UPDATED TO INCLUDE 2017 CHANGES

Workers’ Compensation A Brief Guide To

Iowa’s Workers’ Compensation Laws

v. 2017

• The Labor Center •100 BioVentures Center, Room W130

The University of Iowa Iowa City, Iowa 52242-5000

319/335-4144 email: labor-center@uiowa.edu

website: https://laborcenter.uiowa.edu/

Printed at The University of Iowa Copy Centers by workers represented by AFSCME Local 12, Council 61

Acknowledgements This Workers’ Compensation Manual is a collaborative effort of the Labor Center staff. The original version of this manual was created by Dan Holub, a former Director of the Labor Center. The editor for the 2017 Manual was Matthew Glasson. Comments, suggestions and corrections should be addressed to him.

MacDonald Smith and Jay Smith of Smith & McElwain, Sioux City & Des Moines, contributed some sections and provided invaluable editorial assistance. Nate Willems of Rush & Nicholson, Cedar Rapids, also provided valuable editorial assistance.

Several Labor Center Research Assistants, including Mitch Lingo, Audrey Altman, Allison VanNatta, Jason Whistler and Brandon Underwood, have contributed to this version of the manual by providing illustrations, legal and historical research, etc.

The Labor Center also wishes to acknowledge the significant contribution made by Emily Schott whose research in 2017-18 was funded by the William E. Riley Memorial Grant from the Iowa Workers’ Compensation Advisory Committee.

Accessibility and Non-Discrimination The University of Iowa prohibits discrimination in employment, educational programs, and activities on the basis of race, creed, color, religion, national origin, age, sex, pregnancy, disability, genetic information, status as a U.S. veteran, service in the U.S. military, sexual orientation, gender identity, associational preferences, or any other classification that deprives the person of consideration as an individual. The university also affirms its commitment to providing equal opportunities and equal access to university facilities. For additional information on nondiscrimination policies, contact the Director, Office of Equal Opportunity and Diversity, The University of Iowa, 202 Jessup Hall, Iowa City, IA, 52242-1316, 319-335-0705 (voice), 319-335-0697 (TDD), diversity@uiowa.edu.

Individuals with disabilities are encouraged to attend all University of Iowa sponsored events. If you are a person with a disability who requires an accommodation in order to participate in a program, please contact the Labor Center in advance at (319) 335-4144

∗ ∗ ∗ ∗ ∗

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CONTENTS

A Brief History of Workers’ Compensation in Iowa ................................................................................................ 1

The 2017 Amendments to Iowa Workers’ Compensation Law ............................................................................... 5

Workers’ Compensation: The Basic Concepts ........................................................................................................ 6

Where Are Iowa’s Workers’ Compensation Laws found? ....................................................................................... 6

What Must Injured Workers Prove to be Eligible for Workers’ Compensation Benefits? ....................................... 7

What is an injury?...................................................................................................................................................... 7

Does a covered employer-employee relationship exist? .......................................................................................... 8

Location of work ................................................................................................................................................... 8

Workers covered by other laws ............................................................................................................................ 8

Excluded categories of employees ........................................................................................................................ 9

Persons not considered “employees” under the law ........................................................................................... 9

Is the injury work related? ...................................................................................................................................... 10

What does “arise out of the employment” mean? ............................................................................................. 10

What does “in the course of employment” mean? ............................................................................................ 12

Are there any defenses? ......................................................................................................................................... 13

What Benefits are Available to Injured Workers? ................................................................................................ 14

How do you calculate weekly benefits? .................................................................................................................. 15

No COLA for workers’ compensation .................................................................................................................. 16

Important Note! .................................................................................................................................................. 16

Temporary Total Disability (TTD) and Healing Period (HP) benefits ....................................................................... 17

Temporary Partial Disability & Light Duty ............................................................................................................... 17

Light Duty ............................................................................................................................................................ 17

Temporary Partial Disability Benefits (TPD) ........................................................................................................ 19

Permanent Partial Disability (PPD) benefits ............................................................................................................ 20

Scheduled Injuries ............................................................................................................................................... 21

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Body as a Whole (Non-scheduled) Injuries ......................................................................................................... 23

“Fresh Start” Rule ELIMINATED .......................................................................................................................... 28

Second Injury Fund Benefits .................................................................................................................................... 29

Permanent Total Disability (PTD) benefits .............................................................................................................. 29

Notice of termination of benefits............................................................................................................................ 30

Death benefits ......................................................................................................................................................... 31

Medical benefits ...................................................................................................................................................... 31

Transportation expenses .................................................................................................................................... 31

Artificial body parts and appliances .................................................................................................................... 32

Vocational Rehabilitation benefits .......................................................................................................................... 34

Interest .................................................................................................................................................................... 35

When are payments due? ................................................................................................................................... 35

How are benefits paid? ....................................................................................................................................... 35

The big points about interest .............................................................................................................................. 35

Penalty Benefits ...................................................................................................................................................... 36

What needs to be proved to receive penalty benefits? ..................................................................................... 36

A word of caution: Don’t get too excited about penalty benefits. ..................................................................... 37

What are the Procedures for Making a Workers’ Compensation Claim? .............................................................. 37

What time limits apply? .......................................................................................................................................... 37

What are the employer’s procedural responsibilities? ........................................................................................... 38

What happens after you file a contested case? ...................................................................................................... 39

Settlements & commutations ............................................................................................................................. 41

Attorney’s fees........................................................................................................................................................ 42

How to contact the Division of Workers’ Compensation ........................................................................................ 42

How Can the Union Help? .................................................................................................................................... 43

Educate the members ............................................................................................................................................. 43

Report anything that might be an Injury. ........................................................................................................... 43

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Make sure that employees know their rights to petition for alternate care. ..................................................... 43

Inform injured employees about the importance of keeping a log. ................................................................... 43

Know the members’ jobs ........................................................................................................................................ 44

“Job content library” ........................................................................................................................................... 44

“Witness pool” .................................................................................................................................................... 44

Get to know the injured members .......................................................................................................................... 45

Investigate for the members ................................................................................................................................... 45

Do some “police” work for the members ............................................................................................................... 46

The “Big Picture” ................................................................................................................................................. 46

Workers’ compensation compliance: ................................................................................................................. 46

Provide paperwork help to the members ............................................................................................................... 47

Do the Union’s basic job: Enforce the contract....................................................................................................... 47

Protect the union’s assets and interests ................................................................................................................. 47

Alternatives ......................................................................................................................................................... 48

Occupational diseases ............................................................................................................................................. 48

Occupational hearing loss ....................................................................................................................................... 49

Can an injured worker sue an employer for a work-related Injury? ....................................................................... 49

Can an injured worker sue an employer for retaliation? ........................................................................................ 49

Can an injured worker sue an employer for Interfering with medical treatment? ................................................. 50

Can an injured worker sue the Insurance company? .............................................................................................. 50

Can an injured worker sue a third party who caused a work-related Injury? ......................................................... 50

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WORKERS’ COMPENSATION IN IOWA A BRIEF HISTORY OF WORKERS’ COMPENSATION IN IOWA

Workers’ compensation, or as it was then known, “workmen’s” compensation, was passed in the state of Iowa in 1913. Prior to the adoption of workers’ compensation laws, employer liability for injuries and death, and legal obligation to provide compensation, was determined by the common law rules of negligence. To collect compensation for an accident, an injured worker bore the burden of proving that his employer had failed to exercise “due care” in protecting the worker from the accident and that the employer’s negligence was the proximate cause of the injury. Even if an employer was found to be negligent, he could escape liability through three common-law defenses: (1) That the employee had assumed the risks associated with the employment, (2) That a coworker had caused the accident, or (3) That the worker himself was negligent or had not exercised due care. Due to these three defenses, the number of cases filed was extremely low, and of those workers who filed a suit, very few actually received compensation. It is estimated that less than 15% of workers killed or injured on the job received any compensation at all under the common law of the workplace.

Iowa Reformers and Labor Organizations Become Champions of Early Reforms

Lorenzo Coffin was a farmer from Iowa who often traveled by train. On one trip, Coffin was offered a lower fare to ride on a mixed freight and passenger train rather than a strictly passenger train. Coffin agreed to the fare and boarded the freight train’s passenger car. As the trainmen worked to attach the cars, he witnessed a trainman who had but two fingers and he soon found out why. As the trains came together, he saw the man fall to the ground screaming in agony. He had lost his last two fingers. Coffin who had seen automatic couplers on previous journeys on passenger cars was outraged. He knew this man’s injuries were avoidable. From that day forward Coffin became a vocal proponent of rail safety—often working with rail unions to coordinate lobbying for new safety measures.

In 1883, Coffin’s lobbying of state legislators for railroad safety laws landed him a position on the Iowa Board of Railroad Commissioners. From this position he drafted and supported the nation’s first Rail Safety Appliance Law requiring automatic couplers and air brakes. The law, the first of its kind in the United States, passed in Iowa in 1890. In 1893, a federal

law was passed, modeled on his law in the state of Iowa. This law dramatically reduced railroad labor accidents and increased safety for thousands of workers. Safety regulations were a start, yet more had to be done to compensate those in the railroad and other industries who continued to risk high rates of injury or death on the job.

While rail safety laws were on the books by the 1890s, a full system of workers’ compensation took much longer. Widespread, successful adoption of workers’ compensation laws began in New York in 1910 and spread quickly throughout other states. In 1912, Ezekiel H. Downey published a history of accident indemnity in Iowa with a strong call for workers’ compensation laws to pass in Iowa. To put the problem in perspective, he said, “Work accidents in the United States, according to the best obtainable estimates, annually cause more than 35,000 deaths and about 2,000,000 injuries, whereof probably 500,000 produce disability lasting more than one week. To employ a telling comparison, frequently made, the industrial casualties of a single year in this country alone equal the average annual casualties of the American Civil War, plus all those of the Philippine War, increased by all those of the Russo-Japanese War. As many men are killed each fortnight in the ordinary course of work as went down with the Titanic. This single spectacular catastrophe appalled the civilized world and compelled governmental action in two hemispheres; while the ceaseless, day-by-day destruction of the industrial juggernaut excites so little attention that few States take the trouble to record the deaths and injuries.”

Lorenzo Coffin

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Between Lorenzo Coffin and Ezekiel Downey, Iowans played a vital role in pushing for the passage of workers’ compensation and other safety legislation in the state of Iowa and throughout the nation.

In the early 20th century, the largest national organization of workers was the American Federation of Labor, an organization of local trade unions whose ranks had expanded from 868,000 in 1900 to 2.14 million in 1910. The longtime President of the AFL, Samuel Gompers, believed in what he called “Pure and Simple Unionism.” His theory of voluntarism for workers and unions was to avoid political solutions to problems that could be handled on the shop floor or in contract negotiations. This was part of a more general opposition to government regulation of the workplace based on the theory that business interests controlled politics, and, thus, better benefits for workers could be achieved only through the voluntary organization of workers. If anything, Gompers felt that better accident compensation could be achieved by stripping employers of the three defenses often used in common law negligence cases. In the late 19th century, this meant that Gompers and the AFL were actually opposed to legislative reform in the area of workers’ compensation. However, as workplace injuries increased while employers continued to escape liability, the AFL’s position changed. The federation officially endorsed workers’ compensation legislation in 1909 and became the most vocal proponent of no-fault accident compensation.

These trends also began to reverse employer opposition to worker compensation reform. While the legal standards of the time made it unusual for an employer to be found liable for a worker’s injuries, in those few cases, the damages could be quite high. Business and insurance companies eventually came to accept the idea that a law that expanded liability, but limited damages, might create less uncertainty and less risk for them overall. Employers were also concerned about the loss of their three most common defenses, either by judicial action or legislative changes, which would greatly increase the risk of being found liable. Once employers began to realize that the benefits outweighed the costs, the National Association of Manufacturers in 1911 fully endorsed workers’ compensation as a solution to the accident compensation problem.

National Political Movements and Responses to Industrial Tragedies Spur Progress

The leading political movement around the time of workers’ compensation adoption was the Progressive movement, which took different forms in different states. The Progressive Era altered the nature of the political environment in which workers’ compensation was debated in many states. Reform-minded legislators became influential in many state legislatures in the early 20th century and introduced, along with workers’ compensation, such measures as initiatives and referenda, direct primaries, mothers’ pensions, state tax commissions, compulsory school attendance, state welfare agencies, merit systems for state employees, minimum age for child labor, and state commissions to regulate electricity rates. In addition, reformers unsuccessfully sought unemployment insurance, old-age pensions, minimum wages and maximum hours for men and public health insurance.

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The early 20th century also brought growing public concern for the safety of workers in the workplace and for compensation in the case of injuries or death. Public awareness of workplace accidents during the period increased as shifts in employment across industries led to an increase in the share of workers in more dangerous jobs in manufacturing and mining and as the reporting of accidents increased sharply. Reformers used these statistics to publicize the danger and consequent financial hardships associated with workplace accidents. The women working in New York’s shirtwaist industry also tried to attract public attention to their cause when in 1909 over 20,000 women went out on strike demanding not just pay increases, but improved safety in working conditions. The public generally supported the strikers, who won limited hours and paid holidays, but no improvement of safety conditions. A little over a year later in 1911, the Triangle Shirtwaist Factory caught fire. Hundreds of women fought to escape with their lives, but as the elevator proved insufficient and the outside fire escape collapsed from the weight, the women were left with only one other safe option to evacuate the burning building. It was a door that had been locked by management, supposedly to keep women from leaving the job and stealing the company’s goods. As a result, hundreds of the women were trapped. Crowds gathered in downtown Manhattan around the burning building and witnessed women jumping out the windows to their deaths to avoid the flames. In all, 146 garment workers were killed in the blaze. The public cried out for justice, for the factory owners who locked the doors to be prosecuted and to pay for their victims. The factory owners were tried for manslaughter, but the jury ruled that the prosecution failed to prove that the factory owners knew that the exits were locked, and they were acquitted.

Iowa Joins Other States, Adopting “No-Fault” Workers’ Compensation System in 1913

By the end of 1912, 14 states had passed similar workers’ compensation laws. 1913 saw eight more states pass laws, including the state of Iowa. Before the enactment of the Iowa Workers’ Compensation Act, the legislature had enacted specific changes for the benefit of injured workers, such as depriving employers of the defenses of contributory negligence, assumption of the risk and the fellow servant doctrine. However, these reforms were not considered sufficient, and in 1912, Beryl F. Carroll, the governor of Iowa, appointed a committee to conduct an investigation, report a plan and recommend a bill to the legislature. The committee conducted hearings around the state and took testimony from management, labor and the legal profession. The committee’s model bill was the basis for the first Iowa Workers’ Compensation Act, passed by the legislature in 1913.

The Workers’ Compensation Act eliminates the common law and its focus on fault and replaces it with a system that focuses on disability. In its decision in Tunnicliff v. Bettendorf, 204 Iowa 168, 214 N.W. 516 (1927) the Iowa Supreme Court said, “It is the very spirit of the Workmen’s Compensation Act – the fundamental idea that is its basis – that the disability of a workman resulting from an injury arising out of and in

the course of his employment is a loss that should be borne by the industry itself, as an incident of operation – in a sense an item of the cost of production, and as such, passed on to the consumer of the product, and not suffered alone by the workman or the employer, according to individual fault or negligence.”

By 1919, 42 states had passed workers’ compensation laws. By 1939, only one state held out passing a law, and in 1948, Mississippi finally became the last state to pass some form of workers’ compensation legislation.

