§ 28-33-18 — § 28-33-18. Weekly compensation for partial incapacity.

§ 28-33-18. Weekly compensation for partial incapacity.

(a) For all injuries on or after January 1, 2022, while the incapacity for work resulting from the injury is partial, the employer shall pay the injured employee a weekly compensation equal to sixty-two percent (62%) of the difference between his or her average weekly base wages, earnings, or salary before the injury as computed pursuant to the provisions of § 28-33-20, and his or her weekly wages, earnings, salary, or earnings capacity after that, but not more than the maximum weekly compensation rate for total incapacity as set forth in § 28-33-17. For all injuries on or before December 31, 2021, while the incapacity for work resulting from the injury is partial, the employer shall pay the injured employee a weekly compensation equal to seventy-five percent (75%) of the difference between his or her spendable average weekly base wages, earnings, or salary before the injury, as computed pursuant to the provisions of § 28-33-20, and his or her spendable weekly wages, earnings, salary, or earnings capacity after that, but not more than the maximum 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 the incapacity for work resulting from the injury is partial, while the incapacity for work resulting from the injury is partial, the employer shall pay the injured employee a weekly compensation equal to seventy percent (70%) of the weekly compensation rate as set forth in subsection (a) of this section. The court may, in its discretion, take into consideration the performance of the employee's duty to actively seek employment in scheduling the implementation of the reduction. The provisions of this subsection are subject to the provisions of § 28-33-18.2.

(c)(1) Earnings capacity determined from degree of functional impairment pursuant to § 28-29-2(3) shall be determined as a percentage of the whole person based on the sixth (6th) edition of the American Medical Association Guides to the Value of Permanent Impairment. Earnings capacity shall be calculated from the percentage of impairment as follows:

(i) For impairment of five percent (5%) or less, earnings capacity shall be calculated so as to extinguish one hundred percent (100%) of weekly benefits.

(ii) For impairment of twenty-five percent (25%) or less, but greater than five percent (5%), earnings capacity shall be calculated so as to extinguish one hundred percent (100%) less the percent of impairment of weekly benefits.

(iii) For impairment of fifty percent (50%) or less, but greater than twenty-five percent (25%), earnings capacity shall be calculated so 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, but greater than fifty percent (50%), earnings capacity shall be calculated so as to extinguish one hundred percent (100%) less one point five (1.5) times the percent of impairment of weekly benefits.

(2) An earnings capacity adjustment under this section shall be applicable only when the employee's condition has reached maximum medical improvement under § 28-29-2(3)(ii) and benefits are subject to adjustment pursuant to subsection (b) of this section.

(d) In the event partial compensation is paid, in no case shall the period covered by the compensation be greater than three hundred and twelve (312) weeks. In the event that compensation for partial disability is paid under this section for a period of three hundred and twelve (312) weeks, the employee's right to continuing weekly compensation benefits shall be determined 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 shall notify the employee and the director of its intention to terminate benefits at the expiration of three hundred and twelve (312) weeks and advise the employee of 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 the employee and the director as prescribed, the employer or insurer shall continue to pay benefits to the employee for a period equal to twenty-six (26) weeks after the date the notice is served on the employee and the director.

Legislative History

P.L. 1912, ch. 831, art. 2, § 11; G.L. 1923, ch. 92, art. 2, § 11; P.L. 1936, ch. 2290, § 6; P.L. 1936, ch. 2358, § 6; G.L. 1938, ch. 300, art. 2, § 11; P.L. 1942, ch. 1246, § 1; P.L. 1950, ch. 2628, § 1; P.L. 1954, ch. 3297, § 1; P.L. 1956, ch. 3784, § 1; G.L. 1956, § 28-33-18; P.L. 1968, ch. 92, § 1; P.L. 1969, ch. 146, § 1; P.L. 1974, ch. 270, § 1; P.L. 1982, ch. 32, art. 1, § 6; P.L. 1984, ch. 142, § 8; art. 6, P.L. 1984 (s.s.), ch. 450, § 3; P.L. 1990, ch. 332, art. 4, § 1; P.L. 1992, ch. 31, § 5; P.L. 1998, ch. 105, § 2; P.L. 1998, ch. 404, § 2; P.L. 1999, ch. 216, § 6; P.L. 1999, ch. 384, § 6; P.L. 2008, ch. 377, § 2; P.L. 2010, ch. 95, § 2; P.L. 2010, ch. 121, § 2; P.L. 2019, ch. 218, § 1; P.L. 2019, ch. 248, § 1; P.L. 2021, ch. 402, § 2, effective January 1, 2022; P.L. 2021, ch. 403, § 2, effective January 1, 2022.