BILL REQ. #: H-1200.1
| State of Washington | 62nd Legislature | 2011 Regular Session |
Read first time 02/15/11. Referred to Committee on Labor & Workforce Development.
AN ACT Relating to simplifying and adding certainty to the calculation of workers' compensation benefits; amending RCW 51.32.050 and 51.32.060; reenacting and amending RCW 51.32.090; adding a new section to chapter 51.08 RCW; repealing RCW 51.08.178; providing an effective date; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 A new section is added to chapter 51.08 RCW
to read as follows:
(1) If a worker is injured in an employment that both the worker
and the particular employer intend to be permanent and lasting into the
foreseeable future, the worker's monthly wage shall be determined by
dividing by twelve the total wages earned from the particular
employment and any other concurrent employment, including cash bonuses
and overtime, in the twelve months immediately preceding the date of
injury or manifestation of occupational disease. If the worker has
worked less than twelve months for the particular employer in whose
employment the worker was injured or manifested the occupational
disease, the monthly wage shall be based on the total wages earned by
the worker in the employment, divided by the total number of months the
worker actually worked in the employment.
(2) If a worker is injured in an employment that either the worker
or the particular employer intends to be temporary and not lasting into
the foreseeable future, the worker's monthly wage shall be determined
by dividing by twelve the total wages earned from all employment,
including cash bonuses and overtime, in the twelve months immediately
preceding the date of injury or manifestation of occupational disease.
(3) "Wages" means the gross monetary remuneration for services
performed with respect to a pay period, paid in cash, by check, by
electronic transfer, or by other means directly to the worker or to an
account designated by the worker. Wages shall include the actual value
of board, housing, and fuel received from the employer as part of the
contract for hire. Tips shall be included to the extent that such are
reported to the employer for federal income tax purposes. Wages shall
not include health and welfare benefits, savings matching programs, or
fringe benefits including, but not limited to, retirement and financial
benefit plans of whatever nature; life, disability, and wage-replacement insurance of whatever nature; unused accrued leave of
whatever nature; memberships of any kind; employee discounts or use or
consumption of employer services, material, equipment, and facilities
of whatever nature; training and education of whatever nature; and
other employee or beneficiary benefit plan for the employee's or
beneficiaries' benefit resulting from the employment relationship.
Sec. 2 RCW 51.32.050 and 2010 c 261 s 3 are each amended to read
as follows:
(1) Where death results from the injury the expenses of burial not
to exceed two hundred percent of the average monthly wage in the state
as defined in RCW 51.08.018 shall be paid.
(2)(a)(i) For claims with date of injury or manifestation of
occupational disease before July 1, 2011, where death results from the
injury, a surviving spouse of a deceased worker eligible for benefits
under this title shall receive monthly for life or until remarriage
payments according to the following schedule:
(((i))) (A) If there are no children of the deceased worker, sixty
percent of the wages of the deceased worker;
(((ii))) (B) If there is one child of the deceased worker and in
the legal custody of such spouse, sixty-two percent of the wages of the
deceased worker;
(((iii))) (C) If there are two children of the deceased worker and
in the legal custody of such spouse, sixty-four percent of the wages of
the deceased worker;
(((iv))) (D) If there are three children of the deceased worker and
in the legal custody of such spouse, sixty-six percent of the wages of
the deceased worker;
(((v))) (E) If there are four children of the deceased worker and
in the legal custody of such spouse, sixty-eight percent of the wages
of the deceased worker; or
(((vi))) (F) If there are five or more children of the deceased
worker and in the legal custody of such spouse, seventy percent of the
wages of the deceased worker.
(ii) For claims with date of injury or manifestation of
occupational disease on or after July 1, 2011, where death results from
the injury, a surviving spouse of a deceased worker eligible for
benefits under this title shall receive monthly for life or until
remarriage payments of sixty-six and two-thirds percent of the wages of
the deceased worker.
(b) Where the surviving spouse does not have legal custody of any
child or children of the deceased worker or where after the death of
the worker legal custody of such child or children passes from such
surviving spouse to another, any payment on account of such child or
children not in the legal custody of the surviving spouse shall be made
to the person or persons having legal custody of such child or
children. The amount of such payments shall be five percent of the
monthly benefits payable as a result of the worker's death for each
such child but such payments shall not exceed twenty-five percent.
Such payments on account of such child or children shall be subtracted
from the amount to which such surviving spouse would have been entitled
had such surviving spouse had legal custody of all of the children and
the surviving spouse shall receive the remainder after such payments on
account of such child or children have been subtracted. Such payments
on account of a child or children not in the legal custody of such
surviving spouse shall be apportioned equally among such children.
