BILL REQ. #: H-1331.1
| State of Washington | 58th Legislature | 2003 Regular Session |
Read first time 02/10/2003. Referred to Committee on Commerce & Labor.
AN ACT Relating to simplifying and adding certainty to the calculation of workers' compensation benefits; amending RCW 51.08.178, 51.28.040, 51.32.050, 51.32.060, 51.32.072, 51.32.075, 51.32.080, 51.32.095, and 51.36.020; reenacting and amending RCW 51.32.090; adding new sections to chapter 51.08 RCW; adding a new section to chapter 51.32 RCW; 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:
"Inflation" means the percentage change in the implicit price
deflator for personal consumption expenditures for the United States as
published for the most recent twelve-month period by the bureau of
economic analysis of the federal department of commerce in September of
the year before a June 30th determination.
Sec. 2 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:)) (1) "Wages" means the
gross cash compensation paid by the employer for services performed.
(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.
(2) "Cash" means payment in cash, by check, by electronic transfer,
or by other means made directly to the worker at the end of each pay
period before any mandatory deductions required by state or federal
law.
(3) 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 manifestation of
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 manifestation of occupational disease.
(c) Wages shall not include fringe benefits. Fringe benefits are
any consideration given to a worker in addition to wages including, but
not limited to: Retirement and financial benefit plans of whatever
nature; mental and physical health insurance and treatment of whatever
nature; life, disability, and wage-replacement insurance of whatever
nature; unused, accrued leave of whatever nature; memberships of
whatever nature; employee discounts or use or consumption of employer
services, materials, 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.
(4) In cases where the worker is self-employed or the worker's
monthly wage cannot be reasonably determined under subsection (3) of
this section due to the worker sustaining an injury or occupational
disease less than one year after beginning an employment relationship
that both the worker and the employer intend to be continuous and
lasting without limit into the foreseeable future, and which provides
wages, on an annualized basis, of greater than one hundred fifty
percent of wages earned by the worker in the twelve months before
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 or manifestation of occupational disease who perform
like job duties with like work patterns or, if none exist, other
employees in the worker's labor market who perform like job duties with
like work patterns.
(5) In cases where the worker's monthly wage cannot be reasonably
determined under subsection (3) of this section due to the worker
sustaining an injury or occupational disease less than one year after
beginning an employment relationship that either the worker or the
employer do not intend to be continuous and lasting without limit into
the foreseeable future, or which provides wages, on an annualized
basis, of fifty percent or less of wages earned by the worker in the
twelve months before 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 or manifestation of occupational disease
who perform like job duties with like work patterns, or, if none exist,
other employees in the worker's labor market who perform like job
duties with like work patterns.
(6) If the employer or department cannot obtain sufficient accurate
information to calculate the worker's wages pursuant to subsection (3)
of this section before the first payment of temporary total disability
compensation is due, payments may be made provisionally based upon the
worker's wages on the date of injury or manifestation of occupational
disease. For purposes of this subsection only, "wages" means the gross
cash compensation paid by the employer for services performed. "Cash"
means payment in cash, by check, by electronic transfer, or by other
means made directly to the worker at the end of each pay period before
any mandatory deductions required by state or federal law.
Sec. 3 RCW 51.28.040 and 1977 ex.s. c 199 s 1 are each amended to
read as follows:
((If change of circumstances warrants an increase or rearrangement
of compensation, like application shall be made therefor.)) Where the
worker's application to reopen a claim has been granted under RCW
51.32.160, compensation and other benefits if in order shall be allowed
for periods of time up to sixty days prior to the receipt of such
application.
Sec. 4 RCW 51.32.050 and 1995 c 199 s 6 are each amended to read
as follows:
(1)(a) For claims with date of injury or manifestation of
occupational disease before July 1, 2003, 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.
(b) For claims with date of injury or manifestation of occupational
disease on or after July 1, 2003, where death results from the injury,
the expenses of burial shall be paid, not to exceed an amount
determined by the department on June 30, 2002, and each June 30th
thereafter, and applicable to claims filed with respect to injuries
occurring in the twelve-month period following the June 30th
determination. The amount is determined by adjusting the amount
applicable during the previous twelve-month period to account for
inflation.
(2)(a)(i) For claims with date of injury or manifestation of
occupational disease before July 1, 2003, 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 but not less than one
hundred eighty-five dollars;
(((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 but not less than two hundred twenty-two dollars;
(((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 but not less than two hundred fifty-three dollars;
(((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 but not less than two hundred seventy-six dollars;
(((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 but not less than two hundred ninety-nine
dollars; 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 but not less than three hundred twenty-two
dollars.
