BILL REQ. #:  H-1468.1 



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HOUSE BILL 1868
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State of Washington62nd Legislature2011 Regular Session

By Representative Sells

Read first time 02/07/11.   Referred to Committee on Labor & Workforce Development.



     AN ACT Relating to industrial insurance long-term disability; but only with respect to permanent partial disability awards, limiting pension awards following a permanent partial disability award, allowing a settlement option for injured workers age fifty-five and older, terminating pensions when the workplace residuals are not the predominant factor in a workers' inability to work or be retrained, creating the stay-at-work program, allowing wages for persons receiving long-term disability, and creating the safety and health projects program; amending RCW 51.04.110, 51.32.060, 51.32.067, 51.32.080, and 51.32.160; reenacting and amending RCW 51.32.090; adding a new section to chapter 49.17 RCW; adding new sections to chapter 51.32 RCW; providing an effective date; providing an expiration 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 49.17 RCW to read as follows:
     (1) The director is authorized to provide funding from the medical aid fund established under RCW 51.44.020, by grant or contract, for safety and health investment projects for workplaces insured for workers' compensation through the department's state fund. This shall include projects to: Prevent workplace injuries, illnesses, and fatalities; create early return-to-work programs; and to reduce long-term disability through the cooperation of employers and employees or their representatives.
     (2) Awards may be granted to organizations such as, but not limited to, trade associations, business associations, employers, employees, labor unions, employee organizations, joint labor and management groups, and educational institutions in collaboration with state fund employer and employee representatives.
     (3) Awards may not be used for lobbying or political activities; supporting, opposing, or developing legislative or regulatory initiatives; any activity not designed to reduce workplace injuries, illnesses, or fatalities; or reimbursing employers for the normal costs of complying with safety and health rules.
     (4) Awards should foster the development and implementation of innovative and effective return-to-work programs that lead to improved outcomes for injured workers. Funds for awards shall be distributed as follows: Twenty-five percent for projects designed to develop and implement innovative and effective return-to-work programs for injured workers; twenty-five percent for projects that specifically address the needs of small businesses; and fifty percent for projects that foster workplace injury and illness prevention by addressing priorities identified by the department in cooperation with the Washington industrial safety and health act advisory committee and the workers' compensation advisory committee.

Sec. 2   RCW 51.04.110 and 2010 c 8 s 14001 are each amended to read as follows:
     The director shall appoint a workers' compensation advisory committee composed of ten members: Three representing subject workers, three representing subject employers, one representing self-insurers, one representing workers of self-insurers, and two ex officio members, without a vote, one of whom shall be the chair of the board of industrial appeals and the other the representative of the department. The member representing the department shall be chair. This committee shall conduct a continuing study of any aspects of workers' compensation as the committee shall determine require their consideration and shall assist in the identification of priorities for safety and health investment projects as provided in chapter 49.17 RCW. The committee shall report its findings to the department or the board of industrial insurance appeals for such action as deemed appropriate. The members of the committee shall be appointed for a term of three years commencing on July 1, 1971 and the terms of the members representing the workers and employers shall be staggered so that the director shall designate one member from each such group initially appointed whose term shall expire on June 30, 1972 and one member from each such group whose term shall expire on June 30, 1973. The members shall serve without compensation, but shall be entitled to travel expenses as provided in RCW 43.03.050 and 43.03.060 as now existing or hereafter amended. The committee may hire such experts, if any, as it shall require to discharge its duties, and may utilize such personnel and facilities of the department and board of industrial insurance appeals as it shall need without charge. All expenses of this committee shall be paid by the department.

Sec. 3   RCW 51.32.060 and 2007 c 284 s 2 are each amended to read as follows:
     (1) 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 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.
     (3) 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) 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)(a) In no event shall the monthly payments provided in this section:
     (((a))) (i) Exceed the applicable percentage of the average monthly wage in the state as computed under the provisions of RCW 51.08.018 as follows:

