• within 30 days after the employee reaches maximum medical improvement.
If an employee is not allowed to return to work, he or she may file a petition with the Workers' Compensation Court. The Workers' Compensation Court is authorized to order reinstatement and award back pay and the cost of fringe benefits lost during the appropriate period. It is important to remember that an injured employee may qualify for coverage under the ADA. (See Chapter II)
Must the employer maintain health insurance for the injured employee?
Although R.I.G.L. §28-33-44 provides that employers are required to maintain health insurance coverage for two years for those injured workers out of work due to total incapacity, under most circumstances, this statute has been declared unconstitutional and is unenforceable, at present. Lucille Sepe Pacia v. Sears Roebuck, Inc. , W.C.C. No. 91-11343.
What if the employer goes out of business or moves?
The law is intended to protect injured workers regardless of whether an employer goes out of business or moves and there are statutory provisions against potential employer defaults under the system. The insurance company or self-insured system still is responsible regardless of what happens to the employer.
