>>Newsflash<< The Iowa Workers' Compensation Commissioner refused to accept the most current edition of the American Medical Association's Guides to the Evaluation of Permanent Medical Impairment. The Sixth Edition is believed to be much less favorable for injured workers. Several States have already moved to adopt the Fifth Edition, and to reject the Sixth Edition of the Guides. Section 876-2.4 of the Iowa Administrative Code now provides specifically that the Fifth Edition of the Guides is the appropriate source of impairment ratings, not the Sixth Edition.
When your treating doctor has decided that you have recovered as much as you will recover, the doctor is supposed to determine if there is any permanent medical impairment. If the doctor does not do that, the insurance carrier and employer have a duty to obtain that from the treating doctor. If the treating doctor simply won't prepare an opinion on the impairment rating, the employer and insurance carrier have a duty to promptly obtain a rating from some other doctor.
If you are not satisfied with the impairment rating, you have the right to choose your own doctor, to examine you at the employer and insurance carrier's expense, under Section 85.39 of the Iowa Code. That procedure is called an Independent Medical Examination . If they refuse to consent to such an examination, the State agency can order them to pay such an examination.
Section 85.35 provides for compromise settlements, where the parties cannot agree on the
value of a claim, and agree to settle a claim for a lump sum payment, in return for a
"closed-file" settlement. Under such a settlement, the insurance carrier and employer are
not responsible for any benefits or care after the settlement is approved by the State agency.
"85.35
SETTLEMENTS.
1.
The parties to a contested case or persons who are involved in
a dispute which could culminate in a contested case may enter into a
settlement of any claim arising under this chapter or chapter 85A,
85B, or 86, providing for disposition of the claim.
The settlement
shall be in writing on forms prescribed by the workers' compensation
commissioner and submitted to the workers' compensation commissioner
for approval.
2.
The parties may enter into an agreement for settlement that
establishes the employer's liability, fixes the nature and extent of
the employee's current right to accrued benefits, and establishes the
employee's right to statutory benefits that accrue in the future.
3.
The parties may enter into a compromise settlement of the
employee's claim to benefits as a full and final disposition of the
claim.
4.
The parties may enter into a settlement that is a combination
of an agreement for settlement and a compromise settlement that
establishes the employer's liability for part of a claim but makes a
full and final disposition of other parts of a claim.
5.
A contingent settlement may be made and approved, conditioned
upon subsequent approval by a court or governmental agency, or upon
any other subsequent event that is expected to occur within one year
from the date of the settlement.
If the subsequent approval or event
does not occur, the contingent settlement and its approval may be
vacated by order of the workers' compensation commissioner upon a
petition for vacation filed by one of the parties or upon agreement
by all parties.
If a contingent settlement is vacated, the running
of any period of limitation provided for in section 85.26 is tolled
from the date the settlement was initially approved until the date
that the settlement is vacated, and the claim is restored to the
status that the claim held when the contingent settlement was
initially approved.
The contingency on a settlement lapses and the
settlement becomes final and fully enforceable if an action to vacate
the contingent settlement or to extend the period of time allowed for
the subsequent approval or event to occur is not initiated within one
year from the date that the contingent settlement was initially
approved.
6.
The parties may agree that settlement proceeds, which are paid
in a lump sum, are intended to compensate the injured worker at a
given monthly or weekly rate over the life expectancy of the injured
worker.
If such an agreement is reached, neither the weekly
compensation rate which either has been paid, or should have been
paid, throughout the case, nor the maximum statutory weekly rate
applicable to the injury shall apply.
Instead, the rate set forth in
the settlement agreement shall be the rate for the case.
7.
A settlement shall be approved by the workers' compensation
commissioner if the parties show all of the following:
a.
Substantial evidence exists to support the terms of the
settlement.
b.
Waiver of the employee's right to a hearing, decision, and
statutory benefits is made knowingly by the employee.
c.
The settlement is a reasonable and informed compromise of the
competing interests of the parties.
If an employee is represented by legal counsel, it is presumed
that the required showing for approval of the settlement has been
made.
8.
Approval of a settlement by the workers' compensation
commissioner is binding on the parties and shall not be construed as
an original proceeding.
Notwithstanding any provisions of this
chapter and chapters 85A, 85B, 86 and 87, an approved compromise
settlement shall constitute a final bar to any further rights arising
under this chapter and chapters 85A, 85B, 86, and 87 regarding the
subject matter of the compromise and a payment made pursuant to a
compromise settlement agreement shall not be construed as the payment
of weekly compensation."
