Esta ley enmienda la Ley de Compensaciones por Accidentes del Trabajo para reestructurar la Comisión Industrial de Puerto Rico, establecer disposiciones sobre el proceso de apelaciones y reconocer el derecho de los empleados a organizarse. Modifica la composición de la Comisión, el proceso de apelación de decisiones del Fondo del Seguro del Estado, y las funciones de los Oficiales Examinadores. También aborda el derecho de los empleados de la Comisión a la negociación colectiva.
(Approved March 25, 2003)
To amend clause (1) of subsection (B); subsection
(w) of Part II of Section 6, and Section 9 of Act No. 45 of April 18, 1935, as amended, known as the Workers Accident Compensation Act, to restructure the operational and administrative operations of the Puerto Rico Industrial Commission; to set forth dispositions regarding the appeals process; and to acknowledge the right of employees to, among others, organize amongst themselves.
Since 1913, the Government has developed a public policy that promotes a work environment free of accidents that affect the performance of the Puerto Rican working class, and has set forth a system for the medical treatment of injured workers to promote a speedy recovery, with minimum loss of income. If a disability occurs, due to an accident in the workplace, which seriously affects future performance, the worker is guaranteed occupational rehabilitation and a pension to relieve the loss of income. However, as in any process in which technical aspects are enmeshed with the human element, there are situations in which the affected workers may not be satisfied with the determinations made in the first phases of their treatment. Therefore, the Government created an agency to serve as an appeals forum, regardless of the source of the determinations.
The Puerto Rico Industrial Commission is the agency that serves as an appeals forum for the determinations made by the Administrator of the State Insurance Fund Corporation. The Commission was created by Act No. 45 of April 18, 1935, as amended, known as the Workers Accident Compensation Act. Any of the parties in disagreement with a decision of the Corporation may file an appeals document before the Commission, of his/her own accord or by means of legal representation, within thirty (30) days after being notified of the decision. Although after such term elapses the right to appeal prescribes, this is an absolute right. There are several reasons for which an injured worker may appeal before the Commission against a decision of the State Insurance Fund Corporation. These are the most common:
within the five workdays after the accident set forth by Law, unless the delay is explained satisfactorily;
The Industrial Commission issues its determinations through the Commissioners. Until 1996, the minimum amount of Commissioners was three, and the number could be increased to five when the accumulated volume of cases pending resolution so justified. The group of Commissioners made the decisions as a group in behalf of the Industrial Commission. Since 1969, Examining Officers have been hired to assist the Commissioners in the process of the investigation and evaluation of cases.
In reliance on Joint Resolution No. 59 of August 5, 1989, amended by means of Joint Resolution No. 6 of November 30, 1989, the Workers Compensation System Review Commission was created. After studying the entire Workers Compensation System, the Commission made a series of recommendations. Some of those recommendations were incorporated into House Bill 1689, which became Act No. 83 of October 29, 1992. By means of this Act, the State Insurance Fund Corporation was created, and amendments were made to dispositions set forth pertaining to the Industrial Commission.
The Statement of Motives of Act No. 83 indicates that "When the Workers Accident Compensation Act was approved in 1935, ours was essentially an agricultural society. However, the social and economic changes that have occurred in Puerto Rico since then have been dramatic.
Our present society, which is now quite technologically advanced, has already entered a post-industrial stage in which our workers will be increasingly engaged in tasks pertaining to the areas of information and services instead of concentrating in the production of goods. ... for which reason many of the risks and injuries related to the workplace are now of a quite different nature." Taking the foregoing into consideration, the proposed and approved structure of the Industrial Commission was of between three and five Commissioners. The Industrial Commission adjusted its duties to the procedures set forth in Act No. 170 of August 12, 1988, as amended, known as the Uniform Administrative Procedures Act of the Commonwealth of Puerto Rico. The Commissioners acted as a group, assisted by a team of Examining Officers.
