2008 Legislation
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SENATE BILL NO. 1366<br /> – Volunteer emergncy respndr/disablty


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S1366.......................................by COMMERCE AND HUMAN RESOURCES
VOLUNTEER EMERGENCY RESPONDERS - Amends and adds to existing law relating
to disability benefits for volunteer emergency responders to define terms;
to revise the designation of employees in public employment; to revise the
determination of average weekly wage for volunteer emergency responders;
and to provide for the payment of total and permanent disability benefits
to volunteer emergency responders.

02/01    Senate intro - 1st rdg - to printing
02/04    Rpt prt - to Com/HuRes

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   Second Regular Session - 2008


                                       IN THE SENATE

                                    SENATE BILL NO. 1366


  1                                        AN ACT

 13    Be It Enacted by the Legislature of the State of Idaho:

 14        SECTION 1.  That Section 72-102, Idaho Code, be, and the  same  is  hereby
 15    amended to read as follows:

 16        72-102.  DEFINITIONS.  Words  and  terms used in the worker's compensation
 17    law, unless the context otherwise requires, are  defined  in  the  subsections
 18    which follow:
 19        (1)  "Alien" means a person who is not a citizen, a national or a resident
 20    of  the  United  States or Canada. Any person not a citizen or national of the
 21    United States who relinquishes or is about to relinquish his residence in  the
 22    United States shall be regarded as an alien.
 23        (2)  "Balance billing" means charging, billing, or otherwise attempting to
 24    collect  directly  from  an  injured  employee payment for medical services in
 25    excess of amounts allowable in compensable claims as provided by rules promul-
 26    gated by the commission pursuant to section 72-508, Idaho Code.
 27        (3)  "Beneficiary" means any person who is entitled to income benefits  or
 28    medical and related benefits under this law.
 29        (4)  "Burial  expenses"  means  a  sum, not to exceed six thousand dollars
 30    ($6,000) for funeral  and  burial  or  cremation,  together  with  the  actual
 31    expenses  of  transportation  of the employee's body to his place of residence
 32    within the United States or Canada.
 33        (5)  "Commission" means the industrial commission.
 34        (6)  "Community service worker" means:
 35        (a)  Any person who has been convicted of a criminal offense, any juvenile
 36        who has been found to be within the purview of chapter 5, title 20,  Idaho
 37        Code, and who has been informally diverted under the provisions of section
 38        20-511,  Idaho Code, or any person or youth who has been diverted from the
 39        criminal or juvenile justice system and who performs a public service  for
 40        any department, institution, office, college, university, authority, divi-
 41        sion, board, bureau, commission, council, or other entity of the state, or
 42        any  city,  county,  school  district, irrigation district or other taxing
 43        district authorized to levy a tax or an assessment or any other  political


