[atlas:bill]

AN ACT Relating to simplifying and adding certainty to the calculation of workers' compensation benefits; amending RCW 51.08.178 and 51.32.095; creating a new section; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 51.08.178 and 1988 c 161 s 12 are each amended to read as follows:

(1) For the purposes of this title, the monthly wages the worker was receiving from all employment at the time of injury shall be the basis upon which compensation is computed unless otherwise provided specifically in the statute concerned. ((~~In cases where the worker's wages are not fixed by the month, they shall be determined by multiplying the daily wage the worker was receiving at the time of the injury:~~

~~(a) By five, if the worker was normally employed one day a week;~~

~~(b) By nine, if the worker was normally employed two days a week;~~

~~(c) By thirteen, if the worker was normally employed three days a week;~~

~~(d) By eighteen, if the worker was normally employed four days a week;~~

~~(e) By twenty-two, if the worker was normally employed five days a week;~~

~~(f) By twenty-six, if the worker was normally employed six days a week;~~

~~(g) By thirty, if the worker was normally employed seven days a week.~~

The term "wages" shall include the reasonable value of board, housing, fuel, or other consideration of like nature received from the employer as part of the contract of hire, but shall not include overtime pay except in cases under subsection (2) of this section. However, tips shall also be considered wages only to the extent such tips are reported to the employer for federal income tax purposes. The daily wage shall be the hourly wage multiplied by the number of hours the worker is normally employed. The number of hours the worker is normally employed shall be determined by the department in a fair and reasonable manner, which may include averaging the number of hours worked per day.

(2) In cases where (a) the worker's employment is exclusively seasonal in nature or (b) the worker's current employment or his or her relation to his or her employment is essentially part-time or intermittent, the monthly wage shall be determined by dividing by twelve the total wages earned, including overtime, from all employment in any twelve successive calendar months preceding the injury which fairly represent the claimant's employment pattern.

(3) If, within the twelve months immediately preceding the injury, the worker has received from the employer at the time of injury a bonus as part of the contract of hire, the average monthly value of such bonus shall be included in determining the worker's monthly wages.

(4) In cases where a wage has not been fixed or cannot be reasonably and fairly determined, the monthly wage shall be computed on the basis of the usual wage paid other employees engaged in like or similar occupations where the wages are fixed.)) "Wages" means the gross taxable monetary compensation paid for by the employer that is payable on an hourly, daily, weekly, monthly, or piecework basis and which is spendable by the worker at the end of each pay period. The worker's monthly wage shall be determined by dividing by twelve the total wages earned from all employment, including cash bonuses and overtime pay, in any four successive quarters in the twenty-four months preceding the injury or occupational disease that most reasonably represents the worker's wages.

(a) Tips shall be considered wages only to the extent that such tips are reported to the employer for federal income tax purposes.

(b) Wages shall include the actual value of board, housing, and fuel received from the employer as part of the contract of hire and for which an internal revenue service form 1099 is required. This subsection does not apply during any period in which the employer continues to provide, through a past or current payment, board, housing, and/or fuel that were provided to the employee at the time of the injury or occupational disease.

(c) Wages shall not include fringe benefits which are any consideration given to a worker in addition to wages as defined in this section including, but not limited to: Employer payments for or contributions for a retirement plan; pension plan; profit sharing; stock options; medical, dental, and/or vision insurance; employee assistance plan; substance abuse or mental health treatment or insurance; life insurance; training; short-term or long-term disability; social security; or other employee or beneficiary benefit plan for the employee's or beneficiary's benefit.

(2) In cases where the worker is self-employed or the worker's monthly wage cannot be reasonably determined under subsection (1) of this section due to the worker sustaining an injury less than one year after beginning employment that both the worker and the employer intend to be continuous and lasting without limit into the foreseeable future, and which provides wages as defined in subsection (1) of this section, on an annualized basis, of greater than one hundred fifty percent of wages earned by the worker in the twelve months prior to beginning such employment, the monthly wage shall be computed on the basis of the usual wage paid other employees of the employer at the time of injury who perform like or similar job duties with like or similar work patterns or, if none exist, other employees in the worker's labor market who perform like or similar job duties with like or similar work patterns.

(3) If the employer cannot obtain sufficient accurate information to calculate the amount of wages before it must first pay temporary total disability compensation, it may make payments provisionally based upon claimant's wages on the date of injury.