Invoking the need for change in the management of cases, due to the increase of appeals, in 1996, a law was approved to amend the dispositions pertaining to the Industrial Commission of Puerto Rico. Act No. 63 of July 1, 1996 changed the structure of the Commission drastically. The number of Commissioners empowered to resolve cases independently was increased to twenty-five, eliminating the panel system. The creation of a Normative Committee was delegated, at the discretion of the Commissioner, to comply with the duty of overseeing the uniform adjudicative public policy set forth in the Workers Accident Compensation Act. Afterwards, by means of Act No. 62 of May 11, 2002, the designation by the President of the Commission of new members for the Normative Committee is made mandatory, to ensure uniformity in the determinations reached by the Commissioners, and to ensure compliance with the established public policy, among other matters.
It is well known that to this day, the Normative Committee has not been established. The number of solved cases does not correspond to the number
of resolved cases expected with the high number of designated Commissioners. It is evident that the individual Commissioners system created serious problems, eliciting controversies and presumably questionable acts, because the adjudicative public policy has not been meted out uniformly, creating a series of inequities. In addition, a serious concern exists due to references made against the persistent delays in the resolution of cases.
According to information received from the Office of the Citizens' Investigating Official, in fiscal year 2000-2001, a total of 1,020 claims against the Industrial Commission of Puerto Rico were received, of which 693 became claims against acts of alleged administrative delays. By fiscal years 1998-1999 and 1999-2000, 483 and 644 claims were received, respectively, which shows an even greater delay. The Industrial Commission is among the Government dependencies with higher amounts of claims, in spite of the fact that it is not one of the agencies that renders basic or essential services in the community.
Section 16 of Article III of the Constitution of the Commonwealth of Puerto Rico confers upon the Legislature the power to create, reorganize, and consolidate executive government departments, and to define their duties. The Industrial Commission of Puerto Rico, as a government organism created by the Legislature, is not in compliance with the public policy for which it was created. The Legislature must make operational changes in government organisms to allow same to reach the proposed goals in behalf of Puerto Rican workers. Therefore, the Industrial Commission of Puerto Rico is hereby restructured, considering what was effective in the past, among other matters.
Section 1.- Clause (1) of subsection (B) of Section 6 of Act No. 45 of April 18, 1935, as amended, is hereby amended to read as follows: "Section 6.- Organization of Workers Compensation Services; Administrator of the State Insurance Fund; Industrial Commission.
The rendering of compensation services to workers and employees shall be under the charge of the following bodies: (A) $\ldots$ (B) Industrial Commission.- (1) Creation and Organization.-
A Commission is hereby created to be designated as the Industrial Commission of Puerto Rico, which shall consist of five (5) Commissioners nominated by the Governor, with the advice and consent of the Senate of Puerto Rico, of which three (3) shall be attorneys, one (1) a doctor of recognized as having knowledge and interest in the field of occupational medicine, and one (1) shall be a person of recognized affinity and identification with the organized labor movement in Puerto Rico. The Governor, with the advice and consent of the Senate, shall designate the President, who in turn shall be Commissioner, and whose term shall end December $31^{ ext {st }}$ of the year in which general elections are held. The remaining Commissioners shall be named initially for the following terms: two for two (2) years, and two for three (3) years. All subsequent designations shall be for six (6) years.
The Commissioners shall remain in office until their successors are legally designated and take possession of their charge. The designations to cover vacancies that may arise for reasons other than the expiration of the
term set forth by Law shall extend until the expiration of the term of the vacancy. The Commissioners, during the term of their office, shall not dedicate to doing business or to the exercise of their profession privately.
The main headquarters of the Industrial Commission shall be located in San Juan, but same may constitute itself or act anywhere within the Commonwealth of Puerto Rico, and establish the regional offices it deems necessary for the performance of its duties set forth by Law.
The President shall be the administrative head and nominating authority of the Commission. To such effects, the President shall adopt all personnel determinations and shall be responsible for enforcing of the public policy and purposes of this Act. He/she shall report directly to the Governor, and shall carry out all duties, responsibilities, and prerogatives of his/her office, pursuant to the regulation set forth by the Commission to these effects.
