§ 28-33-17. Weekly compensation for total incapacity — Permanent total disability — Dependents'
allowances.
(a)(1) For all injuries on or after January 1, 2022, while the incapacity for work resulting
from the injury is total, the employer shall pay the injured employee a weekly compensation
equal to sixty-two percent (62%) of his or her average weekly base wages, earnings,
or salary, as computed pursuant to the provisions of § 28-33-20. For all injuries on or before December 31, 2021, while the incapacity for work resulting
from the injury is total, the employer shall pay the injured employee a weekly compensation
equal to seventy-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 average weekly
wage of individuals in covered employment under the provisions of the Rhode Island
employment security act as computed and established by the Rhode Island department
of labor and training, annually, on or before May 31 of each year, under the provisions
of § 28-44-6(a). Effective September 1, 1974, the maximum rate for weekly compensation for total
disability shall not exceed sixty-six and two-thirds percent (66â…”%) of the state average
weekly wage, as computed and established under the provisions of § 28-44-6(a). Effective September 1, 1975, the maximum rate for weekly compensation for total
disability shall not exceed one hundred percent (100%) of the state average weekly
wage, as computed and established under the provisions of § 28-44-6(a). Effective September 1, 2007, the maximum rate for weekly compensation for total
disability shall not exceed one hundred fifteen percent (115%) of the state average
weekly wage, as computed and established under the provisions of § 28-44-6(a). Effective October 1, 2016, the maximum rate for weekly compensation for total disability
shall not exceed one hundred twenty percent (120%) of the state average weekly wage
as computed and established under the provisions of § 28-44-6(a), and effective October 1, 2017, the maximum rate for weekly compensation for total
disability shall not exceed one hundred twenty-five percent (125%) of the state average
weekly wage, as computed and established under the provisions of § 28-44-6(a). If the maximum weekly benefit rate is not an exact multiple of one dollar ($1.00),
then the rate shall be raised to the next higher 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 on or after September 1,
2000, and shall be applicable for the full period during which compensation is payable.
(3)(i) "Spendable earnings� means the employee's gross, average weekly wages, earnings, or
salary, including any gratuities reported as income, reduced by an amount determined
to reflect amounts that would be withheld from the wages, earnings, or salary under
federal and state income tax laws, and under the Federal Insurance Contributions Act
(FICA), 26 U.S.C. § 3101 et seq., relating to Social Security and Medicare taxes. In all cases, it is to be
assumed that the amount withheld would be determined on the basis of expected liability
of the employee for tax for the taxable year in which the payments are made without
regard to any itemized deductions but taking into account the maximum number of personal
exemptions allowable.
(ii) Each year, the director shall publish tables of the average weekly wage and seventy-five
percent (75%) of spendable earnings that are to be in effect on May 10. These tables
shall be conclusive for the purposes of converting an average weekly wage into seventy-five
percent (75%) of spendable earnings. In calculating spendable earnings, the director
shall have discretion to exempt funds assigned to third parties by order of the family
court pursuant to § 8-10-3 and funds designated for payment of liens pursuant to § 28-33-27 upon submission of supporting evidence.
(b)(1) In the following cases, it shall, for the purpose of this section, be that the injury
resulted in permanent total disability:
(i) The total and irrecoverable loss of sight in both eyes or the reduction to one-tenth
(â…’) 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 and complete paralysis of the legs or
arms; and
(vi) An injury to the skull resulting in incurable imbecility or insanity.
(2) In all other cases, total disability shall be determined only if, as a result of the
injury, the employee is physically unable to earn any wages in any employment; provided,
that in cases where manifest injustice would otherwise result, total disability shall
be determined when an employee proves, taking into account the employee's age, education,
background, abilities, and training, that he or she is unable, on account of his or
her compensable injury, to perform his or her regular job and is unable to perform
any alternative employment. The court may deny total disability under this subsection
without requiring the employer to identify particular alternative employment.
(c)(1) Where the employee has persons conclusively presumed to be dependent upon him or her,
or in fact so dependent, the sum of fifteen dollars ($15.00) shall be added to the
weekly compensation payable for total incapacity for each person wholly dependent
on the employee. Effective January 1, 2025, the sum to be added to the weekly compensation
payable for total incapacity, for each person wholly dependent on the employee, shall
be raised to twenty-five dollars ($25.00). For those receiving benefits under § 28-33-12, the sum shall be forty dollars ($40.00), but in no case shall the aggregate of those
amounts exceed eighty percent (80%) of the average weekly wage of the employee, except
that there shall be no limit for those receiving benefits under § 28-33-12.