Sec. 2. RCW 51.32.095 and 1999 c 110 s 1 are each amended to read as follows:

(1) One of the primary purposes of this title is to enable the injured worker to become employable at gainful employment. To this end, the department or self-insurers shall utilize the services of individuals and organizations, public or private, whose experience, training, and interests in vocational rehabilitation and retraining qualify them to lend expert assistance to the supervisor of industrial insurance in such programs of vocational rehabilitation as may be reasonable to make the worker employable consistent with his or her physical and mental status. Where, after evaluation and recommendation by such individuals or organizations and prior to final evaluation of the worker's permanent disability and in the sole opinion of the supervisor or supervisor's designee, whether or not medical treatment has been concluded, vocational rehabilitation is both necessary and likely to enable the injured worker to become employable at gainful employment, the supervisor or supervisor's designee may, in his or her sole discretion, pay or, if the employer is a self-insurer, direct the self-insurer to pay the cost as provided in subsection (3) of this section.

(2) When in the sole discretion of the supervisor or the supervisor's designee vocational rehabilitation is both necessary and likely to make the worker employable at gainful employment, then the following order of priorities shall be used:

(a) Return to the previous job with the same employer;

(b) Modification of the previous job with the same employer including transitional return to work;

(d) Modification of a new job with the same employer including transitional return to work;

(e) Modification of the previous job with a new employer;

(f) A new job with a new employer or self-employment based upon transferable skills;

(g) Modification of a new job with a new employer;

(h) A new job with a new employer or self-employment involving on-the-job training;

(i) Short-term retraining and job placement.

(3)(a) Except as provided in (b) of this subsection, costs for vocational rehabilitation benefits allowed by the supervisor or supervisor's designee under subsection (1) of this section may include the cost of books, tuition, fees, supplies, equipment, transportation, child or dependent care, and other necessary expenses for any such worker in an amount not to exceed three thousand dollars in any fifty-two week period ((~~except as authorized by RCW 51.60.060~~)), and the cost of continuing the temporary total disability compensation under RCW 51.32.090 while the worker is actively and successfully undergoing a formal program of vocational rehabilitation.

(b) Beginning with vocational rehabilitation plans approved on or after July 1, 1999, costs for vocational rehabilitation benefits allowed by the supervisor or supervisor's designee under subsection (1) of this section may include the cost of books, tuition, fees, supplies, equipment, child or dependent care, and other necessary expenses for any such worker in an amount not to exceed ((~~four~~)) five thousand dollars in any fifty-two week period ((~~except as authorized by RCW 51.60.060~~)), and the cost of transportation and continuing the temporary total disability compensation under RCW 51.32.090 while the worker is actively and successfully undergoing a formal program of vocational rehabilitation.

(c) The expenses allowed under (a) or (b) of this subsection may include training fees for on-the-job training and the cost of furnishing tools and other equipment necessary for self-employment or reemployment. However, compensation or payment of retraining with job placement expenses under (a) or (b) of this subsection may not be authorized for a period of more than fifty-two weeks, except that such period may, in the sole discretion of the supervisor after his or her review, be extended for an additional fifty-two weeks or portion thereof by written order of the supervisor.

(d) In cases where the worker is required to reside away from his or her customary residence, the reasonable cost of board and lodging shall also be paid.

(e) Costs paid under this subsection shall be chargeable to the employer's cost experience or shall be paid by the self-insurer as the case may be.

(4) In addition to the vocational rehabilitation expenditures provided for under subsection (3) of this section, an additional five thousand dollars may, upon authorization of the supervisor or the supervisor's designee, be expended for: (a) Accommodations for an injured worker that are medically necessary for the worker to participate in an approved retraining plan; and (b) accommodations necessary to perform the essential functions of an occupation in which an injured worker is seeking employment, consistent with the retraining plan or the recommendations of a vocational evaluation. The injured worker's attending physician must verify the necessity of the modifications or accommodations. The total expenditures authorized in this subsection and the expenditures authorized under RCW 51.32.250 shall not exceed five thousand dollars.

(5) The department shall establish criteria to monitor the quality and effectiveness of rehabilitation services provided by the individuals and organizations used under subsection (1) of this section. The state fund shall make referrals for vocational rehabilitation services based on these performance criteria.

(6) The department shall engage in, where feasible and cost-effective, a cooperative program with the state employment security department to provide job placement services under this section.

(7) The benefits in this section shall be provided for the injured workers of self-insured employers. Self-insurers shall report both benefits provided and benefits denied under this section in the manner prescribed by the department by rule adopted under chapter 34.05 RCW. The director may, in his or her sole discretion and upon his or her own initiative or at any time that a dispute arises under this section, promptly make such inquiries as circumstances require and take such other action as he or she considers will properly determine the matter and protect the rights of the parties.

(8) Except as otherwise provided in this section, the benefits provided for in this section are available to any otherwise eligible worker regardless of the date of industrial injury. However, claims shall not be reopened solely for vocational rehabilitation purposes.

NEW SECTION. Sec. 3. The department of labor and industries may adopt rules necessary to implement section 1 of this act.

NEW SECTION. Sec. 4. Section 1 of this act takes effect July 1, 2002, and applies only to claims filed on or after July 1, 2002.