(ii) For claims with date of injury or manifestation of
occupational disease on or after July 1, 2003, 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-five and five-tenths percent of the wages
of the deceased worker, but not less than two hundred seventy-six
dollars.
(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)) (i) For claims with date of injury or
manifestation of occupational disease before July 1, 2003, the monthly
payments provided in subsection (2) of this section may not 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% |
| AFTER | PERCENTAGE | ||
| June 30, 1993 | 105% | ||
| June 30, 1994 | 110% | ||
| June 30, 1995 | 115% | ||
| June 30, 1996 | 120% |
| AFTER | PERCENTAGE | ||
| June 30, 1993 | 105% | ||
| June 30, 1994 | 110% | ||
| June 30, 1995 | 115% | ||
| June 30, 1996 | 120% |
Sec. 5 RCW 51.32.060 and 1993 c 521 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)) determines 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 but not less than two hundred fifteen dollars per month.
(b) If married with one child at the time of injury, sixty-seven
percent of his or her wages but not less than two hundred fifty-two
dollars per month.
(c) If married with two children at the time of injury, sixty-nine
percent of his or her wages but not less than two hundred eighty-three
dollars.
(d) If married with three children at the time of injury,
seventy-one percent of his or her wages but not less than three hundred
six dollars per month.
(e) If married with four children at the time of injury,
seventy-three percent of his or her wages but not less than three
hundred twenty-nine dollars per month.
(f) If married with five or more children at the time of injury,
seventy-five percent of his or her wages but not less than three
hundred fifty-two dollars per month.
(g) If unmarried at the time of the injury, sixty percent of his or
her wages but not less than one hundred eighty-five dollars per month.
(h) If unmarried with one child at the time of injury, sixty-two
percent of his or her wages but not less than two hundred twenty-two
dollars per month.
(i) If unmarried with two children at the time of injury,
sixty-four percent of his or her wages but not less than two hundred
fifty-three dollars per month.
(j) If unmarried with three children at the time of injury,
sixty-six percent of his or her wages but not less than two hundred
seventy-six dollars per month.
(k) If unmarried with four children at the time of injury,
sixty-eight percent of his or her wages but not less than two hundred
ninety-nine dollars per month.
(l) If unmarried with five or more children at the time of injury,
seventy percent of his or her wages but not less than three hundred
twenty-two dollars per month.
(2) For any claim with date of injury or manifestation of
occupational disease on or after July 1, 2003, 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-five and five-tenths percent of his or her wages
as determined under RCW 51.08.178, 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) In no event shall)) (6)(a)(i) For claims filed before July 1,
2003, the monthly payments provided in this section may not 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% |
Sec. 6 RCW 51.32.072 and 1987 c 185 s 34 are each amended to read
as follows:
(1)(a) Notwithstanding any other provision of law, every surviving
spouse and every permanently totally disabled worker or temporarily
totally disabled worker, if such worker was unmarried at the time of
the worker's injury or was then married but the marriage was later
terminated by judicial action, receiving a pension or compensation for
temporary total disability under this title pursuant to compensation
schedules in effect prior to July 1, 1971, shall after July 1, 1975,
and until July 1, 2003, be paid fifty percent of the average monthly
wage in the state as computed under RCW 51.08.018 per month and an
amount equal to five percent of such average monthly wage per month to
such totally disabled worker if married at the time of the worker's
injury and the marriage was not later terminated by judicial action,
and an additional two percent of such average monthly wage for each
child of such totally disabled worker at the time of injury in the
legal custody of such totally disabled worker or such surviving spouse
up to a maximum of five such children. The monthly payments such
surviving spouse or totally disabled worker are receiving pursuant to
compensation schedules in effect prior to July 1, 1971 shall be
deducted from the monthly payments above specified.
(b) Subject to subsection (2) of this section, where such a
surviving spouse has remarried, or where any such child of such worker,
whether living or deceased, is not in the legal custody of such worker
or such surviving spouse there shall be paid for the benefit of and on
account of each such child a sum equal to two percent of such average
monthly wage up to a maximum of five such children in addition to any
payments theretofore paid under compensation schedules in effect prior
to July 1, 1971 for the benefit of and on account of each such child.
