By Mike D. Lynch Esq., Vice President of Claims Legal
The Rhode Island General Assembly made minor changes to the workers’ compensation laws in its 2018 session. There are three judicial vacancies at the Court. The Department of Labor & Training has reduced the percentage assessment to fund the workers’ compensation system, proposed an increase to the medical fee schedule and continues to focus on misclassification and lack of insurance. The following will summarize all of the above with the goal of helping you better understand and navigate our state’s workers’ compensation system.
WORKERS COMPENSATION COURT
The Workers’ Compensation Court has had three judicial retirements. Judge Bertness and Judge Ricci have retired. Judge Olsson also retired but has been called back to assist with issuance of Appellate Division decisions. Such retirements have created three open positions on the Court. While the Judicial Nominating Commission has posted two of the positions for consideration, the process was not completed in time for the Governor or the General Assembly to nominate and confirm nominees. It is hoped that this process will be completed by the end of the year so that the Governor and the General Assembly can fill these seats early in the 2019 session. The number of petitions filed at the Workers’ Compensation Court is up this year, so it is imperative there be enough judges in place to avoid delays in the workers’ compensation adjudication process.
The Workers’ Compensation Advisory Council again proposed an “Omnibus Bill” under which it made recommendations to the General Assembly for legislative changes with regard to workers’ compensation. (S2924 and H8215). The General Assembly considered those recommendations and, after hearings, adopted the proposal, passed the bill and the changes became law on June 28, 2018. The following is a summary of what occurred at the General Assembly this year that impacts workers’ compensation:
Uninsured Employers Fund. The General Assembly created an Uninsured Employer Fund in 2007. It never commenced operation because it was not sufficiently capitalized. After a consultant to the Department reviewed the original Fund, this year it was transformed both in name (now the “Uninsured Protection Fund”) and in how payments would be made. The Fund will only pay indemnity benefits to injured workers of uninsured employers and will not pay medical bills or specific compensation. There is a $50,000 cap per claim. All applications will have to go through the Court. The Court also retains the power to suspend payments when it determines there is a danger of insufficiency of funds held by the Fund. The Fund is entitled to reimbursement by uninsured employers for payments made to their employees and for other costs to the Fund. Critically, self-insured employers and insurance carriers do not directly or indirectly subsidize the Fund. Finally, the General Assembly again delayed the Fund’s operation until February 1, 2019 to allow the Department of Labor & Training to set up its operation.
Waiver of Common Law Rights. The General Assembly amended this statute to require that when a corporate officer, or manager, managing member or member of a limited liability company who has given notice of retaining common law rights (opting out of the workers’ comp system through filing of DLT Form DWC-11) decides to waive that claim (opt back into the system through filing of DLT Form DWC 11R), notice must not only be given to the Department of Labor and Training but also to the employer and the employer’s insurance carrier in order for such notice to take effect.
Other minor changes affect the make – up of the Workers’ Compensation Advisory Council, the procedures at the Court of Appeals from Department of Labor & Training Stop Work Orders and the notary powers of the Administrator of the Court.
DEPARTMENT OF LABOR AND TRAINING
The Department continues to focus on the effects of employee misclassification both on wage and hour issues and ancillary workers’ compensation fraud, including understatement of payroll, and job classification and independent contractor misrepresentation. Lack of insurance also continues to be a focus and aggressive enforcement continues. Changes to the Rhode Island Workers’ Compensation Medical Fee Schedule are being considered and may be announced in early autumn. The proposed changes would reflect a cost of living increase to the most used codes. Finally, the Department also just announced that the assessment on insurers and self-insured employers was reduced to 5.25%. This assessment funds the entire Rhode Island workers’ compensation system.
MEDICAL ADVISORY BOARD
The Medical Advisory Board (MAB) continues to do a complete protocol overview. The MAB is now working on physical therapy, work hardening and occupational therapy protocols.
In conclusion, developments continue to occur in different venues that both directly and indirectly impact our state’s well- functioning workers’ compensation system.
Please contact Michael D. Lynch, Esq. with questions about these changes outlined above or other issues affecting workers’ compensation in Rhode Island.