2013 Nuts & Bolts Seminar Coralville

Transcription

1 2013 Nuts & Bolts Seminar Coralville LITIGATION TRACK Work Comp 101 2:30 pm.-3:30 p.m. Presented by Tim Semelroth RSH Legal 425 Second Street SE, Suite 1140 Cedar Rapids, Iowa Phone: Wednesday, October 30, 2013

2 IOWA S WORKERS COMPENSATION 101 Tim Semelroth RSH Legal 425 Second Street SE, Suite 1140 Cedar Rapids, Iowa (319) tsemelroth@fightingforfairness.com INTRODUCTION This outline is intended to give a basic overview of the Iowa workers compensation system to an attorney who is not familiar with workers compensation, but who may at some point be contacted by an injured worker who is looking for answers. That is why each heading in this outline addresses a frequently asked question from an injured worker. This outline paints in broad strokes and there are exceptions to many of its general statements. This outline is not meant to be a complete primer on everything you need to know to represent someone in a workers compensation claim in Iowa. For a more complete discussion of Iowa workers compensation law and related issues, the author recommends the following resources: Iowa Workers Compensation Law and Practice, latest ed. (Vol. 15, Iowa Practice Series), James R. Lawyer, Judith Ann Graves Higgs (Ret.)(Thompson West Publishing) Iowa Workers Compensation Laws, latest ed. (Iowa Workers Compensation Advisory Committee, Inc.) Iowa Workers Compensation Commissioner s Web Site: I. WHERE AM I? In Iowa, most employees who are injured on the job are covered by the Iowa s workers compensation system. Iowa s workers compensation system is set up through a series of statutes and administrative rules specifically, Iowa Code chapters 85 through 87 and 17A and Iowa Administrative Code chapter 876. In a nutshell, those statutes and rules require most employers to provide certain benefits to their employees who are injured while working. 1

3 II. HOW DID I GET HERE? A. Who qualifies for Iowa workers compensation benefits? An employee typically qualifies for benefits from the Iowa workers compensation system if he or she was injured while working: 1. in Iowa; or 2. in employment principally occurring in Iowa; or 3. for an employer who hired the employee in Iowa. Employees whose employment is principally in Iowa or who were hired in Iowa may be eligible for Iowa workers compensation benefits even if they were injured outside the state. Iowa workers compensation law exempts a few types of employees from coverage, so if an employer claims a worker is not eligible for Iowa workers compensation benefits, it will be necessary to research the issue. For the purposes of the Iowa workers compensation system, whether or not someone was at fault for the injury typically does not affect a worker s eligibility for benefits. B. What injuries are covered by the Iowa workers compensation system? In Iowa, the workers compensation system covers most health conditions caused by work activities. Diseases and hearing loss caused by work activities or exposures are covered. Pre existing health conditions that are aggravated or worsened by work are also covered. III. WHO IS IN CHARGE? The Iowa Workers Compensation Commissioner is the head of the Division of Workers Compensation which is part of the State of Iowa s Workforce Development agency. The Commissioner is responsible for administering, regulating and enforcing Iowa s workers compensation laws. If there is a dispute between an injured worker and his or her employer over an Iowa workers compensation claim, an injured worker can file a petition and get a hearing in front of a deputy Workers Compensation Commissioner. A decision of a deputy can be appealed to the Commissioner. The decision of the Commissioner can be subject to judicial review by the Iowa court system. IV. CAN I LEAVE? In Iowa, workers compensation benefits are the exclusive remedy of the employee against the employer for a work related injury. Therefore, in most circumstances, an employee cannot bring a personal injury lawsuit against his or her employer for a workplace injury. If an injured Iowan wants compensation from his or her employer for a work related injury, generally the only option is through the Iowa workers compensation system. 2