In the case of any child or children of a deceased worker not leaving
a surviving spouse or where the surviving spouse has later died, there
shall be paid for the benefit of and on account of each such child a
sum equal to two percent of such average monthly wage up to a maximum
of five such children in addition to any payments theretofore paid
under such schedules for the benefit of and on account of each such
child.
(2) Beginning July 1, 2003, the monthly payments and the additional
payments for the injured worker's spouse or children provided in this
section may not exceed an amount determined by the department on June
30, 2002, adjusted for inflation on June 30, 2003, and each June 30th
thereafter, and applicable to payments made during the twelve-month
period following the June 30th determination. The amount is determined
by adjusting the amount applicable during the previous twelve-month
period to account for inflation.
(3)(a) If the character of the injury or occupational disease 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 this title except for care granted at the discretion of
the supervisor pursuant to RCW 51.36.010: PROVIDED, That such payments
shall not be considered compensation nor shall they be subject to any
limitation upon total compensation payments.
(b) No part of such additional payments shall be payable from the
accident fund.
(4) The director shall pay monthly from the supplemental pension
fund such an amount as will, when added to the compensation theretofore
paid under compensation schedules in effect prior to July 1, 1971,
equal the amounts hereinabove specified.
(5) In cases where money has been or shall be advanced to any such
person from the pension reserve, the additional amount to be paid under
this section shall be reduced by the amount of monthly pension which
was or is predicated upon such advanced portion of the pension reserve.
Sec. 7 RCW 51.32.075 and 1988 c 161 s 7 are each amended to read
as follows:
(1) Subject to subsection (2) of this section, the compensation or
death benefits payable pursuant to the provisions of this chapter for
temporary total disability, permanent total disability, or death
arising out of injuries or occupational diseases shall be adjusted as
follows:
(((1)))(a) On July 1, 1982, there shall be an adjustment for those
whose right to compensation was established on or after July 1, 1971,
and before July 1, 1982. The adjustment shall be determined by
multiplying the amount of compensation to which they are entitled by a
fraction, the denominator of which shall be the average monthly wage in
the state under RCW 51.08.018 for the fiscal year in which such
person's right to compensation was established, and the numerator of
which shall be the average monthly wage in the state under RCW
51.08.018 on July 1, 1982.
(((2))) (b) In addition to the adjustment established by
((subsection (1))) (a) of this ((section)) subsection, there shall be
another adjustment on July 1, 1983, for those whose right to
compensation was established on or after July 1, 1971, and before July
1983, which shall be determined by multiplying the amount of
compensation to which they are entitled by a fraction, the denominator
of which shall be the average monthly wage in the state under RCW
51.08.018 for the fiscal year in which such person's right to
compensation was established, and the numerator of which shall be the
average monthly wage in the state under RCW 51.08.018 on July 1, 1983.
(((3))) (c) In addition to the adjustments under ((subsections (1)
and (2))) (a) and (b) of this ((section)) subsection, further
adjustments shall be made beginning on July 1, 1984, and on each July
1st thereafter for those whose right to compensation was established on
or after July 1, 1971. The adjustment shall be determined by
multiplying the amount of compensation to which they are entitled by a
fraction, the denominator of which shall be the average monthly wage in
the state under RCW 51.08.018 for the fiscal year in which such
person's right to compensation was established, and the numerator of
which shall be the average monthly wage in the state under RCW
51.08.018 on July 1st of the year in which the adjustment is being
made. The department or self-insurer shall adjust the resulting
compensation rate to the nearest whole cent, not to exceed the average
monthly wage in the state as computed under RCW 51.08.018.
(2) Beginning July 1, 2003, the annual adjustments provided for in
this section shall be an amount determined by the department on June
30, 2002, adjusted for inflation on June 30, 2003, and each June 30th
thereafter, and applicable to payments made during the twelve-month
period following the June 30th determination. The amount is determined
by adjusting the amount applicable during the previous twelve-month
period to account for inflation.