Section 85.23 of the Iowa Code requires that the injured worker report an injury within ninety days of the injury (not whatever time limit the employer will try to set). Section 85.24 says that the noitice only tell an agent of the employer that a work injury happened on or about a certain date, along with the nature of the injury.
"85.23
NOTICE OF INJURY -- FAILURE TO GIVE.
Unless the employer or the employer's representative shall have
actual knowledge of the occurrence of an injury received within
ninety days from the date of the occurrence of the injury, or unless
the employee or someone on the employee's behalf or a dependent or
someone on the dependent's behalf shall give notice thereof to the
employer within ninety days from the date of the occurrence of the
injury, no compensation shall be allowed."
"85.24
FORM OF NOTICE.
No particular form of notice shall be required, but may be
substantially as follows:
To ............
You are hereby notified that on or about the .... day of ......
(month), ... (year), personal injury was sustained by ......, while
in your employ at .......
(Give name and place employed and point
where located when injury occurred.) and that compensation will be
claimed therefor.
Signed ....................
No variation from this form of notice shall be material if the
notice is sufficient to advise the employer that a certain employee,
by name, received an injury in the course of employment on or about a
specified time, at or near a certain place."
Section 85.39 covers Independent Medical Examinations. This section provides a right to injured workers, to obtain an opinion on their impairement ratings, after the employer-designated physician has issued an impairment rating. Section 85.34 provides:
"85.39
EXAMINATION OF INJURED EMPLOYEES.
After an injury, the employee, if requested by the employer, shall
submit for examination at some reasonable time and place and as often
as reasonably requested, to a physician or physicians authorized to
practice under the laws of this state or another state, without cost
to the employee; but if the employee requests, the employee, at the
employee's own cost, is entitled to have a physician or physicians of
the employee's own selection present to participate in the
examination.
If an employee is required to leave work for which the
employee is being paid wages to attend the requested examination, the
employee shall be compensated at the employee's regular rate for the
time the employee is required to leave work, and the employee shall
be furnished transportation to and from the place of examination, or
the employer may elect to pay the employee the reasonable cost of the
transportation.
The refusal of the employee to submit to the
examination shall suspend the employee's right to any compensation
for the period of the refusal.
Compensation shall not be payable for
the period of suspension.
If an evaluation of permanent disability has been made by a
physician retained by the employer and the employee believes this
evaluation to be too low, the employee shall, upon application to the
commissioner and upon delivery of a copy of the application to the
employer and its insurance carrier, be reimbursed by the employer the
reasonable fee for a subsequent examination by a physician of the
employee's own choice, and reasonably necessary transportation
expenses incurred for the examination.
The physician chosen by the
employee has the right to confer with and obtain from the
employer-retained physician sufficient history of the injury to make."
a proper examination.
Click here to see Section 85.27 of the Iowa Code. Secion 85.27 deals with a numberr of issues, including
Medical care
Disputes as to the medical provider
Protection from bill collectors when a Petition has been filed
Payment for hours missed to go to medical care
The most important section, 85.27, section 4 covers medical care for injured workers;
"4. For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. If the employer chooses the care, the employer shall hold the employee harmless for the cost of care until the employer notifies the employee that the employer is no longer authorizing all or any part of the care and the reason for the change in authorization. An employer is not liable for the cost of care that the employer arranges in response to a sudden emergency if the employee's condition, for which care was arranged, is not related to the employment. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. An application made under this subsection shall be considered an original proceeding for purposes of commencement and contested case proceedings under section 85.26. The hearing shall be conducted pursuant to chapter 17A. Before a hearing is scheduled, the parties may choose a telephone hearing or an in-person hearing. A request for an in-person hearing shall be approved unless the in-person hearing would be impractical because of the distance between the parties to the hearing. The workers' compensation commissioner shall issue a decision within ten working days of receipt of an application for alternate care made pursuant to a telephone hearing or within fourteen working days of receipt of an application for alternate care made pursuant to an in-person hearing. The employer shall notify an injured employee of the employee's ability to contest the employer's choice of care pursuant to this subsection."
The Iowa Supreme Court has generally broadly defined what is considered a work-related injury. For instance, employers or even doctors will often tell an injured worker that, since there was some pre-existing problem before, such as arthritis or a degenerating disc between two vertebrae in the spine, that the condition, which was never painful before, or which is now much more painful, is not work-related. There are two standards for determining whether an injury is related to an event, legal causation and medical causation. Under Iowa law, if a pre-existing condition is made painful, or made worse, by an injury or a repeated activity at work, it is considered work-related, at least to the extent that the work injury or activity made it worse. Also, if it is not possible to determine what part of the condition is work-related, then all of it is considered work-related.