  1        subdivision  or  any  private not-for-profit agency which has elected wor-
  2        ker's compensation insurance coverage for such person; or
  3        (b)  Parolees under department  of  correction  supervision,  probationers
  4        under  court  order  or  department of correction supervision and offender
  5        residents of community work centers under the direction or  order  of  the
  6        board of correction who are performing public service or community service
  7        work for any of the entities specified in paragraph (6)(a) of this section
  8        other than the department of correction.
  9        (7)  "Compensation" used collectively means any or all of the income bene-
 10    fits and the medical and related benefits and medical services.
 11        (8)  "Custom  farmer"  means  a  person  who  contracts to supply operated
 12    equipment to a proprietor of a farm for the purpose of performing part or  all
 13    of  the  activities related to raising or harvesting agricultural or horticul-
 14    tural commodities.
 15        (9)  "Death" means death resulting from an injury or occupational disease.
 16        (10) Dependency limitations.
 17        (a)  "Adopted" and "adoption" include cases where persons are  treated  as
 18        adopted  as  well as those of legal adoption unless legal adoption is spe-
 19        cifically provided.
 20        (b)  "Brother" and "sister" include  stepbrothers  and  stepsisters,  half
 21        brothers and half sisters, and brothers and sisters by adoption.
 22        (c)  "Child"  includes adopted children, posthumous children, and acknowl-
 23        edged illegitimate children, but  does  not  include  stepchildren  unless
 24        actually dependent.
 25        (d)  "Grandchild"  includes children of legally adopted children and chil-
 26        dren of stepchildren, but  does  not  include  stepchildren  of  children,
 27        stepchildren  of  stepchildren, or stepchildren of adopted children unless
 28        actually dependent.
 29        (e)  "Parent" includes stepparents and parents by adoption.
 30        (f)  "Grandparent" includes parents of parents by adoption, but  does  not
 31        include  parents of stepparents, stepparents of parents, or stepparents of
 32        stepparents.
 33        (11) "Disability," for purposes of determining total or partial  temporary
 34    disability  income  benefits, means a decrease in wage-earning capacity due to
 35    injury or occupational disease, as such capacity is affected  by  the  medical
 36    factor of physical impairment, and by pertinent nonmedical factors as provided
 37    in section 72-430, Idaho Code.
 38        (12) "Employee"  is synonymous with "workman" and means any person who has
 39    entered into the employment of, or who works  under  contract  of  service  or
 40    apprenticeship  with,  an  employer. It does not include any person engaged in
 41    any of the excepted employments enumerated  in  section  72-212,  Idaho  Code,
 42    unless  an election as provided in section 72-213, Idaho Code, has been filed.
 43    Any reference to an employee who has been injured shall, where the employee is
 44    dead, include a reference to his dependents as herein defined, if the  context
 45    so  requires, or, where the employee is a minor or incompetent, to his commit-
 46    tee or guardian or next friend.
 47        (13) (a)  "Employer" means any person who has expressly or impliedly hired
 48        or contracted the services of another. It includes contractors and subcon-
 49        tractors. It includes the owner or lessee of premises, or other person who
 50        is virtually the proprietor or operator of the business there carried  on,
 51        but  who,  by  reason  of there being an independent contractor or for any
 52        other reason, is not the direct employer of the workers there employed. If
 53        the employer is secured, it means his surety so far as applicable.
 54        (b)  "Professional employer" means a professional employer as  defined  in
 55        chapter 24, title 44, Idaho Code.


  1        (c)  "Temporary  employer"  means  the  employer of temporary employees as
  2        defined in section 44-2403(7), Idaho Code.
  3        (d)  "Work site employer" means the client of  the  temporary  or  profes-
  4        sional employer with whom a worker has been placed.
  5        (14) "Farm  labor contractor" means any person or his agent or subcontrac-
  6    tor who, for a fee, recruits and employs farm workers and  performs  any  farm
  7    labor contracting activity.
  8        (15) "Gender  and  number." The masculine gender includes the feminine and
  9    neuter; "husband" or "wife" includes "spouse"; the  singular  number  includes
 10    plural and the plural the singular.
 11        (16) "Income  benefits" means payments provided for or made under the pro-
 12    visions of this law to the injured employee disabled by an injury  or  occupa-
 13    tional  disease,  or  his  dependents  in case of death, excluding medical and
 14    related benefits.
 15        (17) "Independent contractor" means any person who renders service  for  a
 16    specified  recompense  for  a  specified result, under the right to control or
 17    actual control of his principal as to the result of his work only and  not  as
 18    to  the  means  by which such result is accomplished. For the purposes of wor-
 19    ker's compensation law, a custom farmer is considered  to  be  an  independent
 20    contractor.
 21        (18) "Injury" and "accident."
 22        (a)  "Injury" means a personal injury caused by an accident arising out of
 23        and  in  the course of any employment covered by the worker's compensation
 24        law.
 25        (b)  "Accident" means an unexpected, undesigned, and unlooked for  mishap,
 26        or  untoward  event,  connected  with the industry in which it occurs, and
 27        which can be reasonably located  as  to  time  when  and  place  where  it
 28        occurred, causing an injury.
 29        (c)  "Injury"  and "personal injury" shall be construed to include only an
 30        injury caused by an accident, which results in violence  to  the  physical
 31        structure  of the body. The terms shall in no case be construed to include
 32        an occupational disease and only such nonoccupational diseases  as  result
 33        directly from an injury.
 34        (19) "Manifestation"  means the time when an employee knows that he has an
 35    occupational disease, or whenever  a  qualified  physician  shall  inform  the
 36    injured worker that he has an occupational disease.
 37        (20) "Medical  and  related  benefits" means payments provided for or made
 38    for medical, hospital, burial and other services as provided in this law other
 39    than income benefits.
 40        (21) "Medical services" means medical, surgical, dental  or  other  atten-
 41    dance  or  treatment, nurse and hospital service, medicines, apparatus, appli-
 42    ances, prostheses, and related services, facilities and supplies.
 43        (22) "Occupational diseases."
 44        (a)  "Occupational disease" means a  disease  due  to  the  nature  of  an
 45        employment  in which the hazards of such disease actually exist, are char-
 46        acteristic of, and peculiar to the trade, occupation, process, or  employ-
 47        ment,  but  shall  not include psychological injuries, disorders or condi-
 48        tions unless the conditions set forth in section 72-451, Idaho  Code,  are
 49        met.
 50        (b)  "Contracted"  and  "incurred," when referring to an occupational dis-
 51        ease, shall be deemed the equivalent of the term "arising out  of  and  in
 52        the course of" employment.
 53        (c)  "Disablement," except in the case of silicosis, means the event of an
 54        employee's becoming actually and totally incapacitated because of an occu-
 55        pational  disease from performing his work in the last occupation in which