(2) The dependency allowance shall be in addition to the compensation benefits for total
disability otherwise payable under the provisions of this section. The dependency
allowance shall be increased if the number of persons dependent upon the employee
increases during the time that weekly compensation benefits are being received.
(3) For the purposes of this section, the following persons shall be conclusively presumed
to be wholly dependent for support upon an employee:
(i) A wife upon a husband with whom she is living at the time of his injury, but only
while she is not working for wages during her spouse's total disability;
(ii) A husband upon a wife with whom he is living at the time of her injury, but only while
he is not working for wages during his spouse's total disability; and
(iii) Children under the age of eighteen (18) years, or over that age but physically or
mentally incapacitated from earning, if living with the employee, or, if the employee
is bound or ordered by law, decree, or order of court, or by any other lawful requirement,
to support the children, although living apart from them. Provided, that the payment
of dependency benefits to a dependent child over the age of eighteen (18) years shall
continue as long as that child is satisfactorily enrolled as a full-time student in
an educational institution or an educational facility duly accredited or approved
by the appropriate state educational authorities at the time of enrollment. Those
payments shall not be continued beyond the age of twenty-three (23) years. "Children,�
within the meaning of this paragraph, also includes any children of the injured employee
conceived but not born at the time of the employee's injury, and the compensation
provided for in this section shall be payable on account of any such children from
the date of their birth.
(d) "Dependents,� as provided in this section, does not include the spouse of the injured
employee except as provided in subsections (c)(3)(i) and (ii) of this section. In
all other cases questions of dependency shall be determined in accordance with the
facts as the facts may be at the time of the injury.
(e) The court, or any of its judges, may, in its or his or her discretion, order the insurer
or self-insurer to make payment for those receiving benefits under § 28-33-12 directly to the dependent.
(f)(1) Where any employee's incapacity is total and has extended beyond fifty-two (52) weeks,
regardless of the date of injury, payments made to all totally incapacitated employees
shall be increased as of May 10, 1991, and annually on the tenth of May after that
as long as the employee remains totally incapacitated. The increase shall be by an
amount equal to the total percentage increase in the annual Consumer Price Index,
United States City Average for Urban Wage Earners and Clerical Workers, as formulated
and computed by the Bureau of Labor Statistics of the United States Department of
Labor for the period of March 1 to February 28 each year.
(2) If the employee is subsequently found to be only partially incapacitated, the weekly
compensation benefit paid to the employee shall be equal to the payment in effect
prior to his or her most recent cost of living adjustment.
(3) "Index� as used in this section refers to the Consumer Price Index, United States
City Average for Urban Wage Earners and Clerical Workers, as that index is formulated
and computed by the Bureau of Labor Statistics of the United States Department of
Labor.
(4) The May 10, 1991, increase shall be based upon the total percentage increase, if any,
in the annual Consumer Price Index for the period of March 1, 1990, to February 28,
1991. Thereafter, increases shall be made on May 10 annually, based upon the percentage
increase, if any, in the index for the period March 1 to February 28.
(5) The computations in this section shall be made by the director of labor and training
and promulgated to insurers and employers making payments required by this section.
Increases shall be paid by insurers and employers without further order of the court.
If payment payable under this section is not paid within fourteen (14) days after
the employer or insurer has been notified or it becomes due, whichever is later, there
shall be added to the 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 indemnity benefits to employees as
described in subsection (f)(1) of this section, and does not apply to specific compensation
payments for loss of use or disfigurement or payment of dependency benefits or any
other benefits payable under the workers' compensation act.
(7) Notwithstanding any other provision of the general laws or public laws to the contrary,
any employee of the state of Rhode Island who is receiving workers' compensation benefits
for total incapacity, as a result of brain injury due to a violent assault, on or
before July 19, 2005, shall be entitled to receive the health insurance benefit he
or she was entitled to at the time of the injury for the duration of the total incapacity
or until said employee and his or her spouse are both eligible for Medicare.