Sec. 8 RCW 51.32.080 and 1993 c 520 s 1 are each amended to read
as follows:
(1)(a) Until July 1, 1993, for the permanent partial disabilities
here specifically described, the injured worker shall receive
compensation as follows:
| LOSS BY AMPUTATION | |
| Of leg above the knee joint with short thigh stump (3" or less below the tuberosity of ischium) . . . . . . . . . . . . | $54,000.00 |
| Of leg at or above knee joint with functional stump . . . . . . . . . . . . | 48,600.00 |
| Of leg below knee joint . . . . . . . . . . . . | 43,200.00 |
| Of leg at ankle (Syme) . . . . . . . . . . . . | 37,800.00 |
| Of foot at mid-metatarsals . . . . . . . . . . . . | 18,900.00 |
| Of great toe with resection of metatarsal bone . . . . . . . . . . . . | 11,340.00 |
| Of great toe at metatarsophalangeal joint . . . . . . . . . . . . | 6,804.00 |
| Of great toe at interphalangeal joint . . . . . . . . . . . . | 3,600.00 |
| Of lesser toe (2nd to 5th) with resection of metatarsal bone . . . . . . . . . . . . | 4,140.00 |
| Of lesser toe at metatarsophalangeal joint . . . . . . . . . . . . | 2,016.00 |
| Of lesser toe at proximal interphalangeal joint . . . . . . . . . . . . | 1,494.00 |
| Of lesser toe at distal interphalangeal joint . . . . . . . . . . . . | 378.00 |
| Of arm at or above the deltoid insertion or by disarticulation at the shoulder . . . . . . . . . . . . | 54,000.00 |
| Of arm at any point from below the deltoid insertion to below the elbow joint at the insertion of the biceps tendon . . . . . . . . . . . . | 51,300.00 |
| Of arm at any point from below the elbow joint distal to the insertion of the biceps tendon to and including mid-metacarpal amputation of the hand . . . . . . . . . . . . | 48,600.00 |
| Of all fingers except the thumb at metacarpophalangeal joints . . . . . . . . . . . . | 29,160.00 |
| Of thumb at metacarpophalangeal joint or with resection of carpometacarpal bone . . . . . . . . . . . . | 19,440.00 |
| Of thumb at interphalangeal joint . . . . . . . . . . . . | 9,720.00 |
| Of index finger at metacarpophalangeal joint or with resection of metacarpal bone . . . . . . . . . . . . | 12,150.00 |
| Of index finger at proximal interphalangeal joint . . . . . . . . . . . . | 9,720.00 |
| Of index finger at distal interphalangeal joint . . . . . . . . . . . . | 5,346.00 |
| Of middle finger at metacarpophalangeal joint or with resection of metacarpal bone . . . . . . . . . . . . | 9,720.00 |
| Of middle finger at proximal interphalangeal joint . . . . . . . . . . . . | 7,776.00 |
| Of middle finger at distal interphalangeal joint . . . . . . . . . . . . | 4,374.00 |
| Of ring finger at metacarpophalangeal joint or with resection of metacarpal bone . . . . . . . . . . . . | 4,860.00 |
| Of ring finger at proximal interphalangeal joint . . . . . . . . . . . . | 3,888.00 |
| Of ring finger at distal interphalangeal joint . . . . . . . . . . . . | 2,430.00 |
| Of little finger at metacarpophalangeal joint or with resection of metacarpal bone . . . . . . . . . . . . | 2,430.00 |
| Of little finger at proximal interphalangeal joint . . . . . . . . . . . . | 1,944.00 |
| Of little finger at distal interphalangeal joint . . . . . . . . . . . . | 972.00 |
MISCELLANEOUS | |
| 21,600.00 | |
| 18,000.00 | |
| 43,200.00 | |
| 7,200.00 | |
Sec. 9 RCW 51.32.090 and 1993 c 521 s 3, 1993 c 299 s 1, and 1993
c 271 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)) or (2) and (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, 2003.
(3)(a) As soon as recovery is so complete that the worker is
capable of gainful employment on a reasonably continuous basis and 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 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 as able to perform available work other than
his or her usual work, the employer shall furnish to the physician,
with a copy to the worker, a statement describing the work available
with the employer of injury in terms that will enable the physician to
relate the physical activities of the job to the worker's disability.
The physician 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 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 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
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.
(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.
(7) ((In no event shall)) (a) For claims with date of injury or
manifestation of occupational disease before July 1, 2003, the monthly
payments provided in this section may not 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% |
Sec. 10 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;
(c) A new job with the same employer in keeping with any
limitations or restrictions;
(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.
Sec. 11 RCW 51.36.020 and 1999 c 395 s 1 are each amended to read
as follows:
(1) When the injury to any worker is so serious as to require his
or her being taken from the place of injury to a place of treatment,
his or her employer shall, at the expense of the medical aid fund, or
self-insurer, as the case may be, furnish transportation to the nearest
place of proper treatment.
(2) Every worker whose injury results in the loss of one or more
limbs or eyes shall be provided with proper artificial substitutes and
every worker, who suffers an injury to an eye producing an error of
refraction, shall be once provided proper and properly equipped lenses
to correct such error of refraction and his or her disability rating
shall be based upon the loss of sight before correction.