  1        injuriously exposed to the hazards of such disease, and "disability" means
  2        the state of being so incapacitated.
  3        (d)  "Disablement," in the case of silicosis, means  the  event  of  first
  4        becoming  actually incapacitated, because of such disease, from performing
  5        any work in any remunerative employment; and "disability" means the  state
  6        of being so incapacitated.
  7        (e)  "Silicosis" means the characteristic fibrotic condition of the lungs
  8        caused by the inhalation of silicon dioxide          dust.
  9        (23) "Outworker"  means  a  person  to whom articles or materials are fur-
 10    nished to be treated in any way on premises not under the control  or  manage-
 11    ment of the person who furnished them.
 12        (24) "Person" means the state or any political subdivision thereof, or any
 13    individual,  partnership, firm, association, trust, corporation, including the
 14    state insurance fund, or any representative thereof.
 15        (25) "Physician" means medical physicians and surgeons,  ophthalmologists,
 16    otorhinolaryngologists,  dentists, osteopaths, osteopathic physicians and sur-
 17    geons, optometrists, podiatrists, chiropractic physicians, and members of  any
 18    other  healing profession licensed or authorized by the statutes of this state
 19    to practice such profession within the scope of their practice as  defined  by
 20    the statutes of this state and as authorized by their licenses.
 21        (26) "Provider" means any person, firm, corporation, partnership, associa-
 22    tion, agency, institution, or other legal entity providing any kind of medical
 23    services related to the treatment of an injured employee which are compensable
 24    under Idaho's worker's compensation law.
 25        (27) "Secretary" means the secretary of the commission.
 26        (28) "Self-insurer"  means  an  employer who has been authorized under the
 27    provisions of this law to carry his own liability to his employees covered  by
 28    this law.
 29        (29) "State" includes any state, district, commonwealth, zone or territory
 30    of the United States or any province of Canada.
 31        (30) "Surety"  means any insurer authorized to insure or guarantee payment
 32    of worker's compensation liability of employers in any state; it also includes
 33    the state insurance fund, a self-insurer and an inter-insurance exchange.
 34        (31) "United States," when used in a geographic sense, means  the  several
 35    states,  the  District of Columbia, the Commonwealth of Puerto Rico, the Canal
 36    Zone and the territories of the United States.
 37        (32) "Volunteer emergency responder" means a firefighter or peace officer,
 38    or certified personnel as that term is defined in section 56-1012, Idaho Code,
 39    who is a bona fide member of a legally organized  law  enforcement  agency,  a
 40    legally organized fire department or a licensed emergency medical service pro-
 41    vider organization who contributes services without receiving compensation.
 42        (33) "Wages"  and  "wage earning capacity" prior to the injury or disable-
 43    ment from occupational disease mean the employee's money payments for services
 44    as calculated under section 72-419, Idaho Code, and shall additionally include
 45    the reasonable market value of board, rent, housing, lodging, fuel, and  other
 46    advantages  which  can  be estimated in money which the employee receives from
 47    the employer as part of his  remuneration,  and  gratuities  received  in  the
 48    course  of employment from others than the employer. "Wages" shall not include
 49    sums which the employer has paid to the employee to cover any special expenses
 50    entailed on him by the nature of his employment.
 51        (334) "Wages" and "wage earning capacity" after the injury or  disablement
 52    from  occupational  disease  shall be presumed to be the actual earnings after
 53    the injury or disablement, which presumption may be overcome by  showing  that
 54    those  earnings  do not fairly and reasonably represent wage earning capacity;
 55    in such a case wage earning capacity shall be determined in the light  of  all


  1    factors  and  circumstances  which  may  affect  the worker's capacity to earn
  2    wages.
  3        (345) "Work experience student" means any person enrolled  in  the  public
  4    school  districts  of  this  state  and  who,  as  part of his instruction, is
  5    enrolled in a class or  program for academic credit and for which the  student
  6    is  employed  by,  or works for, a private or governmental entity. The student
  7    need not receive wages from the private or governmental entity in order to  be
  8    classified as a work experience student.
  9        (356) "Worker's  compensation  law"  or "workmen's compensation law" means
 10    and includes the worker's compensation law of this state and any like or simi-
 11    lar law of any state, United States, territory, or province of Canada.