There is very little doubt that workers’ compensation has been a very successful piece of legislation. The main principles of the law have remained in place for nearly 100 years although the details have changed through frequent amendments. Workers’ compensation, along with other safety programs and regulations such as OSHA, can be

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credited with the significant decrease of employment related casualties and injuries. In 2009, nearly 5,000 workers were killed on the job in the United States. While still far too high a number, this number is 30,000 less than a century ago (in relation to a vastly larger workforce), and compensation is assured to workers or their family members.

Most historians consider Workers’ Compensation to be the first widespread social insurance program in the United States, paving the way for the later adoption of other important government programs, such as unemployment insurance, Social Security, and even the Affordable Care Act of 2010.

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THE 2017 AMENDMENTS TO IOWA WORKERS’ COMPENSATION LAW

During the 2017 session the legislature enacted HF518, which made sweeping changes to Iowa’s Workers’ Compensation law. These changes took effect July 1, 2017, and apply to all injuries occurring after that date. The fundamental principles of workers’ compensation have not changed, but many of the details of how the law works and how benefits will be determined have changed, sometimes significantly.

Effects of the 2017 changes on injured workers will likely include many injured workers receiving significantly less benefits compared to what they could have expected if the same injury had occurred prior to July 1, 2017. These changes are especially likely to affect workers whose jobs are physically demanding, older workers, and workers with repetitive motion injuries. HF518 also created several new penalties and forfeiture rules that will take away benefits from injured workers. At the same time, it decreases the penalties on employers and insurance companies that don’t pay benefits on time, and gives employers new tools to “starve out” injured workers while their cases are being reviewed in court.

No law is perfect, but many sources of data suggest the existing system had been working well for all parties. In an article published on March 13, 2017, while HF518 was still being debated, the Des Moines Register noted that the “Data analyzed by the Register shows no evidence of a system out of control.” The Register cited research done by the National Council on Compensation Insurance showing that:

• The number of workers injured in Iowa had remained relatively constant • The number of litigated cases had remained relatively constant • Insurance premiums had fluctuated in recent years, including decreases as well as increases • In 2016, Iowa ranked number 24 among states for average premium cost • Medical costs (a big part of the cost of workers’ compensation) have “ticked up,” increasing an

average of 2.6% over the last seven years.

On March 20, 2017, the Legislative Fiscal Bureau, a non-partisan agency of the legislature, estimated that changes proposed in HF518 would “decrease workers’ compensation payments [for injured state employees]… by an estimated $1.8 million annually beginning with FY2018.”

The full impact of these changes will not be apparent for some years. The first cases under the revised statute will not be decided by the Division of Workers’ Compensation for a year or so. It will take several years before a case interpreting the new law reaches the Iowa Supreme Court. This manual represents our best understanding of the law at the present time.

This manual summarizes Iowa’s existing workers’ compensation laws, including the most significant changes made to the law in 2017. Where the manual incorporates these changes, we have highlighted the change by indicating

that some provisions are NEW in 2017 or CHANGED in 2017.

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WORKERS’ COMPENSATION: THE BASIC CONCEPTS

Iowa’s workers’ compensation law creates an exception to the common law that would otherwise apply to personal injuries (tort law) and creates a special process for deciding claims.

Compliance with the law is required. An employer cannot avoid the obligation of the workers’ compensation law by asking its workers to sign a “waiver” of the law or enter into a contract that contradicts any part of the law. Any such agreement is void as a matter of law.

CHANGED in 2017: The law now prohibits a worker from suing an employer who violates the requirement to comply with the workers’ compensation law or asks workers to waive their rights under the law.

Although there are differences between various states’ workers’ compensation laws, there are many more similarities. All workers’ compensation laws contain the same four basic elements.

1. Workers’ compensation is a “no-fault” system. A person who is injured at work does not have to prove that his/her injury was caused by the negligence of the employer. In contrast, a person who is injured off the job must prove fault, i.e., that his/her injury was primarily caused by the negligence of someone else.

2. Workers’ compensation benefits are limited by statute. The amount of compensation that an injured worker will receive is calculated by a formula based on (a) the worker’s earnings and (b) the nature and severity of the injury. In a civil action, a jury can award whatever amount it believes will fully compensate the injured person for his/her loss.

3. Workers’ compensation claims are handled by an administrative agency. Injured workers are not required to go to court. The process is usually quicker and less complicated than filing a case in court. An injured worker is not required to be represented by an attorney, although it may be advisable. Employers and insurance companies will almost always be represented by an attorney.

4. Workers’ compensation is the exclusive remedy for a work-related injury. An injured worker does not have the right to sue his/her employer for a work-related injury, but instead must pursue the claim through the workers’ compensation system. There are some limited exceptions to this rule. See, p. 48 below.

Iowa is a mandatory insurance state. Every covered employer is required to obtain workers' compensation insurance that will pay injured workers the benefits required by law. Under certain circumstances, an employer may be permitted to be self-insured for workers’ compensation purposes.

Since workers’ compensation is considered a “remedial” law (designed to solve a particular social problem), Iowa courts have interpreted it broadly. In close cases, the court will usually decide that a matter is covered by the workers’ compensation law rather than the common law.

WHERE ARE IOWA’S WORKERS’ COMPENSATION LAWS FOUND?

Iowa’s workers' compensation laws are in several separate chapters of the Code of Iowa. Chapter 85 is the basic workers' compensation law. Chapter 85A is the Occupational Disease law. Occupational Hearing Loss is covered by Chapter 85B. The statute governing the administration of these laws is Chapter 86 and the requirements for workers' compensation insurance are contained in Chapter 87 of the Code. The Iowa Administrative Code also

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contains additional rules adopted by the Division of Workers’ Compensation. See Iowa Administrative Code Chapter 876.

These laws and rules can be reviewed on line at the website of the Division of Workers’ Compensation: http://www.iowaworkcomp.gov/ or the General Assembly https://www.legis.iowa.gov/law, or your local library.

WHAT MUST INJURED WORKERS PROVE TO BE ELIGIBLE FOR WORKERS’ COMPENSATION BENEFITS?

In order to establish a workers’ compensation claim, the worker must prove that he/she was injured and that the injury arose out of and in the course of employment. See Iowa Code §85.3 –

Essentially, there are three basic elements:

1. That an injury occurred; 2. That there is a covered employer-employee relationship; and 3. That the injury is work-related, which has two parts

a. That the injury arose out of the employment; and b. That the injury occurred in the course of employment.

WHAT IS AN INJURY?

The Iowa Code defines “injury” in very general terms. §85.61(4) defines injury to include personal injury or death resulting from a personal injury and includes diseases resulting from an injury, but excludes occupational diseases, since they are covered by Chapter 85A. The Iowa Supreme Court has given this general description a very broad interpretation. According to the court, “injury” includes any impairment of health, or a disease, that comes about because of a work-related trauma or exposure. Natural changes in the body (i.e., aging) are not injuries; Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934).

The term “injury” does not require an accident or unusual occurrence; Ford v. Goode, 240 Iowa 1219, 1222, 38 N.W. 2d 158, 159 (1949).

Aggravation of a pre-existing injury entitles a worker to benefits (for the permanent disability beyond the pre-existing injury) provided that the aggravation stems from the employee’s employment; Yeager v. Firestone Tire and Rubber, 253 Iowa 369, 112 N.W.2d 299 (1961). Aggravation injuries can be complicated – see an attorney!

Later injuries – all consequences that follow naturally and immediately from a work-related injury are covered; See Oldham v. Scofield & Welch, 222 Iowa 764, 266 N.W. 480, (1936).

Emotional or mental injuries must either arise out of a work-related physical injury (depression caused by the loss of a limb on the job), Gosek v. Garner & Stiles Co., 158 N.W.2d 731, 733 (Iowa 1968), or be caused by special trauma on the job (ordinary workplace stress is not enough). Psychological trauma must be experienced at substantially greater levels than other workers employed in the same or similar jobs; Dunlavey v. Economy Fire and Casualty Co., 526 N.W.2d 845 (Iowa 1995). Note: mental illness (if compensable) is treated as a “body-as-the-whole” injury. See Iowa Code §85.34(2)(u).

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Cumulative trauma injuries are covered – (i.e., carpal tunnel, etc.) provided there is a causal connection between the impairment and the employment. Note that the Iowa Supreme Court has adopted the “manifestation” rule for determining the date when a cumulative trauma injury begins, Oscar Meyer v. Tasler, 483 N.W.2d 824, 829 (Iowa 1992). Under that rule, the date of injury for cumulative trauma cases is fixed on “the date on which both the fact of the injury and the causal relationship of the injury to the claimant’s employment would have become plainly apparent to a reasonable person.” Id. at 829. This can be important when determining whether the employee met the notice and statute of limitation requirements.

A disease can be an injury if the exposure that caused the disease is attributable to the employment situation. In Perkins v. HEA of Iowa, 651 N.W.2d 40 (Iowa 2002), the Supreme Court ruled that a nurse who contracted hepatitis C, had an “injury” rather than an occupational disease, because she had been infected through a “trauma,” when she was squirted in the face with an infected patient’s blood. Occupational diseases are covered by Chapter 85A and time limits, procedural rules and benefits are very different than for diseases which are classified as “injuries.” See p. 48.

DOES A COVERED EMPLOYER-EMPLOYEE RELATIONSHIP EXIST?

Again, the statute is written very broadly to cover almost every worker, other than those covered by separate laws. There are a few exceptions, which are narrowly construed. Non-employees are also not covered.

LOCATION OF WORK

A worker may be covered by the law if the injury occurs in Iowa or the injury occurs somewhere else but the worker is usually employed in Iowa. See Iowa Code §85.71(1). In some cases, an injured worker may be covered by the workers’ compensation law of two states. In those cases, the worker usually gets to pick which one is most beneficial.

• Any worker injured within the state of Iowa is covered even if the employer is located outside the state. Even non-resident workers are covered if injured in Iowa. Schmidt v. Pittsburgh Glass Co., 243 Iowa 1307, (1952).

• CHANGED in 2017: A resident of Iowa who is injured while working outside of Iowa will be covered by Iowa law, if the employer has a place of business in Iowa, but only if the worker regularly works from that location.

• A resident of Iowa who is injured while working outside of Iowa will be covered by Iowa law if the worker was employed under an Iowa contract of hire and (1) the worker regularly works in Iowa, or (2) the injury occurs in a place where workers’ compensation benefits are not available, or (3) the worker regularly works outside the United States, or (4) the contract provides that Iowa law applies.

• Merely living in Iowa is not enough. If an Iowa resident typically works outside of Iowa and is injured outside of Iowa, they would most likely be covered by the other state’s workers’ compensation laws.

WORKERS COVERED BY OTHER LAWS

City police officers and firefighters - Paid police officers and firefighters in some larger cities who are injured on the job are entitled to disability benefits under Iowa’s civil service laws, Iowa Code Chapters 410 and 411. They

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may also be entitled to workers’ compensation benefits, to the extent that their injuries are not covered by those laws.

Police and firefighters in smaller cities, who are not covered by civil service, are covered by workers’ compensation. Volunteer fire fighters and reserve police officers are also entitled to workers’ compensation benefits, though special rate provisions apply – see Iowa Code §85.36(9)(a). Note: volunteer emergency medical workers are covered by workers’ compensation only through agreement with the employer – see Iowa Code §85.61(11).

Federal workers, including postal workers – are not covered by state workers’ compensation, but are instead covered by the Federal Employees Compensation Act, 5 U.S.C. §8101, et seq.

Maritime and Long Shore Workers - The Jones Act, 46 U.S.C. §688 (1970), governs the liability of vessel operators and marine employers for the work-related injury or death of an employee.

Railroad Employees – Employees of railroads are covered by the Federal Employers Liability Act, 45 U.S.C. §51, et seq. (1908).

EXCLUDED CATEGORIES OF EMPLOYEES

Domestic employees – are not covered if they earned less than $1,500 from the employer in the 12 consecutive months prior to the injury and are not members of the household; Iowa Code §85.1(1)

Casual employees – are not covered when earning less than $1,500 from the employer in the 12 consecutive months prior to the injury; Iowa Code §85.1(2)

Agricultural workers – are not covered if related to the farmer or exchanging labor with the farmer. Note: a non-related worker employed by a farmer is covered by the workers’ compensation law if the farmer’s total payroll exceeds $2,500 for the 12 months prior to the injury. Iowa Code §85.1(3)

PERSONS NOT CONSIDERED “EMPLOYEES” UNDER THE LAW

Owners, directors, and partners of a firm or corporation are not covered, unless they’ve elected coverage;

Independent contractors are not covered if truly an independent contractor. See Iowa Code §85.61(13)(b).

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The fact that a person is called an independent contractor does not mean that he/she will be excluded from coverage. The court has employed the following test to determine whether the person is in fact an independent contractor.

1. Is there a written contract between the worker and the employer? 2. Does the worker have a business apart from the work performed for the

employer? 3. Does the worker employ assistants that he/she supervises? 4. Does the worker furnish the tools, supplies and materials? 5. Does the worker have the right to control the work progress? 6. How long has the worker been working for the employer? 7. How is the employer paying the worker (for time or job)? 8. Is the work being performed part of the employer’s regular business?

See Mallinger v. Webster City Oil Co., 211 Iowa 847, 851; 234 N.W. 254, 257 (1930).

IS THE INJURY WORK RELATED?

Iowa Code §85.3 states:

“Every employer, not specifically excepted by the provisions of this chapter, shall provide, secure, and pay compensation according to the provisions of this chapter for any and all personal injuries sustained by an employee arising out of and in the course of the employment…” These two elements must both be present in order for the injury to be considered work related.

WHAT DOES “ARISE OUT OF THE EMPLOYMENT” MEAN?

The term “arise out of employment” means that there must be a causal connection between the employment and the injury; in other words, there is a discernible connection between the injury that occurred and something that the worker experienced on the job.

There are two kinds of causation issues. Some cases may raise both kinds of causation issues.

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MEDICAL CAUSATION

Medical causation involves the questions about how injuries and diseases occur and develop. “Did this worker develop

carpal tunnel syndrome because of prolonged and repetitive motion at work?” The opinion of a doctor or other expert is usually necessary to answer questions about medical causation.

Unfortunately, this means that an injured worker may not be able to prove that an injury “arises out of employment” if the injury or disease is the kind that has not been well researched. A worker who

develops an unusual form of cancer after working with toxic chemicals for many years may strongly suspect that his cancer has been caused by the chemical exposure, but he won’t be able to prove that connection unless an expert can cite scientific research documenting the connection.

The expert’s opinion, however, does not have to be based on certainty, just preponderance of the evidence. “In your opinion, what is it that most likely caused this person to develop carpal tunnel syndrome?”

LEGAL CAUSATION OR PROXIMATE CAUSE

Legal causation, in some ways, is a more “common-sense” issue. It does not usually require an expert opinion. The legal causation cases raise issues about the strength of the connection between the worker's job and the injury that occurred. For example, a worker is struck by lightning. Was that injury caused by something in the worker’s job or was it caused by nature? Was it a coincidence that it happened at work? Could it just as well have happened while the worker was off work?

These are often difficult questions to answer. The Iowa Supreme Court has adopted a risk analysis test. If the employee’s job put the employee at greater risk of having the injury, then “legal causation” may be found. In Cedar Rapids Community School v. Cady, 278 N.W. 2d 298 (Iowa 1978), the court determined that a custodian who was fatally shot by a psychotic co-worker had suffered an injury arising out of his employment because the performance of his job duties

What makes an expert opinion credible?

Expert witnesses often disagree about important issues, like whether the injury was work-related. In those cases, the administrative law judge (ALJ) has to decide who to believe. Many factors can affect the expert’s credibility, including the witness’ education, training and experience.

In Kellett v. John Deere Davenport Works, (March 8, 2012) the employer’s safety director testified that he did not believe that the claimant’s injury was caused by work. The ALJ found that this testimony was not credible, because the safety director had no medical training, did not consult with a physician or ergonomics expert, and offered no data, reports or any other documents to support his opinion.