One of the most common forms of injury is a repetitive-use injury, such as developing carpal tunnel syndrome from constantly using one or both hands at work. That is a work-related injury. If a worker develops carpal tunnel. A recent decision of the Iowa Supreme Court, Meyers v. IBP, found that an employee who had worked only two days before developing carpal tunnel syndrome was entitled to compensation by the employer. The Iowa Supreme Court decision reversed the decision of the Iowa Workers' Compensation Commissione, and made is possible for workers to establish work injuries even though they had worked at that employer only a short time.
A fairly recent decision of the Iowa Supreme Court, McIlravy v. North River Insurance and Crum & Forster Insurance, filed in October of 2002, set out the Iowa Supreme Court standard for when a workers' compensation insurance carrier can be held responsible for refusing to provide care for a work injury.
A recent decision from the Iowa Supreme Court found that an employee who had worked only two days before developing carpal tunnel syndromem was entitled to compensation. The Iowa Supreme Court decision reversed the decision of the iowa Workers' Compensation Commissioner, and made it possible for workers to establish work injuries even though they have worked only a short time.
However, in a decision of the Iowa Court of Appeals, Ottumwa Regional Health Center v. Mitchell, the Court found a fall at work was not work-related, because the injured worker could not show that it was due to a wet floor or any other work condition. That decision seems to make no sense; the Court found that, if she had noticed water on the floor, the fall would have been work-related. That suggests that a worker now has a duty to investigate the injury scene immediately after an injury. It also could result in the odd outcome that someone who falls and loses consciousness would not be able to establish a work injury. It is an odd decision, and leads to a clearly unfair outcome, a confusing legal standard, and an excuse for insurance carriers and employers to deny claims on specious grounds.
For general medical searches, try Group Health Inc. and MedLinePlus; for workplace health issues, check out InteliHealth. Keep in mind, however, that online information is not necessarily dependable; consult a physician for opinions on medical diagnosis and treatment. The American Lung Association, notes that occupational breathing problems are the number one source of breathing disorders in the United States
Where the injured worker and the employer and insurance carrier cannot come to an agreement, there may be no choice but to file a Petition for Arbitration with the Iowa Division of Workers' Compensation\, asking for a hearing. After the Petition is sent to the employer and the insurance carrier or administrator, a lawyer will file an Answer on behalf of the employer and insurance carrier, and the lawyers will then exchange information, including medical records and answers to questions sent by the other side. They are not doing that to make the othe side upset, but to get a clearer picture of the other side's position. Not only does that help to prepare for hearing, it also helps both sides determine the chances of settling the case.
An injured worker can plan on spending several hours preparing to answer the questions sent by the defense attorney, called "Interrogatories." They will go into work history, past medical history, past marriages, criminal and military history, among other things. That information helps the defense to find out if the worker has had previous injuries similar to the one at issue in the present case, has had claims for previous work injuries or personal injuries, and what problems the worker has now.
Often, the defense lawyer will arrange to take a sworn statement of the claimant before a Court reporter, and will ask questions about the issues set out above. That is not unusual, and can help get the case settled in some cases. The injured worker has to be available for that statement, which usually takes from 45 minutes to 2 hours, but in unusual cases can take longer. No evidence can be offered after the close of the hearing; that is the one chance the parties have to state their case.
After the answers have been exchanged, parties will often attempt a mediation, or settlement conference, either arranged through the agency or through a private mediator. Those are usually successful, if the parties participate in them in an effort to get the case resolved.
The employer and insurance carrier or administrator have the right to choose the medical care for workers injured in Iowa. Medical care is to be provided, in a form that is reasonable suited to the injury. The employee generally cannot be required to travel more than an hour, unless it is for a one-time examination, if a specialist is available within an hour of the injured worker's home. If the injured worker believes that the care is not acceptable, under certain circumstances, the Iowa Workers' Compensation Commissioner's office will order some other care. For a copy of the form that must be filed, click here.
Lawyers in work injury claims almost always charge a percentage of the amount recovered in a case, which means that, if there is no recovery, there is no attorney fee. In rare cases, the attorney may agree to represent an injured worker on an hourly basis, and in that case, the amount would be payable whether the worker wins or loses. That accounts for a very tiny portion of work injury cases.
Attorney fees are typically 25% to 1/3 of the amount recovered, plus any expenses. They may charge more if the case is complex, or the case has a lower chance of success. Some lawyers charge 1/3 of all amounts recovered in every case. In addition to that, the attorney often spends hundreds of dollars to obtain records and opinions. Those are payable in addition to attorney fees; if there is no recovery, the attorney is still entitled to be paid back for those expenses.