 12        SECTION 2.  That Section 72-205, Idaho Code, be, and the  same  is  hereby
 13    amended to read as follows:

 14        72-205.  PUBLIC EMPLOYMENT GENERALLY -- COVERAGE. The following shall con-
 15    stitute employees in public employment and their employers subject to the pro-
 16    visions of this law:
 17        (1)  Every person in the service of the state or of any political subdivi-
 18    sion  thereof, under any contract of hire, express or implied, and every offi-
 19    cial or officer thereof, whether elected or appointed,  while  performing  his
 20    official  duties,  except  officials  of athletic contests involving secondary
 21    schools, as defined by section 33-119, Idaho Code.
 22        (2)  Every person in the service of a county, city, or any political  sub-
 23    division thereof, or of any municipal corporation.
 24        (3)  Participants in the Idaho youth conservation project under the super-
 25    vision of the Idaho state forester.
 26        (4)  Every person who is a member of a volunteer fire or police department
 27    emergency  responder  shall  be deemed, for the purposes of this law, to be in
 28    the employment of the political subdivision or municipality where the  depart-
 29    ment, agency or organization is organized.
 30        (5)  Every  person who is a regularly enrolled volunteer member or trainee
 31    of the department of disaster and civil defense, or of a civil defense  corps,
 32    shall  be deemed, for the purposes of this law, to be in the employment of the
 33    state.
 34        (6)  Members of the Idaho national guard while on duty and employees of or
 35    persons providing voluntary  service  to  an  approved  Idaho  national  guard
 36    morale,  welfare,  and  recreational  activity. No Idaho compensation benefits
 37    shall inure to any such member, employee or volunteer or  their  beneficiaries
 38    for any injury or death compensable under federal law.
 39        (7)  A  community  service  worker,  as  that  term  is defined in section
 40    72-102, Idaho Code, is considered to be an employee in public  employment  for
 41    purposes  of receiving worker's compensation benefits, which shall be the com-
 42    munity service worker's exclusive remedy for  all  injuries  and  occupational
 43    diseases as provided under chapters 1 through 8, title 72, Idaho Code.
 44        (8)  Every person who participates in a youth employment program funded in
 45    whole or in part by state or federal money and administered by a state or fed-
 46    eral agency or a nonprofit corporation or entity.
 47        (9)  A work experience student, as that term is defined in section 72-102,
 48    Idaho  Code,  who  does  not receive wages while participating in the school's
 49    work experience program shall be covered by the school district's policy  with
 50    the state insurance fund.