The claimant in Baker v. Fabricators, Inc. (March 29, 2012) claimed that he had a repetitive trauma injury to his shoulder. The claimant’s doctor agreed, saying that the repetitive nature of the claimant’s job as a sheet metal worker likely caused his injury. The company doctor disagreed and said that the injury wasn’t work-related. The ALJ found that the claimant’s doctor was more credible. Both doctors had equal qualifications, but the claimant’s doctor had taken the time to talk to the claimant, had reviewed all of his medical records and had obtained a complete description of the work of a sheet metal worker. The company doctor had not reviewed the claimant’s job description and did not want to talk to the claimant about his work as a sheet metal worker. Perhaps most significantly he displayed hostility toward the claimant and seemed to disapprove of the whole idea of workers’ compensation. “It doesn’t make any sense to me why a worker would work for a certain company.. and be well paid to then come back and that the company has caused me to require my… shoulder to be replaced and, oh, by the way, at the end of the day, I’m going to get a big huge payment out of it.”

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exposed him to an increased risk of being murdered by his psychotic co-worker. If they had not worked together, the court reasoned, the victim would probably have not exposed himself to the same risk.

WHAT DOES “IN THE COURSE OF EMPLOYMENT” MEAN?

“In the course of employment” refers to the time and place of the injury. Were you “at work” when the injury occurred? There must be some connection between the injury and the performance of the worker’s duties. That

connection may be established by showing either that the worker was in the workplace or that the injury occurred while he/she was working or some combination of the two factors.

If the injury occurs on the employer’s premises and during the employee’s work time, it almost always is found to be “in the course of employment.” If the injury occurs off-premises or before or after work hours, the claimant must show a strong connection between the injury and work in terms of time, location, and control by the employer. An important factor is whether the employer derives some benefit from the activities that the worker was performing at the time of the injury.

TIME OF INJURY

Injuries that occur during a worker's normal work day are almost always considered to be “in the course of” employment, even if the worker is not performing a work task. For that reason, injuries occurring during paid breaks are considered “in the course of” employment.

Lunch Time and Unpaid Breaks: If the worker is completely relieved of duty and not subject to any restrictions, the worker is not considered “in the course of” employment. Usually if the worker is free to take lunch off the employer’s premises, the unpaid break is not considered “in the course of” employment, Kilburne v. Goodwill Indus., 32 Biennial Rep., Iowa Indus. Comm’r 91 (appeal Dec. 1975). Exceptions: when the employer benefits from having the employee at the lunch. Is the worker on-call? Is the employee entertaining a customer? Who pays for the food might be a factor. If the worker is required to stay on premises and is subject to being recalled during lunch, a nurse for example or a maintenance mechanic who may be required to respond to emergencies, the time is considered to be “in the course of” employment, Owens v. River Hills Care Center, I-3 Iowa Indus. Comm’r Dec. 648 (1985).

Recreational or Social Events: If the employee is required or “strongly encouraged” to attend an event, he/she will probably be considered to be “in the course of” employment, Linderman v. Cownie Furs, 13 N.W. 2d 677 (Iowa 1944). If attendance is really voluntary the worker will probably not be considered to be “in the course of” employment, see Cooper v. Rockwell-Goss, 2 Iowa Indus. Comm’r Rep. 91 (1982). However: if the employer derived some benefit from the worker’s attendance, advertising on a team uniform, meeting with customers, etc., injuries occurring at recreational and social events may be compensable.

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PLACE OF INJURY

Injuries that occur on the employer’s premises are usually considered to be “in the course of” employment, even if they occur before or after the work day.

Coming and Going Rule: Ordinarily, travel to and from work is not covered. An injury that occurs during travel to or from work is not considered to be in the course of employment. The going and coming rule applies even if the employee is coming in early or staying late at the request of the employer. Otto v. Independent School Dist., 23 N.W. 2d 915, 916 (Iowa 1946). However, there is an exception for injuries which occur close to the workplace at the beginning or end of the work day. Injuries that occur in the transition zone between work and non-work are considered to be in the course of employment. If the injury occurs in an area owned/controlled by the employer and very near starting or quitting time, the injury will usually be covered. (i.e. in the company parking lot, on the sidewalk in front of the employer’s offices, etc.), see Frost v. S.S. Kresge Co., 299 N.W. 2d 646, 648 (Iowa 1980). An injury occurring in a public parking lot near the employer’s premises, however, is generally not covered, see Kilburne v. Goodwill Indus., 32 Biennial Rep., Iowa Indus. Comm’r 91 (appeal Dec. 1975).

Special Errand Rule: If an employee performs some work-related duty during the trip to or from work, picking up supplies, for example or the employee is required by the employer to make an extra trip into work and an injury occurs, then the injury is “in the course of” employment. Pribyl v. Standard Elec. Co., 67 N.W. 2d 438, 443 (Iowa 1954).

Traveling Employees: Employees who have no fixed work location are treated differently than those who do. The “Going and Coming” rule generally does not apply to traveling employees. Employees who travel from their homes to a temporary work location, truckers, sales people, construction workers, etc., are considered to be “in the course of” employment during travel to and from their work location. This includes travel for resting and eating, Crees v. Sheldahl Tel. Co., 130 N.W.2d 190 (Iowa 1965). However, if the employee pursues a personal errand and is injured, he/she is not covered, see Volk v. International Harvester Co., 106 N.W.2d 649 (Iowa 1960). The same rules apply to employees who usually have a fixed place of work, but are injured while traveling for a work-related purpose, e.g., attending a training in another city.

ARE THERE ANY DEFENSES?

The workers’ compensation laws are designed to make it relatively easy for an injured worker to receive compensation for a work-related injury. If a worker can prove the three elements of a claim, that he/she had an injury, that he/she is a covered employee and that the injury was caused by something that happened at work and occurred while the worker was at work, then the worker will receive compensation for that injury. Most disputed workers’ compensation cases are about the amount of compensation that the injured worker will receive. That topic is discussed in the following section.

However, there are three very limited circumstances in which an employer can defeat a worker’s claim, even if the worker can prove all the elements of a workers’ compensation claim. Under Iowa Code §85.16, an employer may defend against a worker’s compensation claim by proving any one of the following:

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• Willful Intent – injury caused by the employee’s willful intent to injure him or herself or to willfully injure another. An employee who intentionally injures themselves or injures themselves while attempting to injure someone else is not entitled to workers’ compensation benefits.

• CHANGED in 2017: Intoxication – the employee’s intoxication (drugs or alcohol) was a substantial factor in causing the employee’s injury. All kinds of drugs are included, both legal and illegal, except prescription medication that is being taken exactly as directed by the doctor.1 If the employee tests positive for alcohol or drugs following the injury, then the injury is presumed to have been caused by the intoxication, and the burden of proof shifts to the employee to prove that he/she was not intoxicated or that the intoxication was not a substantial cause of the injury.

• 3rd Party Acts– the injury was caused by the willful act of a third party directed against the employee for reasons personal to the employee. A person who is injured at work by an ex-spouse with a grudge, for example, probably is not entitled to workers’ compensation. However, if there is some connection to work, the injury may be covered. If you work for a utility company and your neighbor attacks you at work because he’s angry about the company vehicle being parked in front of his house too often, you may be covered because the dispute isn’t purely “personal.”

WHAT BENEFITS ARE AVAILABLE TO INJURED WORKERS?

An injured worker is only entitled to receive the benefits that are specified by law. There are eight types of benefits available to workers injured on the job in Iowa.

1. Temporary Total Disability and Healing Period 2. Temporary Partial Disability 3. Permanent Partial Disability

a. Scheduled benefits b. Body as a whole or non-scheduled benefits

4. Second Injury Fund 5. Permanent Total Disability 6. Death Benefits 7. Medical 8. Vocational Rehabilitation & Educational Benefits

The four kinds of disability benefits (temporary total, temporary partial, permanent partial and permanent total) have many similarities. These benefits are intended to compensate injured workers for their lost earnings or loss of earning capacity. Disability benefits vary depending on the nature and duration of the worker’s disability. Disability benefits are paid in weeks. The amount of the weekly benefit is based upon the worker’s average earnings at the time of the injury. See following section for details.

1 Iowa Code Section 730.5 governs drug and alcohol testing of private-sector workers. The law specifically allows drug testing following a workplace accident that results in personal injury or property damage in excess of $1000. Drug and/or alcohol testing of private-sector workers must be conducted according to a written policy and must follow procedures specified in the law.

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Second Injury Funds are a special kind of permanent partial disability benefit available only under limited circumstances.

Death benefits are similar to other disability benefits, also paid in weeks, but paid to the worker’s surviving family members.

Medical benefits are paid by the employer or insurance company to medical providers.

In Iowa, injured workers are eligible for very limited benefits during vocational rehabilitation.

NEW in 2017: Workers with serious shoulder injuries may be eligible for limited community college tuition reimbursement, under very specific circumstances.

HOW DO YOU CALCULATE WEEKLY BENEFITS?

Most workers’ compensation benefits are paid weekly. All of the disability benefits (the first five listed above, except temporary partial disability) are calculated the same way. The weekly benefit is about 80% of the worker’s take home pay at the time of the injury. Calculating the exact amount, however, is complicated. The applicable rate is set at the time of injury, based on the worker's earnings in the 13 weeks prior to the injury, subject to certain adjustments.

• Base Period. The base period for calculation is the 13 complete weeks preceding the injury. If the employee was absent during part of the 13 weeks, the calculation should include the amount the employee would have earned if he/she was present. Earnings for new employees, who have not yet worked for the employer for 13 weeks are calculated as if they had been employed for 13 weeks. Iowa Code §85.36(7). There are special rules for calculating compensation for employees who are so new that they have not yet been paid or whose compensation hasn’t been determined. §85.36(8) and (9). Only “representative” weeks are included. If a non-representative week is included in the 13-week base period, that week is disregarded and an additional week would be included in its place. Iowa Code §85.36(6).

• Earnings. All compensation is included in the weekly rate, except for the premium pay for overtime (see next bullet point). Compensation includes base pay, shift differential, incentive pay, piece rates, longevity and other bonuses that are a regular part of compensation (not gifts). Payments that are made on an annual basis, longevity bonuses, for example, would be prorated over the base period. §85.36(6). Payments that are not guaranteed, Christmas bonuses, for example, are not included in earnings.

What gets included in earnings?

In Kellet v. Davenport Works, (Mar. 8, 2012) the employer argued that a productivity bonus should not be included as “earnings” because it wasn’t guaranteed. The worker testified that the productivity bonus was part of the union contract and it was guaranteed as long as his work team produced at least 115% of their quota. The ALJ agreed and included the productivity bonus in the claimant’s weekly rate.

On the other hand, the ALJ in Hendrickson v. Ihle Trucking, Inc., (August 23, 2011) concluded that a per diem allowance paid to a truck driver was not properly included in the calculation of the weekly rate, even though the claimant testified that the per diem was in excess of his expenses and was actually intended to be part of his pay.

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• Overtime premium. Overtime pay is included in earnings, but the premium portion of overtime pay is excluded from the calculation of the weekly benefits amount. Overtime hours are counted as if they were paid at straight time rates. §85.36(6).

• “Spendable earnings”. The weekly benefit rate is calculated based on 80% of the worker's take home (after tax) pay. Once gross earnings have been calculated, payroll taxes must be deducted. Rate tables are provided by the Division of Workers’ Compensation to calculate the exact weekly benefit based on the worker's base hourly wage rate, number of hours worked during the 13 weeks prior to his/her injury, marital status and number of dependents (tax exemptions)2. Note that the number of deductions used in calculating the benefit rate is the maximum number that the worker could legally claim, not the actual number of deductions by the worker on the W-4 form.

• Special categories. There are specific rules for calculating benefits for volunteer firefighters, emergency medical care providers, reserve police officers, ambulance drivers, etc. §85.36(9)(a). Prison inmates also have special rules. §85.36(9)(c).

NO COLA FOR WORKERS’ COMPENSATION

Once the weekly rate is set, it does not change. The amount of weekly benefit received by the injured worker is based on his/her earnings at the time of the injury. The benefit does not adjust for inflation!

Nor does the rate change based on wage increases that occur after the date of the injury. The only exception is for apprentices and trainees who are enrolled in a program that includes predetermined pay increases. In those limited circumstances, the law provides that those increases “may be considered in computing the employee’s weekly earnings.” §85.36(9)(b).

Weekly disability rates are subject to limitations, both minimum and maximum. Minimums and maximums are based on the state average weekly wage, which is adjusted annually (it’s $860.06 effective July 1, 2017). The minimum weekly benefit amount is equal to 35% of the state average weekly wage ($301.00) or 100% of the worker’s actual take home pay, whichever is less. The maximum rate for TTD, HP, PTD and death benefits is 200% of the state average weekly wage ($1,720.00) or 80% of the worker’s actual take home pay, whichever is less. §85.37. For PPD, the maximum is 184% of the state average weekly wage ($1,583.00) or 80% of the worker’s actual take home pay, whichever is less. §85.34.

IMPORTANT NOTE!

Do not assume that the employer or the insurance carrier have correctly calculated the weekly rate. It is not unusual for the weekly rate to be calculated by someone unfamiliar with workplace realities who may simply multiply the worker’s hourly rate times forty. This is not the correct way to calculate the weekly rate and can significantly reduce the amount of compensation that the injured worker receives.

2 The rate tables are available on-line at http://www.iowaworkcomp.gov/pdfs?title=ratebook as part of the “Iowa Workers’ Compensation Manual” produced by the Division of Workers’ Compensation. Note that the rate schedule is revised annually to reflect changes in the state average weekly wage as well as changes in tax rates.

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Iowa Code Section 85.40 requires an employer to provide the injured worker with a statement of the workers’ earnings in the year in which the injury occurred, if requested by the worker. Failure to provide the requested information is a simple misdemeanor under Iowa Code Section 85.41.

In almost every case it is worthwhile to check the calculation of the weekly rate and make sure it is correct. If there is a difference, ask the employer to use the correct rate, and if they won’t agree, it’s probably time for the injured worker to talk to a workers’ compensation attorney.

TEMPORARY TOTAL DISABILITY (TTD) AND HEALING PERIOD (HP) BENEFITS

Injured workers are entitled to receive benefits (either TTD or HP) while they are recovering from a work-related injury. The purpose of both TTD and HP is to reimburse injured workers for part of the income lost while they recover from a work-related injury. TTD and HP are roughly 80% of the worker’s take home pay. See previous section for a more detailed description of the calculation of the weekly benefit rate.

A worker who has an injury that does not result in any permanent disability is entitled to TTD benefits. A worker who has an injury that does result in some permanent disability (of any degree) is entitled to healing period benefits. See Iowa Code §85.33 and §85.34.

The only difference between TTD and HP is that TTD has a “waiting period.” No TTD benefits are due unless the disability lasts at least four days. However, if the injury causes the worker to be off work for more than 14 calendar days, the worker is entitled to receive benefits the first three days of lost time.

HP does not require a waiting period. Workers are entitled to HP benefits from the first day of total disability.

HP and TTD benefits continue until the earliest of the following events occur:

1. The worker returns to work, 2. The worker is released by the doctor to go back to work, or

3. CHANGED in 2017: It is medically indicated that the worker has reached maximum medical improvement and the extent of the workers’ permanent impairment can be determined. (For healing period only.) Maximum medical improvement is the point at which “it is medically indicated that significant improvement from the injury is not anticipated,” Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa Ct. App. 1981).