 AFTERPERCENTAGE
 
 June 30, 1993105% 
 June 30, 1994110% 
 June 30, 1995115% 
 June 30, 1996120% 


     (((b))) (ii) For dates of injury or disease manifestation after July 1, 2008, be less than fifteen percent of the average monthly wage in the state as computed under RCW 51.08.018 plus an additional ten dollars per month if a worker is married and an additional ten dollars per month for each child of the worker up to a maximum of five children. However, if the monthly payment computed under this subsection (5)(((b))) (a)(ii) is greater than one hundred percent of the wages of the worker as determined under RCW 51.08.178, the monthly payment due to the worker shall be equal to the greater of the monthly wages of the worker or the minimum benefit set forth in this section on June 30, 2008.
     (b) For a worker who has been awarded a permanent total disability pension, but retains a limited ability to work, the department may not reduce the worker's pension payments if the wages or money the worker receives from working equal ten percent or less of the average monthly wage in the state as computed under RCW 51.08.018. If the worker's wages are more than ten percent of the average monthly wage in the state, the department shall reduce the worker's monthly pension payments by one dollar for every two dollars earned in excess of this amount. Workers must report every year to the department any earnings, wages, or employment on a form prescribed by the department. The department may not reduce benefits for wages when a worker's total permanent disability pension is due to the loss of both legs, or arms, or one leg and one arm, total loss of eyesight, or paralysis.
     (c) The limitations under this subsection (5) shall not apply to the payments provided for in subsection (3) of this section.
     (6) In the case of new or reopened claims, if the supervisor of industrial insurance determines that, at the time of filing or reopening, the worker is voluntarily retired and is no longer attached to the workforce, benefits shall not be paid under this section.
     (7) The benefits provided by this section are subject to modification under RCW 51.32.067.
     (8)(a) When the medical residuals of the industrial injury or occupational disease are not the predominant factor causing the worker's inability to perform employment or be retrained, compensation must continue until the worker reaches full federal retirement age as defined by 42 U.S.C. Sec. 416(1).
     (b) The medical residuals of the industrial injury or occupational disease are the predominant factor when, considering the worker's entire circumstances, the worker would be able to perform employment or be retrained but for the medical residuals.
     (9) The department shall develop rules as necessary to implement this section.
     (10) The provisions of subsection (8) of this section apply to all determinations of total permanent disability made by the department on or after July 1, 2011.

Sec. 4   RCW 51.32.067 and 2006 c 154 s 1 are each amended to read as follows:
     (1) After a worker elects one of the options in (a), (b), or (c) of this subsection, that option shall apply only if the worker dies during a period of permanent total disability from a cause unrelated to the injury, leaving a surviving spouse, child, children, or other dependent. If, after making an election under this subsection, a worker dies from a cause related to the injury during a period of permanent total disability, his or her beneficiaries shall receive benefits under RCW 51.32.050 (2) through (5).
     (a) Option I. An injured worker selecting this option shall receive the benefits provided by RCW 51.32.060, with no benefits being paid to the worker's surviving spouse, children, or others.
     (b) Option II. An injured worker selecting this option shall receive an actuarially reduced benefit which upon death shall be ((continued throughout the life of and)) paid to the surviving spouse, child, or other dependent as the worker has nominated by written designation duly executed and filed with the department. The benefit is payable to the designated beneficiary through their life or through the period the injured worker would have been entitled to permanent total disability benefits, whichever ends first.
     (c) Option III. An injured worker selecting this option shall receive an actuarially reduced benefit and, upon death, one-half of the reduced benefit shall be ((continued throughout the life of and)) paid to the surviving spouse, child, or other dependent as the worker has nominated by written designation duly executed and filed with the department. The benefit is payable to the designated beneficiary through their life or through the period the injured worker would have been entitled to permanent total disability benefits, whichever ends first.
     (2) The worker shall make the election in writing and the worker's spouse, if any, shall consent in writing as a prerequisite to the election of Option I.
     (3) If the worker's nominated beneficiary is the worker's spouse, and the worker and spouse enter into a dissolution of marriage after the nomination has been made, the worker may apply to receive benefits as calculated under Option I if the period of the worker's entitlement to permanent total disability benefits has not ended. This change is effective the date of the decree of dissolution of marriage, but no more than one year prior to the date application for the change is received in the department, provided the worker submits legally certified documentation of the decree of dissolution of marriage.
     (4) If the worker's nominated beneficiary dies, the worker may apply to receive benefits as calculated under Option I if the period of the worker's entitlement to permanent total disability benefits has not ended. This change is effective the date of death, but no more than one year prior to the date application for the change is received in the department, provided the worker submits a certified copy of the death certificate.
     (5) The change in benefits authorized by subsections (3) and (4) of this section is a one-time adjustment and will be permanent for the ((life of the worker)) period of the worker's entitlement to permanent total disability benefits.
     (6) The department shall adopt such rules as may be necessary to implement this section.