 51        SECTION  3.  That  Section  72-419, Idaho Code, be, and the same is hereby
 52    amended to read as follows:


  1        72-419.  DETERMINATION OF AVERAGE WEEKLY WAGE. Except  as  otherwise  pro-
  2    vided in this law, the average weekly wage of the employee  at the time of the
  3    accident  causing  the  injury or of manifestation of the occupational disease
  4    shall be taken as the basis upon which to compute compensation  and  shall  be
  5    determined as follows:
  6        (1)  If  at such time the wages are fixed by the week, the amount so fixed
  7    shall be the average weekly wage.
  8        (2)  If at such time the wages are fixed by the month, the average  weekly
  9    wage  shall be the monthly wage so fixed multiplied by twelve (12) and divided
 10    by fifty-two (52).
 11        (3)  If at such time the wages are fixed by the year, the  average  weekly
 12    wage shall be the yearly wage so fixed divided by fifty-two (52).
 13        (4) (a)  If  at  such  time the wages are fixed by the day, hour or by the
 14        output of the employee, the average weekly wage shall  be  the  wage  most
 15        favorable  to the employee computed by dividing by thirteen (13) his wages
 16        (not including overtime or premium  pay)  earned  in  the  employ  of  the
 17        employer  in  the  first,  second, third or fourth period of thirteen (13)
 18        consecutive calendar weeks in the fifty-two (52) weeks immediately preced-
 19        ing the time of accident or manifestation of the disease.
 20        (b)  If the employee has been in the employ  of  the  employer  less  than
 21        twelve  (12) calendar weeks immediately preceding the accident or manifes-
 22        tation of the disease, his average weekly wage shall be computed under the
 23        foregoing paragraph, taking the wages (not including overtime  or  premium
 24        pay) for such purpose to be the amount he would have earned had he been so
 25        employed by the employer the full thirteen (13) calendar weeks immediately
 26        preceding  such  time  and  had  worked,  when work was available to other
 27        employees in a similar occupation.
 28        (5)  If at such time the hourly wage has  not  been  fixed  or  cannot  be
 29    ascertained,  the  wage  for  the purpose of calculating compensation shall be
 30    taken to be the usual wage for similar services where such services  are  ren-
 31    dered by paid employees.
 32        (6)  In  seasonal  occupations  that do not customarily operate throughout
 33    the entire year, the average weekly wage shall be  taken  to  be  one-fiftieth
 34    (1/50)  of  the total wages which the employee has earned from all occupations
 35    during the twelve (12) calendar months immediately preceding the time  of  the
 36    accident or manifestation of the disease.
 37        (7)  In  the case of a volunteer firemen, police and civil defense members
 38    or trainees emergency responder, the income benefits shall  be  based  on  the
 39    average weekly wage in their regular employment determined pursuant to section
 40    72-408A, Idaho Code.
 41        (8)  If the employee was a minor, apprentice or trainee at the time of the
 42    accident  or  manifestation  of  the disease, and it is established that under
 43    normal conditions his wages should be expected to increase during  the  period
 44    of  disability  that  fact  may  be considered in computing his average weekly
 45    wage.
 46        (9)  When the employee is working under concurrent contracts with two  (2)
 47    or  more employers and the defendant employer has knowledge of such employment
 48    prior to the injury, the employee's wages from all  such  employers  shall  be
 49    considered as if earned from the employer liable for compensation.
 50        (10) When  circumstances  are  such  that the actual rate of pay cannot be
 51    readily ascertained, the wage shall be deemed to be the contractual, customary
 52    or usual wage in the particular employment, industry or community for the same
 53    or similar service.
 54        (11) In the case of public  employees  covered  under  section  72-205(6),
 55    Idaho  Code,  the income benefits shall be based on the greater of the average


  1    weekly wage of  the employee's civilian employment and pay  computed  for  one
  2    (1)  weekend drill in a month, or full-time active duty pay fixed by the month
  3    as provided in section 46-605, Idaho Code.

  4        SECTION 4.  That Chapter 4, Title 72, Idaho Code,  be,  and  the  same  is
  5    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
  6    ignated as Section 72-408A, Idaho Code, and to read as follows:

  8    benefits  for  total  or partial disability during the period of recovery, and
  9    thereafter in cases of total and permanent disability, shall be paid to a vol-
 10    unteer emergency responder subject  to  deduction  on  account  of  a  waiting
 11    period.  For a period not to exceed twelve (12) months, the deduction shall be
 12    an amount equal to sixty-seven percent (67%) of the average weekly state wage,
 13    as determined pursuant to section 72-409(2), Idaho Code. The  maximum  monthly
 14    income  benefit as provided in this section shall be subject to an annual cost
 15    of living adjustment as determined by the industrial commission by rule.

Statement of Purpose / Fiscal Impact

                       STATEMENT OF PURPOSE
                            RS 17434C1
The purpose of this legislation is to amend the Worker s
Compensation to provide minimum weekly benefits, based upon 67
percent of the average weekly state wage, for volunteer emergency
responders who are injured or disabled in the line of duty.

                           FISCAL NOTE
There will be no fiscal impact to the Idaho State General Fund.
All worker s compensation premiums will be paid by the employers
of volunteer emergency responders. The additional cost of the
work to administer the requirements of this legislation will be
minimal and absorbed by the State Insurance Fund.

Name:  Senator Stan Bastian
Phone: (208) 332-1354
Joyce Broadsword
Les Bock
Eric Anderson

The Idaho Volunteer Fire and Emergency Services Association
Greg Redden, Executive Director 1-800-347-3546

STATEMENT OF PURPOSE/FISCAL NOTE                             S 1366