TEMPORARY PARTIAL DISABILITY & LIGHT DUTY

LIGHT DUTY

Basic Rule: An employer has NO obligation under the Iowa worker’s compensation statutes or laws to offer or provide a temporarily partially disabled worker a job. There is no obligation to provide an injured worker “light” or “restricted” duty.

An employer does have the option to offer light duty and may choose to do so. In fact, most employers/insurance companies will offer “light duty” work to injured workers, even if it is necessary to create a “job” for the worker. It is not unusual for the “light duty” assignment to consist of unnecessary or meaningless tasks. Some employers

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provide “light duty” by assigning the injured worker to work elsewhere, often for a charitable organization, for example.

If the employer offers a light duty assignment, the worker must accept the work that is offered or risk losing his/her workers’ comp benefits. Iowa Code §85.33-3 provides: “If an employee is temporarily, partially disabled and the employer for whom the employee was working at the time of injury offers to the employee suitable work consistent with the employee’s disability the employee shall accept the suitable work, and be compensated with temporary partial benefits.” A worker may not refuse a light duty assignment solely based on the hourly wage. A low rate of pay does NOT make the work unsuitable. That’s because, if the temporary work is paid at a much lower rate of pay (even minimum wage), the worker will be entitled to receive weekly benefits which will make up most of the lost pay. For example, (See: temporary partial disability benefits, below.)

What is “suitable work”? The Iowa workers’ compensation statute does not clearly define “suitable.” The statute does provide that a job is not necessarily “suitable work” simply because it is work within the injured employee’s medical or physical restrictions caused by the work place injury.3

The Iowa Supreme Court has suggested the following in regard to what “suitable work” means.

Whether work is “suitable” is a relative concept which considers the effect of accepting the work on the injured employee, the employee’s normal economic activity and the employee’s activity in society.

A few years ago, the Iowa Supreme Court decided that location of the work is properly considered in determining whether the work is suitable under the workers’ compensation statute. In Neal v. Annett Holdings, Inc., 814 N.W.2d512 (Iowa 2012), the court decided that the offer of light duty to an over the road trucker was not suitable because it would have required him to work in the employer’s office, 387 miles from his home. The great distance made the light duty offered unsuitable, even though the employer offered to pay for the driver’s motel room and transportation home every other weekend. The court quoted the Workers’ Compensation Commissioner’s decision saying, “Being away from the support of your wife and family, especially while recovering from a serious work injury, is not an insignificant matter.”

CHANGED in 2017: The 2012 Iowa Supreme Court case seems to have been overruled by the 2017 amendments. Under HF518, work is presumed to be “geographically suitable” if it is offered at the employer’s

3 The Iowa unemployment compensation statute also refers to “suitable work”. The definition there might offer some guidance about what it means under workers’ compensation law. The factors set out in the unemployment statute include: the risk of the work on the employee’s health, safety and morals; the employee’s physical fitness to perform the work; the length of the employee’s unemployment; the prospects of the employee obtaining work in the employee’s customary occupation; the distance of the work from the employee’s residence, and the pay of the work. Iowa Code §96.5(3).

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principal place of business or established place of operation, even if the worker travels more than 50% of the time in his/her regular job. It’s still not clear what other factors go into the definition of suitable.

NEW in 2017: An employer is now required to notify the worker of an offer of temporary work, in writing. The communication must include details about lodging, meals and transportation. It would make sense for the offer to describe the duties, the hours and the rate of pay, but the statute does not require that. The communication must also warn the worker that refusing an offer of temporary work that is suitable may result in the worker forfeiting all compensation for the time of the refusal.

Can a worker decline an offer of temporary work?

NEW in 2017: A worker can decline an offer of temporary work if the worker believes that the work is not “suitable”. The worker must do so in writing and the communication must state the reasons why the worker thinks the work is not suitable. If the worker does not decline the offer in writing or does not state the reasons why the work is unsuitable, the worker forfeits the right to receive weekly workers’ compensation benefits. If the worker corrects his/her mistake later and does communicate the reasons to the employer, then weekly benefits start again from the time of that communication. The lost benefits cannot be recovered.

The employer is not required to accept the worker’s reasons for claiming that the work is unsuitable. If the parties can’t agree, the Worker’s Compensation Commissioner (or the courts) will ultimately decide the issue. However, the worker is effectively precluded from raising any new reasons why the work is unsuitable. HF518 says that the worker forfeits benefits until the reason is communicated to the employer in writing. So, for example, if the worker declines the offer, saying that the work is too far away, the insurance company will stop his weekly benefits. If the worker then makes an appointment with a lawyer, realizes his mistake and two months later, writes a letter to the employer stating truthfully that the temporary work that was offered was not consistent with the restrictions that his doctor placed on him, then the worker should be eligible for benefits from that day forward. He will not be able to recover the two months of benefits that he lost, even though he had a legitimate reason for declining the offer as unsuitable because he didn’t say so in his first communication to the employer.

IMPORTANT CAUTION: Extreme care should be taken if the worker decides to refuse an offer of temporary work or light duty or restricted duty. Get some help and advice about how to respond and what to say! This is a good time to consult with an attorney or your union’s workers’ comp expert.

What happens if the injured worker accepts an offer of “suitable work”? The worker must report to work and work the hours required by the employer. The worker should perform whatever duties are assigned by the employer, unless those duties conflict with the worker’s medical restrictions. If the pay for the temporary work (or light duty or restricted duty is the same as the work’s regular pay, then the worker will not receive any workers’ compensation benefits during the temporary assignment. If the pay for the temporary assignment is lower or the work-week is shorter, the worker is entitled to receive “temporary partial disability benefits.”

TEMPORARY PARTIAL DISABILITY BENEFITS (TPD)

If the employer offers “light duty” to the injured worker, and if the worker accepts, the worker may be eligible for TPD. A worker who returns to work on “light duty” in a lower paid job or returns to work at reduced hours resulting in a reduction in pay is eligible for TPD. See Iowa Code §85.33. TPD benefits are equal to 66 2/3% of the difference between the earnings at the time of injury (less OT premium, etc.) and the employee’s actual pay during the temporary disability.

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For example, a worker is making $890/week at the time of his injury. He is offered “light duty” working 40 hours a week for $290/week. He has lost $600/week. His TPD benefit will be 66 2/3 of that or $400/week. He’ll receive $290/week as wages from the employer and $400/week as TPD from the insurance company for a total of $690/week.

In many cases, the employer will continue to pay the worker’s regular rate of pay even while the worker is on “light duty.” Under those circumstances, the worker is not entitled to TPD.

If the employer does not offer suitable temporary work and the worker takes a suitable job somewhere else, the worker is still entitled to TPD if the other job is lower paying or has shorter hours.

If the employer does not offer light duty, and the worker is not working at all during a period of temporary disability, then he/she is eligible for TTD (or HP) not TPD.

PERMANENT PARTIAL DISABILITY (PPD) BENEFITS

PPD benefits are intended to compensate the injured worker for the loss of earning capacity resulting from a permanent injury. See Iowa Code §85.34. A worker who has a permanent disability resulting from an on-the-job injury is entitled to PPD benefits. PPD benefits are based on the same calculation as TTD or HP benefits, roughly 80% of the worker’s take home pay. PPD benefits are paid weekly. The number of weeks of benefits will depend on the severity of the disability. Keep in mind, however, that the compensation is based on a hypothetical loss of earning capacity, not on actual lost income. PPD is paid after a doctor determines that the injured employee has reached his/her maximum medical improvement and a doctor can determine the extent of the permanent disability.

Iowa workers' compensation law uses two different methods for evaluating the severity of disability, depending on the type of injury. Compensation for injuries to certain body parts (arms, legs, hands, feet, eyes and ears) is based on a schedule set out in the Iowa Code. Other injuries, usually those of the torso, neck and/or head, are referred to as “non-scheduled” or “body as a whole” (BAAW) injuries. This classification scheme represents two very different ways to measure loss of earning capacity.

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SCHEDULED INJURIES

A worker with a scheduled injury will receive compensation that is based on the legislature’s evaluation of the seriousness of the injury. The worker will receive weekly compensation benefits for the number of weeks specified in Iowa Code §85.34(2).

Member (Body Part) Weeks Leg 220 Foot 150 NEW: Shoulder 400 Arm 250 Hand 190 Eye 140 Loss of hearing: One ear 50 Both ears 175 Thumb 60 Index Finger 35 Second Finger 30 Third Finger 25 Fourth Finger 20 Great Toe 40 Other Toes 15

The scheduled injury system standardizes the measurement of the severity of these kinds of injuries. Everyone is treated exactly the same.4 A right hand is worth the same as a left hand, even though their loss may have very different effects. Every foot is worth 150 weeks of benefits, regardless of the actual circumstances. In that way, the scheduled injury system does not do a good job of compensating injured workers for actual loss of earning capacity. A professional dancer who loses a foot will obviously suffer greater economic consequences than an office worker, but they will both receive 150 weeks of benefits. Benefits for scheduled injuries are not determined by actual loss of earnings. The dancer may completely lose the ability to work in her profession and the office worker may not experience any economic effect, but they will both receive 150 weeks of benefits.

The number of weeks of benefits specified above corresponds to the complete loss of the body part. A worker whose hand was chopped off would receive 190 weeks of benefits. Injuries that do not result in complete loss are prorated, based on the severity of the injury. A worker who loses 10% of the function in one hand due to carpal tunnel syndrome would receive 19 weeks of benefits (190 weeks x 10%).

The degree of impairment is measured based on a physical evaluation of the injured worker by a physician or other health care expert, using guidelines created by the American Medical Association. The AMA Guidelines also include a chart for calculating the impairment caused by an injury to more than one scheduled member (body part).

4 Of course, since weekly benefits are based on earnings 150 weeks of benefits for a highly paid worker are going to be worth a lot more than 150 weeks of benefits for a minimum wage worker.

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NEW in 2017: HF518 authorizes the Worker’s Compensation Commissioner to decide which version of the AMA Guidelines to use. There are several versions, some of which are more favorable to workers than others. The Commissioner can choose a version, through the agency rule making process.

An injury to a major joint is evaluated as affecting the whole limb. For example, an injury to the wrist is treated as an injury to the arm, not the hand. An injury to the ankle is an injury to the leg, not the foot. An injury to the hip is treated as a body as a whole (BAAW) injury, not a leg injury.

A worker who suffers the loss of both arms, both hands, both feet, both legs, both eyes, or any two thereof, caused by a single accident is entitled to five hundred weeks of benefits or in some cases, permanent total disability. Iowa Code §85.34(2)(s).

CHANGED in 2017. Prior to the enactment of HF518, an injury to the shoulder was treated as a BAAW injury. HF518 makes a shoulder injury a scheduled injury. This change will significantly reduce the amount of compensation received for a shoulder injury, since it eliminates the possibility of recovering “industrial disability,” compensation for the loss of earning capacity.5 See Sidebar, for an example of the huge impact that this change can have on a person with a permanent shoulder injury.

CHANGED in 2017: HF518 provides that impairment ratings may only be determined by a physician using the AMA Guidelines specified by the Commissioner. The agency may not consider testimony from non-doctors, family members, friends, co-workers or anyone else, in determining the extent of physical disability. Prior to this change, it was not unusual for a spouse to testify about how the injury had affected the worker’s ability to perform daily tasks at home. That kind of testimony is now prohibited. The administrative law judges (deputy commissioners) are also prohibited from applying their own expertise in evaluating the worker’s disability. They are required to rely on the doctor’s evaluation exclusively.

5 Shoulder injuries are common in certain industries, especially those involving repetitive motion. A shoulder injury involving the dominant arm, even a relatively small one, can effectively end a worker’s career.

In McKnight v. ESA, Inc., (October 12, 2017), the claimant was a construction laborer, working in asbestos abatement. He suffered an injury causing damage to his right (dominant) shoulder. Surgery improved his condition but he continued to have persistent pain and limited range of motion even after the surgery. He was given permanent weight restrictions of 30 lbs. and no more than 15 lbs. overhead. The claimant was given a permanent impairment rating of 1% of the upper extremity.

Because the injury affected the shoulder, the ALJ treated it as a body as a whole injury and evaluated the claimant as having a 60% industrial disability. The ALJ noted that the claimant completed 10th grade and was classified as a special education student, with limited math abilities. He did not have a GED. He was 49 years old. The claimant’s entire work history was in manual labor. He did not have a driver’s license, because of past driving offenses. Since his injury (two years earlier) the claimant has not been able to find a job. The claimant’s weekly rate was $304.63. The total compensation for his permanent injury was $91,389.

If this injury had occurred after July 1, 2017, it would have been treated as a scheduled member injury and the ALJ would not have been allowed to consider the impact of the injury on the claimant’s ability to earn his living. The total compensation for the claimant’s permanent disability would be limited to his physical impairment, 1%, times the value of his shoulder, 400 weeks, or 4 weeks of benefits at $304.63/week, a total of $1,219.

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Obviously, these changes make the doctor’s evaluation even more significant. The employer is given the first choice of a doctor to evaluate the worker’s disability. The employer may ask the treating physician to provide an impairment rating or may send the worker to a different doctor for the sole purpose of providing an impairment rating. Employers may obtain more than one impairment rating, depending on the circumstances of the case.

CHANGED in 2017: If the worker refuses to go to the evaluation, or just doesn’t show up, the worker will forfeit weekly benefits “for the period of the refusal”.

SECOND OPINION: The injured worker may also obtain his/her own impairment rating from a doctor that he/she chooses at the employer’s cost. Care should be exercised in choosing the doctor to do the impairment rating. Typically, the ALJ will give considerable weight to the opinion of the treating physician (chosen by the employer). The ALJ is much more likely to give serious consideration to the second impairment rating, if it comes from a physician who is well-credentialed in his/her field. A workers’ compensation attorney may be able to help find a doctor who is well qualified to provide the second impairment rating. The employer is only required to pay for one impairment rating from a doctor chosen by the worker. The worker may obtain other impairment ratings, at his/her own cost.

CHANGED in 2017: However, under HF518, the amount that the employer has to pay is limited to the “typical fee” for impairment ratings “in the local area.” And if it turns out that the injury is not work related, the employer doesn’t have to pay at all.

BODY AS A WHOLE (NON-SCHEDULED) INJURIES

“Body as a whole” injuries are those that affect the trunk of the body, the hip, neck and head. Prior to HF518 an injury to the shoulder was also considered to be a BAAW injury. Impairment resulting from a body as a whole injury is measured by the same method as scheduled injuries, using the same AMA Guidelines. The body as a whole is worth 500 weeks of benefits. An injury that produces an impairment of 10% of the body as a whole would be worth 50 weeks of benefits.

However, unlike scheduled injuries, workers with body as a whole injuries may also be entitled to additional compensation based on their actual loss of earning capacity. The additional compensation, known as “Industrial Disability,” is available if the injury affects the employee’s ability to make a living and is in addition to the compensation based on physical impairment.

Compensation for body as a whole injuries is based on the individual’s loss of earning capacity. In making that determination, the agency will consider the following factors:

• Employee’s age • Education, training and motivation • Condition prior to and immediately after the accident, and present condition • Site and severity of the injury • Length of healing period • Work experience and potential for rehabilitation • Employee’s qualifications – intellectual, emotional and physical • Earnings prior to and after the accident (loss of earnings) • Functional impairment as a result of the injury

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• Permanent work restrictions and what accommodations are available • Inability/ability to engage in suitable employment • Employer’s willingness to provide work to the employee

The worker does not have to prove that he/she has actually lost any wages, only that his/her future earnings are likely to be lower because of the injury. However, if the worker has actually lost employment, the agency will consider that fact in evaluating the worker’s industrial disability. For that reason, an employer that discharges an injured worker may be inadvertently increasing the worker’s industrial disability (see final bullet point).