Sec. 5   RCW 51.32.080 and 2007 c 172 s 1 are each amended to read as follows:
     (1)(a) Beginning with injuries on or after July 1, 2011, 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) . . . . . . . . . . . . $140,533.00
Of leg at or above knee joint with functional      stump . . . . . . . . . . . . $126,480.00
Of leg below knee joint . . . . . . . . . . . . $112,427.00
Of leg at ankle (Syme) . . . . . . . . . . . . $98,373.00
Of foot at mid-metatarsals . . . . . . . . . . . . $49,187.00
Of great toe with resection of metatarsal      bone . . . . . . . . . . . . $29,512.00
Of great toe at metatarsophalangeal
     joint . . . . . . . . . . . . 		$17,707.00
Of great toe at interphalangeal joint . . . . . . . . . . . . $9,369.00
Of lesser toe (2nd to 5th) with resection of      metatarsal bone . . . . . . . . . . . . $10,774.00
Of lesser toe at metatarsophalangeal joint . . . . . . . . . . . . $5,247.00
Of lesser toe at proximal interphalangeal      joint . . . . . . . . . . . . $3,888.00
Of lesser toe at distal interphalangeal
     joint . . . . . . . . . . . . 		$984.00
Of arm at or above the deltoid insertion or      by disarticulation at the shoulder . . . . . . . . . . . . $140,533.00
Of arm at any point from below the deltoid      insertion to below the elbow joint at the      insertion of the biceps tendon . . . . . . . . . . . . $133,507.00
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 . . . . . . . . . . . . $126,480.00
Of all fingers except the thumb at      metacarpophalangeal joints . . . . . . . . . . . . $75,888.00
Of thumb at metacarpophalangeal joint or      with resection of carpometacarpal bone . . . . . . . . . . . . $50,592.00
Of thumb at interphalangeal joint . . . . . . . . . . . . $25,296.00
Of index finger at metacarpophalangeal joint      or with resection of metacarpal bone . . . . . . . . . . . . $31.620.00
Of index finger at proximal interphalangeal      joint . . . . . . . . . . . . $25,296.00
Of index finger at distal interphalangeal      joint . . . . . . . . . . . . $13,913.00
Of middle finger at metacarpophalangeal      joint or with resection of metacarpal      bone . . . . . . . . . . . . $25,296.00
Of middle finger at proximal interphalangeal      joint . . . . . . . . . . . . $20,237.00
Of middle finger at distal interphalangeal      joint . . . . . . . . . . . . $11,383.00
Of ring finger at metacarpophalangeal joint      or with resection of metacarpal bone . . . . . . . . . . . . $12,648.00
Of ring finger at proximal interphalangeal      joint . . . . . . . . . . . . $10,118.00
Of ring finger at distal interphalangeal
     joint . . . . . . . . . . . . 		$6,324.00
Of little finger at metacarpophalangeal joint      or with resection of metacarpal
     bone . . . . . . . . . . . . 		$6,324.00
Of little finger at proximal interphalangeal      joint . . . . . . . . . . . . $5,059.00
Of little finger at distal interphalangeal
     joint . . . . . . . . . . . . 		$2,530.00

MISCELLANEOUS
Loss of one eye by enucleation . . . . . . . . . . . . $56,213.00
Loss of central visual acuity in one eye . . . . . . . . . . . . $46,844.00
Complete loss of hearing in both ears . . . . . . . . . . . . $86,482.00
Complete loss of hearing in one ear . . . . . . . . . . . . $14,414.00



     (b) 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
Loss of one eye by enucleation . . . . . . . . . . . . 21,600.00
Loss of central visual acuity in one eye . . . . . . . . . . . . 18,000.00
Complete loss of hearing in both ears . . . . . . . . . . . . 43,200.00
Complete loss of hearing in one ear . . . . . . . . . . . . 7,200.00


