BILL REQ. #: S-0499.1
| State of Washington | 63rd Legislature | 2013 Regular Session |
Read first time 01/18/13. Referred to Committee on Commerce & Labor.
AN ACT Relating to simplifying and adding certainty to the calculation of workers' compensation benefits; amending RCW 51.32.050 51.32.060, and 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, 2013, 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, 2013, 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, 2013 | 100% |
| AFTER | PERCENTAGE | ||
| June 30, 1993 | 105% | ||
| June 30, 1994 | 110% | ||
| June 30, 1995 | 115% | ||
| June 30, 1996 | 120% | ||
| June 30, 2013 | 100% |
| AFTER | PERCENTAGE | ||
| June 30, 1993 | 105% | ||
| June 30, 1994 | 110% | ||
| June 30, 1995 | 115% | ||
| June 30, 1996 | 120% | ||
| June 30, 2013 | 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, 2013, 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, 2013 | 100% |
Sec. 4 RCW 51.32.090 and 2011 1st sp.s. c 37 s 101 are each
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, 2013.
(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) The legislature finds that long-term disability and the cost
of injuries is significantly reduced when injured workers remain at
work following their injury. To encourage employers at the time of
injury to provide light duty or transitional work for their workers,
wage subsidies and other incentives are made available to employers
insured with the department.
(b) 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.
(c) To further encourage employers to maintain the employment of
their injured workers, an employer insured with the department and that
offers work to a worker pursuant to this subsection (4) shall be
eligible for reimbursement of the injured worker's wages for light duty
or transitional work equal to fifty percent of the basic, gross wages
paid for that work, for a maximum of sixty-six work days within a
consecutive twenty-four month period. In no event may the wage
subsidies paid to an employer on a claim exceed ten thousand dollars.
Wage subsidies shall be calculated using the worker's basic hourly
wages or basic salary, and no subsidy shall be paid for any other form
of compensation or payment to the worker such as tips, commissions,
bonuses, board, housing, fuel, health care, dental care, vision care,
per diem, reimbursements for work-related expenses, or any other
payments. An employer may not, under any circumstances, receive a wage
subsidy for a day in which the worker did not actually perform any
work, regardless of whether or not the employer paid the worker wages
for that day.
(d) If an employer insured with the department offers a worker work
pursuant to this subsection (4) and the worker must be provided with
training or instruction to be qualified to perform the offered work,
the employer shall be eligible for a reimbursement from the department
for any tuition, books, fees, and materials required for that training
or instruction, up to a maximum of one thousand dollars. Reimbursing
an employer for the costs of such training or instruction does not
constitute a determination by the department that the worker is
eligible for vocational services authorized by RCW 51.32.095 and
51.32.099.
(e) If an employer insured with the department offers a worker work
pursuant to this subsection (4), and the employer provides the worker
with clothing that is necessary to allow the worker to perform the
offered work, the employer shall be eligible for reimbursement for such
clothing from the department, up to a maximum of four hundred dollars.
However, an employer shall not receive reimbursement for any clothing
it provided to the worker that it normally provides to its workers.
The clothing purchased for the worker shall become the worker's
property once the work comes to an end.
(f) If an employer insured with the department offers a worker work
pursuant to this subsection (4) and the worker must be provided with
tools or equipment to perform the offered work, the employer shall be
eligible for a reimbursement from the department for such tools and
equipment and related costs as determined by department rule, up to a
maximum of two thousand five hundred dollars. An employer shall not be
reimbursed for any tools or equipment purchased prior to offering the
work to the worker pursuant to this subsection (4). An employer shall
not be reimbursed for any tools or equipment that it normally provides
to its workers. The tools and equipment shall be the property of the
employer.
(g) An employer may offer work to a worker pursuant to this
subsection (4) more than once, but in no event may the employer receive
wage subsidies for more than sixty-six days of work in a consecutive
twenty-four month period under one claim. An employer may continue to
offer work pursuant to this subsection (4) after the worker has
performed sixty-six days of work, but the employer shall not be
eligible to receive wage subsidies for such work.
(h) An employer shall not receive any wage subsidies or
reimbursement of any expenses pursuant to this subsection (4) unless
the employer has completed and submitted the reimbursement request on
forms developed by the department, along with all related information
required by department rules. No wage subsidy or reimbursement shall
be paid to an employer who fails to submit a form for such payment
within one year of the date the work was performed. In no event shall
an employer receive wage subsidy payments or reimbursements of any
expenses pursuant to this subsection (4) unless the worker's physician
or licensed advanced registered nurse practitioner has restricted him
or her from performing his or her usual work and the worker's physician
or licensed advanced registered nurse practitioner has released him or
her to perform the work offered.
(i) Payments made under (b) through (g) of this subsection are
subject to penalties under RCW 51.32.240(5) in cases where the funds
were obtained through willful misrepresentation.
(j) 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. An employer who
directs a claimant to perform work other than that approved by the
attending physician and without the approval of the worker's physician
or licensed advanced registered nurse practitioner shall not receive
any wage subsidy or other reimbursements for such work.
(k) 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.
(l) In the event of any dispute as to the validity of the work
offered or as to the worker's ability to perform the available work
offered by the employer, the department shall make the final
determination pursuant to an order that contains the notice required by
RCW 51.52.060 and that is subject to appeal subject to RCW 51.52.050.
(5) An employer's experience rating shall not be affected by the
employer's request for or receipt of wage subsidies.
(6) The department shall create a Washington stay-at-work account
which shall be funded by assessments of employers insured through the
state fund for the costs of the payments authorized by subsection (4)
of this section and for the cost of creating a reserve for anticipated
liabilities. Employers may collect up to one-half the fund assessment
from workers.
(7) 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.
(8) 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.
(9) 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, 2013 | 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, 2013.