(3) Every worker whose accident results in damage to or destruction
of an artificial limb, eye, or tooth, shall have same repaired or
replaced.
(4) Every worker whose hearing aid or eyeglasses or lenses are
damaged, destroyed, or lost as a result of an industrial accident shall
have the same restored or replaced. The department or self-insurer
shall be liable only for the cost of restoring damaged hearing aids or
eyeglasses to their condition at the time of the accident.
(5) All mechanical appliances necessary in the treatment of an
injured worker, such as braces, belts, casts, and crutches, shall be
provided and all mechanical appliances required as permanent equipment
after treatment has been completed shall continue to be provided or
replaced without regard to the date of injury or date treatment was
completed, notwithstanding any other provision of law.
(6) A worker, whose injury is of such short duration as to bring
him or her within the time limit provisions of RCW 51.32.090, shall
nevertheless receive during the omitted period medical, surgical, and
hospital care and service and transportation under the provisions of
this chapter.
(7) Whenever in the sole discretion of the supervisor it is
reasonable and necessary to provide residence modifications necessary
to meet the needs and requirements of the worker who has sustained
catastrophic injury, the department or self-insurer may be ordered to
pay an amount determined as follows:
(a) For claims with date of injury or manifestation of occupational
disease before July 1, 2003, the amount may not ((to)) exceed the
state's average annual wage for one year as determined under RCW
50.04.355((, as now existing or hereafter amended,)) toward the cost of
such modifications or construction. ((Such))
(b) For claims with date of injury or manifestation of occupational
disease on or after July 1, 2003, but before June 30, 2004, the amount
provided for in this subsection may not exceed one hundred twenty
percent of the average monthly wage in the state on June 30, 2003. For
all claims with date of injury or manifestation of occupational disease
on or after July 1, 2004, the amount provided in this subsection may
not exceed an amount determined by the department on June 30, 2003, and
each June 30th thereafter, and applicable to claims with date of injury
or manifestation of occupational disease occurring in the twelve-month
period following the June 30th determination. The amount is determined
by adjusting the June 30, 2003, amount for inflation on June 30, 2004.
In subsequent years, the department shall adjust the amount applicable
during the previous twelve-month period to account for inflation.
Payment shall ((only)) be made under this subsection only for the
construction or modification of a residence in which the injured worker
resides. Only one residence of any worker may be modified or
constructed under this subsection, although the supervisor may order
more than one payment for any one home, up to the maximum amount
permitted by this section.
(8)(a) Whenever in the sole discretion of the supervisor it is
reasonable and necessary to modify a motor vehicle owned by a worker
who has become an amputee or becomes paralyzed because of an industrial
injury, the supervisor may pay or order a self-insurer to pay as
follows:
(i) For claims with date of injury or manifestation of occupational
disease before July 1, 2003, up to fifty percent of the state's average
annual wage for one year, as determined under RCW 50.04.355((, to be
paid by the department or self-insurer)) toward the costs thereof.
(ii) For claims with date of injury or manifestation of
occupational disease on or after July 1, 2003, but before June 30,
2004, the amount will be up to fifty percent of the state's average
annual wage as of June 30, 2003, adjusted for inflation. For all
claims with date of injury or manifestation of occupational disease on
or after July 1, 2004, the amount provided in this subsection may not
exceed an amount determined by the department on June 30, 2003, and
each June 30th thereafter, and applicable to claims with date of injury
or manifestation of occupational disease occurring in the twelve-month
period following the June 30th determination. The amount is determined
by adjusting the June 30, 2003, amount for inflation on June 30, 2004.
In subsequent years, the department shall adjust the amount applicable
during the previous twelve-month period to account for inflation.
(b) In the sole discretion of the supervisor after his or her
review, the amount paid under this subsection may be increased by no
more than four thousand dollars by written order of the supervisor.
(9) The benefits provided by subsections (7) and (8) of this
section are available to any otherwise eligible worker regardless of
the date of industrial injury.
NEW SECTION. Sec. 12 A new section is added to chapter 51.08 RCW
to read as follows:
The department may adopt rules necessary to implement section 2 of
this act.
NEW SECTION. Sec. 13 A new section is added to chapter 51.32 RCW
to read as follows:
The department may adopt rules necessary to implement section 9 of
this act.
NEW SECTION. Sec. 14 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, 2003.