     (((b))) (c) Beginning on July 1, 1993, compensation under this subsection shall be computed as follows:
     (i) Beginning on July 1, 1993, the compensation amounts for the specified disabilities listed in (((a))) (b) of this subsection shall be increased by thirty-two percent; ((and))
     (ii) Beginning on July 1, 1994, and each July 1st thereafter until July 1, 2011, the compensation amounts for the specified disabilities listed in (((a))) (b) of this subsection, as adjusted under (((b))) (c)(i) of this subsection, shall be readjusted to reflect the percentage change in the consumer price index, calculated as follows: The index for the calendar year preceding the year in which the July calculation is made, to be known as "calendar year A," is divided by the index for the calendar year preceding calendar year A, and the resulting ratio is multiplied by the compensation amount in effect on June 30 immediately preceding the July 1st on which the respective calculation is made. For the purposes of this subsection, "index" means the same as the definition in RCW 2.12.037(1); and
     (iii) Beginning with injuries on July 1, 2012, and for those occurring each July 1st thereafter, the compensation amounts for the specified disabilities listed in (a) of this subsection shall be readjusted to reflect the percentage change in the consumer price index, calculated under the formula provided in (c)(ii) of this subsection.
     (2) Compensation for amputation of a member or part thereof at a site other than those specified in subsection (1) of this section, and for loss of central visual acuity and loss of hearing other than complete, shall be in proportion to that which such other amputation or partial loss of visual acuity or hearing most closely resembles and approximates. Compensation shall be calculated based on the adjusted schedule of compensation in effect for the respective time period as prescribed in subsection (1) of this section.
     (3)(a) Compensation for any other permanent partial disability not involving amputation shall be in the proportion which the extent of such other disability, called unspecified disability, shall bear to the disabilities specified in subsection (1) of this section, which most closely resembles and approximates in degree of disability such other disability, and compensation for any other unspecified permanent partial disability shall be in an amount as measured and compared to total bodily impairment. To reduce litigation and establish more certainty and uniformity in the rating of unspecified permanent partial disabilities, the department shall enact rules having the force of law classifying such disabilities in the proportion which the department shall determine such disabilities reasonably bear to total bodily impairment. In enacting such rules, the department shall give consideration to, but need not necessarily adopt, any nationally recognized medical standards or guides for determining various bodily impairments.
     (b) Beginning with injuries on July 1, 2011, for purposes of calculating monetary benefits under (a) of this subsection, the amount payable for total bodily impairment shall be deemed to be two hundred thirty-four thousand two hundred twenty-two dollars. Beginning with injuries on July 1, 2012, for purposes of calculating monetary benefits under (a) of this subsection, the amount payable for total bodily impairment shall be adjusted as provided in subsection (1)(c)(iii) of this section.
     (c) Until July 1, 1993, for purposes of calculating monetary benefits under (a) of this subsection, the amount payable for total bodily impairment shall be deemed to be ninety thousand dollars. Beginning on July 1, 1993, for purposes of calculating monetary benefits under (a) of this subsection, the amount payable for total bodily impairment shall be adjusted as follows:
     (i) Beginning on July 1, 1993, the amount payable for total bodily impairment under this section shall be increased to one hundred eighteen thousand eight hundred dollars; and
     (ii) Beginning on July 1, 1994, and each July 1 thereafter, the amount payable for total bodily impairment prescribed in (((b))) (c)(i) of this subsection shall be adjusted as provided in subsection (1)(((b))) (c)(ii) of this section.
     (((c))) (d) Until July 1, 1993, the total compensation for all unspecified permanent partial disabilities resulting from the same injury shall not exceed the sum of ninety thousand dollars. Beginning on July 1, 1993, total compensation for all unspecified permanent partial disabilities resulting from the same injury shall not exceed a sum calculated as follows:
     (i) Beginning on July 1, 1993, the sum shall be increased to one hundred eighteen thousand eight hundred dollars; and
     (ii) Beginning on July 1, 1994, and each July 1 thereafter, the sum prescribed in (((b))) (c)(i) of this subsection shall be adjusted as provided in subsection (1)(((b))) (c)(ii) of this section.
     (4) If permanent partial disability compensation is followed by permanent total disability compensation, ((any portion of the permanent partial disability compensation which exceeds the amount that would have been paid the injured worker if permanent total disability compensation had been paid in the first instance)) all permanent partial disability compensation paid to the worker under the claim or claims for which total permanent disability compensation is awarded shall be, at the choosing of the injured worker, either: (a) Deducted from the worker's monthly pension benefits ((in an amount not to exceed twenty-five percent of the monthly amount due from the department or self-insurer or one-sixth of the total overpayment, whichever is less)) until the total award or awards paid are recovered; or (b) deducted from the pension reserve of such injured worker and his or her monthly compensation payments shall be reduced accordingly. Any interest paid on any permanent partial disability compensation may not be deducted from the pension benefits or pension reserve. The provisions of this subsection apply to all permanent total disability determinations issued on or after July 1, 2011.
     (5) Should a worker receive an injury to a member or part of his or her body already, from whatever cause, permanently partially disabled, resulting in the amputation thereof or in an aggravation or increase in such permanent partial disability but not resulting in the permanent total disability of such worker, his or her compensation for such partial disability shall be adjudged with regard to the previous disability of the injured member or part and the degree or extent of the aggravation or increase of disability thereof.
     (6) When the compensation provided for in subsections (1) through (3) of this section exceeds three times the average monthly wage in the state as computed under the provisions of RCW 51.08.018, payment shall be made in monthly payments in accordance with the schedule of temporary total disability payments set forth in RCW 51.32.090 until such compensation is paid to the injured worker in full, except that the first monthly payment shall be in an amount equal to three times the average monthly wage in the state as computed under the provisions of RCW 51.08.018((, and interest shall be paid at the rate of eight percent on the unpaid balance of such compensation commencing with the second monthly payment. However,)). Upon application of the injured worker or survivor the monthly payment may be converted, in whole or in part, into a lump sum payment, in which event the monthly payment shall cease in whole or in part. Such conversion may be made only upon written application of the injured worker or survivor to the department ((and)) or self-insurer. A decision to deny the application to the worker of a self-insurer, or to either grant or deny the application to the worker of an employer insured by the department, shall rest in the discretion of the department depending upon the merits of each individual application. Upon the death of a worker all unpaid installments accrued shall be paid according to the payment schedule established prior to the death of the worker to the widow or widower, or if there is no widow or widower surviving, to the dependent children of such claimant, and if there are no such dependent children, then to such other dependents as defined by this title.
     (7) Awards payable under this section are governed by the schedule in effect on the date of injury.