4 V. WHAT ARE MY RIGHTS? When an employee suffers a work injury in Iowa, he or she is primarily entitled to three things: Medical benefits Temporary disability benefits if the employee missed time from work while recovering from the work injury Permanent disability benefits if the employee suffered permanent functional impairment as a result of the work injury These benefits are to be paid by the employer or its workers compensation insurance corporation. For the purposes of this outline, the term employer refers both to the employer or its workers compensation insurance corporation. Each type of benefit requires further explanation. A. Medical Benefits The employer must pay for all reasonable and necessary medical care required to treat an employee s work related injury. While the employer must provide medical care reasonably suited to treat a work injury, the employer has the right to choose where the injured worker goes to receive that care. Generally speaking, if the injured worker gets medical care from a provider who is not authorized by the employer, the employer will not be obligated to pay for the care. There are, however, exceptions to this rule. If a doctor is recommending treatment for a work related injury but the employer is refusing to pay for it, the injured worker can file a petition for alternative medical care with the Iowa Workers Compensation Commissioner. Talk to an attorney if recommended medical care is being denied by your employer. As part of medical benefits, the employer must reimburse the injured worker for all reasonable and necessary travel expenses for authorized medical treatment. Injured workers are entitled to be reimbursed for mileage if they drive themselves to authorized medical appointments. Mileage for the use of a private car is reimbursed at the level allowed by the IRS for business travel. Talk to an attorney if you have not been reimbursed for travel expenses to and from authorized medical treatment for your work related injury. 3

5 B. Temporary Disability Benefits If an employee misses time from work and thus loses wages while recovering from a work injury, then he or she is entitled to some amount of temporary disability benefits. Temporary disability benefits are paid at the injured worker s weekly benefit rate. A particular worker s gross weekly earnings, number of income tax exemptions, and marital status determine his or her weekly disability benefit amount. A worker s total weekly compensation benefit may not be greater than 80 percent of his or her spendable earnings. The law defines spendable earnings as the amount remaining after payroll taxes are deducted from gross weekly earnings. Correctly calculating an injured worker s weekly benefit rate can be complicated. It requires a careful review of a worker s payroll records and non wage items such as regular bonuses and room and board. For this reason, employers often do not take the time to correctly calculate weekly benefit rates. You should not assume that your weekly benefit rate has been calculated correctly. Talk to an attorney to get an independent calculation and make sure you are getting weekly benefits at the amount to which you are entitled. Technically, temporary total disability benefits (TTD) or temporary partial disability benefits (TPD) and healing period benefits (HP) are different, even though they compensate for the same time periods. 1. Temporary Total Disability (TTD) If an employee is off work more than three days because of a work injury, the employee is entitled to TTD benefits beginning on the fourth day and continuing until he or she returns to work or is recovered enough to return to similar work, whichever happens first. 2. Temporary Partial Disability (TPD) An employee is eligible for TPD benefits if he or she is still medically limited in what he or she can do because of the work injury (and therefore, still temporarily disabled), but is released to return to work in some partial or part time capacity. The employer pays normal wages for the hours worked and workers compensation pays two thirds of the difference between the average weekly wage and the actual wages paid by the employer. 3. Healing Period (HP) An employee is entitled to HP benefits while recovering from an injury which produces a permanent impairment. These benefits begin on the first calendar day after the date of the injury and continue until one of the following occurs: (1) the employee returns to work; (2) the employee is medically capable of returning to work; or (3) the employee has reached maximum medical improvement from the injury, whichever occurs first. 4

6 Weekly payments of disability benefits are to begin on the eleventh day of disability. If benefits are not paid when due, an injured worker may be entitled to interest on late payments. If weekly benefits are unreasonably delayed or denied, an injured worker may also be entitled to penalty benefits. If you are not receiving your weekly benefit checks on time, it is important to tell an attorney. There are particular documentation steps that need to be taken if you want to hold an employer accountable for late weekly benefit payments. C. Permanent Disability Benefits If an injury causes a worker to suffer a permanent functional loss of part of his or her body, then the injured worker is entitled to some amount of permanent disability benefits. Permanent disability benefits are in addition to temporary disability benefits and begin when the worker reaches maximum medical improvement. The amount of permanent disability benefits depends on: the body part affected the degree of impairment or disability the worker s weekly benefit rate 1. Scheduled Member Disabilities Generally, if the worker s injury is to a part [ member ] of the body listed in the table below, the worker s permanent disability benefits are based upon a permanent impairment rating of the injured member. Member Weeks Thumb 60 First finger 35 Second finger 30 Third finger 25 Fourth finger 20 Hand 190 Arm 250 Great toe 40 Any other toe 15 Foot 150 Leg 220 Eye 140 Loss of hearing in one ear 50 Loss of hearing in both ears 175 Permanent disfigurement, face or head 150 Body as a whole/industrial disability 500 5