In addition, the President shall oversee the faithful compliance and uniformity of the adjudicative public policy set forth in this Act. He/she shall also be empowered to hire and designate personnel and officials to perform the duties of the Commission, pursuant to the dispositions in this Act. He/she may purchase, hire, or otherwise provide for the Commission all the materials, supplies, equipment, parts, or services he/she deems convenient for the operations of the Commission. Such powers shall be exercised according to the dispositions set forth by the applicable laws in effect.
The President may delegate the administrative duties set forth in reliance on this Act upon an Executive Director, who shall be in office as long as same enjoys the confidence of the President. The President shall
establish the duties and powers of the Executive Director, except for the exercise of the nominating authority.
The Industrial Commission shall be an agency excluded from the dispositions set forth in Act No. 5 of October 14, 1975, as amended, known as the Puerto Rico Public Service Personnel Act, except for matters pertaining to the essential areas of the Merit Principle. His/her personnel system shall be based upon the Merit Principle and in accordance with the rules and regulations adopted by the President. The Commission shall have the confidential charges allowed by the applicable laws in effect.
Since the source of funds for the operation of the Commission is the State Insurance Fund Corporation, which operates as a corporate instrumentality, pursuant to Act No. 130 of May 8, 1945, as amended, and do not burden the General Budget of Puerto Rico, the right of the employees pursuant to such Act to organize among themselves; constitute, affiliate, or assist labor organizations; negotiate collectively, including the establishment of procedures to hear claims and grievances by means of selected representatives is hereby acknowledged. All allegations regarding illegal practices shall be handled by the Labor Relations Board.
All employees occupying equal or similar positions to those that comprise the appropriate negotiations unit acknowledged in the collective bargaining agreement in effect shall be included in said unit, with all guaranteed rights and duties entailed with the certification already in effect.
The final resolutions of the Industrial Commission may be revised by the courts of justice pursuant to the dispositions set forth in Act No. 1 of July 28, 1994, as amended, known as the Puerto Rico Judiciary Act of 1994. The recourse of revision shall be exempt from the payment of fees.
The Industrial Commission shall oversee compliance with the social objectives of this Act, and that same are administered in such a manner that they respond to the needs of the times. It shall also have functions of "quasitutelar" and "quasi-judicial" nature for the investigation and resolution of all cases of accidents in which the State Insurance Fund Corporation and the injured employee, or his/her beneficiaries, do not reach an agreement with regard to compensation; and he/she shall only represent the public interest in the exercise of his/her functions. All determinations requiring the action of the Commissioners shall be by the majority of its members and three (3) Commissioners shall constitute quorum. ... Section 2.- Subsection
(w) of Part II of Section 6 of Act No. 45 of April 18, 1935, as amended, is hereby amended to read as follows: "II. Media and Methods.-
(a) (w) Rights of Individual Employees.-
None of the dispositions set forth in this Act shall be understood as compelling any employee to do work without his/her consent or to prohibit same from renouncing employment. In the exercise of the duties and powers conferred by this Act to the Administrator or the Industrial Commission, same may avail themselves for summons of their investigations and compliance in general with this Act, of the assistance of the Court of First Instance, the Puerto Rico Police, the Department of Labor and Human Resources, and the Department of the Treasury.
Any person who violates any of the dispositions set forth in this Act, or of the duly approved and promulgated regulations, or who
refuses to appear at the written subpoena issued by the Administrator or the Industrial Commission, and does not submit just cause for said refusal to appear to render testimony regarding an event of which same has knowledge, shall be guilty of a misdemeanor, and if convicted, shall be penalized by the court with jurisdiction with a fine of not more than fifty (50) dollars, or a jail term of not more than thirty (30) days.
The Industrial Commission shall have exclusively quasi-judicial and quasi-tutelar duties for the investigation and resolution of all accident cases in which the Administrator and the injured worker or employee, or his/her beneficiaries, do not reach an agreement regarding the compensation, as set forth in Section 9 of this Act, and in the exercise of their duties shall represent public interest only. A majority of the Commission shall constitute quorum. The vacancy or absence of two members shall not hinder the rights of the remaining members to exercise all the duties and powers conferred by this Act.