Sec. 6   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) 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.
     (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, 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.
     (4)(a) ((Whenever)) 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) The employer of injury ((requests that)) may provide light duty or transitional work to 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 department shall obtain from the physician or licensed advanced registered nurse practitioner a statement confirming the light duty or transitional work is consistent with the worker's medical restrictions related to the injury. This statement must be obtained before the start of the light duty or transitional 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)) stop effective the date the light duty or transitional job starts. Temporary total disability payments shall resume 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 at the direction of the physician or licensed advanced registered nurse practitioner.
     (((b))) (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 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 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: PROVIDED, HOWEVER, That 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 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)) of 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.
     (((c))) (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.
     (((d))) (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.
     (((6))) (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) 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))) (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, 1993105% 
 June 30, 1994110% 
 June 30, 1995115% 
 June 30, 1996120% 


     (b) For dates of injury or disease manifestation after July 1, 2008, be less than fifteen percent of the average monthly wage in the state as computed under RCW 51.08.018 plus an additional ten dollars per month if the worker is married and an additional ten dollars per month for each child of the worker up to a maximum of five children. However, if the monthly payment computed under this subsection (((7))) (9)(b) is greater than one hundred percent of the wages of the worker as determined under RCW 51.08.178, the monthly payment due to the worker shall be equal to the greater of the monthly wages of the worker or the minimum benefit set forth in this section on June 30, 2008.
     (((8))) (10) If the supervisor of industrial insurance determines that the worker is voluntarily retired and is no longer attached to the workforce, benefits shall not be paid under this section.