NEW in 2017: Under HF518 a worker who has a body as a whole injury that results in a substantial industrial disability can have the compensation for the industrial disability taken away, if she is offered a job that pays the same or more than she was making at the time of the injury. There is no requirement that the job offered be “suitable.” This change could result in a devastating loss of compensation for many injured workers with significant industrial disabilities.

For example, a machinist who works in a factory in Keokuk suffers a head injury which affected his fine motor skills and made it difficult for him to do the precision work necessary to do his job as a machinist. Before HF518, he would likely have a fairly high industrial disability, but that could be taken away completely if he’s offered a better paying job. If, for example, he’s offered a job as a parts inspector in a factory in Sioux City, on the night shift, if the job pays more than his old job, he’ll lose all compensation for his industrial disability. It doesn’t make any difference whether he actually accepts the job or not. He may well decide that he doesn’t want to work nights or uproot his family and move across the state,6 but if he turns down the offer, his industrial disability benefits stop.7

If the injured machinist accepts the offer, his industrial disability benefits also stop, but at least he’ll be earning an equivalent or higher wage. But for how long? If the injured worker goes back to work for the same employer and then later is fired, the worker can go back to the agency and ask to have his case reviewed and possibly get some of his industrial disability reinstated. This provision does not apply if the worker quits. It also does not protect an injured worker who goes to work for a different employer. The machinist in our example who moves across the state to take a job with a different employer and then is laid off or fired three years later, has lost all compensation for his industrial disability and can’t go back and ask for it to be reinstated.8

NEW in 2017: HF518 requires that, in evaluating a body as a whole injury, the agency must consider “the number of years in the future it was reasonably anticipated that the employee would work”. This is a major change in how body as a whole injuries are compensated. The greatest impact will be on older workers, particularly those who work in physically demanding jobs. For example, a construction worker who suffers a serious back injury which prevents him from lifting more than 5 lbs. or climbing ladders , might have only a 25%

6 The statute does not explicitly require that the job offer be in Iowa. It is possible that the agency and the courts may interpret this provision to apply to job offers from other states or even other countries.

7 The new statute does not say anything about the timing of the job offer. What if the new, higher paying, job offer is received months or years after the injury? Does the injured worker have to repay the industrial disability benefits that he/she has already received? Or does this disqualification only apply prospectively?

8 Although it’s not completely clear, it is possible that he might be able to file a review/reopening petition, as long as it was within two years of the initial decision or settlement.

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physical impairment to the body as a whole, but the impact on his ability to earn a living (industrial disability) will be much higher. Before HF518, an older worker might be considered more disabled than a younger worker, because it’s likely that a younger worker can go back to school or be retrained in a different occupation. That’s more challenging for a 64 year old to do. HF518, turns the evaluation process on its head. Now, under HF518, the 64 year old will still receive compensation for the 25% physical impairment, but little or nothing for industrial disability because it’s considered “reasonable” to assume that he would only work a year or two longer anyway. It doesn’t matter if the worker testifies that he planned to work until he was 90, the standard isn’t related to the worker’s actual intention. Under HF518, compensation is based on what can be “reasonably anticipated.”9

Adding this factor doesn’t negatively affect younger workers, but it doesn’t help them either. The agency may still decide that their industrial disability should be lower, based on the assumption that they can be retrained or learn a new skill. That was not changed by HF518.

Determining the extent of an injured worker’s industrial disability is a complicated and somewhat subjective process. Although a vocational expert can offer an opinion, the final determination is up to the Workers’ Compensation Commissioner. The initial decision will be made by an Administrative Law Judge (ALJ), also sometimes referred to as a Deputy Commissioner. The ALJ’s decision is based on his/her evaluation of all the evidence, including medical records and evaluations, the opinions of vocational experts (if any) and the testimony and even demeanor of the injured worker. Some recent examples will serve to illustrate how the process works.

Case 1: Wymore v. Wellman Dynamics, (Sept. 1, 2011)

Kathy worked in a foundry for approximately ten years. Her job required her to use a rotary file to finish metal castings. She suffered a repetitive motion injury to her neck, lower back, arms, hands wrists and shoulder. The injuries resulted in permanent restrictions on Kathy’s ability to lift, push and pull and substantially reduced her grip strength. Kathy’s employer terminated her employment, due to its inability to accommodate her restrictions. Kathy’s treating physician gave her a rating of 5-8% impairment to the body as a whole, which the ALJ found to be credible.

The ALJ determined that Kathy had a 60% industrial disability. Among the factors cited by the ALJ were: (1) Kathy’s age (50) and limited education (9th grade, with later GED); (2) Kathy’s previous employment in manufacturing and her inability to return to factory work; and (3) the fact that Kathy’s employer terminated her due to an inability to accommodate her restrictions. The ALJ found that Kathy was not completely unable to work, but that the jobs she could do (retailer cashier, fast food worker, etc.) would pay substantially less than her factory job and with no guarantee of hours.

Case 2: Ojeda v. Tyson Fresh Meats, (Dec. 8, 2011)

Arcelia worked in a meat packing plant as a fat trimmer, processing 2,400 beef carcasses per day. Arcelia developed a repetitive motion injury to both arms and

9 On the other hand, it might be “reasonable” to anticipate that an accountant or other white collar worker might work until she was 75, since that kind of work is generally less physically demanding than factory work.

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shoulders, resulting in a 10 lb. lifting restriction and permanent restrictions on the use of a knife, hook, wizard knife or other power tools. Her injuries were serious enough to limit her ability to care for herself and interfered with her sleep. Arcelia’s doctor gave her a 20% impairment rating for her right arm and a 10% impairment rating for her left arm. The company doctor rated her impairment as 0%.

The ALJ determined that Arcelia had a 55% impairment rating. He cited her age (48) and her limited education (8th grade in Mexico) as significant, as well as the fact that she could not read, write or speak English. Her only other significant employment was in a mattress factory. He noted that the employer had behaved responsibly and had provided Arcelia with a job that accommodated her restrictions, but also noted that her employment opportunities elsewhere were very limited.

Case 3: Vaske v. Wal-Mart Stores, (March 13, 2012)

Katie was a 27 year old who worked in the deli department at Walmart. She injured her back while twisting to reach for lettuce. She was examined and treated by several different doctors. Eventually, Katie was diagnosed with a herniated disc and was give restrictions on lifting (10 lbs. occasionally and 5 lbs. repetitively), standing and sitting (no more than 30 minutes), no stooping or squatting and was limited to working no more than a four hour shift. The doctor evaluated her permanent impairment as 8% of the body as a whole.

Evaluation of Katie’s disability was complicated by the fact that most of the health care providers felt that she was limiting her physical activities at work, possibly out of concern about being reinjured. On the other, surveillance revealed that she went out to bars with friends, danced occasionally, and did not appear to be in obvious pain.

The ALJ determined that Katie had a 15% industrial disability. The ALJ cited her limited education (high school, plus certification as a veterinary assistant) and limited work experience (primarily in retail and some light assembly) as important factors. However, the ALJ found that those factors were mitigated by the fact that Walmart had accommodated Katie by finding jobs for her within her restrictions and had increased her wage rate. The ALJ was troubled by reports of Katie’s “self-limiting behavior” at work, when compared to her social life. The ALJ noted that on one occasion Kate called in sick, saying that her back was sore from standing so long at a concert the night before. The ALJ thought this action showed that Katie prioritized her personal life over her work life. The ALJ also noted that Katie offered no evidence that she was looking for a better job and was making no effort to make use of her veterinary assistant certification.

Case 4: Lundy v. Vitran Express, (Sept. 26, 2011)

Ray was a 62 year old truck driver who injured his back while unloading a shipment of re-rod. He was evaluated by two physicians who agreed that he had a herniated disc and as a result that he had suffered a 7% impairment to the body as a whole. Neither doctor put any restrictions on Ray’s activities at work. Following his injury, Ray’s

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employer attempted to give him loads that did not require much loading or unloading. Ray was able to continue to work as a truck driver with no significant problems. His income in the year following the injury was slightly less than the year before the injury, but that appeared to be the result of a decline in the trucking business.

Ray and his employer both offered reports from vocational experts who had evaluated Ray’s employment opportunities. Ray’s expert evaluated him as having a 70-80% loss of earning capacity. This evaluation was based in large part on Ray’s limited education (11th grade, no GED), his age (62) and his limited employment history (mostly in the trucking industry). Ray’s expert relied on a functional capacity evaluation (FCE) from a physical therapist that had recommended that Ray not lift more than 50 lbs. on a regular basis. The employer’s expert thought that Ray’s loss of earning capacity was in the range of 10-12%. She relied on the fact that neither of the doctors had put any restrictions on Ray’s work activities and that Ray continued to work as a truck driver without apparent problems.

The ALJ found that the employer’s expert was more credible and awarded Ray a 10% industrial disability rating. The ALJ discounted the work restrictions recommended by the physical therapist, pointing out that neither of the doctors had asked the physical therapist to perform a FCE, but instead it had been requested by Ray’s attorney. The ALJ rejected the testimony of Ray’s expert entirely, because it was based in part on the work restrictions recommended by the physical therapist. The ALJ also was troubled by the fact that Ray’s attorney had been provided with a preliminary draft of the expert’s report and had made some editorial suggestions which were incorporated in the final version of the report.

Case 5: Fridley v. Allied Construction Services, (April 5, 2012)

Ronald was a 58 year old union drywaller who was injured in a fall from a scaffold while working for Allied Construction Services. He suffered facial lacerations, fractured his right wrist and thumb and injured both knees. Eventually, he had a surgical fusion of the right wrist and had a total replacement of his right knee. Following the surgery, Ronald continued to have pain, for which the doctor prescribed narcotics. Long-term use of the narcotics affected Ronald’s memory, math and language skills. Ronald’s right (dominant) hand was damaged so seriously that he was not able to write with it or to use it for other fine motor skills. The injury to his knees affected Ronald’s gait and stability. Ronald testified that he was able to do household chores and yard work, but at a slower pace and for a shorter period of time than before his injury.

Ronald was examined by three doctors who did not agree about the causation of his injuries, the extent of his impairment or the appropriate work restrictions. The ALJ decided that the opinion of Dr. Jones was most credible. Dr. Jones gave Ronald a 66% impairment rating to his arm and a 37% impairment rating to his leg. Dr. Jones also recommended that Ronald not lift more than 10 lbs. on an occasional basis and no more 2-3 lbs. on a repetitive basis. He also recommended no stair or ladder climbing and avoidance of squatting or kneeling.

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After his surgeries, Ronald made some effort to find other work, but after a few attempts he decided to take early retirement and to apply for Social Security disability. At the time of the hearing, Ronald was receiving his union pension and Social Security benefits.

The ALJ determined that Ronald was permanently and totally disabled due to the combination of the injuries to his right arm and leg. The ALJ noted that these injuries precluded Ronald from working at his trade, and his inability to write and/or do math would preclude him from working as an estimator or supervisor. He noted that Ronald had not made a diligent effort to find employment, but also pointed out that Allied had not offered him alternative employment either.

Obviously, all of these examples are from cases decided before HF518 was enacted. It will take a few years, at least, before we have a clear picture of how HF518 will affect the evaluation of industrial disability.

* * * * *

Finally, keep in mind that, in order to qualify for “industrial disability,” the injury must be a “body as a whole” injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 258 N.W. 899 660 (1934). Workers with scheduled injuries are not entitled to any compensation for industrial disability. Workers with shoulder injuries occurring after June 30, 2017 will not be eligible for industrial disability.

“FRESH START” RULE ELIMINATED

In a special session in 2004, the Iowa Legislature amended Iowa Code §85.34(2)(u) to read as follows:

In all cases of permanent partial disability other than [scheduled injuries], the compensation shall be paid during the number of weeks in relation to five hundred weeks as the reduction in the employee’s earning capacity caused by the disability bears in relation to the earning capacity that the employee possessed when the injury occurred.

In other words, the worker’s industrial disability will be measured by comparing the worker’s current earning capacity to his/her earning capacity immediately before the injury occurred. This is sometimes known as the “fresh start” rule. The idea is that a worker with a pre-existing impairment that is significant enough to affect his/her earning capacity probably is already being paid at a lower wage rate than a perfectly healthy worker. To offset this effect, the loss is measured in proportion to the preexisting reduced capacity, not against a healthy non-disabled person. In other words, everyone starts with a 100% earning capacity, regardless of any prior health conditions. Steffen v. Hawkeye Truck & Trailer, (App. Sept. 9, 2009).

CHANGED in 2017: HF518 eliminates the “Fresh Start Rule” and makes it clear that the agency can only award compensation for the disability caused by the most recent injury. For example, a plumber injures his back and can’t do his job as a plumber any longer. He has a 25% BAAW impairment and he’s awarded an additional 20% industrial disability. He goes to work in a plumbing supply store, making far less money. He has a neck injury in the new job, resulting in a 10% BAAW impairment and probably can’t do his sales job any more. Under the “fresh

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start rule,” he’d probably receive a fairly high industrial disability rating, though his weekly rate would be low, since it would be based on the sales job. Under the new rule, he’d get a much lower industrial disability rating AND his weekly rate would be low.

SECOND INJURY FUND BENEFITS

Second injury fund benefits are a special kind of PPD benefits. The Second Injury Fund seems mysterious to many people, but the reasons for its existence make sense. It was adopted in the aftermath of WWII, when many injured veterans were attempting to return to the workforce. Some employers were reluctant to employ someone who was missing a limb. Employers were concerned that a one-legged machinist with a relatively minor on-the-job injury might now be considered totally disabled. So the legislature created the Second Injury Fund, partly to protect the employer from the effect of the pre-existing injury and to provide some additional compensation to the worker.

The Second Injury Fund partially alleviates the disparity between scheduled injuries and body as a whole injuries by providing industrial disability benefits to workers with scheduled injuries under very specific and limited circumstances. There are three requirements for qualifying for the Second Injury Fund.

1. A first injury. The employee must have lost, or lost use of, a hand, arm, foot, leg or eye; Note: the first injury does not have to be work related.

2. A second injury. The employee must also sustain the loss of, or lose the use of, another such member (body part) or organ through a compensable, work-related injury; and

3. Permanent disability. The second injury must produce a permanent partial disability, resulting in some actual loss of earning capacity.

Unlike all other workers’ compensation benefits, second injury benefits are not paid by the employer/insurance carrier. The employer is liable only for the scheduled injury. However, the worker may apply for second injury fund benefits to compensate him/her for the industrial disability resulting from the second injury. Second injury find benefits are paid by the state, rather than being charged against the employer. The Second Injury Fund is funded by payments from employers in cases of compensable injuries causing death. See Iowa Code §85.63-85.69.

PERMANENT TOTAL DISABILITY (PTD) BENEFITS

A worker who has a work-related injury that is totally disabling is entitled to receive permanent total disability (PTD) benefits. A disability that completely prevents the worker from ever working at his/her regular job does not necessarily count as PTD. In order to qualify for PTD, the injury must be so severe that the worker is unable to work at any meaningful job in the economy.

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Workers who are very severely injured, but can do some occasional work, may still be entitled to permanent total disability under the “odd lot doctrine” if the only work that they can do is so limited in “quality, dependability or quantity” that it precludes meaningful employment. Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).

A worker who loses both arms, or both hands, or both feet, or both legs, or both eyes, or any two thereof, caused by a single accident, and is permanently and totally disabled as a result, is eligible for PTD benefits. This is an exception to the scheduled injury limits on PPD benefits. Iowa Code §85.34(2)(s).

NEW in 2017: PTD benefits are paid weekly according to the same basic formula as other disability benefits. However, PTD benefits are payable for the life of the injured worker or until the worker is no longer permanently and totally disabled. This new provision, added by HF518, apparently would allow an employer to periodically challenge whether an injured worker was still totally disabled. The amended statute does not appear to place any limits on when or how often an employer could make that kind of challenge.