7 The scheduled member table lists the number of weeks of benefits payable for 100% loss or loss of use of the particular body member. If the permanent impairment rating for the body member is less than 100%, the percentage rating is multiplied by the number of weeks listed for the body member. For example, a 20% loss of function of a thumb would be computed as 20% of 60 weeks or 12 weeks of PPD benefits at the worker s weekly benefit rate. If an injured employee receives a permanent impairment rating from an employerauthorized doctor, the employee has the right to a one time, second opinion on the rating from a doctor of the injured worker s choice at the employer s expense. If you have received a permanent impairment rating from an employer authorized doctor, talk to an attorney before exercising your right to your free second opinion. Your choice of an examining doctor could make or break your case. As will be seen in the next section, permanent disability benefits based upon a scheduled member are typically significantly less generous than permanent disability benefits based upon a body as a whole injury. For that reason, employers are often motivated to misclassify work injuries as scheduled member claims. If your injury to a scheduled member is causing symptoms in other parts of your body (for example, an injured knee can cause a change in walking patterns which can lead to back pain), talk to an attorney before exercising your right to your free second opinion. 2. Body as a Whole Disabilities Permanent injuries to body parts that are not listed on the scheduled member table are known as body as a whole injuries and are compensated much differently. Body as a whole injuries are compensated based upon industrial disability. Industrial disability is the reduction in the employee s earning capacity caused by the work injury. Industrial disability is assessed based on an evaluation of the following factors: a. Age b. Education c. Other Training and Qualifications (intellectual, emotional & physical) [ potential for rehabilitation ] d. Work Experience (before and after the injury) e. Actual Effect on Employment (loss of job/transfer to different job) [ inability to engage in employment for which the employee is fitted ] f. Actual Effect on Earnings (before v. after) 6

8 g. Functional Impairment/Body part affected h. Medical Restrictions i. Motivation to Work j. Medical Condition Before Injury and After Injury k. Site of Injury and its Severity l. Length of Healing Period m. Employer s Refusal to Rehire Iowa law provides no official formula that dictates how each of the industrial disability factors should be considered. If the assessment of industrial disability is ultimately made by the Iowa Division of Workers Compensation after a hearing, it becomes necessary for the deputy or Commissioner to draw upon his or her prior experience, as well as general and specialized knowledge, to make the finding. Permanent disability benefits for industrial disability are calculated on a 500 week basis with the percentage of the industrial disability finding being multiplied by 500 weeks. A careful reading of past industrial disability assessments shows that the Commissioner and the deputies have historically placed significant weight on whether an injured employee is left with permanent medical restrictions after a work injury. Talk to an attorney before exercising your right to your free second opinion on your impairment rating to make sure that you are evaluated for permanent medical restrictions during that exam. A careful reading of past industrial disability assessments shows that the Commissioner and the deputies have historically placed significant weight on whether an injured employee provides evidence of a motivation to work after injury. If you are released back to work by medical professionals after a work injury, talk to an attorney before making the decision to turn down a job offer, quit or retire from your pre injury job, or look for different work after being fired. Specific steps need to be followed in those situations to protect your workers compensation claim. Employers will often make a settlement offer to an injured worker after the worker has reached maximum medical improvement after a work injury. Quite often that settlement offer is only based upon the worker s permanent impairment rating. As you can see, a permanent impairment rating is only one factor in an industrial disability assessment. Often, industrial disability findings go far beyond the impairment rating number. Talk to an attorney who will do an independent assessment of your entitlement to industrial disability benefits before accepting a settlement offer. 7