Injured workers often ask if the employer can be made to pay for the attorney fees for pursuing the claim. With one minor exception, they cannot be made to do so. The exception is contained in Section 86.13 of the Iowa Code. That directs the Iowa Division of Workers' Compensation to award damages of 50% of any benefits which were not paid, if the employer does not have a reasonable excuse for not paying them. While that sounds like a substantial penalty, that only applies to the benefits which are already due, and not 50% of future benefits. That means that the employer often ends up being ordered to pay a pretty small amount, compared to the total amount awarded, certainly not enough to pay the entire attorney fee.
A lot of people believe that the workers' compensation rate is a set percentage of earnings, but that is not true. Rates are figured as directed by Section 85.36 of the Iowa Code.
There are a number of ways to calculate the weekly workers' compensation rate, but the most common is using the weekly earnings for the 13 weeks before the date of injury to figure an average gross weekly wage, before any deductions are taken out. That counts straight overtime pay, but not the premium paid for overtime. (For example, if you put in 60 hours in a week, you would be paid for 70 hours; the straight 60 hours would be counted for the purpose of figuring the average weekly wage, but not the extra 10 hours of pay.) There are a number of different rules for others in particular situations, such as those paid monthly, volunteer firefighters and emergency responders, as well as prison inmates injured while working.
It is not uncommon for insurance carriers or administrators to find the hourly wage and simply multiply by 40. If the injured worker has worked any overtime during the 13 weeks, the rate is too low, and the worker is short-changed. Of course, at times, the worker has worked less than 40 hours, but if the worker is supposed to work 40 hours a week, those short weeks are usually not supposed to be counted. See Weishaar v. Snap-On Tools Corp., 528 N.W. 2d 177, 181 (Iowa 1998) and Thilges v. Snap-On Tools Corp., 528 N.W.2d 614, 619 (Iowa 1995). In a decision of the Iowa Supreme Court on June 11, 2003, a two -week plant shut-down is not to be considered as part of a thirteen-week base wage period. Griffin Pipe Products Co. v. Guarino. See also § 85.36(6) of the Iowa Code.
Also, sometimes out-of-State carriers are unaware that there is a minimum weekly rate provided by Iowa State Law. That rate varies each year, but is currently over $150.00. Please see Section 85.37 of the Iowa Code, or see below.
In another recent decision, favorable to teachers and other school employees, the Iowa Supreme Court found that the insurance carrier must figure the weekly rate, based on the daily pay for the employee, regardless of whether it is paid out in ten or twelve monthly installments. See AEA v. Bauch, 646 N.W.2d 398 (Iowa 2002).
The average weekly wage is then used to look up the proper weekly benefit, based on the workers' marital status at the time of the injury, and based on the number of children or other dependents living with the worker at the time of the injury.
The worker or the worker's representative is supposed to be entitled to a copy of the earnings upon which the rate is figured, and if the employer does not produce that within thirty days, it's actually a criminal simple misdemeanor, punishable by up to 30 days in jail and a $100.00 fine. (Section 85.41 of the Iowa Code) If you ask for those figures, do so in writing, with a date written on the request, and if they don't respond in time, you can actually contact the County Attorney's office, and refer them to Sections 85.40 and 85.41 of the Iowa Code. Some County Attorneys will be more responsive than others.
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Under Iowa law, no agreement between an injured worker and an employer or insurance company is final and binding unless the agency, the Iowa Division of Workers' Compensation, has approved it. However, a verbal agreement between the parties is considered binding upon the parties, and either side can go to the agency to enforce the terms of that approval. Do not agree to any settlement terms, thinking you can change your mind until it is in writing; the courts have always said that a verbal agreement to settle a work injury case is an enforceable legal contract. So if the agency approves, it is binding. Either party can take the other parties to Court to enforce the terms of an oral agreement to settle a workers' compensation claim.
There are two kinds of settlements in Iowa, an open-file agreement, under the terms of Section 86.13 of the Iowa Code and a closed-file agreement, under the terms of Section 85.35 of the Iowa Code. There are good reasons for the employer and insurance carrier or administrator to prefer a closed-file agreement, and there may be good reasons for the injured worker to prefer either an open-file or a closed-file settlement. This topic is complex enough that it should not be considered without talking to an attorney. If the employer, insurance carrier or insurance administrator draws up a settlement document for the consideration of an injured worker, or has an attorney draw up an agreement, the worker should not rely on the representations of the party preparing the agreement. Instead, the worker should consult with an attorney with a good deal of experience in Iowa workers' compensation law about the legal impact of the agreement.