The sessions of the Commission shall be public and its procedures shall be recorded in the minutes, which shall be published. The Commission shall publish the decisions of new cases, or cases of great interest for the implementation of public policy for general knowledge.
Section 3.- Section 9 of Act No. 45 of April 18, 1935, as amended, is hereby amended to read as follows: "Section 9.- Appeals Against the Administrator.- If the worker or employee, or his/her beneficiaries, are not satisfied with the decision issued by the Administrator of the State Insurance Fund
Corporation regarding their case, same may appeal before the Industrial Commission within thirty (30) days after being notified with a copy of the decision of the Administrator, and the case shall be referred to an examiner. In cases of uninsured employers, both the worker and the employer may resort to the Industrial Commission once the Administrator has declared the employer as uninsured, said employer having up to thirty (30) days to appeal the decision of the Administrator, and same shall be attended by the Commission in plenary session.
Once the appeal in which there is a medical controversy is submitted by an injured worker, the appellant shall be examined in a medical hearing to determine if same requires additional medical treatment, an evaluation by a specialist, or if a review of the disability determination is required. Said hearing shall be held jointly by physicians of the State Insurance Fund Corporation and the Industrial Commission, and by the physician the worker wishes to bring along, whose fees and travel expenses shall be compensated by the Industrial Commission in the manner set forth by regulation, and who shall be under the charge and control of the physician in representation of the Commission. The appellant may be assisted by an attorney.
Physicians in charge of the medical hearing shall prepare a report for the Commission on the medical evaluation and the measures taken pertaining to the condition and medical treatment of the patient, and of the determinations of disability, if any. The physician in representation of the Commission shall issue a resolution under his/her signature. If the appellant is not satisfied with the resolution issued by the physician of the Commission, he shall have a maximum of thirty (30) days starting from the date in which the resolution is sent to request a reconsideration of same. The reconsideration request shall be handled by an examiner, who after
evaluating the report issued by the physicians, and the evidence submitted by the parties, shall issue the corresponding resolution, and shall notify the appellant. The examiner shall conduct an investigation and shall hold public hearings at this stage.
If the appellant is not satisfied with the resolution issued by the examiner, he/she shall be entitled to resort to the Commission for same to reconsider the resolution of the examiner, pursuant to the dispositions set forth in Act No. 170 of August 12, 1988, as amended, known as the Uniform Administrative Procedures Act of the Commonwealth of Puerto Rico. The appellant shall request a public hearing within a term that shall not exceed thirty (30) days. When the appellant worker designates his own physician to assist in his/her appeal, the fees and travel expenses of said physician shall be compensated by the Commission in the manner set forth by regulation.
The President shall designate a body of Examining Officers whose duty shall be to collaborate in the adjudication duties of the Commission by investigating and presiding the public hearings held at the Commission, which shall be quasi-judicial in nature. These Examining Officers shall occupy career positions within the Commission and shall be empowered to: (1) Take oaths and statements. (2) Issue subpoenas, compel the submittal of reports, books, papers and documents deemed necessary for the exercise of their duties; (3) Receive pertinent evidence and pass judgment thereon; (4) Take depositions or have them taken; (5) Hold public hearings and regulate the course thereof; (6) Hold and preside over preliminary conferences for the clarification and simplification of matters in dispute;
(7) Dispose on procedural processes or similar matters; (8) Recommend decisions to the Industrial Commission; and (9) Carry out delegated authority adjudication duties, except in duly granted uninsured employer cases, pursuant to Section 3.3 of Act No. 170 of August 12, 1988, as amended, known as the Uniform Administrative Procedures Act of the Commonwealth of Puerto Rico.
The Commission shall dispose, by regulation, those procedures that shall govern the holding of medical and public hearings. The public hearings held shall be public, except in the cases in which the appellant has shown the existence of irreparable damage, as set forth by the regulation for the holding of hearings. A record shall be kept of all medical and public hearings held. Resolutions issued by the Examining Officers or the Commissioners shall contain a summary of all the evidence submitted, a statement of the evidence received, and a statement of the findings of fact and law that illustrate the applicable Act.
Section 4.- This Act shall take effect immediately after its approval.
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