9 3. Second Injury Fund Benefits In a very specific situation, an employee with a scheduled member work injury may be entitled to more than just permanent disability benefits based upon the scheduled member. Iowa law has created an additional source of compensation the Second Injury Fund (SIF) for certain workers with two separate scheduled member injuries. The Second Injury Fund may be available to workers who meet the following criteria: The employee has a qualifying first injury. A qualifying first injury is a pre existing permanent disability to a hand, arm, foot, leg or eye. This pre existing disability does not have to be the result of a work injury. AND The employee then suffers a work injury resulting in permanent partial disability to a different hand, arm, foot, leg or eye. This is referred to as the second injury. AND The amount of the employee s industrial disability after the work injury is greater than the combined scheduled member disability from both the first and the second disabled members. If an injured employee meets the criteria for a Second Injury Fund claim, the employer is required to pay all the scheduled member permanent partial disability benefits due on account of the second injury. The Second Injury Fund will then pay weekly benefits for the amount that the industrial disability caused by both injuries is greater the combined scheduled member disability from both the first and the second disabled members. A successful Second Injury Fund claim can significantly increase the permanent disability benefits due to a worker with a scheduled member injury. This possibility should always be explored when evaluating a scheduled member injury claim. Tell an attorney about any other injury, disease, or source of disability you experienced before your work injury. 4. Permanent Total Disability If a work related injury leaves an employee incapable of returning to any type of wage earning employment, the employee may be entitled to weekly benefits during the time that the employee cannot return to any gainful work. Claims for permanent total disability often require expert witness testimony and typically have to be filed, taken to hearing and, if successful, defended on appeal. If you believe you may qualify for permanent total disability benefits, it is important to consult with an attorney who has the experience and resources to effectively litigate your claim and see it through to the end. 8

10 5. Death Benefits If an employee is killed on the job, his or her dependents may be eligible to receive death benefits through the Iowa workers compensation system. A surviving spouse may receive death benefits for life or until remarriage. Dependent children are entitled to death benefits until age 18 or, if actually dependent, age 25. Other persons may qualify for death benefits if they were actually dependent upon the deceased worker. If a surviving spouse remarries and the deceased worker has no dependent children at the time of the remarriage, the surviving spouse is entitled to a two year lump sum settlement. In addition to weekly death benefits, the deceased worker s employer must pay reasonable burial expenses not to exceed twelve times the statewide average weekly wage in effect at the time of death. VI. WHAT CAN I DO IF I AM NOT GETTING WHAT I DESERVE? If injured employees do not believe they are getting the Iowa workers compensation benefits to which they are entitled, they have the right to file a petition with the Division of Workers Compensation for a hearing in front of a Deputy Commissioner. While the Commissioner does not require it, most injured workers are represented by legal counsel at these hearings. There are three important legal deadlines for Iowa workers compensation claims: A. Notice of Injury A workers compensation claim may be denied if the employer does not have notice of the work injury within 90 days of its occurrence. The 90 day period starts when the employee knew or should have known that his or her injury was related to work. B. Two Year Statute of Limitations If no weekly benefits (for either temporary or permanent disability) have been paid to the injured worker, he or she has only two years from the date of injury to file a petition with the Division of Workers Compensation. Medical benefits do not count as weekly benefits. C. Three Year Statute of Limitations If weekly benefits have been paid (for either temporary or permanent disability), the injured worker has three years from the date the last payment is mailed to file a petition with the Division of Workers Compensation. Again, medical benefits do not count as weekly benefits. 9

11 There are a number of exceptions to the strict legal deadlines for filing an Iowa workers compensation claim. Whether an exception applies to a particular case depends on the facts of the case and the current state of the law. If you believe you have a valid Iowa workers compensation claim but the time for filing the claim appears to have expired, talk to an attorney before abandoning your claim because a valid exception may apply. VII. CAN I GET A SETTLEMENT? It is possible to settle an Iowa workers compensation claim but all settlements must be submitted with proper paperwork to the Division of Workers Compensation and approved by the Workers Compensation Commissioner. The choice of a type of settlement is an important one. There are different types of settlement allowed under Iowa law and each has a different impact on an injured worker s future entitlement to workers compensation benefits. The exact language used in settlement paperwork can also be very important. The money an injured worker receives in a worker s compensation settlement can reduce a worker s eligibility for Social Security Disability benefits or Medicare benefits. An attorney can advise an injured worker how to safely settle a workers compensation claim and avoid any costly Social Security or Medicare mistakes. Before accepting a settlement after a work injury, an employee should have his or her case and settlement paperwork independently evaluated by an attorney. If you are consulting with an attorney about your workers compensation claim, make sure that the attorney knows if you are on Medicare or if you have applied for Social Security Disability benefits. VIII. WHAT IMPORTANT THINGS HAVEN T WE DISCUSSED? As has been previously stated, this outline is not meant to be a complete primer on everything you need to know to represent someone in a workers compensation claim in Iowa. You should promptly consult additional resources, particularly if you have questions concerning the following topics: Penalty benefits Interest calculation Hearing procedure Appeals Third party claims Products liability Retaliatory discharge Co worker gross negligence claims 10