NEW in 2017: Under HF518 an injured worker cannot receive PPD if he/she is eligible for PTD. This might sound like a reasonable rule, but the results can be harsh. A nurse practitioner has a serious head injury and can’t do her old job any longer. She receives a 30% BAAW impairment rating from the physician. The ALJ awarded her an 80% industrial disability. She would receive 400 weeks (80% x 500 weeks) of benefits at a high weekly rate. Then she takes a job in a convenience store at very low wages. She falls, injuring her spinal cord, and is now totally disabled. She’ll receive PTD, but at the much lower weekly rate, and the first employer can now stop paying for the original injury, even though they have not paid the full 400 weeks. Her total amount of compensation may actually be reduced as a result of becoming totally disabled.

NEW in 2017: An injured worker who is receiving PTD benefits will lose those benefits in any week in which he/she receives (1) gross earnings from any employer or (2) payment for services from any source if the amount of either of those (or both combined) is at least 50% of the state average weekly wage. Effective July 1, 2017, the state average weekly wage was $860.06.

NEW in 2017: An injured worker cannot receive PTD benefits in any week in which he/she is receiving unemployment benefits, regardless of the amount of those benefits.

NOTICE OF TERMINATION OF BENEFITS

Employers must give at least 30 days prior notice before terminating weekly disability benefits. The notice must give the reason why benefits are being terminated, must give the worker the opportunity to provide evidence to dispute the reasons given and must notify the worker of the right to challenge the employer’s decision by filing with the Division of Workers’ Compensation. Auxier v. Woodward State Hospital School, 266 N.W.2d 139 (Iowa 1978). No notice is required if benefits stop because the worker returned to work.

The Division of Workers’ Compensation may assess penalties against an employer who fails to give an appropriate notice.

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DEATH BENEFITS

If a worker is killed as the result of a work-related injury, the employer must pay the following:

Burial costs. Reasonable burial expenses of up to twelve times the state average weekly wage. Iowa Code §85.28

As of July 1, 2017: The Average Weekly Wage = $860.06

x 12

Maximum Burial Benefit = $10,320.72

Surviving Spouse Benefits. If the deceased worker was married and has a surviving spouse, the spouse is entitled to weekly benefits for the spouse’s life, unless the spouse remarries. If the spouse remarries, then he/she receives two years of benefit in a lump sum, if there are no children entitled to benefits.

Dependent Children Benefits. If the deceased worker does not have a surviving spouse, then dependent children are eligible for weekly benefits. (The worker’s weekly benefit amount is divided equally among all dependent children.) Benefits continue as long as the child is a dependent, normally until age 18. A child who is enrolled in any accredited educational institution will be considered to be dependent up to age 25. Children with mental or physical disabilities may be considered dependent for their own lives if actually incapacitated from being self-supporting.

Dependent Parent Benefits. Parents and/or step-parents of a minor who was killed on the job may be entitled to weekly benefits, if they were actually dependent on the minor for their support. See Iowa Code §85.31.

MEDICAL BENEFITS

Employers must provide “reasonable” medical care – including reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services. See Iowa Code §85.27. This also includes medical supplies and equipment including wheelchairs, crutches and other equipment. Medical benefits also include the cost of transportation related to medical treatment.

TRANSPORTATION EXPENSES

The basic rules regarding the reimbursement of transportation expenses for treatment of an injury are set out in Iowa Admin. Code §876-8.1(85.) Under the administrative rule, transportation expenses may include:

• Payment of the cost of public transportation • Mileage for the use of a private motor vehicle. The mileage rate is the IRS mileage rate for federal income

tax purposes, which is in effect as of July 1 each year. The rate effective July 1, 2017 is 53.5¢/mile • Meals and lodging expense if it is incident to the medical care. • Ambulance or other special means of transportation if deemed necessary by the medical care provider or

if agreed to by the employee and the employer/insurance carrier.

Transportation expenses can be paid in advance of being incurred. The Worker’s Compensation Commissioner may order that they be paid in advance, or the employee and the employer/insurance carrier may agree to advance payment.

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Transportation expenses can include other costs necessitated by travel to receive medical care. The test is that the expense must be reasonable and necessary for getting to and from the medical treatment.

ARTIFICIAL BODY PARTS AND APPLIANCES

The rules regarding the employer’s obligations to provide prosthetic devices and medical appliances differ.

ARTIFICIAL BODY PARTS

The employer is required to provide a necessary prosthetic device, but only once. For example, the employer need only provide an injured employee one prosthetic arm if necessitated by a work- related injury. Except as noted below, if the prosthetic device wears out, is otherwise damaged or becomes obsolete, the employer is not obligated to provide a replacement device.

There are three exceptions: (1) if the work activities of the employee result in damage to or render a prosthetic device unusable; (2) if a work injury, which results in the employee’s entitlement to disability benefits or medical benefits under the worker’s compensation statutes, damages or renders the device unusable, or (3) if the prosthetic device is damaged or rendered unusable in connection with actions taken by an employee to avoid a work related injury. In such cases, the employer is obligated to “repair or replace” the prosthetic device even if the employer had paid for the damaged device initially. Iowa Code §85.27-5; Iowa Admin. Code §876-8.5(85).

APPLIANCES

Iowa Admin. Code §876-8.5(85) defines the term appliances. “Appliances are defined as hearing aids, corrective lenses, orthodontic devices, dentures, orthopedic braces or any other artificial device used to provide function or for therapeutic purposes.” Appliances include devices which are reasonable and medically necessary to provide function or for the treatment of the injured employee. The employer is obligated to pay for replacement of damaged or worn-out appliances on an ongoing basis.

LOST WAGES WHILE RECEIVING TREATMENT

After the third day of incapacity to work due to a compensable injury, an employee, who has returned to work and is not receiving weekly workers’ compensation temporary partial or healing period benefits, who is required to leave work to receive medical care for the injury for one day or less, is entitled to wages for the work time lost while receiving the medical care. Iowa Code §85.27-7. Importantly, “a day of incapacity” means eight hours of accumulated time of lost work due to the compensable injury or the medical treatment provided to the employee for the injury during scheduled work hours.

For example, Employee X was off work for two days due to a work related muscle strain to the back. X returns to work the third day, but is sent to physical therapy by the employer for 2 hours each day during the middle of X’s work shift for two five-day work weeks. Employee X has accumulated 16 hours of incapacity due to the initial two

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days off. Employee X accumulates another 8 hours of incapacity after the fourth physical therapy treatment. Employee X is entitled to wages for time spent at the physical therapy sessions for the remainder of the treatments.

PAYMENT OF MEDICAL EXPENSES/CHOICE OF DOCTOR

Iowa law gives the employer the right to choose the doctor or other health care provider who will care for the injured worker, subject to certain exceptions and limitations. The care must be provided promptly and must be reasonably suited to treat the injury. The employer has duty to monitor health care and provide notice to the employee if it intends to change providers.

The employer is obligated to pay the expenses of the medical care which was authorized by the employer and was provided to the employee to treat a compensable injury. Generally, the employer is not obligated to pay the expenses of medical treatment provided to the injured worker by medical care providers which were not authorized by the employer.

• Emergencies. The employer may be obligated to pay for medical expenses incurred by the injured worker in an emergency situation where the employer has not pre-authorized a medical care provider to handle emergencies or cannot be timely reached to authorize medical care.

• Denial of responsibility. If employer admits that the injury is compensable, then it can choose the medical care and treatment, see Boyce v. Consumers Supply Distrib. Co., 2 Iowa Indus. Comm’r Rep. 50 (appeal Dec. 1981) (Dist. Ct. aff’d). However, if the employer denies liability via an official pleading or written response, the employer loses the right to control medical care and treatment of the injured worker, see Barnhart v. MAQ, 1 Iowa Ind. Comm. Rep. 16 (1981).

• Request to change doctor. Employees may apply to the Division of Workers’ Compensation to authorize a change of doctor on a form called “petition for alternate care”. See Iowa Code §85.27. The employee should be prepared to explain why the care provided by the employer is not “reasonably suited to treat the injury.” That could include inconvenience (the doctor is too far away), the doctor is not a specialist in this kind of injury, the doctor’s treatment is not effective, etc. Personal preference is not a sufficient reason to change care. The worker should also be prepared to identify a doctor who would be appropriate to provide care.

• Treatment at own cost. An injured worker can always go to his/her own doctor, if he/she is willing to pay. Keep in mind, however, that most health insurance plans exclude coverage for work-related injuries.

• Evaluations. An employee may request a doctor of his/her own choosing to perform an evaluation/rating at the employer’s expense when the employer’s liability has been established and the employer’s doctor has given a rating.

In any case, however, if there is a pending contested case proceeding involving the compensability of an employee’s injury, the medical care providers who have provided treatment for the injury cannot engage in debt collection actions against the employee once they have been notified of the pending proceedings. The providers, however, can send an itemized statement of the expenses incurred. Iowa Code §85.27-6.

Employers must provide the reasonable medical care needed to treat a work related injury “for life,” unless the parties have agreed otherwise and a settlement has been approved by the Commissioner of Workers’ Compensation.

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VOCATIONAL REHABILITATION BENEFITS

CHANGED in 2017: Workers with a permanent injury may be entitled to vocational rehabilitation benefits. The current vocational rehabilitation benefit provides $100 per week during each full week a worker participates in a vocational rehabilitation program not to exceed 13 weeks or 26 weeks if approved by the Division of Workers’ Compensation. See Iowa Code §85.70. Workers with shoulder injuries are excluded from this benefit, but HF518 creates a new kind of benefit for them, only.

NEW in 2017: Workers with a permanent injury affecting their shoulders may be entitled to financial assistance to allow them to attend community college for the purpose of being retrained for a different occupation. There are many restrictions and conditions on this new kind of financial assistance. These benefits are available only to workers with a shoulder injury that is so severe that they “cannot return to gainful employment”.10

A worker who meets that standard is required to be evaluated by Iowa Workforce Development to determine if the worker would benefit from “post-secondary career and technical education programs” in certain fields:

• Agriculture • Family and consumer sciences • Health occupations • Business • Industrial technology • Marketing

If Workforce Development determines that the worker would “benefit from participation,” the worker will be directed by IWD to attend the nearest community college11 for the purpose of obtaining a degree or certificate that will allow the worker to return to the workforce.

If the worker enrolls in the community college program chosen for him/her by IWD, within six months of being directed to do so by IWD, the insurance company will pay the community college for the worker’s tuition and fees up to a total of $15,000. If the worker submits documentation, proving that he/she was required to purchase supplies as a condition of participation in a required class and that he/she actual did purchase the supplies, the insurance company will reimburse the worker the actual cost of the supplies. The worker will not receive any financial compensation for the time that he/she is attending college, not even the $100/week payable to workers with non-shoulder injuries.

10 This standard is so high that it appears that it might only apply to workers who are permanently and totally disabled as a result of a shoulder injury. Prior to HF518, those workers would have received weekly benefits for life. Under HF518, they’ll receive weekly benefits, up to 400 weeks for complete loss of use of the shoulder, or less in some cases, plus the new shoulder-based community college reimbursement, if they meet all of the requirements of this new section.

11 If the worker thinks that a different community college would be better suited to the worker’s “needs” the worker can ask for permission to go somewhere else. Ultimately, IWD has the right to decide where the worker will go to school.

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The insurance company can require periodic updates from the community college about the worker’s progress. If the worker does not meet the attendance standards of the community college or if the worker does not receive a passing grade in every class, all benefits under the “shoulder” program will stop. If the worker does not enroll in the community college as directed by IWD with six months, the worker forfeits all benefits under the “shoulder” program.

INTEREST

Prior to the enactment of HF518, Iowa Code §85.30 provided that if compensation payments are “not paid when due, there shall be added to the weekly compensation payments, interest at the rate provided in section 535.3 for court judgments and decrees.” The interest rate under Iowa Code §535.3 is 10%. Payment of the interest is mandatory. The purpose of the relatively high interest rate is to strongly encourage insurance companies to make payments on time and to punish them when they do not do so. The legislature recognized that late payments create hardships for injured workers.

CHANGED in 2017: HF518 drastically reduces the interest rate on late workers’ compensation payments. After July 1, 2017, late payments will accrue interest at a rate equal to one-year treasury bonds at the time of injury, plus 2%.12 This very low interest rate will eliminate much of the incentive for paying benefits when they are due.

WHEN ARE PAYMENTS DUE?

Payments “shall be made each week beginning on the eleventh day after the injury, and each week thereafter during the period for which compensation is payable…” Iowa Code §85.30.

HOW ARE BENEFITS PAID?

A payment is considered to have been made when it is placed in the United States mail correctly addressed to the employee. Alternatively, a payment is considered to have been made when a check is physically delivered to the employee. The employer may choose the method of payment.

Being able to prove when you were paid is important for a number of reasons, including claims for interest and/or penalty benefits. It’s a good idea to record each payment received. Keep the envelope that the check came in so that you can document when it was postmarked, which may not match the date on the check. It’s also good to note the date on which you received the payment.

THE BIG POINTS ABOUT INTEREST

The injured worker is entitled to interest any time he/she does not receive the full amount of benefits in a timely fashion. The injured worker is entitled to be paid both on time and in full. The worker is entitled to interest if benefits are paid late or if they are paid on time, but not the correct amount. For example, if an employer miscalculates the proper weekly worker’s compensation rate and uses a lower rate than is required, timely

12 The rate for one-year treasury bonds as of July 3, 2017 was 1.2%. The rate fluctuates daily. During most of the last decade the rate has been under 0.4%.

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payment of the lower rate subjects the employer to the obligation to pay interest on the unpaid portion of the weekly benefit. Because the purpose of the interest provision of the statute is to insure timely payment of the amounts the injured worker is entitled to receive under the statute, the employer’s “good faith” in making an erroneous payment does not relieve the employer of the obligation to pay interest on unpaid amounts.

Remember, interest applies not only to unpaid or improperly paid weekly benefits but also to premature discontinuation of weekly benefits and late commencement of weekly benefits.

PENALTY BENEFITS

Iowa Code §86.13-4a provides that: “If a denial, a delay in payment, or a termination of benefits occurs without reasonable or probable cause known to the employer or insurance carrier at the time of the denial, delay in payment, or termination of benefits, the… commissioner shall award benefits in addition to those benefits payable under this chapter… up to fifty percent of the amount of benefits that were denied, delayed or terminated…”

WHAT NEEDS TO BE PROVED TO RECEIVE PENALTY BENEFITS?

In order to be entitled to penalty benefits, two basic findings must be made by the Worker’s Compensation Commissioner. First, the Commissioner must find that, in fact, there has been a denial, delay in payment, or termination of benefits which were owed to the injured employee. Second, the Commissioner must find that the employer has failed to prove a reasonable or probable cause for the denial, delay in payment or termination of benefits.

To avoid an award of penalty benefits when an employer denies liability for benefits owed, delays payment of benefits owed or terminates benefits owed, the employer must demonstrate the following:

1. It engaged in a reasonable investigation and evaluation of the employee’s claim for benefits before it denied, delayed or terminated the benefits.

2. It actually relied on the results of its investigation and evaluation of the employee’s claim in denying, delaying or terminating benefits.

3. It informed the injured employee at the time of the denial, delay or termination of benefits of the reason for its action.

4. Its reason for denying, delaying payment, or terminating benefits was a “fairly debatable” justification for its action.