(c) Payments to the surviving spouse of the deceased worker shall
cease at the end of the month in which remarriage occurs: PROVIDED,
That a monthly payment shall be made to the child or children of the
deceased worker from the month following such remarriage in a sum equal
to five percent of the wages of the deceased worker for one child and
a sum equal to five percent for each additional child up to a maximum
of five such children. Payments to such child or children shall be
apportioned equally among such children. Such sum shall be in place of
any payments theretofore made for the benefit of or on account of any
such child or children. If the surviving spouse does not have legal
custody of any child or children of the deceased worker, or if after
the death of the worker, legal custody of such child or children passes
from such surviving spouse to another, any payment on account of such
child or children not in the legal custody of the surviving spouse
shall be made to the person or persons having legal custody of such
child or children.
(d) In no event shall the monthly payments provided in subsection
(2) of this section:
(i) Exceed the applicable percentage of the average monthly wage in
the state as computed under RCW 51.08.018 as follows:
| AFTER | PERCENTAGE | ||
| June 30, 1993 | 105% | ||
| June 30, 1994 | 110% | ||
| June 30, 1995 | 115% | ||
| June 30, 1996 | 120% | ||
| June 30, 2011 | 100% |
| AFTER | PERCENTAGE | ||
| June 30, 1993 | 105% | ||
| June 30, 1994 | 110% | ||
| June 30, 1995 | 115% | ||
| June 30, 1996 | 120% | ||
| June 30, 2011 | 100% |
| AFTER | PERCENTAGE | ||
| June 30, 1993 | 105% | ||
| June 30, 1994 | 110% | ||
| June 30, 1995 | 115% | ||
| June 30, 1996 | 120% | ||
| June 30, 2011 | 100% |
Sec. 3 RCW 51.32.060 and 2007 c 284 s 2 are each amended to read
as follows:
(1) Except as provided in subsection (2) of this section, when the
supervisor of industrial insurance shall determine that permanent total
disability results from the injury, the worker shall receive monthly
during the period of such disability:
(a) If married at the time of injury, sixty-five percent of his or
her wages.
(b) If married with one child at the time of injury, sixty-seven
percent of his or her wages.
(c) If married with two children at the time of injury, sixty-nine
percent of his or her wages.
(d) If married with three children at the time of injury,
seventy-one percent of his or her wages.
(e) If married with four children at the time of injury,
seventy-three percent of his or her wages.
(f) If married with five or more children at the time of injury,
seventy-five percent of his or her wages.
(g) If unmarried at the time of the injury, sixty percent of his or
her wages.
(h) If unmarried with one child at the time of injury, sixty-two
percent of his or her wages.
(i) If unmarried with two children at the time of injury,
sixty-four percent of his or her wages.
(j) If unmarried with three children at the time of injury,
sixty-six percent of his or her wages.
(k) If unmarried with four children at the time of injury,
sixty-eight percent of his or her wages.
(l) If unmarried with five or more children at the time of injury,
seventy percent of his or her wages.
(2) For any claim with date of injury or manifestation of
occupational disease on or after July 1, 2011, when the supervisor of
industrial insurance determines that permanent total disability results
from the injury, the worker shall receive monthly during the period of
such disability sixty-six and two-thirds percent of his or her wages as
determined under section 1 of this act, but not less than two hundred
seventy-six dollars per month.
(3) For any period of time where both husband and wife are entitled
to compensation as temporarily or totally disabled workers, only that
spouse having the higher wages of the two shall be entitled to claim
their child or children for compensation purposes under subsection (1)
of this section.
(((3))) (4) In case of permanent total disability, if the character
of the injury is such as to render the worker so physically helpless as
to require the hiring of the services of an attendant, the department
shall make monthly payments to such attendant for such services as long
as such requirement continues, but such payments shall not obtain or be
operative while the worker is receiving care under or pursuant to the
provisions of chapter 51.36 RCW and RCW 51.04.105.
(((4))) (5) Should any further accident result in the permanent
total disability of an injured worker, he or she shall receive the
pension to which he or she would be entitled, notwithstanding the
payment of a lump sum for his or her prior injury.
(((5))) (6) In no event shall the monthly payments provided in this
section:
(a) Exceed the applicable percentage of the average monthly wage in
the state as computed under the provisions of RCW 51.08.018 as follows:
| AFTER | PERCENTAGE | ||
| June 30, 1993 | 105% | ||
| June 30, 1994 | 110% | ||
| June 30, 1995 | 115% | ||
| June 30, 1996 | 120% | ||
| June 30, 2011 | 100% |
Sec. 4 RCW 51.32.090 and 2007 c 284 s 3 and 2007 c 190 s 1 are
each reenacted and amended to read as follows:
(1) When the total disability is only temporary, the schedule of
payments contained in RCW 51.32.060 (1) and (((2))) (3) shall apply, so
long as the total disability continues.
(2) Any compensation payable under this section for children not in
the custody of the injured worker as of the date of injury shall be
payable only to such person as actually is providing the support for
such child or children pursuant to the order of a court of record
providing for support of such child or children. This subsection does
not apply to claims filed on or after July 1, 2011.