Mediation
The decision to settle a work injury claim is always within the power of the injured worker. No lawyer for an injured worker can agree to a settlement without the permission of the worker. If the worker does not agree with the lawyer's suggestion to offer certain settlement terms, the worker should make that clear. On the other hand, the injured worker who has hired an attorney to represent the worker should give serious consideration to the opinions and recommendations of his or her lawyer.
Where the injured worker and the insurance carrier or administrator cannot agree on a case, it is possible to arrange for a settlement conference, or mediation. While mediations can be arranged through the state agency, the Iowa Division of Workers' Compensation, they can also be arranged through a private mediator, a lawyer with a good deal of experience in workers' compensation cases.
At a mediation, the parties meet, usually for 2 to 3 hours, to see if they can agree to resolve their differences, usually by settling for a cash figure in return for a closed-file settlement under Section 85.35 of the Iowa Code. Injured workers going into a settlement conference need to make sure what bills have been paid and have not been paid, so that can be discussed during the mediation. If the parties verbally agree to the terms of a settlement, they will be bound by that agreement, just as much as if they had signed an agreement containing those terms. While the settlement is still subject to approval by the Workers' Compensation Commissioner, the parties have agreed to live by the terms of the settlement upon the Commissioner's approval.
In many cases, injured workers are understandably upset by the employer's inattention to safety measures or negligence. In work injury cases, the employer is responsible for the claim, even if the accident was unavoidable; they are almost never more responsible due to their negligence. There is no additional award of benefits if the employer was more negligent, and there is no loss of benefits if the employer was totally without negligence. Therefore, while injured workers may want to concentrate on what the employer did wrong, the lawyer representing the injured worker will not spend much time or resources on the employer's conduct, since, in the eyes of the law, they are equally responsible, regardless of their conduct. The lawyer will concentrate on the injuries and the results of the work injuries, such as permanent loss of function or loss of earning capacity.
There is a legal basis for filing a civil action, or law suit, against a fellow employee who was so grossly negligent that he or she knew that the injury would happen. That standard requires a finding that the fellow employee know not only that it would happen sooner or later, but that it would happen to that worker at the time that it happened. That is such a high burden, that there have been only a handful of such cases since the law was changed many years ago.
Claims against others related to the injury. On the other hand, if a worker was injured due to faulty equipment or material provided by another company, or was injured by someone who is not an employee, the worker may be able to file a civil action, or lawsuit, against that company or person. Such claims are called "third-party actions," and are allowed under the law. The insurance company may be able to recover their costs out of that third-party action, and the balance goes to the injured worker. In fact, the workers' compensation insurance carrier can file a third-party action or lawsuit on their own, in your name, to recover their costs. In that case, they have to pay you any amount they recover after their costs are paid, minus attorney fees.
A worker who believes that he or she has been injured must report an injury within 90 days of the injury. Iowa law does not have to submit anything in writing or fill out any form, either a form provided by the employer or by the State of Iowa. The Iowa Code merely requires that someone in a position of responsibility, including a lead worker, foreman, supervisor, owner, plant nurse, company doctor for another injury, or anyone who can act in the interest of the employer. If such a person actually witnesses the injury, that is sufficient notice to the employer. A co-worker would not qualify as a person receiving notice, unless that person is a supervisor, foreman or in another position as described above.
Some employers claim that you are out of time if you don't report the injury within 24 hours or some other standard, simply because they have a rule in a personnel manual or a sign on the wall. That is simply not true -- personnel manuals do not change Iowa law. Likewise, some employers claim that, if you have not filled out an incident report or other form, they do not have to turn the claim in. That is also not true; it'san attempt to mislead you into losing your rights to be covered for your injury.
This portion of the Web site covers issues relating to work injury claims, including the worker's notice of the injury to the employer, the right to medical records and medical care, the issue of whether an injury or condition is work-related, the worker's right to an independent medical examination by a doctor of the worker's choosing to assess of any permanent medical impairment at the employer's expense, the issue of whether the employer's negligence, if any, is an issue in work injury claims, attorney fees and expenses, the settlement process, and the litigation process. There is a page containing links to useful resources on the Internet.
The information contained in this Website is for informational purposes only, and is not to be considered legal advice.
Under Iowa law, the employer has the right to choose the medical care to be provided to the injured worker, provided that it is reasonably suited to the situation. Click to go to the page on Medical Care. However, the agency can change those decisions.
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