In Anderson v. Jacobson Staffing Co., (April 3, 2012), the claimant was off work for several months following surgeries for carpal tunnel and other problems. The employer admitted that the injury was work related but disputed whether he had a permanent impairment. The ALJ found that the permanent injury was “fairly debatable” but she concluded that there was no excuse for the failure to pay temporary benefits while the claimant was off work. She awarded $2,500 in penalty benefits.

In Murphy v. D.A. Transportation, Inc., (April 3, 2012), the employer paid temporary benefits, but they were a few weeks late. The ALJ noted that the employer did not provide a good reason for the delay and she awarded $200 in penalty benefits.

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A WORD OF CAUTION: DON’T GET TOO EXCITED ABOUT PENALTY BENEFITS.

While the terms of the statute make it seem that penalty benefits are the rule, not the exception, in situations where an employer denies liability for an injury, delays paying benefits or terminates the payment of benefits, the courts and the agency do not routinely award penalty benefits. Penalty benefit issues are decided on a case by case basis. And, the courts and the Commissioners have given the concept of “fairly debatable” flexible and wide contours. The courts and the agency, however, will award penalty benefits when the employer simply ignores available evidence (e.g. not paying benefits based on an impairment rating given by the authorized treating physician;) intentionally fails to obtain relevant evidence (e.g. failing to obtain an impairment rating when an employee is released to work with permanent restrictions;) or relies on evidence it knows to be inaccurate (e.g. relying on an opinion of the treating physician that it knows was based on incorrect information provided to the doctor.)

On the whole, the threat of seeking penalty benefits may be effective in dealing with an employer that drags its feet on investigating injury claims or on paying benefits in a timely fashion or that routinely denies injury claims.

WHAT ARE THE PROCEDURES FOR MAKING A WORKERS’ COMPENSATION CLAIM?

WHAT TIME LIMITS APPLY?

There are two important time limits in workers' compensation.

1. Notice to the Employer: An employee must report his/her injury to the employer within 90 days of the injury. See Iowa Code §85.23. The 90 days starts to run when the injury occurred or, if it’s not apparent, when the employee becomes aware or should be aware that the injury occurred.13 Note: for cumulative trauma injuries – the 90 days generally starts when the employee first misses time from work because of the injury.

There is an exception if the employer actually knew about the injury and knew that it occurred in the course of employment, then the employer is considered to have been notified, Hobbs v. Sioux City, 2 N.W.2d 275, 276 (Iowa 1942), and Robinson v. Department of Transp., 296 N.W.2d 809, 811 (Iowa 1980). Don’t count on this exception!

2. Statute of Limitations: If there is a dispute about benefits, the worker has to file an administrative claim, called a contested case proceeding, within the statute of limitations. See Iowa Code §85.26.

a. Two Year. Normally the worker must file a claim with the Division of Workers’ Compensation within two years of the date of the injury.

b. Three Year. If the worker has received some weekly benefits, the injured worker has three years from the date of the last payment to file a claim with the Division of Workers’ Compensation. Only weekly benefits count. Medical payments made by the employer do not stop the clock from running out. Sick leave or disability insurance payments also do not count.

13 This definition of the date of injury was adopted by the Iowa courts many years ago, but is now included in the statute as a result of HF518.

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A worker must comply with both time limits or the claim may be denied.

WHAT ARE THE EMPLOYER’S PROCEDURAL RESPONSIBILITIES?

1. Upon notice or knowledge of a work injury, the employer or carrier must file a “First Report of Injury” – Form 1 within 4 days.14

• Triggered when an employee claims to have sustained an injury resulting in incapacity for one or more days.

• Doesn’t matter whether the employer denies the claim or not.

2. Employer and carrier have an affirmative duty to pay benefits in the absence of specific instructions from the commissioner.

• Benefits cannot be withheld or denied without reasonable probable cause or excuse. • A reasonable excuse exists only if: a) the claim is fairly debatable; or b) a delay is necessary to investigate

the claim. • See Christensen v. Snap-On-Tool, 554 N.W.2d 254 at 261. The employer’s affirmative duty to pay benefits

is violated under the following conditions: o delays of 11 days or more not based on reasonable excuse; o failure to pay permanent benefits when medical evidence indicates permanent disability; o failure to pay the correct weekly benefit rate; and o failure to pay interest when the benefit payments are not timely.

3. The employer must pay a claim within 11 days or deny the claim. When denied, a letter must be sent to the employee stating the reasons for the denial.

4. When the claim is admitted to and benefits paid, the employer must file a claim activity report and any supplemental claim activity reports with the commission within 30 days of the first payment. Form 2.

5. Once benefit payments have been commenced, they must continue until termination is justified by law.

a. Employee has returned to work

b. Medical indication that significant improvement is not anticipated

c. Employee is capable of returning to same or similar work

d. Even if “b” or “c” occurs, employer must still provide 30-day notice stating reasons and notice of appeal rights.

6. All work comp insurance carriers are required to have a representative located in Iowa. The Workers’ Compensation Division keeps names, addresses and phone numbers on file.

7. Sanctions – if an employer violates the above, sanctions may be applied.

14 All forms are available on line at http://www.iowaworkcomp.gov/pdfs

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• Continuation of benefits, notwithstanding compensability • Penalties • Compliance proceedings • Civil penalties • Revocation of self-insurance status • The Division provides a complaint form – otherwise use contested case proceeding forms.

WHAT HAPPENS AFTER YOU FILE A CONTESTED CASE?

A contested case is an administrative claim under the workers’ compensation law. It is very similar to filing a lawsuit, except that the procedures are slightly more informal and the case will be heard by a Deputy Workers’ Compensation Commissioner (a kind of administrative law judge) rather than a district court judge.

Although injured workers are not required to have an attorney represent them, it may be advisable. The law and the procedural requirements are complicated and the rules are strictly enforced .

The following is a description of the typical progress of a contested case and are meant only to illustrate what might happen, not as a guide to actually pursuing a contested case on your own.

Step 1 - First file an Original Notice and Petition

• File with the Division of Workers’ Compensation in Des Moines • Must be filed within the applicable statute of limitations • Must serve a copy on the employer and the insurance carrier (certified mail) • Forms available on-line or at the Division of Workers’ Compensation • Employer and insurance carrier have 20 days to file an “Answer” with the Workers’ Compensation

Commission and serve the claimant. • $100.00 filing fee • In some cases, parties may seek declaratory rulings as an alternative to a full blown contested case • Most cases are for an arbitration/administrative law judge (“ALJ”) hearing or for review and reopening

Step 2 - Exchange Information and Discovery

• The Parties are required to exchange any and all medical information related to the work injury (w/in 20 days of filing Answer)

• Injured worker must provide a patient waiver to allow employer access to his/her medical records • Employee may request a doctor of his/her own choosing to perform an evaluation/rating at the

employer’s expense when the employer’s liability has been established and the employer’s doctor has given a rating

• Employer may request the employee to undergo an examination by a licensed physician. When this occurs, the employee has the right to have a physician of his/her own choosing present (this is paid for by the Employer). If the EMPLOYEE refuses to submit to the examination, his/her benefits may be forfeited.

• Commissioner or Deputy may establish dates for completion of medical evidence. • Civil court discovery rules apply

Step 3 - Informal Settlement

• Parties are required to make a good faith effort to settle the dispute

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Step 4 – Mediation

• May be voluntary or mandatory • Mediator has no authority to compel settlement

Step 5 – Prehearing Conference and Order

• Sets time table for the hearing • Allows 12 months to develop evidence, must justify longer than this • Sets out timetables for setting out witness lists, exhibits, and statements of issue, stipulations, etc. • Gives parties three hours for a hearing, unless otherwise approved. Administrative law judge (“ALJ”)

hearings longer than three hours are held in Des Moines. Otherwise, they are normally held locally.

Step 6 – Administrative Law Judge (“ALJ”) Hearing/Arbitration

• Hearing presided over by a deputy workers’ compensation commissioner (ALJ) – they are attorneys • Generally recorded by a court reporter • Parties may waive the hearing (if both agree and file a stipulation) • Hear testimony, enter exhibits, and will hear arguments • Administrative hearing rules and procedures apply • Finder of fact! • ALJ issues the initial agency decision (proposed decision) • Either party may, for cause, request a rehearing w/in 20 days of the proposed decision

Step 7 – Appeal to the Workers’ Compensation Commissioner

• Must file Appeal Petition w/in 20 days of the proposed decision • No new hearing occurs (though oral arguments may be requested) • Commissioner bases decision on the record and on briefs (may request additional evidence in rare

situations) • Commissioner may affirm, modify, reverse or remand the Deputy Commissioner’s decision • Commissioner may review a Deputy Commissioner’s decision even when no appeal has been filed. • The Workers’ Compensation Commissioner’s decision is the final agency decision • May request a rehearing w/in 20 days of the decision

Step 8 – Right to Appeal (Judicial Review in District Court)

• Must file appeal within 30 days of final agency decision • Must be filed in either the District Court located where the ALJ hearing was held or Polk County

• NEW in 2017: Under HF518, filing of an appeal by an employer/insurance company acts as an automatic “stay” of the Commissioner’s award of benefits. In other words, the injured worker will not receive any benefits while the appeal is pending.15

15 The employer/insurance company is required to post a bond, to insure that they have enough money to pay the benefits when the appeal is over. HF518 allows the worker to ask to have the bond amount increased. HF518 does not provide a method for the worker to request that the stay be lifted.

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• District Court may only consider evidence in the record (no new hearing is held) (note in some limited circumstances additional evidence may be submitted to the Commission)

• May not make factual determinations unless Commissioner’s findings of fact are not supported by “substantial evidence” in the record

• Free to make legal findings • May affirm, reverse, modify, or remand the agency decision

Step 9 – Appeal to Iowa Supreme Court

• Must be filed w/in 30 days of the District Court decision • May affirm, reverse or remand the case • No further appeal allowed, except on Constitutional grounds (then the appeal would be to the U.S.

Supreme Court)

SETTLEMENTS & COMMUTATIONS

Most workers’ compensation cases are resolved by settlement prior to going to hearing. Settling a workers’ compensation claim is not a simple process. An injured worker should never sign settlement documents without having them reviewed by a workers’ compensation attorney or some other highly trained person.

Approval Required. All settlements and commutations must be approved by the Division of Workers' Compensation. The Commissioner has recently announced tougher standards for approving full or partial commutations:

• The Commissioner will not approve commutation of benefits that have already accrued. • The Commissioner will not approve an arbitrary stipulated date for the beginning of permanent benefits.

Permanent benefits should commence at the end of the healing period. • A commutation of less than 10 weeks is not considered in the claimant’s best interest.

Agreement for Settlement. If the only dispute in the case is the amount of compensation, you can explain the dispute, provide documentation of the various medical experts and the basis of the compromise. Benefits will be paid on a weekly basis, according to the terms of the agreement and the worker retains the right to future medical benefits related to the original injury. This is the easiest kind of settlement to get approved.

Special Case Settlement. This form of settlement is available only if there is a genuine dispute about whether there was a work-related injury. Usually, the employer settles without admitting any liability. Special case settlements usually result in a lump-sum payment. The worker has no right to future medical benefits. The Parties must convince the Division of Workers’ Compensation that there is a good faith dispute or the settlement will not be approved.

CHANGED in 2017: Full Commutation. This is a request by the worker to receive all future weekly benefits, usually discounted to present value, in one lump sum. The worker must demonstrate good cause for the commutation. Typical reasons include financing college, retraining for a new career or paying off a mortgage to insure the worker has adequate housing. Full commutation cuts off all future benefits, including future medical benefits. See new exception, below.

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Partial Commutation. This is a request by the worker to receive part of the weekly benefits, usually discounted to present value, in one lump sum to pay attorney fees or outstanding debts. It is much more common for the Division of Workers’ Compensation to approve a partial commutation.

NEW in 2017: HF518 creates a new exception that allows the injured worker to continue to be eligible for medical benefits for a specified period of time after a commutation (partial or full), if all parties agree. The ability to keep medical benefits “open” for a period of time may make it easier to reach an agreement about commutation.

ATTORNEY’S FEES

An injured worker who wants to have an attorney to represent him/her in a workers’ compensation case will (almost always) have to pay that attorney. There is no provision in the workers’ compensation law that gives the Commissioner or the courts the power to award attorney’s fees to an injured worker.

An injured worker who hires an attorney should be offered a written contract (or retainer agreement) specifying how the attorney will be paid. Most workers’ compensation attorney are willing to accept cases on a contingency fee. That means that the attorney will receive a percentage of what the client receives. If the case is not successful, the attorney will not receive a fee (though he/she may be entitled to receive reimbursement for costs, even in unsuccessful cases.)

Attorneys are not allowed to claim a percentage of any benefits that have already been paid or agreed to be paid before the attorney is retained by the worker.

CHANGED in 2017: The Workers’ Compensation Commissioner has the right to approve the amount of attorney’s fees that an injured worker is required to pay and can resolve disputes between the worker and his/her attorney.

HOW TO CONTACT THE DIVISION OF WORKERS’ COMPENSATION

Iowa Division of Workers’ Compensation

1000 East Grand Avenue

Des Moines, IA 50319

515-725-4120 or 1-800-645-4583

E-mail: iwd.dwc@iwd.iowa.gov

Website: http://www.iowaworkcomp.gov/

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HOW CAN THE UNION HELP?

EDUCATE THE MEMBERS

REPORT ANYTHING THAT MIGHT BE AN INJURY.

Making certain injured workers timely report anything and everything that might be a work-related injury is the single most important task of Union representatives. There are no good excuses for failing to report an injury or an incident which may result in an injury.

Failure to report an injury in the fashion prescribed by employer rules and policies can result in discipline. Failure to report an injury within ninety days of the injury may result in an injured worker losing the right to workers’ compensation benefits.

In addition to avoiding discipline and preserving an employee’s right to claim workers’ compensation benefits, timely reporting of an injury (1) is basic evidence that a workplace injury, in fact, occurred, (2) usually forces the injured worker to set out the facts of the incident which precipitated the injury when they are fresh in the worker’s mind, and (3) should trigger the start of medical care, if needed, or force the employer to deny that a work-related injury occurred, which frees the worker to seek other medical care.

Finally, the members need to know that their reports above all need to be accurate. The report needs to be as complete and detailed as possible. Providing information - about what happened, how it happened, where it happened, when it happened, who was present when it happened, and what physical symptoms in what locations of the body the employee is experiencing- is needed.

Impress upon the members that they should always get a copy of any injury or accident report which is completed. At a minimum, the employee should get some documentation that an injury or accident was reported. It is not uncommon for injury and accident reports to get “lost” or “altered” in the system. And, it is all too often that employees forget the specifics of what they reported, which can cause problems with their credibility later.

MAKE SURE THAT EMPLOYEES KNOW THEIR RIGHTS TO PETITION FOR ALTERNATE CARE.

Just about every employee knows that the employer is required to provide medical care for a work related injury. On the other hand, few employees know they have the right to seek alternate medical care, if they have legitimate grounds to be dissatisfied with the medical care which the employer is providing. If the employees don’t know their rights, they lose them by default.

INFORM INJURED EMPLOYEES ABOUT THE IMPORTANCE OF KEEPING A LOG.

Many employees are very poor “historians.” As a result, they often honestly give incomplete or inaccurate histories to their medical providers concerning the course of their symptoms and their activities at the time of an injury and afterward. The lack of a complete and accurate history can both impede the treatment given to the employee and cause credibility issues for the employee with the medical provider and ultimately with the administrative law judge in a workers’ compensation proceeding.

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On the day the employee sustains an injury, the employee needs to start keeping a log. The log needs to include contemporaneous notes as to the physical symptoms the employee is experiencing and the work and off-duty activities of the employee. The log should be maintained until the employee’s workers’ compensation claim has been resolved. The log can be simply a small spiral notebook which the employee can carry in a pants pocket at all times. The employee, then, can refer to his or her notes when providing medical providers histories of the course of their symptoms, when explaining his or her claim to a workers’ compensation attorney handling the claim or when preparing to testify in a formal workers’ compensation proceeding.