(3)(a) As soon as recovery is so complete that the present earning
power of the worker, at any kind of work, is restored to that existing
at the time of the occurrence of the injury, the payments shall cease.
If and so long as the present earning power is only partially restored
and the worker is working, the payments shall:
(i) For claims for injuries that occurred before May 7, 1993,
continue in the proportion which the new earning power shall bear to
the old; or
(ii) For claims for injuries occurring on or after May 7, 1993,
equal eighty percent of the actual difference between the worker's
present wages and earning power at the time of injury, but: (A) The
total of these payments and the worker's present wages may not exceed
one hundred fifty percent of the average monthly wage in the state as
computed under RCW 51.08.018; (B) the payments may not exceed one
hundred percent of the entitlement as computed under subsection (1) of
this section; and (C) the payments may not be less than the worker
would have received if (a)(i) of this subsection had been applicable to
the worker's claim.
(b) No compensation shall be payable under this subsection (3)
unless the loss of earning power shall exceed five percent.
(c) The prior closure of the claim or the receipt of permanent
partial disability benefits shall not affect the rate at which loss of
earning power benefits are calculated upon reopening the claim.
(d) The injured worker remains eligible for the benefits provided
in this subsection only until the injured worker's condition is
medically fixed and stable.
(4)(a) Whenever the employer of injury requests that a worker who
is entitled to temporary total disability under this chapter be
certified by a physician or licensed advanced registered nurse
practitioner as able to perform available work other than his or her
usual work, the employer shall furnish to the physician or licensed
advanced registered nurse practitioner, with a copy to the worker, a
statement describing the work available with the employer of injury in
terms that will enable the physician or licensed advanced registered
nurse practitioner to relate the physical activities of the job to the
worker's disability. The physician or licensed advanced registered
nurse practitioner shall then determine whether the worker is
physically able to perform the work described. The worker's temporary
total disability payments shall continue until the worker is released
by his or her physician or licensed advanced registered nurse
practitioner for the work, and begins the work with the employer of
injury. If the work thereafter comes to an end before the worker's
recovery is sufficient in the judgment of his or her physician or
licensed advanced registered nurse practitioner to permit him or her to
return to his or her usual job, or to perform other available work
offered by the employer of injury, the worker's temporary total
disability payments shall be resumed. Should the available work
described, once undertaken by the worker, impede his or her recovery to
the extent that in the judgment of his or her physician or licensed
advanced registered nurse practitioner he or she should not continue to
work, the worker's temporary total disability payments shall be resumed
when the worker ceases such work.
(b) Once the worker returns to work under the terms of this
subsection (4), he or she shall not be assigned by the employer to work
other than the available work described without the worker's written
consent, or without prior review and approval by the worker's physician
or licensed advanced registered nurse practitioner.
(c) If the worker returns to work under this subsection (4), any
employee health and welfare benefits that the worker was receiving at
the time of injury shall continue or be resumed at the level provided
at the time of injury. Such benefits shall not be continued or resumed
if to do so is inconsistent with the terms of the benefit program, or
with the terms of the collective bargaining agreement currently in
force.
(d) In the event of any dispute as to the worker's ability to
perform the available work offered by the employer, the department
shall make the final determination.
(5) No worker shall receive compensation for or during the day on
which injury was received or the three days following the same, unless
his or her disability shall continue for a period of fourteen
consecutive calendar days from date of injury: PROVIDED, That attempts
to return to work in the first fourteen days following the injury shall
not serve to break the continuity of the period of disability if the
disability continues fourteen days after the injury occurs.
(6) Should a worker suffer a temporary total disability and should
his or her employer at the time of the injury continue to pay him or
her the wages which he or she was earning at the time of such injury,
such injured worker shall not receive any payment provided in
subsection (1) or (2) of this section during the period his or her
employer shall so pay such wages: PROVIDED, That holiday pay, vacation
pay, sick leave, or other similar benefits shall not be deemed to be
payments by the employer for the purposes of this subsection.
(7) In no event shall the monthly payments provided in this
section:
(a) Exceed the applicable percentage of the average monthly wage in
the state as computed under the provisions of RCW 51.08.018 as follows:
| AFTER | PERCENTAGE | ||
| June 30, 1993 | 105% | ||
| June 30, 1994 | 110% | ||
| June 30, 1995 | 115% | ||
| June 30, 1996 | 120% | ||
| June 30, 2011 | 100% |
NEW SECTION. Sec. 5 RCW 51.08.178 ("Wages" -- Monthly wages as
basis of compensation -- Computation thereof) and 2007 c 297 s 1, 1988 c
161 s 12, & 1980 c 14 s 5 are each repealed.
NEW SECTION. Sec. 6 This act is necessary for the immediate
preservation of the public peace, health, or safety, or support of the
state government and its existing public institutions, and takes effect
July 1, 2011.