NEW SECTION.  Sec. 7   A new section is added to chapter 51.32 RCW to read as follows:
     (1)(a) In addition to the options listed in RCW 51.32.099(4), a worker who is found eligible for vocational plan development and who is age fifty-five or older on the date the vocational rehabilitation plan is submitted to the department or self-insurer, can select a disability settlement option. Under this option, the worker declines further vocational services under the claim and elects to receive a disability settlement in an amount equal to one-third of the value of the pension annuity. The pension annuity shall be calculated as if the worker had been found totally and permanently disabled effective the date the worker was found eligible for vocational plan development services. All prior permanent partial disability awards and any permanent partial disability award to be paid at claim closure shall be deducted from the pension annuity forming the basis of the disability settlement. For purposes of communicating this option to a worker, the department may estimate the amount of the permanent partial disability award. This estimate is not binding on any party.
     (b) The disability settlement selection can be made by an eligible worker at any time during plan development services until the plan is submitted to the department. The worker will have a minimum of sixty days to make this selection. The worker's selection and award amount will be established by order of the department pursuant to RCW 51.52.050. The department shall thereafter close the claim or claims including any permanent partial disability award to which the worker is entitled.
     (c) The worker will continue to receive temporary total disability benefits until this order and the order closing the claim become final and binding on all parties. The disability settlement award will be paid in a lump sum within ten days of these orders becoming final, less the amount paid in temporary total disability benefits after the date the disability settlement order was issued.
     (i) A worker who has received disability settlement benefits can reopen the claim or claims for which the disability settlement was paid upon a showing of worsening of the related medical conditions under RCW 51.32.160 for medical treatment only. Further temporary total, temporary partial, permanent partial, or permanent total benefits are not payable under the same claim or claims for which a disability settlement was selected and paid.
     (ii) If a worker who has received disability settlement benefits is subsequently injured or suffers an occupational disease, and vocational rehabilitation is found both necessary and likely to enable the injured worker to become employable at gainful employment under RCW 51.32.095(1), vocational rehabilitation will only be provided at the discretion of the director or the director's designee.
     (iii) If a worker who has received disability settlement benefits becomes entitled to total permanent disability benefits under another claim, the disability settlement benefits will be deducted from the pension annuity calculated under the subsequent claim and pension benefits reduced accordingly.
     (iv) A disability settlement is not available to a worker who has suffered the loss of both legs, or arms, or one leg and one arm, total loss of eyesight, or paralysis.
     (2) The provisions of subsection (1) of this section apply to all claims where the worker is age fifty-five or older and is found eligible for vocational plan development on or after July 1, 2011.

Sec. 8   RCW 51.32.160 and 1995 c 253 s 2 are each amended to read as follows:
     (1)(a) If aggravation, diminution, or termination of disability takes place, the director may, upon the application of the beneficiary, made within seven years from the date the first closing order becomes final, or at any time upon his or her own motion, readjust the rate of compensation in accordance with the rules in this section provided for the same, or in a proper case terminate the payment: PROVIDED, That the director may, upon application of the worker made at any time, provide proper and necessary medical and surgical services as authorized under RCW 51.36.010. The department shall promptly mail a copy of the application to the employer at the employer's last known address as shown by the records of the department.
     (b) "Closing order" as used in this section means an order based on factors which include medical recommendation, advice, or examination.
     (c) Applications for benefits where the claim has been closed without medical recommendation, advice, or examination are not subject to the seven year limitation of this section. The preceding sentence shall not apply to any closing order issued prior to July 1, 1981. First closing orders issued between July 1, 1981, and July 1, 1985, shall, for the purposes of this section only, be deemed issued on July 1, 1985. The time limitation of this section shall be ten years in claims involving loss of vision or function of the eyes.
     (d) If an order denying an application to reopen filed on or after July 1, 1988, is not issued within ninety days of receipt of such application by the self-insured employer or the department, such application shall be deemed granted. However, for good cause, the department may extend the time for making the final determination on the application for an additional sixty days.
     (2) If a worker receiving ((a pension for)) permanent total disability benefits returns to ((gainful)) any employment for wages or earnings, the director ((may)) shall suspend ((or)), terminate ((the rate of compensation established for the disability)), or reduce the amount of compensation without producing medical evidence that shows that a diminution of the disability has occurred. A reduction in the amount of compensation must be in accordance with RCW 51.32.060(5)(b).
     (3) No act done or ordered to be done by the director, or the department prior to the signing and filing in the matter of a written order for such readjustment shall be grounds for such readjustment.

NEW SECTION.  Sec. 9   A new section is added to chapter 51.32 RCW to read as follows:
     Utilization, worker satisfaction and outcomes, and system and employer costs related to RCW 51.32.060, 51.32.080, and section 7 of this act will be studied and a report issued to the appropriate legislative committees, the department, and the workers' compensation advisory committee by December 1, 2014. The workers' compensation advisory committee shall recommend to the department any legislation needed to ensure the appropriate utilization of disability benefits at reasonable cost to the system.

NEW SECTION.  Sec. 10   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.

NEW SECTION.  Sec. 11   Section 6 of this act expires July 1, 2016.

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