KNOW THE MEMBERS’ JOBS

What physical activities are actually involved in an injured worker’s job is often a critical aspect of a workers’ compensation claim. For example, the physical requirements and bodily movements involved in an employee’s job may affect whether an injured worker actually sustained a work-related injury (i.e. are the physical requirements of the job consistent with the employee sustaining an injury in the manner in which the employee claims it occurred.) For example, the actual requirements of a position may affect whether a proffered “light” or “restricted” duty job is an offer of suitable work, which the employee cannot refuse without losing the right to temporary weekly workers’ compensation benefits.

There are two common interrelated problems regarding job content issues. The first is that many medical providers, workers’ compensation administrative law judges and even competent claimant side workers’ compensation attorneys simply are not familiar with an injured employee’s job and its physical requirements. The second is that employers often provide by accident or design incomplete or inaccurate information concerning the requirements of jobs to medical providers and even in hearing testimony.

“JOB CONTENT LIBRARY”

To deal with such problems, it is important for the Union to serve as a resource center for the employee and the employee’s workers’ compensation advocates in regard to job duties and physical requirements at the work site. The Union, then, should establish essentially a library which contains as many of the following items as are available for all bargaining unit jobs.

• Job Descriptions • ADA Physical Requirement Descriptions • Time Studies • Safety and/or Ergonomics Committee Studies • Wage Studies • Training Materials- e.g. training films • Grievance Materials – e.g. especially job content, job combination grievances • Negotiation Materials – e.g. discussions about wage increases based on specific job duties. • Raw Production Data – e.g. production line speeds, weight of products

“WITNESS POOL”

In addition to creating a “job content” library, the Union should start identifying and training members for a “Witness Pool.” Oftentimes the injured worker and the Union representative who is assisting the worker have not worked in positions which the employer claims are available for the employee to perform within the employee’s

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medical restrictions. It is invaluable to an injured worker to have available a witness or witnesses who have actually recently performed the position or positions in question. They can provide accurate and current evidence in regard to such matters as the actual physical demands of the position, how fast a production line moves, how heavy the tools and objects held or lifted by an employee are and other specific facts about the position.

GET TO KNOW THE INJURED MEMBERS

As noted above, many employees are “poor historians” about the immediate past. Many are normally worse when it comes to their entire work history. Except someone who intends on writing a book about their life story, no one usually keeps a log of their entire work and injury history. (Keeping one, though, is probably a good idea. Writing down each job and the rate of pay for the job an employee has held and keeping the list in a safe place are simple tasks.) Compounding the problem, most of us forget things and details about things – even important events. The employer, however, has kept records. The Union’s role, then, is straight forward: MAKE SURE THE INJURED WORKER GETS THE RECORDS.

If the employee does not review the records, it is a certainty that the employer will. Indeed, the report of a compensable injury will likely start the employer’s review process. (A favorite trick, of course, is for the employer to look for any discrepancy between the medical history the employee gave at the time of employment and the medical histories the employee gives years later to various physicians. Discharge for falsifying employer records often follows.)

Important employer records for the employee to obtain include:

• Earnings Record: Make certain the employee exercises the statutory right to obtain the earnings records for the thirteen weeks prior to the compensable injury. The information is vital to determine the correct weekly workers’ compensation rate.

• Company Personnel File: Chapter 91B of the Iowa Code grants the employee the right to receive a copy of the employee’s personnel file. Make certain the employee exercises the right and gets a copy.

• Company Medical Files: Because of the ADA and HIPPA, employers generally maintain separate medical files for employees. Make certain the employee gets a copy of these files and provides a copy to you. The employee can have them released directly to you upon signing an appropriate medical information release requesting the employer to provide the information to the Union.

Obviously, the information needs to be reviewed both by the injured worker and the Union representative who is assisting with the member’s workers’ compensation claim. In reviewing the information, there are three basic matters to review closely: (1) whether the earnings information and the workers’ compensation benefit rate are correct; (2) the accuracy of the job history of the employee with the employer and other employers, and (3) any prior injuries and medical care reflected in the files. It is helpful to make a list of prior jobs and employment and prior injuries and medical care in chronological order for use by the employee in giving histories to medical providers during the course of treatment for the current injury and potentially in testifying later.

INVESTIGATE FOR THE MEMBERS

Don’t rely on the Company’s investigation of an accident completely. If the injured worker informs you that there were other employees in the area when an injury occurred, interview them and get statements from them about

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what they know. (If the employee witness does not want to “get involved,” it doesn’t hurt to remind the employee he or she may be the next one to get hurt.)

If there were no other employees around when the injury occurred, talk to workers who do the same or similar work in the area where the injury or accident took place. They may have valuable information about what the injured worker told them concerning what had happened, about how management responded to the accident report, about whether the description of the accident seems plausible or about other relevant matters. Write down who says what.

DO SOME “POLICE” WORK FOR THE MEMBERS

To some extent, the Union must perform the duty of a work site police officer. There are basically two aspects to this role of the Union. First, the Union needs to look at the “big picture” in regard to injuries at work. Similarly, the Union should monitor the overall compliance of the employer with its obligations under the workers’ compensation laws.

THE “BIG PICTURE”

The Union should establish some method for tracking the following information:

• The types of injuries being sustained by employees e.g. back strain, carpal tunnel, etc. • The dates of injuries • The positions in which injured employees are working when injured • OSHA logs and investigations

A systematic review of the information may reveal the existence of a pattern of frequent injuries in certain positions which indicates the need for some modification to the job. The information can be useful in negotiating job changes or methods of work or help pinpoint a specific safety issue. General impressions that certain jobs are causing certain types of injuries are not as persuasive as identifying specific data supporting such a conclusion.

WORKERS’ COMPENSATION COMPLIANCE:

Penalty benefits are available to claimants when an employer unreasonably denies or delays the payment of weekly workers’ compensation benefits that are due. Such benefits, however, are normally only paid as a result of a decision in a contested workers’ compensation claim proceeding. The Iowa Supreme Court has somewhat restricted the grounds for awarding penalty benefits. And, the benefit does not apply to medical care benefits. Gathering evidence of the employer’s lack of compliance, however, can be helpful to an injured member not only for purposes of seeking penalty benefits in a formal proceeding but also for purposes of trying informally to work out potential problems with the employer.

Compliance problems arise not exclusively, but frequently, in regard to the following matters:

1. Medical Care: the employer providing non-physician care in-plant or the employer’s choice of the physician for treating injuries.

2. Determining the Proper Weekly Workers’ Compensation Rate: usually what the employer or insurance carrier includes in computing the employee’s gross weekly earnings.

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3. Promptness in Making Weekly Benefit Payments: making employees pick checks up at the plant, paying benefits at the end of a month or always a week late.

4. Obtaining Impairment Ratings: sending an employee to the employer chosen physician for a work release but not getting an impairment rating or getting a rating but not disclosing it to the employee and failing to pay permanent disability benefits based on it.

As with information about injuries work site wide, the Union should establish a method for tracking the occurrence and frequency of these and other compliance problems. The information can be helpful for an injured worker’s attorney in attempting to prove entitlement to penalty benefits and in negotiations with the employer to correct the problems.

PROVIDE PAPERWORK HELP TO THE MEMBERS

An easy and helpful role of the Union is to act as the injured worker’s clerical assistant. The Union simply needs to have on hand the following types of forms and the capability to assist the injured worker in filling them out as needed and getting them to the right place:

• Notice of Injury Forms – if no injury or accident report was filed • Records Request Letters – have a standard form letter to request personnel and medical files • Letter Notifying Employer of Dissatisfaction with Medical Care • Workers’ Compensation Commissioner Alternate Care Forms

DO THE UNION’S BASIC JOB: ENFORCE THE CONTRACT

This involves the Union’s basic job. The Union needs to know what contract benefits are available to injured workers for both work related and non-occupational injuries. And, the Union must ensure the injured worker receives the contract benefits that are available.

PROTECT THE UNION’S ASSETS AND INTERESTS

Under federal law, the Union has a fiduciary obligation to its members to represent them competently and fairly in administering and enforcing their collective bargaining agreement. In fulfilling the obligation, the Union is given wide latitude in providing its members representation in contractual matters.

Workers’ compensation benefits, however, are totally based on state statute. The rights of employees in the workers’ compensation system are personal to the employee. The rights are equally available to employees covered by a union contract, and workers who lack union representation. Always remember that in providing assistance to members in workers’ compensation matters, the Union is taking on representational activities which expose it to stricter and higher performance standards. (In simple terms, a Union can get sued for giving “bad advice” to an injured worker which results in losing benefits to which the employee is entitled.)

Workers’ compensation laws are complex and often technical. Among lawyers, workers’ compensation law is a specialty area of practice.

Because of the enhanced potential liability of the Union for giving a member “bad advice” about a workers’ compensation matter and the complexity of the law involved, it is good for the Union to keep the following points in mind:

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• If you are not certain what to tell a member about a workers’ compensation issue, contact the Union’s lawyer and get some help in providing an answer.

• Get an injured worker to a competent workers’ compensation lawyer as soon as you recognize the member needs legal help to maximize the members’ benefits. There are many competent claimant side workers’ compensation attorneys throughout the state. The Union’s lawyer can help you in learning who they are and to whom you can comfortably recommend an injured member.

• Cooperate with an injured employee’s lawyer to the extent the Union can reasonably do so.

ALTERNATIVES

OCCUPATIONAL DISEASES

Chapter 85A of the Iowa Code contains Iowa’s Occupational Disease Law. Section 85A.8 defines an occupational disease as follows:

Occupational diseases shall be only those diseases which arise out of and in the course of the employee's employment. Such diseases shall have a direct causal connection with the employment and must have followed as a natural incident thereto from injurious exposure occasioned by the nature of the employment.

Such disease must be incidental to the character of the business, occupation or process in which the employee was employed and not independent of the employment. Such disease need not have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have resulted from that source as an incident and rational consequence. A disease which follows from a hazard to which an employee has or would have been equally exposed outside of said occupation is not compensable as an occupational disease.

Examples of occupational diseases include brucellosis for people who work with cattle or pneumoconiosis for people who work in dusty environments.

The law provides limited coverage for workers who contract an occupational disease. The law only provides for medical care, temporary disability, permanent total, permanent partial disability and burial expenses at the same levels as in the general workers' compensation law found in Chapter 85 of the Iowa Code. A number of employer defenses are allowed including suicide, intoxication, narcotic addition, culpable conduct, refusal to use safety equipment, noncompliance with a written rule and failure/refusal to perform a statutory duty.

Under the law, an occupational disease must arise out of and in the course of employment. The Iowa Supreme Court has held that to be eligible employees must establish that 1) the disease is causally related to the exposure to harmful conditions of the field of employment, and 2) the harmful conditions must be more prevalent in the employment concerned than in everyday life or in other occupations, see McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (1980). Proving the existence of an occupational disease remains an area of uncertainty.

Employees are not entitled to compensation for an occupational disease, however, unless they die or become disabled by the disease within one year after being exposed to the hazardous condition(s) causing the disease (three years after in the case of pneumoconiosis). Disablement means to be incapable of performing one’s work or incapable of earning an equal amount of wages in other suitable work. The “within one year” requirement makes it very difficult for Iowa workers to qualify for occupational disease compensation.

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Keep in mind that other diseases, such as carpal tunnel syndrome, may be considered as “injuries” under the workers’ compensation statute.

OCCUPATIONAL HEARING LOSS

See Iowa Code Chapter 85B. Iowa law provides limited coverage for injury to workers from hearing loss due to prolonged exposure to excessive noise levels. Under the law, occupational hearing loss in one or both ears is a permanent sensorineural loss in excess of 25 decibels that arises out of and in the course of employment and is caused by prolonged exposures to sound capable of producing hearing loss. The employee must have worked for 90 days in the excessive noise level conditions. The law does not cover hearing loss caused by aging or other medical conditions.

Chapter 85B sets out a table of acceptable noise levels of sound and lists times and durations that are presumptively excessive. If the worker does not use the table, the worker must establish that all work exposure to noise capable of producing hearing loss. Under the law, employers also have a responsibility to inform employees who are exposed to sound above acceptable levels. The employer must give written notice of periodic hearing loss examinations it provides. Employees have the right to select a physician to interpret the examination results if a dispute arises over interpretation. The employer must also notify employees in writing when there is an average loss of hearing in one or both ears in excess of 25 decibels under ANSI standards.

Compensation is limited to one hundred and seventy-five weeks of compensation for total occupational hearing loss. Partial hearing loss is paid on a percentage basis. Hearing loss may also be apportioned between occupational and non-occupational loss – further limiting employer liability. Compensation may be denied to employees who refuse periodic testing or who refuse to wear protective devices provided by the employer. Employers are also not liable for documented prior losses of hearing and compensation provided by other employers is offset.

CAN AN INJURED WORKER SUE AN EMPLOYER FOR A WORK-RELATED INJURY?

No – with rare exceptions. Generally, workers’ compensation benefits are the only remedy available to a worker injured on the job. The employer, therefore, is immune from other liability for that work injury or illness. Iowa Code §85.20.

Exceptions to the exclusivity rule:

1. If the Employer is uninsured, the worker may sue the employer in court. Iowa Code §87.21. Note: employers are free to self-fund their workers’ compensation insurance plans.

2. If the injury was caused by the gross negligence of a coworker, the injured worker may sue the co-worker. Gross negligence is defined as “wanton neglect for the safety of another.” Iowa Code §85.20. Gross negligence requires more than inadvertence or inattention. Thompson v. Bahlken, 312 N.W. 2d 501 (1981). Even then, the worker only has the right to sue coworker – not the employer.

CAN AN INJURED WORKER SUE AN EMPLOYER FOR RETALIATION?

No Retaliation Rule - Employees have the right to file claims or exercise related rights without fear of retaliation. If retaliation occurs, workers may sue their employer for back pay, emotional distress and punitive damages. See Springer v. Weeks and Leo Co., Inc., 429 N.W.2d. 558 (Iowa 1988).

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A worker’s right to sue in court over a retaliatory discharge is not limited by the fact that they may have the right to grieve the discharge under a collective bargaining agreement. Conaway v. Webster City Prod. Co., 431 N.W.2d 795 (Iowa 1988). Note: the potential recovery may be much greater in state court than through a grievance and arbitration procedure, since punitive and emotional distress damages may be available.

CAN AN INJURED WORKER SUE AN EMPLOYER FOR INTERFERING WITH MEDICAL TREATMENT?

An employer may be assessed compensatory and punitive damages for tortuous interference with medical care provided under §85.27. See Wilson v. IBP Inc. and Diane Arndt, 558 N.W.2nd 132 (Iowa 1996). $15,000,000 in punitive damages (later reduced to $2,000,000).

CAN AN INJURED WORKER SUE THE INSURANCE COMPANY?

Bad faith against insurance carrier – the exclusivity rule does not immunize a workers’ compensation carrier from liability for “bad faith.” Tallman v. Hanssen, 427 N.W.2d 868 (Iowa 1988).

CAN AN INJURED WORKER SUE A THIRD PARTY WHO CAUSED A WORK-RELATED INJURY?

An injured worker may file an action against a third party who is at fault for their injury. Iowa Code §85.22.

The most common example of third party suits are wrongful death claims against third party drivers causing accidents involving workers on the job. Another common example includes product liability cases where a worker is injured because of a faulty piece of equipment or other device. In these cases, the lawsuit is filed against the manufacturer of the piece of equipment.